The Genocide Convention: The Travaux Pre?paratoires (The Travaux Preparatoires of Multilateral Treaties, 2)

The Genocide Convention

The Travaux Préparatoires of Multilateral Treaties

VOLUME 2

The Genocide Convention The Travaux Préparatoires

By

Hirad Abtahi and Philippa Webb

Volume One

LEIDEN • BOSTON 2008

This book is printed on acid-free paper.

ISSN 1875-9807 ISBN 978 90 04 17399 6 (Volume One) 978 90 04 17400 9 (Volume Two) 978 90 04 16418 5 (Set) Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

For my parents, Homa and Homayoun. H.A. For my parents, Steve and Annabelle. P.W.

Contents Volume One Foreword by President Rosalyn Higgins ...................................

xvii

Foreword by President Philippe Kirsch .....................................

xxi

Preface .......................................................................................

xxiii

Acknowledgments .....................................................................

xxxi

Reader’s Guide ..........................................................................

xxxiii

From the Secretariat Draft to the Ad Hoc Committee on Genocide ...................................... A/BUR/50 ................................................................................ A/C.6/64 ................................................................................... A/C.6/83 ................................................................................... A/C.6/86 ................................................................................... A/C.6/84 ................................................................................... A/C.6/91 ................................................................................... A/C.6/95 ................................................................................... A/C.6/94 ................................................................................... A/C.6/96 ................................................................................... A/C.6/120 ................................................................................. A/C.6/127 ................................................................................. A/231 ........................................................................................ United Nations General Assembly Resolution 96(I) ................. E/330 ........................................................................................ E/421 ........................................................................................ E/342 ........................................................................................ E/AC.7/8 .................................................................................. E/AC.7/W.7 .............................................................................. E/AC.7/W.14 ............................................................................ E/AC.7/15 ................................................................................ E/AC.7/15/Add.2 ......................................................................

1 3 4 5 6 8 13 16 17 18 25 28 31 34 35 38 43 44 49 50 53 57

viii

Contents

E/396/Rev.1 ................................................................................. E/325 ........................................................................................... A/AC.10/41 ................................................................................. A/AC.10/42 ................................................................................. A/AC.10/42/Rev.1 ....................................................................... A/AC.10/42/Add.1 ...................................................................... A/AC.10/15 ................................................................................. A/AC.10/29 ................................................................................. A/AC.10/43 ................................................................................. A/AC.10/44 ................................................................................. A/AC.10/46 ................................................................................. A/AC.10/46/Corr.1 ...................................................................... A/AC.10/SR.28 ............................................................................ A/AC.10/SR.29 ............................................................................ A/AC.10/SR.29/Corr.1 ................................................................ A/AC.10/SR.30 ............................................................................ A/AC.10/55 ................................................................................. Secretariat Draft E/447 ................................................................ E/476 ........................................................................................... E/SR.86 ......................................................................................... E/AC.7/22 ................................................................................... E/AC.7/23 ................................................................................... E/AC.7/SR.15 .............................................................................. E/AC.7/31 ................................................................................... E/AC.7/SR.17 .............................................................................. E/SR.107 ..................................................................................... E/522 ........................................................................................... E/573 ........................................................................................... A/362 ........................................................................................... A/C.6/147 .................................................................................... A/401 ........................................................................................... A/C.6/149 .................................................................................... A/C.6/SR.39 ................................................................................ A/C.6/151 .................................................................................... A/C.6/SR.40 ................................................................................ A/C.6/155 .................................................................................... A/C.6/SR.41 ................................................................................ A/C.6/159 ....................................................................................

58 60 61 115 124 133 134 137 143 145 146 148 150 171 197 198 208 209 283 285 287 288 289 295 297 300 301 302 331 363 366 385 387 391 392 394 395 400

Contents

ix

A/C.6/160 .................................................................................... A/C.6/SR.42 ................................................................................ A/C.6/177 .................................................................................... A/C.6/SC.5/W.23 ........................................................................ A/C.6/190 .................................................................................... A/C.6/190/Corr.1 ........................................................................ A/C.6/190/Rev.1 .......................................................................... A/C.6/192 .................................................................................... A/C.6/198 .................................................................................... A/C.6/201 .................................................................................... A/C.6/204 .................................................................................... A/C.6/SR.59 ................................................................................ A/510 ........................................................................................... A/512 ........................................................................................... A/513 ........................................................................................... A/514 ........................................................................................... A/PV.123 ..................................................................................... United Nations General Assembly Resolution 180(II) ................ E/C.2/49 ...................................................................................... E/C.2/52 ...................................................................................... E/C.2/63 ...................................................................................... E/C.2/64 ...................................................................................... E/621 ........................................................................................... E/623 ........................................................................................... E/622 ........................................................................................... E/623/Add.1 ................................................................................ E/C.2/78 ...................................................................................... E/662 ........................................................................................... E/662/Add.1 ................................................................................ E/663 ........................................................................................... E/SR.139 ..................................................................................... E/SR.140 ..................................................................................... E/622/Add.1 ................................................................................ E/AC.7/65 ................................................................................... E/AC.7/SR.37 .............................................................................. E/690 ........................................................................................... E/690/Add.1 ................................................................................ E/734 ...........................................................................................

401 402 407 408 412 417 418 422 423 424 425 426 431 436 437 438 439 467 469 471 473 475 478 529 572 577 580 583 584 585 586 592 599 600 601 616 617 619

x

Contents

E/621/Add.1 E/623/Add.2 E/623/Add.3 E/623/Add.4

................................................................................ ................................................................................ ................................................................................ ................................................................................

620 633 635 639

From the Ad Hoc Committee Draft to the Sixth Committee ..... E/AC.25/2 ................................................................................... E/AC.25/1 ................................................................................... E/AC.25/3 ................................................................................... E/AC.25/3/Rev.1 .......................................................................... E/AC.25/4 ................................................................................... E/AC.25/5 ................................................................................... E/AC.25/6 ................................................................................... E/AC.25/SR.1 .............................................................................. E/AC.25/SR.2 .............................................................................. E/AC.25/SR.2/Corr.2 .................................................................. E/AC.25/7 ................................................................................... E/AC.25/SR.3 .............................................................................. E/AC.25/SR.3/Corr.1 .................................................................. E/AC.25/SR.4 .............................................................................. E/AC.25/SR.4/Corr.1 .................................................................. E/AC.25/SR.4/Corr.2 .................................................................. E/AC.25/SR.5 .............................................................................. E/AC.25/SR.5/Corr.1 .................................................................. E/AC.25/SR.5/Corr.2 .................................................................. E/AC.25/SR.6 .............................................................................. E/AC.25/SR.6/Corr.1 .................................................................. E/AC.25/SR.6/Corr.2 .................................................................. E/AC.25/SR.6/Corr.3 .................................................................. E/AC.25/10 ................................................................................. E/AC.25/SR.7 .............................................................................. E/AC.25/SR.7/Corr.1 .................................................................. E/AC.25/SR.7/Corr.2 .................................................................. E/AC.25/SR.7/Corr.3 .................................................................. E/AC.25/SR.8 .............................................................................. E/AC.25/SR.8/Corr.1 .................................................................. E/AC.25/SR.8/Corr.2 .................................................................. E/AC.25/SR.9 .............................................................................. E/AC.25/8 ...................................................................................

641 643 649 657 667 677 678 681 682 688 695 696 699 709 710 723 724 725 738 739 740 757 758 759 760 777 793 794 795 796 817 818 819 829

Contents

xi

E/AC.25/9 ................................................................................... E/AC.25/SR.10 ............................................................................ E/AC.25/SR.10/Corr.1 ................................................................ E/AC.25/SR.10/Corr.2 ................................................................ E/AC.25/SR.10/Corr.3 ................................................................ E/AC.25/SR.11 ............................................................................ E/AC.25/SR.11/Corr.1 ................................................................ E/AC.25/SR.11/Corr.2 ................................................................ E/AC.25/11 ................................................................................. E/AC.25/SR.12 ............................................................................ E/AC.25/SR.12/Corr.1 ................................................................ E/AC.25/SR.13 ............................................................................ E/AC.25/SR.13/Corr.1 ................................................................ E/AC.25/SR.13/Corr.2 ................................................................ E/AC.25/SR.14 ............................................................................ E/AC.25/SR.14/Corr.1 ................................................................ E/AC.25/SR.15 ............................................................................ E/AC.25/SR.16 ............................................................................ E/AC.25/SR.17 ............................................................................ E/AC.25/SR.17/Corr.1 ................................................................ E/AC.25/SR.17/Corr.2 ................................................................ E/AC.25/SR.18 ............................................................................ E/AC.25/SR.18/Corr.2 ................................................................ E/AC.25/SR.18/Corr.3 ................................................................ E/AC.25/SR.19 ............................................................................ E/AC.25/SR.19/Corr.1 ................................................................ E/AC.25/SR.20 ............................................................................ E/AC.25/SR.20/Corr.1 ................................................................ E/AC.25/SR.20/Corr.2 ................................................................ E/AC.25/SR.20/Corr.3 ................................................................ E/AC.25/SR.21 ............................................................................ E/AC.25/SR.21/Corr.1 ................................................................ E/AC.25/SR.22 ............................................................................ E/AC.25/SR.22/Corr.1 ................................................................ E/AC.25/SR.23 ............................................................................ E/AC.25/W.1 ............................................................................... E/AC.25/W.1/Add.1 .................................................................... E/AC.25/W.1/Add.2 .................................................................... E/AC.25/W.1/Add.3 ....................................................................

833 834 845 846 847 848 855 856 857 860 869 871 882 883 884 894 895 899 909 916 917 918 931 932 933 940 941 950 951 952 953 960 961 969 970 979 985 991 996

xii

Contents

E/AC.25/W.1/Add.4 ................................................................. E/AC.25/W.2 ............................................................................ E/AC.25/W.2/Add.1 ................................................................. E/AC.25/SR.24 ......................................................................... E/AC.25/SR.24/Corr.1 ............................................................. E/AC.25/SR.25 ......................................................................... E/AC.25/SR.25/Corr.1 ............................................................. E/AC.25/SR.26 ......................................................................... E/AC.25/SR.26/Corr.1 ............................................................. E/AC.25/W.3 ............................................................................ E/AC.25/W.4 ............................................................................ E/AC.25/W.5 ............................................................................ E/AC.25/SR.27 ......................................................................... E/AC.25/SR.28 ......................................................................... E/AC.25/SR.28/Corr.1 ............................................................. E/794 ........................................................................................ E/794/Corr.1 ............................................................................ Ad Hoc Committee Draft E/AC.25/12 .................................... E/CN.4/94 ................................................................................ E/CN.4/136 .............................................................................. E/800 ........................................................................................ E/C.2/104 ................................................................................. E/C.2/105 ................................................................................. E/AC.27/1 ................................................................................ E/SR.180 .................................................................................. E/SR.201 .................................................................................. E/SR.202 .................................................................................. E/SR.218 .................................................................................. E/SR.219 .................................................................................. E/1049 ......................................................................................

1005 1009 1012 1013 1027 1028 1036 1037 1050 1051 1054 1071 1088 1098 1109 1110 1160 1161 1167 1168 1169 1171 1173 1175 1177 1177 1202 1219 1240 1252

Volume Two From the Sixth Committee to the Genocide Convention ........ Official Records of the Third Session of the General Assembly, Part I, Legal Questions, Sixth Committee ................................ Sixth Committee, Third Session, Table of Contents ................. Members of the Sixth Committee ............................................

1253 1255 1256 1272

Contents

Agenda for the Third Session .................................................... A/C.6/SR.61 ............................................................................. A/C.6/SR.62 ............................................................................. A/C.6/SR.63 ............................................................................. A/C.6/SR.64 ............................................................................. A/C.6/SR.65 ............................................................................. A/C.6/SR.66 ............................................................................. A/C.6/SR.67 ............................................................................. A/C.6/SR.68 ............................................................................. A/C.6/SR.69 ............................................................................. A/C.6/SR.71 ............................................................................. A/C.6/SR.72 ............................................................................. A/C.6/SR.73 ............................................................................. A/C.6/SR.74 ............................................................................. A/C.6/SR.75 ............................................................................. A/C.6/SR.76 ............................................................................. A/C.6/SR.77 ............................................................................. A/C.6/SR.78 ............................................................................. A/C.6/SR.79 ............................................................................. A/C.6/SR.80 ............................................................................. A/C.6/SR.81 ............................................................................. A/C.6/SR.82 ............................................................................. A/C.6/SR.83 ............................................................................. A/C.6/SR.84 ............................................................................. A/C.6/SR.85 ............................................................................. A/C.6/SR.86 ............................................................................. A/C.6/SR.87 ............................................................................. A/C.6/SR.91 ............................................................................. A/C.6/SR.92 ............................................................................. A/C.6/SR.93 ............................................................................. A/C.6/SR.94 ............................................................................. A/C.6/SR.95 ............................................................................. A/C.6/SR.96 ............................................................................. A/C.6/SR.97 ............................................................................. A/C.6/SR.98 ............................................................................. A/C.6/SR.99 ............................................................................. A/C.6/SR.100 ........................................................................... A/C.6/SR.101 ........................................................................... A/C.6/SR.102 ...........................................................................

xiii 1284 1285 1285 1289 1300 1310 1322 1332 1342 1354 1362 1367 1378 1390 1405 1420 1430 1443 1455 1465 1473 1487 1499 1519 1536 1553 1572 1588 1591 1609 1625 1639 1654 1669 1687 1702 1714 1732 1745

xiv

Contents

A/C.6/SR.103 ........................................................................... A/C.6/SR.104 ........................................................................... A/C.6/SR.105 ........................................................................... A/C.6/SR.106 ........................................................................... A/C.6/SR.107 ........................................................................... A/C.6/SR.108 ........................................................................... A/C.6/SR.109 ........................................................................... A/C.6/SR.110 ........................................................................... A/C.6/SR.128 ........................................................................... A/C.6/SR.129 ........................................................................... A/C.6/SR.130 ........................................................................... A/C.6/SR.131 ........................................................................... A/C.6/SR.132 ........................................................................... A/C.6/SR.133 ........................................................................... A/C.6/SR.134 ........................................................................... Table of Contents: Annexes ...................................................... A/C.6/206 ................................................................................. A/C.6/209 ................................................................................. A/C.6/211 ................................................................................. A/C.6/213 ................................................................................. A/C.6/214 ................................................................................. A/C.6/215/Rev.1 ....................................................................... A/C.6/217 ................................................................................. A/C.6/218 ................................................................................. A/C.6/221 ................................................................................. A/C.6/222 ................................................................................. A/C.6/223 & Corr.1 ................................................................. A/C.6/224 & Corr.1 ................................................................. A/C.6/225 ................................................................................. A/C.6/227 ................................................................................. A/C.6/229 ................................................................................. A/C.6/230 & Corr.1 ................................................................. A/C.6/231 ................................................................................. A/C.6/232/Rev.1 ....................................................................... A/C.6/235 ................................................................................. A/C.6/236 & Corr.1 ................................................................. A/C.6/238 ................................................................................. A/C.6/241 .................................................................................

1759 1775 1786 1802 1812 1824 1835 1849 1864 1871 1882 1898 1910 1922 1937 1943 1962 1963 1964 1967 1968 1968 1972 1975 1976 1977 1977 1978 1979 1983 1983 1984 1984 1985 1985 1986 1988 1991

Contents

xv

A/C.6/245 ................................................................................. A/C.6/248 ................................................................................. A/C.6/248/Rev.1 ....................................................................... A/C.6/249 ................................................................................. A/C.6/251 ................................................................................. A/C.6/252 ................................................................................. A/C.6/256 ................................................................................. A/C.6/257 ................................................................................. A/C.6/258 ................................................................................. A/C.6/261 ................................................................................. A/C.6/264 ................................................................................. A/C.6/267 ................................................................................. A/C.6/269 ................................................................................. A/C.6/270 ................................................................................. A/C.6/273 ................................................................................. A/C.6/288 ................................................................................. A/C.6/289 & Corr.1 ................................................................. A/C.6/295 ................................................................................. A/C.6/299 ................................................................................. A/C.6/305 ................................................................................. A/C.6/310 ................................................................................. A/C.6/312 ................................................................................. A/760 ........................................................................................ A/760/Corr.2 ............................................................................ A/766 ........................................................................................ A/770 ........................................................................................ A/PV.178 .................................................................................. A/PV.179 ..................................................................................

1992 1993 1994 1994 1995 1996 1997 1999 2004 2004 2005 2005 2006 2008 2009 2010 2011 2017 2018 2019 2020 2021 2022 2038 2039 2041 2042 2063

Convention on the Prevention and Punishment of the Crime of Genocide ..............................................................................

2086

Complete List of Documents with Full Titles ..........................

2093

Index of Names ........................................................................

2121

General Index ...........................................................................

2132

Foreword by Judge Rosalyn Higgins, President of the International Court of Justice The Convention on the Prevention and Punishment of the Crime of Genocide was opened for signature some sixty years ago. As the authors of this very useful study point out, there has been depressingly frequent occasion for an examination of its terms in both international and national courts. There is undoubtedly a degradation of the concept of genocide in its all too easy invocation by politicians who have not troubled to learn the distinction between mass murders, war crimes, crimes against humanity and genocide. Lawyers have not been immune from contributing to this degradation. The International Court of Justice, the principal judicial organ of the United Nations, is not a criminal court. Its function is to settle disputes between States and also to render advisory opinions so requested. But in no less than six cases has the Court had to consider the Genocide Convention. Its advice on the legality and effect of reservations to the Genocide Convention could not be provided without consideration of what it termed “the special characteristics of the Genocide Convention” and “the objects pursued by the General Assembly and the Contracting Parties”.1 In particular, the issue of the presumed intentions about the universality of participation in the Convention (an issue that was to appear, in somewhat different form, some sixty years later in the Croatia v. Serbia case)2 were of central interest. There were issues both about the territorial and the temporal scope of the Genocide Convention in the 1996 Judgment on Preliminary Objections

1

2

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15 at p. 23. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), I.C.J. Reports 2008.

xviii

Foreword by President Rosalyn Higgins

in the Bosnia and Herzegovina v. Yugoslavia case3 where the Court would have been assisted by having the full travaux préparatoires to hand. In the 2004 Judgments on the Legality of the Use of Force, the Court found the legislative history of Article 35(2) of the Statute of the Permanent Court of International Justice to be clear, whereas the travaux of the ICJ Statute “are less illuminating”.4 It might have been helpful to see if this same legal issue was in the sights of those drafting the Genocide Convention. In the 2007 Bosnia and Herzegovina v. Serbia and Montenegro Judgment,5 the Court had to address many difficult questions, the answer to which would have been much facilitated by the availability of the travaux in an accessible and structured form. These included whether the Court could make a finding of genocide in the absence of a prior conviction for genocide by a competent criminal court, issues relating to the definition of the protected group, the obligation to prevent genocide, matters relating to the obligation to punish genocide – and the very problematic question of complicity in genocide and the relationship of this criminal law notion to the international law of State responsibility. The Court would also have found the travaux of help in the 2008 Croatia v. Serbia case. This work, although prepared by young scholars, reflects old-fashioned virtues of meticulous and painstaking research and a commitment to objectivity. As the authors tell us, they decided that they would, through careful selection of keywords and the provision of analytical categories, provide unvarnished access to the riches of the travaux préparatoires. The volume is not a vehicle for views of the authors on the matters being discussed. It is rather intended – to use the authors’ own phrase – as a “gateway to the negotiation process”. At the same time, they make clear the help they have derived from existing analyses of the Genocide Convention and pay particular tribute to Robinson’s The Genocide Convention: a commentary and Schabas’ Genocide in international law.

3

4

5

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J. Reports 1996 (II), p. 595. Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, p. 279, at para. 113. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Reports 2007.

Foreword by President Rosalyn Higgins

xix

It will be very useful for those turning to these important works to learn the author’s view of this or that legal issue, now to have not only his legal and diplomatic analysis, but also this new publication where everything may readily be checked against the travaux préparatoires. Of course, the content of travaux préparatoires, when turned to under Article 32 of the Vienna Convention on the Law of Treaties, is often disappointing to the user in the sense that it rarely provides crystal clear evidence as to what the drafters intended by this or that phrase, or thought about this or that legal conundrum. These travaux are no exception. But certain insights do emerge. Hirad Abtahi and Philippa Webb are surely destined, on the evidence shown in their careers thus far, to become important persons in the world of international law. Senior international lawyers of the current generation have, I think, been rather good at understanding that international law cannot only be about the reiteration of rules established in different era, but rather about the development and application of norms that speak to urgent contemporary needs and the welfare of generations to come. Human rights, intergenerational obligations and the legal underpinning of sustainable development are notions that are familiar to today’s leading international lawyers. It is extremely encouraging that voices of today’s generation choose to focus their research on archives of the past, which they clearly believe underpin our knowledge today of the legal concept of genocide. Of course, such pleasing willingness to engage with the past is not of itself enough. It will be worth little unless it is extremely well done. And the authors have fully met that important caveat. The work has been prepared with meticulous care, as the painstaking process in the preface evidences. Abtahi and Webb have engaged in long and heavy old-fashioned research. And of course, knowing where parts of the jigsaw might be found is quite one thing, but understanding their value and their potential for scholars, advocates and judges in the years to come is quite another. That, along with the ability to make the myriad reasoned decisions about the handling, ordering and presentation of the documents comprising the travaux, requires considerable existing expertise in the law relating to genocide. Rosalyn Higgins The Hague 6 October 2008

Foreword by Judge Philippe Kirsch, President of the International Criminal Court This year the international community is celebrating the anniversaries of the adoption of two significant milestones in the effort to prevent and punish the crime of genocide. On 9 December 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. To this day, the Convention has provided the authoritative definition of genocide under international law. The Contracting Parties to this historic treaty confirmed that genocide is a crime under international law and undertook to prevent and to punish the crime. Moreover, they declared that individuals should be punished for genocide regardless of their official status. They agreed to enact necessary legislation to punish genocide and to provide effective penalties for those convicted of this offence. Article 6 of the Convention foresaw the possibility of an international penal tribunal which could try persons charged with genocide. Fifty years later, on 17 July 1998, a United Nations-sponsored conference created just such an international penal tribunal when it adopted the Rome Statute of the International Criminal Court. The Court has jurisdiction over the most serious crimes of concern to the international community, including genocide. It is a treaty-based court with 108 States Parties. The definition of genocide in the Rome Statute is taken from the 1948 Convention, and, like the 1948 Convention, the Rome Statute provides that official status does not exempt individuals from criminal responsibility. Both the 1948 Convention and the Rome Statute recognize that it is primarily the responsibility of national courts to investigate and prosecute genocide. However, where national courts are unwilling or unable to do so genuinely, international courts and tribunals are necessary. For the first forty-five or so years following the adoption of the 1948 Convention, genocide was rarely punished by national courts, and no international courts or tribunals existed. Beginning in the 1990s, however, the situation changed considerably with the creation of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, and then the Rome Statute of the International Criminal Court. Trials have since

xxii

Foreword by President Philippe Kirsch

been conducted and individuals have been convicted for genocide before the ad hoc Tribunals and national courts. Following the adoption of the Rome Statute and in accordance with its principle of complementarity, many States reviewed and amended their domestic legislation to be able to more effectively prosecute and punish international crimes, including genocide. In cases where national courts are unwilling or unable genuinely to investigate or prosecute, individuals may be tried on charges of genocide before the International Criminal Court. As national and international courts are called on to deal with genocide, they will normally have recourse to the 1948 Convention either directly or in interpreting their own applicable laws. In the case of the International Criminal Court, for example, the Court shall apply applicable treaties and rules of international law as well as general principles of law derived from national laws of legal systems of the world. In this regard, it is worth recalling the finding of the International Court of Justice that “the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation.” As courts look into the 1948 Convention, many questions of interpretation will undoubtedly come up. In line with article 32 of the Vienna Convention on the Law of Treaties, the travaux préparatoires will play a valuable role as a supplementary means of interpretation. By collecting the travaux into one resource and giving the reader direct and unfettered access to the original sources, the authors of this book have performed a task which will be greatly appreciated by practitioners and academics alike. Using their experience at different international courts and tribunals dealing with genocide, they have organized and indexed the work in such a way as to assist the reader understand the 1948 Convention’s complex history. From the moment that Raphaël Lemkin first coined the term “genocide” in 1944, the international community has sought to establish effective mechanisms to ensure its criminal prosecution either domestically or internationally, and thereby its prevention. The world is still a long way from banishing this “odious scourge” as the Convention calls it. Nevertheless, with the recent enhancement of international criminal justice through the strengthening of domestic courts and the establishment of international courts and tribunals, substantial progress is being made. Philippe Kirsch The Hague 25 September 2008

Preface Of one Essence is the human race, thus has Creation put the Base; One Limb impacted is sufficient, For all Others to feel the Mace Sa’di

Sixty years have passed since the Convention on the Prevention and Punishment of the Crime of Genocide was opened for signature. It is a grim reality that there has been cause for national and international courts to interpret and apply this Convention on a regular basis. On the international level, the question of genocide has come before the International Court of Justice (ICJ), the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the European Court of Human Rights, the Inter-American Court of Human Rights, the Iraqi Special Tribunal and the Extraordinary Chambers in the Courts of Cambodia. Dozens of cases have also been heard by national courts. The growing body of judicial practice that exists reveals different approaches to several aspects of the crime of genocide, including the definition of the protected group, the nature of the intent, the requirements of complicity, the relationship between ethnic cleansing and genocide, and whether cultural genocide exists. It is our hope that this publication will prove a source of reference for those who are grappling with these difficult questions. * This work had its genesis seven years ago, in the chambers of the ICTY, one of the international courts actively engaged in interpreting and applying the Genocide Convention.

xxiv

Preface

In early 2001, while presiding over the genocide-related Sikirica case in the ICTY’s Trial Chamber III, Judge Patrick Lipton Robinson would draw Hirad’s attention to the 1969 Vienna Convention on the Law of Treaties during the discussions regarding the relevant provisions of the 1948 Genocide Convention. Judge Robinson particularly referred to Article 31 on “general rule of interpretation” and Article 32 on “supplementary means of interpretation”, which provides: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

In accordance with this provision, Hirad gathered those documents of the travaux préparatoires that were relevant to the legal and factual aspects of the case at hand. Later in 2001, when the Milošević case, which included genocide charges, was assigned to Trial Chamber III, Hirad did the same. Beyond those travaux documents that appeared to be relevant to the above cases, the information contained in other travaux documents was so enlightening that Hirad began gathering them for his own interest, even after he left the ICTY to become the Legal Adviser to the ICC Presidency. To his surprise, there was no single publication containing all the travaux. It was during those years that the idea of this book germinated: to gather together in a single publication the records of the multitude of meetings which led to the adoption of the Genocide Convention. But soon the task appeared to be monumental: dating back to the very origins of the United Nations in the late 1940s, most of the documents were old, often in bad condition and scattered in various places. Since the negotiations kept moving from one entity to another (and at times overlapped), tracing the discussions was like putting together a puzzle. Far from being discouraged, this complexity constituted an extra motivation

Preface

xxv

for developing the book project and in 2006 Hirad invited Philippa – a former colleague from the ICC who had taken up the post of Special Assistant to the President of the ICJ – to join the project. Having worked on the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the first legal case in which allegations of genocide had been made by one State against another, she immediately saw the value of the project. Philippa undertook the task of gathering the remaining documents. Since no central list was ever produced by the UN, this process involved reading through the text and footnotes of every document to see which other documents were cited, searching electronic databases and catalogues, and trawling through materials in the Peace Palace Library in The Hague and the Dag Hammarskjöld Library in New York. After much investigative work, the number of documents had grown to three bulging folders. The next challenge was to put these documents into an order that reflected the progression of the negotiations, and took into account the multiple entities, delegations and persons who contributed to the Convention. During many evenings in The Hague, after long days at the ICC and ICJ, Hirad and Philippa sorted through the documents and created the Complete List of Documents with Full Titles that appears before the Index. This detailed list adopts a minimalist approach, highlighting the three main texts: the Secretariat Draft, the Ad Hoc Committee Draft and the final Convention. It was a conscious decision not to provide multiple sub-headings. This was partly a result of the overlapping nature of some of the discussions – the negotiations simply could not be neatly divided into discrete categories. Moreover, Hirad and Philippa believed a ‘neutral’ presentation of the List would facilitate the act of interpretation. None of the 337 documents were available in electronic, searchable format. Moreover, many of the documents only existed as fragile hard copies, such as the sample below.

xxvi

Preface

Preface

xxvii

Brill arranged for all the materials gathered by Hirad and Philippa to be “rekeyed” and transformed into word-processed documents. After receiving the word-processed files, Hirad and Philippa embarked on the editing process. This involved reading through the documents line by line, correcting any errors that occurred during the rekeying process, inserting [sic] to indicate errors in the original documents, reformatting the documents to achieve a consistent style for headings, paragraphs, quotations and lists, indicating where discussions did not pertain to the Genocide Convention, and identifying relevant line and page numbers for corrigenda. Hirad and Philippa determined early on that a detailed Index would be vital to the project and meticulously compiled a long list of keywords to this end. These keywords were then arranged into analytical categories and cross-referenced. The Index is intended to be research guide. A reader may indeed start their research on the travaux with the Index; it is a gateway to the negotiation process. * In reading the travaux, the reader should bear in mind their historical context – the Genocide Convention was drafted at a time when, while the ashes of the Holocaust were still warm in Europe, the Pacific entrée en scène of Little Boy and Fat Man had brought World War II to a definitive end. This was a time when the Nürnberg and Tokyo trials were undertaking the then unimaginable task of trying individuals for war crimes and crimes against humanity. A time when a State called the Soviet Union existed, and when Bernard Baruch and Walter Lipmann were in the process of introducing the term Cold War. This was a time when the People’s Republic of China had not yet been proclaimed, nor had Alfred Sauvy yet coined the term “Third World”, and when, though still a fact of life, colonialism was beginning to be challenged. It was in that context that the negotiations on the Genocide Convention took place, within the framework of the young United Nations. Bearing in mind this historical context helps one better understand the discussions among the delegations, including why particular topics generated in-depth – and at times passionate – debate.

xxviii

Preface

Hirad and Philippa found two books particularly helpful for understanding the context of the negotiations: Nehemiah Robinson’s masterful The Genocide Convention: a commentary1 and William A. Schabas’ definitive Genocide in international law.2 These two works are respectively a commentary and a “study” on the Convention, with the main voice being that of the author. This publication differs from those works in that it seeks to bring out the voices of the negotiators and drafters of the Convention by providing readers with the actual texts to interpret for themselves. It also includes a greater number of texts, such as working documents and corrigenda. This publication serves a complementary purpose to the invaluable works of Robinson and Schabas. The decision to include every single relevant document produced between 1946 and 1948 was also motivated by the desire to make this work of interest to legal historians. The documents reproduced here are useful not only as “supplementary means of interpretation”, but also as records of the “making of ” one of the very first multilateral conventions drafted under the auspices of the United Nations. These verbatim records contain fascinating exchanges between some of the leading legal minds of the time (a number of whom went on to become Members of the International Court of Justice) and provide insights into the evolving methods of work for the drafting of international conventions. There are many treasures buried in these travaux préparatoires. For instance, it is not widely known that it was the delegation of Saudi Arabia that proposed the very first draft of the Genocide Convention.3 Some events take on significance with the benefit of hindsight – the delegation of Yugoslavia was one of the most vocal advocates of the “obligation to prevent” during the drafting of the Convention. Six decades later, Serbia was held by the ICJ to have violated this very obligation with regard to the 1995 genocide in Srebrenica.4 1 2 3

4

Published in 1960 by the Institute of Jewish Affairs. Published in 2000 by Cambridge University Press. A/C.6/86, 26 November 1946, Sixth Committee, Delegation of Saudi Arabia: Draft Protocol for the Prevention and Punishment of Genocide. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, at paras. 428–438.

Preface

xxix

Bearing in mind the fact that genocide is a complex crime (many have opined that it has a subjective surplus and an objective deficit) it is our sincere hope that the readers – international and national judges and lawyers, legal academics, historians, anthropologists, sociologists, political scientists – will find this work helpful in comprehending the contours of this crime. Hirad Abtahi and Philippa Webb The Hague, 8 August 2008

Acknowledgments This publication has been seven years in the making. We are deeply grateful for the support of various people who have made it possible to publish these volumes on the occasion of the sixtieth anniversary of the Genocide Convention – something that had always been our intention, but at times seemed out of reach. Our warm thanks go to Lindy Melman at Koninklijke Brill NV, whose enthusiasm for this project has been a source of inspiration and whose wise advice at critical moments has been much appreciated. Renee Otto handled the production process with great skill and efficiency. We are also indebted to the people who undertook the laborious rekeying process, helping us to transform a mass of hard-copy UN documents into pristine typescript. The staff of the libraries at the Peace Palace, the International Criminal Tribunal for the former Yugoslavia and United Nations Headquarters have assisted us greatly in obtaining the documents that make up the travaux préparatoires. We note in particular the invaluable help of Marc Schiethart at the International Court of Justice and the UN Reference Team at the Dag Hammarskjöld Library. We are also grateful to Annebeth Rosenboom and Bradford C. Smith, Chief and Deputy Chief of the UN Treaty Section, who helped us to locate elusive UN working documents. We express our gratitude to President Higgins and President Kirsch for finding time in their extremely busy schedules to write the forewords to this publication. Hirad wishes to thank Jonathan Cedarbaum, his former colleague at the International Criminal Tribunal for the former Yugoslavia, for his advice and encouragement during the period when Hirad was still conceptualising this project. Finally, we acknowledge the essential support our families have given to this project. Philippa thanks her husband, Eric, for his patience, good humour (always appreciated when one is immersed in genocide

xxxii

Acknowledgments

documentation) and constant encouragement. She is also grateful to her parents and sister for their keen interest in and unstinting support for all that she does, including this project. Hirad thanks Donatella for her intellectual elegance and warm encouragement, which have remained inexhaustible even as Hirad abused her patience for seven years. Hirad’s last acknowledgment goes to his parents and sister who, notwithstanding a revolution, a war and the subsequent uprooted life in many continents, have always inspired him through their unshaken belief in the beauty of human groups’ diversity.

Reader’s Guide This work contains 337 documents produced between 1946 and 1948. It is treasure chest of material. The documents originated from national delegations, various committees and commissions, the Economic and Social Council, the Sixth Committee and the General Assembly. They include letters, communications, working papers, reports, summary records, procès verbaux, memoranda, notes, amendments, revisions, corrections, draft conventions and resolutions. It is rather miraculous that the United Nations – newly established and working without the benefit of information technology – was able comprehensively to document the making of the Genocide Convention in the way that it did. At the same time, the travaux préparatoires do contain errors and sometimes puzzling changes in chronology, language and numbering. In piecing together the negotiating and drafting process, we have had to make decisions about how to arrange this mass of material and present it to the reader. Our guiding principle has been to make the materials as accessible and user-friendly as possible, while being true to the originals. This Reader’s Guide explains the distinctive features of United Nations documentation and sets out the decisions we took in transforming this mass of papers into this publication. It also contains notes about specific documents. Guide to United Nations Document Symbols5 Most of the documents in this publication are identified by a combination of numbers and letters. The first component usually reflects the parent organ issuing the document or to which the document is being submitted:

5

Based on the UN Documentation Research Guide: http://www.un.org/depts/dhl/ resguide/symbol.htm.

xxxiv

Reader’s Guide

A/-

General Assembly

E/-

Economic and Social Council

Secondary and tertiary components indicate subsidiary bodies: -/AC. . . ./-

Ad hoc committee

-/BUR. . . ./-

General committee documents

-/C. . . ./-

Standing/permanent/main committee

-/CN. . . ./-

Commission

-/SC. . . ./-

Subcommittee

-/Sub. . . ./-

Subcommission

Special components reflect the nature of the document: -/PV. . . .

Verbatim records of meetings (procès-verbaux)

-/RES/-

Resolutions

-/SR. . . .

Summary records of meetings

-/W. . . .

Working papers

The final component, appearing as a suffix to a symbol, reflects modifications to the original text: -/Add. . . .

Addendum

-/Corr. . . .

Corrigendum (which may not apply to all language versions)

-/Rev. . . .

Revision (replacing texts previously issued)

The date that generally appears below the symbol of a document does not reflect the date of publication of the document itself, but the date of issuance by the substantive department. On that date, the document is registered and its processing (translation, editing, and printing) starts. Depending on the length of the document, there may be a substantial gap between the issuance date and the end-of-processing date.

Reader’s Guide

xxxv

Presentation of the materials Between 1946 and 1948, the United Nations was working on multiple issues and meetings that involved discussion of the Genocide Convention often included discussion on other issues. We have omitted such discussions where it is crystal clear that the discussion has no relevance to the Genocide Convention. We indicate this with “[Discussions pertaining to issues other than the Genocide Convention]”. However, where the discussion could have some relevance or influence on the making of the Genocide Convention, we have erred on the side of caution and included it in the text and the index. Similarly, annexes that do not relate to the Genocide Convention are listed in the Table of Contents: Annexes to provide the reader with the context for meetings of the Sixth Committee that took place in 1948. Tables of contents that appear in the original documents have been reproduced, but page numbers now correspond to the pages in this publication. Footnotes are those found in the original documents, but we have, where necessary, moved them from the bottom of the page to a position in the text that makes it easier for the reader to refer to the footnote. Underlining used in the original document has been converted to italics. The English text of a document has been used even when the original language of the document was another official language of the United Nations. In two cases, only the French version of a document was available so we have included it here.6 Where a corrigendum pertains only to the French version of a document, we have not included in this work.7 Where identical documents with different document numbers exist, we have included only one.8 We have strived to establish the order of the documents in relation to the chronology of the discussions, not the date of issuance of the documents. 6

7 8

A/AC.10/41, 6 June 1947, Commission chargée d’étudier le développement progressif du droit international et sa codification, Projet de convention concernant la prévention et la répression du génocide et commentaires y relatifs, (prépare par le Secrétariat); E/AC.25/W.3, 30 April 1948, Comité Spécial du Génocide: déclaration du représentant de l’Union des Républiques Socialistes Soviétiques au Comité Spécial du Génocide exposant les motifs du vote contre l’ensemble de la Convention. E/AC.25/SR.2/Corr.1 and E/AC.25/SR.18/Corr.1 pertain only to the French draft. For example, E/PV.70 and E/421, E/396/Rev.1 and E/PV.82.

xxxvi

Reader’s Guide

Often they coincide, sometimes they do not. We have been guided by the order in which documents were discussed by the drafters of the Genocide Convention.9 As would be expected for such a large amount of material produced in rudimentary manner by today’s standards, the travaux préparatoires contain a number of errors, ranging from spelling mistakes to incorrect document numbers.10 “[sic]” has been inserted after apparent errors in the original documents. We have indicated punctuation errors with “[sic]” where the sense of sentence would otherwise be affected. We have not indicated errors through the use of “[sic]” in the spelling of names of persons unless it is an obvious spelling mistake in a name that is repeated, such as “Laks” instead of “Lachs”. In all other cases, we have reproduced the spelling, accents and symbols as they appear in the original documents. We have not corrected commonly accepted errors, such as “Nurnberg” or “Nuremberg” instead of “Nürnberg”. Some of the original documents are now in very poor condition. “[illegible]” has been used to replace words that cannot be read in the original or the best copy available thereof. In several instances, a corrigendum was issued after the original document had been distributed. Since the line and page numbers in the corrigenda no longer relate to the line and page numbers of this publication, we have indicated in bold and square brackets the line and page numbers in the document that is being corrected. We have done the same where one document refers to certain pages in another document.11 9

10

11

For example, A/C.6/95 (1946, New text of the amendment proposed by the French delegation to the draft resolution relating to the crime of genocide) appears before A/C.6/94 (1946, Amendment proposed by the delegation of Chile to the draft resolution on the crime of genocide) because this is the order in which these documents were discussed by the Sixth Committee. For example, in document A/C.6/190, document A/401/Add.2 is incorrectly cited as A/402/Add.2; in document A/510, document A/401/Add.2 is incorrectly cited as A/401/Add.3; in document A/C.6/SR.69, document A/C.6/221 is incorrectly cited as A/C.6/211; and in document A/C.6/SR.109, document A/C.6/261 is incorrectly cited as A/C.6/621. This has not been possible where a document was published by the UN in a consolidated version with page numbers that differed from the original document to which reference was made (e.g. A/PV.123).

Reader’s Guide

xxxvii

Notes regarding specific documents Precise months and dates were not specified for several documents. We have therefore simply indicated the year that they were produced.12 On occasion, drafters refer to documents that concern a topic other than the Genocide Convention, such as the Draft Declaration on Human Rights. We have not reproduced such documents in this publication.13 In a handful of cases, the drafters refer to documents that we have not been able to locate in electronic or paper archives at the Peace Palace Library and the United Nations Library in New York. If a reader subsequently locates these documents, we will gratefully acknowledge them in a later edition.14

12 13 14

A/C.6/83, A/C.6/95, A/C.6/94, A/C.6/120. E/AC.7/15/Add.1. These documents are referred to as: 605-8-1-1/EG (or 605-S-1-1/EG), E/799, E/CN.7/ W.28, E/965, SOA 17/2/01/EG and A/181.

From the Secretariat Draft to the Ad Hoc Committee on Genocide

A/BUR/50

3

ANNEX 15

Draft resolution relating to the crime of genocide, proposed by the delegations of Cuba, India and Panama [Document A/BUR/50] [Original text: French] Whereas throughout history and especially in recent times many instances have occurred when national, racial, ethnical or religious groups have been destroyed, entirely or in part; and such crimes of genocide not only shook the conscience of mankind, but also resulted in great losses to humanity in the form of cultural and other contributions represented by these human groups; Whereas genocide is a denial of the right to existence of entire human groups in the same way as homicide is the denial of the right to live for individual human beings and that such denial of the right to existence is contrary to the spirit and aims of the United Nations; Whereas the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned, while crimes of a relatively lesser importance such as piracy, trade in women, children, drugs, obscene publications are declared as international crimes and have been made matters of international concern; Be it resolved that the United Nations Assembly draw the attention of the Social and Economic Council [sic] to the crime of genocide; and invite the Council to study this problem and to prepare a report on the possibilities of declaring genocide an international crime and assuring international cooperation for its prevention and punishment, and also recommending, inter alia, that genocide and related offences should be dealt with by national legislations in the same way as other international crimes such as piracy, trade in women, children and slaves, and others.

4

A/C.6/64

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/C.6/64 12 November 1946 ORIGINAL: ENGLISH

SIXTH COMMITTEE LETTER FROM THE PRESIDENT OF THE GENERAL ASSEMBLY TO THE CHAIRMAN OF THE SIXTH COMMITTEE 13 November 1946 Dear Dr. Jimenez: The General Assembly, at its forty-seventh plenary meeting held on 9 November 1946, referred the following items to the Sixth Committee for consideration and report to the plenary meeting: (1) Resolution on the Crime of Genocide (2) Resolution on the holding of a Conference to implement the provisions of Chapter XI of the Charter regarding non-self-governing territories. This latter item has been also referred simultaneously to the Fourth Committee. Yours sincerely, P.H. Spaak, President of the General Assembly His Excellency Dr. Roberto Jimenez, Chairman of the Sixth Committee.

A/C.6/83

5

ANNEX 15a

Amendments to the draft resolution relating to the crime of genocide, proposed by the delegations of the United Kingdom, India, France and the Union of Soviet Socialist Republics [Document A/C.6/83] [Original text: English] United Kingdom Declares that genocide is an international crime, for the commission of which principals and accessories, as well as States, are individually responsible. India To add the following to the United Kingdom amendment: It calls upon the Members to get their respective national legislatures to deal with this crime in the same way as they have dealt with piracy, trade in women, children, and slaves – crimes which have been condemned by all nations as outraging the conscience of humanity.

France To modify the United Kingdom amendment as follows: Declares that genocide is an international crime, for which the principals and accomplices, whether private persons or responsible statesmen, should be punished.

Union of Soviet Socialist Republics To add the following to the United Kingdom amendment: It is desirable that the Economic and Social Council should study the question of the preparatory work to be done for a convention on crimes against any particular race.

6

A/C.6/86

ANNEX 15b

Draft protocol for the prevention and punishment of the crime of genocide, proposed by the delegation of Saudi Arabia [Document A/C.6/86] [Original text: English] Whereas the atrocities committed against humanity which violated the rules of international law and shocked public conscience make it imperative for the nations of the world to take concerted action to prevent and penalize the commission of such acts in the future; Whereas one of the most obvious violations of the rules of international law and the laws of humanity is genocide, which is as destructive of human race as war of aggression, which is now universally condemned and outlawed by the United Nations Charter; Therefore the nations signatories to this protocol declare that genocide is an international crime against humanity, and agree to co-operate to prevent and suppress it as herein provided: Article I Definition Genocide is the destruction of an ethnic group, people or nation carried out either gradually against individuals or collectively against the whole group, people or nation. Any of the following acts may constitute the crime of genocide: 1. Mass killing of all members of a group, people or nation. 2. Destruction of the essential potentialities of life or of a group, people or nation, or the intentional deprivation of elementary necessities for the preservation of health or existence. 3. Planned disintegration of the political, social or economic structure of a group, people or nation.

A/C.6/86

7

4. Systematic moral debasement of a group, people or nation. 5. Acts of terrorism committed for the purpose of creating a state of common danger and alarm in a group, people or nation with the intent of producing their political, social, economic or moral disintegration. Article II International action The parties to this protocol agree to make effective use of every means at their disposal, acting separately or in co-operation to prevent and penalize genocide. Article III Jurisdiction Every State has jurisdiction to prohibit and punish genocide. An allegation that any act of genocide is political or has been committed under order of a superior authority shall not be available as a defence. In exercising such jurisdiction every State shall enact legislation defining the crime of genocide, conferring competence on its appropriate courts and prescribing the penalties to be inflicted upon conviction. Article IV Acts of genocide shall be prosecuted and punished by any State regardless of the place of the commission of the offence or of the nationality of the offender, in conformity with the laws of the country prosecuting. No offender shall be prosecuted or punished by any State for an act of genocide for which he has been prosecuted and convicted or acquitted in another State.

8

A/C.6/84

SIXTH COMMITTEE LEGAL QUESTIONS Summary Record of Meetings Monday, 25 November 1946 TWENTY-SECOND MEETING Held at Lake Success, New York, on Friday, 22 November 1946, at 11.20 a.m. Chairman: Mr. R. Jiménez (Panama). 1. Modification of the agenda On the proposal of the representatives of the United Kingdom, the United States of America and India, the Committee decided to change the order of items listed on the agenda and to begin with discussion of item 2. 2. Resolution on the crime of genocide (document A/Bur/50) Mr. Dihigo (Cuba) outlined the reasons for which the delegations of Panama, India and Cuba had submitted this resolution. Genocide was not a new crime; it had been committed in ancient times and had occurred again before and during the last world war, in the very centre of Europe. The crime of genocide might be classed as homicide; but homicide was within the territorial jurisdiction of the State in which the crime was committed, and genocide being usually perpetrated by those holding power, the prosecution of that crime was thereby prevented. At the Nürnberg trials, it had not been possible to punish certain cases of genocide because they had been committed before the beginning of the war. Fearing that such crimes might remain unpunished owing to the principle of non crimen sine lege, the representative of Cuba asked that genocide be declared an international crime. This was the purpose of the resolution. He acknowledged that the General Assembly was not a legislative body and that its recommendations could not be considered as laws, but felt never-

A/C.6/84

9

theless that any measure taken by the General Assembly was vested with incontestable authority. The crime of genocide was undeniably a source of disturbance of international relations and was a danger to peace. Mr. Dihigo requested the Committee to adopt the proposed resolution which aimed at the protection of human rights. Sir Hartley Shawcross (United Kingdom) believed that the present form of the resolution and of paragraph 3 was open to argument, since certain crimes listed therein were not considered as international crimes. On the other hand, the conclusion of conventions concerning genocide should not be left to the discretion of individual governments. The United Nations had clearly to state at once that aggressive war and genocide constituted punishable crimes. Sir Hartley recalled that during the fifth International Conference for the Unification of Criminal Law, held in 1933, a proposal to punish crimes now included under the heading of genocide had been defeated. Since then, six million human beings had been coldly and deliberately exterminated with a view to destroying the Jewish race. It had not been possible to punish that crime, since such proceedings would have involved the application of ex post facto legislation. That situation must be prevented from recurring. Sir Hartley expressed the opinion that it was necessary that the evolution of new ideas in human society should be followed up closely by the relevant legislation and that international law should limit the omnipotence of certain States over their citizens and in certain cases protect them against their own Government. Grotius had written that a war was justified if it was intended to defend the subjects of a foreign State against the tyranny of the sovereign. John Westlake had also said that neighbouring States could not passively tolerate the persecution of the population, and the western Powers had considered that they were entitled to intervene when Christians were persecuted in the Ottoman Empire. If humanitarian intervention by war was sometimes justified, humanitarian intervention by international law was even more definitely warranted. Dictators should be warned that if they infringed upon human rights, they acted at their own risk, and that international law would condemn them.

10

A/C.6/84

Sir Hartley suggested that paragraph 3 of the resolution should be deleted and the following text substituted for the original: Declares that genocide is an international crime for which the principal authors, accomplices, and States concerned will be held responsible.

All States should pass legislation on the subject. International conventions should be concluded; but the public denunciation of this crime would have to take place immediately. Mr. Chagla (India) agreed with the amendment proposed by the representative of the United Kingdom, but believed that a simple statement was not sufficient. It would be necessary to add: The General Assembly requests Members to call upon their Governments to ensure that national laws treat the crime of genocide on an equal footing with piracy, traffic in women, children and slaves, and other crimes which have always been recognized as violating the dignity of human beings.

The representative of India proposed that the text should be amended accordingly. Mr. Chaumont (France) declared that his country was in full sympathy with the proposed resolution. He considered that it was the duty of the United Nations to welcome any ideas which might improve and contribute to the development of international law. Recalling that international law was constantly progressing, Mr. Chaumont considered that every advantage could be gained by giving a normative form to the principles of law which the General Assembly was called upon to proclaim. The representative of France declared that the General Assembly was competent to discuss the matter under the terms of Article 10 of the Charter, and had the power to make recommendations in accordance with Article 13. He strongly supported the proposed resolution which, in his opinion, represented an important stage in the development of international law. With reference to the amendments suggested. Mr. Chaumont agreed with the representative of India that a recommendation should be added to emphasize the necessity of incorporating the crime of genocide in national legislations; he proposed, however, a slight modification to the British

A/C.6/84

11

amendment owing to the fact that French law did not admit criminal responsibility on the part of States, and suggested the following text: Declares that genocide is an international crime for which the principal authors and accomplices, whether statesmen or private individuals, should be punished.

Mr. Arrosa (Uruguay) supported the resolution and the amendments proposed thereto. He recalled that in San Francisco, the Uruguayan delegation had expressed the desire that fundamental human rights should be effectively protected by law on a national as well as an international basis. He hoped that the resolution would be unanimously approved by the Committee. Mr. Lavrishev (Union of Soviet Socialist Republics) warmly supported the resolution and its amendments as being in conformity with the principles of the Charter. Racial hate was one of the characteristic features of fascist regimes and many lives had been lost in the fight against fascism; the General Assembly was therefore justified in attaching great importance to racial discrimination, and had just unanimously adopted an Egyptian resolution concerning that matter. Mr. Lavrishev supported the draft resolution and the amendments, and suggested that the resolution on genocide should include a clause requesting the Economic and Social Council to undertake preparatory work with a view to elaborating a draft international convention concerning the struggle against racial discrimination. Mr. Chagla (India) proposed that discustion [sic] of the question should be adjourned until the next meeting, and that the Committee should begin to examine item 1 of the agenda, in order to enable the President of the International Court of Justice, who planned to return to Europe that same day, to make a statement. Mr. Gajardo (Chile) requested that debate should not be simply adjourned, but that the question should be referred to a sub-committee for examination of the proposed amendments, since those amendments included modifications of substance to the resolution. After a short exchange of opinions between the Chairman and the representatives of France, Canada, and Chile, Mr. Chagla (India) proposed that

12

A/C.6/84

debate on that question should be adjourned and that the representatives of Cuba, Panama, France, the United Kingdom, and India should submit a draft text of the resolution, which would be prepared in common and take into account the proposed amendments. A vote by show of hands was taken on the point of order raised by the representative of India. Decision: The proposal was unanimously adopted. [Discussions pertaining to issues other than the Genocide Convention]

A/C.6/91

13

SIXTH COMMITTEE LEGAL QUESTIONS Summary Record of Meetings Saturday, 30 November 1946 TWENTY-THIRD MEETING Held at Lake Success, New York, on Thursday, 28 November 1946, at 11.15 a.m. Chairman: Mr. R. Jiménez (Panama). [Discussions pertaining to issues other than the Genocide Convention] 3. Resolution on the crime of genocide (documents A/Bur/50, A/C./6/83 [sic], and A/C.6/86) Mr. Yepes (Colombia) considered the crime of genocide one of the most important problems in the codification of international law. He recalled that the Nürnberg Tribunal had defined genocide as systematic extermination of a group of persons, and had pointed out the necessity of classifying it as a crime at international law. Mr. Yepes deemed it useless to add other arguments to those already expressed but he wished to call attention to a precedent that had not been mentioned. The countries of the New World had, at several conferences of the Pan-American Union, approved a number of resolutions expressly condemning persecutions for reasons of language, race, or religion. In particular, the resolution adopted before the war, at the eighth conference at Lima, had declared that persecutions were contrary to the political and judicial system of the New World, and had condemned persecutions carried out for racial and religious reasons, which had made life impossible for certain minorities. The representative of Colombia pointed out that that precedent illustrated the liberal and humanitarian spirit of the nations which had taken part in the conference, and which, having no distressing problems of minorities, were in a position to condemn acts of persecution.

14

A/C.6/91

Riad Bey (Saudi Arabia) thought that the Sixth Committee ought to examine the question of genocide from a legal point of view. He noted that genocide was a new word which had been used for the first time by Professor Lemkin in his work entitled “The Reign of the Axis in Occupied Europe.” Professor Lemkin had shown that the idea behind this crime had existed since the beginning of the human race. Riad Bey believed that just as wars of aggression had been condemned as violating the principles of the rights of man, so genocide should be condemned as a violation of the same principles. He urged the Committee to submit the question of the crime of genocide to the General Assembly by means of a formula condemning that crime, since if the Committee asked for the question to be postponed for fuller study or to be sent to a sub-committee, it might be implied that there was some doubt in the minds of certain members, even though the Committee was unanimous on the principle that genocide was a crime which should be condemned. From a strictly legal point of view, Riad Bey thought that it was necessary to ascertain whether genocide fulfilled the conditions of an international crime. He recalled that the conditions were the following: (1) the crime must have been committed on the territory of several States; (2) it must have a certain international importance, either material or moral; (3) it must be a serious offence against the principles of justice and respect for human dignity. In his opinion genocide fulfilled all of those conditions and the Committee should declare it an international crime. In order to avoid any argument to the effect that a simple declaration by the Sixth Committee was not sufficient to give to genocide the status of an international crime, Riad Bey proposed that the Committee should declare that it had verified that the required conditions had been fulfilled. Reviewing the amendments proposed by certain delegations, Riad Bey pointed out that the French amendment constituted a slight variation from the United Kingdom amendment and it would be preferable to adopt the former. The Indian amendment was the natural result of the recognition of the fact that genocide was an international crime, and the General Assembly’s competence to take the measures provided in the said amendment could be found in Articles 10 and 13 of the Charter.

A/C.6/91

15

The representative of Saudi Arabia proposed that the combined texts of the three amendments should be adopted, with an additional statement to the effect that the existence of conditions constituting international crime had been established. Riad Bey pointed out that the problem might be developed still further. It would be desirable to agree to a protocol similar to the Protocols dealing with narcotics and piracy. He submitted to the Committee the broad outlines which should serve as a basis for the establishment of such a protocol (document A/C.6/86). The preamble of the protocol ought to contain a formal declaration condemning atrocities committed against humanity. As regards the protocol itself, it ought to contain a definition of genocide, with an enumeration of all the acts that fell within that definition. It ought to contain also provisions for assuring the prevention and repression of genocide. Finally, the protocol should establish the competence of each state to outlaw and to punish genocide. In conclusion, Riad Bey stated that there was no obstacle to the Committee’s taking action along the following lines: it should state that it had ascertained that the conditions constituting an international crime had been fulfilled by genocide; it should accept the Indian amendment; and it should make plans with a view to the adoption of a protocol for the prevention and the repression of the crime of genocide. The meeting rose at 1.30 p.m.

16

A/C.6/95

ANNEX 15c

New text of the amendment proposed by the French delegation to the draft resolution relating to the crime of genocide [Document A/C.6/95] [Original text: English and French] Modify the United Kingdom amendment as follows: Declares that genocide is an international crime, entailing the responsibility of guilty individuals, whether principals or accessories, as well as States on behalf of which they may have acted.

A/C.6/94

17

ANNEX 15d

Amendment proposed by the delegation of Chile to the draft resolution on the crime of genocide [Document A/C.6/94] [Original text: French] The General Assembly Declares that genocide is a crime under international law, which the civilized world condemns, and for which the main authors and their accomplices, whether private individuals or statesmen, must be punished; Invites the Member States to take the necessary steps to prevent and punish this crime within the scope of their internal legislation, in the same way as piracy, traffic in women, children and slaves, and others; Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide. To This End, the General Assembly requests the Economic and Social Council to undertake the necessary studies with a view to drawing up a draft convention to be submitted to the next session of the Assembly.

18

A/C.6/96

SIXTH COMMITTEE LEGAL QUESTIONS Summary Record of Meetings Monday, 2 December 1946 TWENTY-FOURTH MEETING Held at Lake Success, New York, on Friday, 29 November 1946, at 11.20 a.m. Chairman: Mr. R. Jiménez (Panama). [Discussions pertaining to issues other than the Genocide Convention] 2. Continuation of the discussion of the resolution on the crime of genocide Mr. Chaumont (France) referred to the new text of his amendment to the draft resolution on the crime of genocide (document A/C.6/95). At first he had doubts as to the wording of the amendment proposed by the United Kingdom delegate on account of certain aspects of French penal law. The amendment made no distinction between the responsibility of individuals and that of States, and he found it difficult to admit that States could be individually responsible for crimes. He was submitting a new draft that he had prepared in collaboration with the delegate of the United Kingdom, which distinguished clearly between the responsibility of individuals and that of States, while at the same time taking care to ensure the repression of the State as a collective entity, which point had been the basis of the United Kingdom amendment. Finally, it respected the provisions of national law of certain legislations. He proposed the following slight modification of the text of the proposal of the Indian delegate: Calls upon the Member States to provide in their respective national legislations for the punishment of this crime, since such crimes as piracy, traffic in women, children and slaves have been condemned by them as outraging the conscience of humanity.

A/C.6/96

19

He thought it better not to refer to the Parliaments of Member States, nor to establish an equivalent between the punishment of genocide and that of other international crimes. Mr. Spacek (Czechoslovakia) declared that, coming after so many orators who had all pronounced in favour of the draft resolution which was before the Committee, he would only say that the Czechoslovakian delegation favoured the draft for the same reasons as those which had been expounded so brilliantly at the beginning of the discussion by the delegate of Cuba and developed by later speakers. The monstrous wickedness of the crimes committed by the Nazi and other regimes against the races they considered inferior testified to the gravity of the question. The authors of those crimes had already been condemned or would, he sincerely hoped, be condemned before long. He asked permission to bear witness to the experiences his country had gone through during the enemy occupation, which in certain parts of her territory had lasted more than six and a half years. It could be said that during that period the Czechoslovak population and, needless to say, the Jewish population, had been victims of the crime of systematic genocide in every form: individual and mass executions and murders, prison, tortures, concentration camps, systematic malnutrition and other sufferings inflicted upon the non-German population. The enemy had sought by these means to weaken the Czech people by undermining the physical strength of the nation, so as once and for all to exterminate this race as quickly as possible. A similar fate was prepared for the Slovak population, with the slight difference that this was to be achieved a little later. According to Nazi ideas, the Czechs and the Slovaks were simply condemned to disappear in order that there should be more living space for Germans. Fortunately the liberation of Czechoslovak territory brought these plans to nought. There is, however, no doubt as to the extreme gravity of the danger which the Czechs and Slovaks underwent – those people who, as ethnical entities, had no national existence outside the territory which they had inhabited for centuries. Those experiences and dangers were an additional reason for the Czechoslovak delegation to accept the proposal under discussion. Mr. Beucker Andrae (Netherlands) stated that his country, which had perhaps suffered more than any other at the hands of the Nazis, supported

20

A/C.6/96

the resolution together with the amendments proposed by the delegates of the United Kingdom and France. At the same time it should not be forgotten that genocide was a very rare crime, and that action taken by the United Nations should aim at prevention of the crime rather than repression. He considered that the matter should be subjected to a more thorough study, and he was in agreement with the proposed amendments. Mr. Blanco (Cuba) expressed satisfaction at the favourable reception of his proposal. He thanked those members who had submitted amendments, all of which he accepted. Mr. Gajardo (Chile) viewed with favour the initiative taken by the delegations of Cuba, India and Panama, and assured the Committee that only lack of time had prevented his adding his name to the proposal. The amendment he was submitting (document A/C.6/94) did not contain any new ideas, but was merely a summary of the various amendments that had been proposed. He drew attention to the fact that it would be better to define genocide as a “crime against peoples” than as a “crime under international law,” thus avoiding all confusion resulting from the fact that genocide could be committed within the frontiers of a country and would thus be a national crime. He added that he preferred the French draft as first submitted, as the later amendment raised the ticklish question of the international responsibility of States, for which no solution had yet been reached. The resolution could be divided into two parts by adding the word “furthermore” at the beginning of the third paragraph; the first part would then be the recognition and condemnation of the crime of genocide, while the second part dealt with the question on the international plane. Mr. Gajardo pointed out that international collaboration could best be achieved by a convention, which was the point of the fiscal recommendation of the resolution. The Economic and Social Council was the body best qualified to prepare such a convention, since other aspects of the question came within its domain. He considered that the Saudi Arabian delegate’s proposal, which sketched the broad outlines upon which a protocol of genocide should be drawn up, could serve as the basis for the preparation of a convention.

A/C.6/96

21

He urged that the resolution on the crime of genocide should be referred to the present session of the General Assembly, so that at the next session the Sixth Committee would be able to study the legal aspects of the draft convention prepared in the meantime by the Economic and Social Council. Mr. McKinnon Wood (United Kingdom) considered it highly desirable to make a firm and effective declaration against the crime of genocide, but at the same time everything possible should be done to ensure rapid measures being taken for the speedy punishment of the crime. For that reason he proposed that the matter should be referred to Sub-Committee 1, to which had been assigned the subject of the codification of the principles of international law and which had been seized of a draft resolution proposed by the United States delegation with the intention of making a start upon the codification of the principles embodied in the Nürnberg Charter and in the judgment passed by that Court on the crimes committed against peace and the security of humanity. He explained however that it might not be necessary to apply codification procedure to the question, but that he thought it would be a good thing to study it at the same time as the United States draft, with which it had a certain amount in common. The resolution would receive a more thorough study in the sub-committee, which would straighten out the drafting and dispose of those difficulties of which the Committee was already aware. Mr. Laks [sic] (Poland) stated that he had some observations to make upon what had been said by the jurists who had already spoken. He greately [sic] appreciated the initiative of Cuba. Panama and India in condemning cases of the crime of genocide which were quasi delicta juris gentium, and he would support any attempt to punish such crimes. He would like, however, to dwell upon the legal aspect of the problem. Hitherto, crimes of that kind, which had been frequent throughout history, had never been mentioned either in The Hague Conventions or in subsequent conventions. Since the war, however, these crimes had been mentioned in written law. For example, there was Article 6 of the Four Power Agreement of 8 August 1945, paragraph 4 of the Nürnberg indictment and Article 6 of the Statute of the International War Crimes Tribunal of the Far East.

22

A/C.6/96

The proposal in question did not dwell upon the definition of the crime. It was not murder raised to the “nth” degree, like the crimes of Dr. Petiot; it was a new category of crime linked with the very existence of certain human types, nations, races or religions, biological crimes aimed at the destruction of a population even by means other than murder. Such crime had to be clearly defined in the written text. Moreover, the scope of the crime, which might consist in an act or a failure to act, necessitated preventive rules which should be drawn up with the greatest care. They should be directed in particular against those responsible for preparing the way for the crime by means of hate propaganda. In Poland preventive legislative measures had been taken on those lines on 12 October 1945. Turning to the question of form, Mr. Laks [sic] thought that it was not enough for the General Assembly to condemn genocide as being illegal. Such a vague formula would leave the judges a wide range of possible interpretation. There must be no disposition to shrink from setting forth practical means of combating the crime. Mr. Liu (China) stated that his delegation wholeheartedly associated itself with a resolution condemning the crime of genocide, and hoped that a unanimous decision would be taken in the matter. The United Nations were in duty bound to take measures to ensure that no country should ever dream of reopening the chapter of horrors through which so many nations, including China, had passed. The Chinese delegation associated itself with this resolution, as it had done with that of discrimination, because it considered such crimes an offense against the fundamental principles of morality. Such crimes were unknown in China, since in that country the principle applied was that enjoined by Confucius: “Do not do unto others as you would not have them do unto you.” The General Assembly should adopt a resolution on the lines suggested by the delegation of Chile. It should also draw up a declaration enjoining upon Governments the duty of introducing effective measures to prevent and punish the crime of genocide. The Chinese delegation, while recognizing that the Chilean proposal was the most complete, was also in favour of referring the question to a

A/C.6/96

23

special sub-committee comprising all the representatives who had made a proposal on the subject. Mr. Kerno (Assistant Secretary-General), in order to expedite the discussion, proposed, since all the representatives were in agreement and the question was one of drafting, that firstly, the Chairman should request the eight speakers still on the list to withdraw their names, and secondly, that he should send the texts to a sub-committee. The sub-committee could be either Sub-Committee No. 1 or a special group composed of Sub-Committee No. 1 together with the representatives of countries which were not represented on that sub-committee but had made proposals on the question. Mr. Khouri (Lebanon) considered that the Chilean delegation’s proposal and the explanation given by its representative took into account all the views that had been expressed. He therefore suggested as the basis of discussion the Chilean proposal, with the second paragraph being replaced by the final text proposed by France. A vote could then be taken immediately. Mr. Chagla (Lndia [sic]) suggested a meeting of a small sub-committee composed exclusively of the authors of draft resolutions or amendments. Mr. Kaeckenbeeck (Belgium) announced that he would withdraw his name from the list of speakers in order to shorten the debate, and suggested, in agreement with the representatives of China and India, the appointment of a small drafting sub-committee which would use the Chilean draft as its basis of work. The sub-committee could clear up certain points which at present were obscure. He hoped that the text so prepared could be unanimously approved. Mr. Fahy (United States of America) also announced that he would not speak. He asked that his delegation should take part in the work of the small sub-committee. It had proposed to Sub-Committee No. 1 the general principles condemning crimes of the kind in question. Mr. Chaumont (France) proposed the following procedure: a first vote should be taken to decide whether a sub-committee should be appointed or whether the Sixth Committee should continue to study the question. If it were decided to appoint a sub-committee, a second vote would be taken on whether the sub-committee would be a small one or would be

24

A/C.6/96

composed of Sub-Committee No. 1 together with the members of the Committee who had made proposals in the matter. The Chairman approved the procedure proposed by the representative of France. Mr. Laks [sic] (Poland) explained that his intention in speaking had been to have a special point embodied in the resolution. Riad Bey (Saudi Arabia) supported the Lebanese proposal for an immediate vote on the Chilean resolution, to be taken paragraph by paragraph. The Chairman put to the vote the question whether the matter should be referred to a sub-committee or whether the Sixth Committee should continue to discuss it. Decision: The proposal to refer the question to a sub-committee was adopted. Mr. McKinnon Wood (United Kingdom) withdrew his proposal to refer the question to Sub-Committee No. 1 and agreed to the appointment of a special sub-committee. The Chairman pointed out that a second vote was not needed, and announced that the special sub-committee would be composed of representatives of the following countries: Saudi Arabia, Chile, Cuba, France, India, Panama, Poland, Union of Soviet Socialist Republics, United Kingdom, United States of America. The meeting rose at 1.50 p.m.

ANNEX 15e

Draft report and resolution adopted by Sub-Committee 3 relating to the crime of genocide1 [Document A/C.6/120] [Original text: English] The General Assembly at its forty-seventh plenary meeting, on 9 November 1946, referred to the Sixth Committee a draft resolution submitted by the delegations of Cuba, India and Panama drawing the attention of the Economic and Social Council to the crime of genocide and inviting the Council to study this problem and to report on the possibility of declaring genocide an “international crime.”2 This draft resolution was debated in three sessions of the Sixth Committee during which amendments were proposed by the delegations of the United Kingdom, India, France and the Union of Soviet Socialist Republics, Saudi Arabia, Chile and Poland.3 The amendments and the debate in the Sixth Committee indicated that there was unanimous agreement that the General Assembly should affirm that genocide is a crime under international law. A sub-committee was appointed to draft a resolution concerning the crime of genocide for submission to the Sixth Committee. The Sub-Committee, consisting of representatives of Chile, Cuba, France, India, Panama, Poland, Saudi Arabia, the United Kingdom, the USSR and the United States, met on 2 December and 5 December 1946, under the chairmanship of the representative of Chile, Mr. Gajardo, to consider the draft proposals on the crime of genocide which had been referred to the Committee.

1

2 3

The draft resolution proposed by Sub-Committee 3 was adopted by the General Assembly during its fifty-fifth plenary meeting. See Resolutions adopted by the General Assembly during the second part of its first session, page 188. See Annex 15. See Annexes 15a, 15b, and 15d.

26

A/C.6/120

In considering the draft resolution which might be submitted to the General Assembly, the Sub-Committee felt that the Assembly’s resolution should affirm that genocide is a crime under international law, condemned by the civilized world, and that provision should be made for the punishment of principals and accomplices who may participate in the commission of this crime. The question of whether or not the responsibility of States should be mentioned in the resolution was considered; but it was the sense of the Sub-Committee that because of special problems in that connexion the question of fixing State responsibility, as distinguished from the responsibility of private individuals, public officials, or statesmen, was a matter more properly to be considered at such time as a convention on the subject of genocide is prepared. The Sub-Committee felt that it was desirable for Member States to enact legislation for the prevention and punishment of the crime of genocide, but that it was not necessary to compare genocide to other crimes such as piracy and traffic in women, as had been suggested in some of the proposals before the Sub-Committee. The Sub-Committee felt that it was important that there should be early action looking towards the preparation of a draft convention on the subject of genocide. To that end the Sub-Committee has proposed in the draft resolution that the General Assembly request the Economic and Social Council to undertake the necessary studies and to prepare a draft convention for submission to the next session of the General Assembly. Some members of the Sub-Committee stressed the importance of the creation of a small special committee of jurists to prepare the convention, while others felt that the Economic and Social Council should secure the co-operation of the committee to study the methods of encouraging the progressive development of international law and its codification. Various suggestions in this connexion were considered for inclusion in the resolution in lieu of the language adopted. It was finally decided by the Sub-Committee that the resolution itself should place the responsibility solely with the Economic and Social Council. The Sub-Committee considered a proposal made by Poland concerning the propagation and dissemination of hatred against national or racial and religious groups as a preparatory step in the effectuation of the crime, and the punishment of those responsible therefor. It was agreed that

A/C.6/120

27

this interesting proposal should be mentioned in the report and left for consideration in connexion with the draft convention or studies made under the resolution.

28

A/C.6/127

SIXTH COMMITTEE LEGAL QUESTIONS Summary Record of Meetings Friday, 13 December 1946 THIRTY-SECOND MEETING Held at Lake Success, New York, on Monday, 9 December 1946, at 11.30 a.m. Chairman: Mr. R. Jiménez (Panama). [Discussions pertaining to issues other than the Genocide Convention] 3. Draft report and proposed resolution of Sub-Committee 3 on the crime of genocide (document A/C.6/120) Mr. Fahy (United States of America: Rapporteur of Sub-Committee 3) recalled that the report had received the Sub-Committee’s unanimous support, thanks to a spirit of co-operation and understanding. Sketching a brief outline of this subject of international interest, he explained that paragraphs 3 and 4 constituted the core of the resolution, which concluded with the task to be entrusted to the Economic and Social Council of studying the matter and drawing up a draft convention. Mr. Fahy stressed the similarity between paragraph 1 of this resolution and the resolution on the principles recognized by the Charter of the Nürnberg Tribunal; neither of them accepted as a defence that those accused of the crimes in question acted on the orders of superior officers. He explained that some members of the Sub-Committee had been of the opinion that instead, that task might have been entrusted to a committee of jurists, or to the Codification Committee which was about to be set up. However, for the sake of unanimity, the responsibility had been given solely to the Economic and Social Council. Mr. Chaumont (France) recalled that his delegation had always given its most whole-hearted support to the principle of the resolution, whose importance he wished to emphasize, firstly from the human, and secondly from the legal point of view.

A/C.6/127

29

It constituted, in fact, a new effort towards the implementation of the great humanitarian principles of the Charter, and the application of those principles in a concrete case were a great step forward in the progress of the law. He paid tribute to the clarity and precision of the report which he proposed should be adopted as it stood. Mr. Liu (China), after praising the Sub-Committee and its Rapporteur in particular, said that with a view to expediting the work, he felt that a smaller body than the Economic and Social Council should be entrusted with the task of drawing up a draft international convention. He suggested that the task might be taken over by the committee on the codification of international law which had recently been proposed by the Sixth Committee, and he proposed an amendment to that end. The Chairman pointed out that the membership of the Economic and Social Council was eighteen, while that of the committee on the codification of international law was of sixteen members. Mr. Alfaro (Panama), recalling the initiative taken by the delegations of Cuba, India and Poland, agreed with what had been said by the representatives of the United States, France and China. He drew attention to the fact that the word “individus”, in the French text of the resolution, was not an adequate translation of the expression “private individuals” in the English text. He hoped that the Committee would unanimously adopt the draft resolution, which laid down that individuals, as well as States, were subject to international law. The Chairman said that the French text would be corrected. Mr. Dihigo (Cuba) expressed his satisfaction with the results achieved, and joined in congratulating the Rapporteur. Mr. Saptu (India) also expressed his satisfaction in seeing genocide defined as a crime under international law. With regard to the working procedure to be adopted, he could understand a preference for a group of legal experts, but did not wish to disturb the unanimity achieved by the Committee.

30

A/C.6/127

Mr. Laks [sic] (Poland) added his congratulations to those already addressed to the Rapporteur of Cub-Committee [sic] 3, and thanked him for having mentioned in his report the proposal made by the Polish delegation. For the sake of unanimity he appealed to the Chinese representative to withdraw his amendment, adding that the Economic and Social Council would very likely entrust the task of drawing up a draft convention to a smaller body, including legal experts. Mr. Lavrischev (Union of Soviet Socialist Republics) also congratulated the Rapporteur, and regretted that there should be any threat to the Committee’s unanimity. He recalled that, from the beginning, his delegation had proposed that the task of drawing up a draft international convention should be entrusted to the Economic and Social Council, which was particularly indicated by reason of its vast possibilities, and he pointed out that the work of drawing up a convention was very different from the task of the Committee on the codification of international law, which was limited to preparatory research. He too, therefore, appealed to the Chinese representative to withdraw his proposal. Mr. Bartos (Yugoslavia), recalling the great sufferings of the Jewish and Slav peoples, noted that the crime of genocide was condemned by the whole world, and considered that the resolution should be adopted unanimously. Mr. Liu (China) withdrew his amendment in the interests of unanimity. Mr. Arrosa (Uruguay), also, proposed the adoption of the report. The Chairman, expressed the Committee’s gratitude to the Rapporteur for his work, and proceeded to take a vote. Decision: The draft report and resolution were unanimously adopted.

ANNEX 63

The crime of genocide Report of the Sixth Committee Rapporteur: Mr. K.H. Bailey (Australia). [A/231] [Original text: English] 1. The General Assembly, at its forty-seventh plenary meeting, on 9 November 1946, referred to the Sixth Committee a draft resolution submitted by the delegations of Cuba, India and Panama, drawing the attention of the Economic and Social Council to the crime of genocide and inviting the Council to study this problem and to report on the possibility of declaring genocide an “international crime” (document A/BUR/50).1 2. This draft resolution was debated in three meetings of the Sixth Committee (documents A/C.6/84, A/C.6/91, A/C.6/96), during which amendments were proposed by the delegations of the United Kingdom, India, France, Union of Soviet Socialist Republics (documents A/C.6/83 and A/C.6/95), Saudi Arabia (document A/C.6/86), Chile (document A/C.6/94) and Poland. The amendments and the debate in the Sixth Committee indicated that there was unanimous agreement that the General Assembly should affirm that genocide is a crime under international law. A Sub-Committee was appointed to draft a resolution for submission to the Sixth Committee. 3. The Sub-Committee, consisting of representatives of Chile, Cuba, France, India, Panama, Poland, Saudi Arabia, United Kingdom, Union of Soviet Socialist Republics, and the United States of America, met on 2 and 5 December 1946, under the chairmanship of the representative of Chile, Mr. E. Gajardo, to consider the draft proposals on the crime of genocide.

1

See Official Records of the Second Part of the First Session of the General Assembly, Sixth Committee.

32

A/231

4. The Sub-Committee felt that the resolution of the General Assembly should affirm that genocide is a crime under international law, condemned by the civilized world, and that provision should be made for the punishment of principals and accomplices who might participate in the commission of this crime. The question whether or not the responsibility of States should be mentioned in the resolution was considered; it was the sense of the Sub-Committee, however, that because of special problems in that connexion, the question of fixing State responsibility, as distinguished from the responsibility of private individuals, public officials, or statesmen, was a matter which could more properly be considered at such time as a convention on the subject of genocide is prepared. 5. The Sub-Committee felt that it was desirable for Member States to enact legislation for the prevention and punishment of the crime of genocide, but that it was not necessary to compare genocide to other crimes such as piracy and traffic in women, as had been suggested in some of the proposals before the Sub-Committee. 6. The Sub-Committee felt that it was important that there should be early action with a view to the preparation of a draft convention on the subject of genocide. To that end the Sub-Committee proposed in the draft resolution that the General Assembly should request the Economic and Social Council to undertake the necessary studies and to prepare a draft convention for submission to the next regular session of the General Assembly. Some members of the Sub-Committee stressed the importance of the creation of a small special committee of jurists to prepare the convention, while others felt that the Economic and Social Council should secure the co-operation of the committee which it is proposed should be set up by the General Assembly, to study the methods of encouraging the progressive development of international law and its codification. It was finally decided by the Sub-Committee that the resolution itself should place the responsibility solely with the Economic and Social Council. 7. The Sub-Committee considered a proposal made by Poland concerning the propagation and dissemination of hatred against national, racial or religious groups as a step preparatory to the crime, and concerning the punishment of those responsible therefor. It was agreed that this interesting proposal should be mentioned in the report and left for consideration in connexion with the draft convention or studies made under the resolution.

A/231

33

8. The Sub-Committee report (document A/C.6/120), presented by its Rapporteur, Mr. Charles Fahy (United States) was adopted unanimously by the Sixth Committee at its thirty-second meeting, on 9 December 1946. 9. The Sixth Committee therefore recommends that the General Assembly adopt the resolution contained in the present report. Note: The text of this resolution is published in Resolutions adopted by the General Assembly, second part of the first session, pages 188 and 189.

34

United Nations General Assembly Resolution 96(I)

96(I). The Crime of Genocide 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; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern. The General Assembly, therefore, Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable; Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime; Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly. Fifty-fifth plenary meeting, 11 December 1946.

E/330

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

35

UNRESTRICTED E/330 12 March 1947 ENGLISH ORIGINAL: FRENCH

THE CRIME OF GENOCIDE Note by the Secretary-General The General Assembly at its last session had before it a proposal by the Delegations of Cuba, India and Panama. Genocide is the denial of the right to existence of entire human groups, just as homicide is the denial of the right to live of individual human beings. Genocide is almost as old as the world. Ancient, modern and contemporary history furnished numerous examples of it. But German Nazism endowed it with tragic reality by organizing the systematic and large-scale destruction of various racial or national groups. The General Assembly referred the proposal to the Sixth Committee, where discussions on this subject bore witness to the general will to make genocide a crime covered and punished by international law. The Committee’s report was submitted by Professor K. H. Bailey, Australian delegate to the Assembly, which adopted on 11 December 1946 the draft resolution submitted to it. The resolution was as follows: 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; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurrred [sic] when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern. The General Assembly, therefore, Affirms that genocide is a crime under international law which the civilized world condems [sic], and for the commission of which principals and

36

E/330

accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable; Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime; Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end. Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

The Assembly’s resolution contains several elements. It affirms that genocide is an international crime, and then proposes the two following methods to combat it: 1. Firstly, it invites the Member States of the United Nations “to enact the necessary legislation for the prevention and punishment of this crime.” Here it is a question of internal measures to be taken by each State. The General Assembly may think it desirable at a later date to ask Governments what measures they have taken or are contemplating in reply to this invitation. The Economic and Social Council has no immediate step in view in this connection. 2. Secondly, the General Assembly Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

It is for the Economic and Social Council, assembled at its Fourth Session, to fulfil the mandate given to it by the General Assembly. For this purpose the Economic and Social Council may entrust the task of making the necessary studies and of drawing up a draft Convention:

E/330

37

1. To the Commission on Human Rights; 2. To one or several members of the Economic and Social Council. The Secretary-General would be asked to prepare a preliminary draft in order to facilitate the task to be entrusted either to certain members of the Economic and Social Council or to the Commission on Human Rights.

38

E/421

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/421 15 March 1947 ORIGINAL: ENGLISH

ECONOMIC AND SOCIAL COUNCIL SUMMARY RECORD OF THE SEVENTIETH MEETING Held at Lake Success, New York, on Saturday, 15 March 1947, at 10:30 a.m. Present: President:

Mr. Papanek Mr. Kaminsky Mr. Davidson Mr. Santa Cruz Mr. Chang Mr. Belt Mr. Radimsky Mr. Guerin Mr. Ahmad Mr. Hakim Mr. van Roijen Mr. Nash Mr. Lunde Mr. Arca Parro Mr. Turhan Mr. Mayhew Mr. Stinebower Mr. Morozov Mr. Stolk later Mr. Zuloaga Mr. Rajchman

(Czechoslovakia) (Byelorussian Soviet Socialist Republic) (Canada) (Chile) (China) (Cuba) (Czechoslovakia) (France) (India) (Lebanon) (Netherlands) (New Zealand) (Norway) (Peru) (Turkey) (United Kingdom) (United States of America) (Union of Soviet Socialist Republics) (Venezuela) (Venezuela) (Chairman, International Children’s Emergency Fund)

Secretariat: Mr. Stanczyk Mr. Yates In the absence of the President, the Vice-President, Mr. PAPANEK (Czechoslovakia) took the Chair.

E/421

39

The Crime of Genocide: Note by the Secretary-General (document E/330). The PRESIDENT read the General Assembly Resolution on the Crime of Genocide, and called attention to the note on the subject by the Secretary-General (document E/330). He asked the representative of Cuba, one of the governments which had originally sponsored the resolution, to open the discussion. Mr. BELT (Cuba), observing that in considering the crime of genocide the Council was following the mandate given it by the General Assembly, said that although the crime had only recently been defined, it had existed for centuries. Up until the present there had been no punishment for it other than moral condemnation. The Nazi regime had committed genocide on a large scale, but unfortunately international legislation providing punishment did not exist. The end of the Nazi regime by no means meant the end of genocide, and it was therefore important that legal means of punishment should be provided. Mr. Belt realized the complications of the problem and the care that the United Nations must take in order to meet it justly and effectively. Of the two suggestions made by the Secretary-General in document E/330 concerning the drafting of a convention on the subject, Cuba preferred the proposal that a committee from the Council should, with the help of the Secretariat, prepare a draft convention that would be circulated to the Member Nations and submitted to the Fifth Session of the Council, which in turn would submit it to the next session of the General Assembly. Mr. LUNDE (Norway), expressing his government’s full support of the principle laid down in the resolution, thought that whatever group might finally be instructed to draft a convention should seek advice from the Committee on the Development of International Law and its Codification. Mr. ARCA PARRO (Peru) strongly favoured the general principle of the General Assembly resolution on genocide, but although he could not speak as an expert in penal law, he wished to raise two points. Firstly, it seemed impossible that genocide could be performed within a country without the backing of the government itself or of a powerful group within the government. If effective punishment was to be carried out by international action, such action would have to be directed not merely against guilty individuals, whom their government would protect, but against the government itself. Unless adequate means for dealing with governments

40

E/421

were provided, there would be no way to punish individuals guilty of the crime except by actually fighting and winning a war. Mr. Arca Parro’s second point dealt with the definition of genocide, which did not seem sufficiently broad. According to the definition, genocide was a crime committed against a group, yet certain offences against individuals might be committed for the same reasons as those which motivated genocide. He hoped that the experts who were to prepare a draft convention on the subject would consider the following suggestion: The crimes against health, life and property which are perpetrated against one or more persons, and which are carried out individually or collectively, following open or secret decisions, with the purpose of inflicting unlawful punishment upon persons belonging to groups which are subject to racial, religious, political or any kind of discrimination, should also be included in the international covenant on genocide.

Mr. GUERIN (France), recalling France’s long history of tolerance toward all men, considered it natural for his country to give the General Assembly resolution its fullest support. It was necessary, however, to work out carefully the juridical aspects of the problem if it was to be solved effectively. Referring to a point raised previously in the Economic and Social Council by the representative of France, he said that France hoped that in the study of genocide, attention would be given to the question of the protection of civilian populations against arbitrary acts of enemy armies in time of war. He advocated entrusting the drawing up of the convention to the Commission on Human Rights. Mr. MAYHEW (United Kingdom), after praising the General Assembly’s resolution, pointed out the need for technical legal advice in carrying it out. Since the Committee on Human Rights already had many other urgent tasks, it would be preferable for a group of experts and lawyers in the Secretariat to prepare a draft for the Council’s next session, at which time the Council could decide what would be the next step to take. Mr. van ROIJEN (Netherlands) said that his government agreed that the crime of genocide had a special character that justified special treatment on a world-wide basis, but there was need for further work on the definition of the crime. Every country should be prepared to punish genocide

E/421

41

within its own borders and to grant extradition of criminals whenever necessary. Mr. van Roijen considered practicable both of the Secretary-General’s suggestions concerning the drafting of a convention, (page 3, document E/330), but he favoured referring the question to the Commission on Human Rights and recommending to that Commission to seek advice, if necessary, from the Committee on the Development of International Law and its Codification. Mr. CHANG (China) joined in the general expression of indignation at the crime of genocide, and supported the United Kingdom proposal regarding concrete measures to be taken. However he felt that after the legal aspect of the question had been thoroughly studied by experts in the Secretariat, the problem might be referred to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. Mr. STINEBOWER (United States of America) agreed with the representative of the Netherlands that the basic studies for the draft convention should be undertaken by the Commission on Human Rights in consultation, whenever necessary, with the Commission on the Development of International Law and its Codification. The Commission on Human Rights might then report to the Fifth Session of the Council. If necessary, the Council could send to the next session of the General Assembly merely a progress report, rather than submit a too hastily prepared document on so new and important a subject. Mr. ZULOAGA (Venezuela), after warmly endorsing the General Assembly resolution, expressed approval of the Cuban proposal to entrust the draft convention to a small committee, provided such a committee would consult the Committee on the Development of International Law and its Codification. He suggested that the attention of the drafting committee should also be called to the General Assembly resolution confirming the principles of international law recognized by the Charter of the Nuremberg Tribunal, and the resolution on persecution and discrimination. Mr. MOROZOV (Union of Soviet Socialist Republics) agreed with the United Kingdom that the Commission on Human Rights already had a heavy programme of work. In view of the urgency of the problem, therefore, he thought that a special committee of the Council should, with the help of the Secretariat, prepare a draft for presentation to the Economic

42

E/421

and Social Council. The Council’s decision on the draft convention could then be communicated to the various Member Governments for their consideration before the next meeting of the General Assembly. The PRESIDENT, noting that there was unanimous agreement on the principle contained in the General Assembly resolution on the crime of genocide, summed up the various suggestions regarding means for implementing it as well as regarding the need for elaborating the definition of the crime. He proposed that the entire question should be referred to the Committee of the Whole on social matters. DECISION: The Council agreed to refer the question of the implementation of the General Assembly resolution on the crime of genocide to the Committee of the Whole on social matters.

E/342

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

43

UNRESTRICTED E/342 17 March 1947 ORIGINAL: ENGLISH

GENOCIDE RESOLUTION PROPOSED BY THE DELEGATION OF THE UNITED STATES The Economic and Social Council, taking cognizance of the General Assembly resolution of 11 December 1946 on the subject of genocide, requests the Commission on Human Rights in connection with its consideration of a bill of human rights: 1. to undertake the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly and 2. after such consultation as may be deemed necessary with the General Assembly Committee on the Development and Codification of International Law to submit to the Economic and Social Council a draft convention on the crime of genocide.

44

E/AC.7/8

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.7/8 21 March 1947 ORIGINAL: ENGLISH

COMMITTEE ON SOCIAL AFFAIRS FOURTH SESSION OF THE ECONOMIC AND SOCIAL COUNCIL SUMMARY RECORD OF THE SIXTH MEETING Held at Lake Success on 20 March 1947 at 3:20 p.m. Present: Chairman: Mr. Arca-Parro Mr. Kaminsky Mr. Riddle Mr. Santa Cruz Mr. Yang Mr. Belt Mr. Stolz Mr. Guerin Mr. Mahajaddin Ahmad Mr. Hakim Mr. Van Heuven Mr. Nash Mr. Moe Mr. Encinas Mr. Turhan Mr. Borisov Mr. Phillips Mr. Kotschnig Mr. Stolk Secretariat: Mr. Stanczyk Mr. Hogan The meeting opened at 3:20 p.m.

(Peru) (Byelorussian Soviet Socialist Republic) (Canada) (Chile) (China) (Cuba) (Czechoslovakia) (France) (India) (Lebanon) (Netherlands) (New Zealand) (Norway) (Peru) (Turkey) (Union of Soviet Socialist Republics) (United Kingdom) (United States of America) (Venezuela)

E/AC.7/8

45

The CHAIRMAN opened discussion on the Resolution concerning Genocide, proposed by the Delegation of the United States (document E/342). Mr. MOE (Norway) stated that the Secretariat should prepare a draft which would be studied by the General Assembly Committee on the Development and Codification of International Law and the Commission on Human Rights. Mr. BELT (Cuba) reminded the Committee that the General Assembly charged the Economic and Social Council with the duty of preparing the draft. He moved the following amendment to the American Resolution: That the Secretariat immediately proceed, together with the Committee that may be appointed by the President of the Economic and Social Council, to prepare a draft convention on the crime of genocide. This draft convention will be submitted before the next session of the Economic and Social Council to the Member States in order that they may make pertinent observations and recommendations and submit them for the consideration of the Council at that session.

Mr. BORISOV (Union of Soviet Socialist Republics) stated that the Commission on Human Rights was overburdened with the tremendous task of drafting an International Bill of Human Rights. The suggestion made by the Delegate of Cuba would help to expedite the matter. The draft convention drawn up by a small committee, assisted by the Secretariat, could be presented to the Fifth Session of the Economic and Social Council, and then to the General Assembly. Mr. HAKIM (Lebanon) stated that since the crime of genocide has already been defined, the draft should be drawn up by lawyers and not by the Commission on Human Rights. Mr. YANG (China) seconded the United States resolution. Mr. SANTA CRUZ (Chile) seconded the Cuban amendment. Mr. KOTSCHNIG (United States) asked the Cuban Delegate what sort of Committee he had in mind. Mr. BELT (Cuba) replied that a committee of five should be nominated by the President of the Council. Mr. NASH (New Zealand) observed that the consultation of Member States mentioned in the Cuban amendment might take a long time and

46

E/AC.7/8

that a time should be set for replies. He further proposed to combine the American resolution with the Cuban amendment in the following form: The Economic and Social Council, taking cognizance of the General Assembly resolution of 11 December 1946 on the subject of genocide, instructs the Secretariat: 1. to undertake the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly, and 2. after consultation with the General Assembly Committee on the Development and Codification of International Law and reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

Mr. KOTSCHNIG (United States) accepted the amendment as read by the New Zealand Delegate. The CHAIRMAN put to the vote the resolution proposed by the Delegation of the United States. The resolution was adopted. The CHAIRMAN opened discussion on the General Assembly Resolution concerning draft Declaration on Fundamental Human Rights and Freedoms (document A/64/Add.1, page 68) and Report of the Commission on Human Rights. Mr. STOLZ (Czechoslovakia) proposed to amend paragraph 10 (a), Chapter II of the Report of the Commission on Human Rights (document E/259, page 2) in order to enlarge the working group in charge of formulating a preliminary draft International Bill of Human Rights. Mr. Stolz suggested that Chile, France and the Union of Soviet Socialist Republics be included. Mr. HAKIM (Lebanon) pointed out that the working group was to do only preparatory work; it had to be small in order to work effectively. Mr. Hakim opposed the Czechoslovak amendment. Mr. KAMINSKY (Byelorussian Soviet Socialist Republic) supported the amendment. Mr. GUERIN (France) considered that all ideologies should be represented in the working group. He further proposed that Australia be added.

E/AC.7/8

47

Mr. STOLK (Venezuela) felt that the working group should receive recommendations from all Member States, but thought that it should not be enlarged. Mr. KOTSCHNIG (United States) pointed out that the working group constituted only a “convenience”, that it was not a committee and consequently could not be enlarged. Mr. SANTA CRUZ (Chile) formally proposed that Australia be added. Mr. ENCINAS (Peru) seconded the proposal. Mr. HAKIM (Lebanon) pointed out that the creation of the working group was a decision of the Commission and not a recommendation to the Council. The Council should not interfere with that decision. Mr. STOLZ (Czechoslovakia) accepted the Chilean amendment to his motion. (At this point Mr. Chang (China) took the place of Mr. Yang). The CHAIRMAN put to a vote the Czechoslovak amendment. The amendment was adopted by 10 votes for, 5 against and 2 abstentions. Mr. RIDDLE (Canada) moved that “prior to the meeting of the Drafting Committee the officers of the Commission on Human Rights, assisted by the Secretariat, prepare a draft International Bill of Human Rights and circulate such draft to the Members of the United Nations for their observations and comments.” Mr. CHANG (China) asked Mr. Riddle to accept an amendment to his motion which would then read: That, prior to the meeting of the Drafting Committee, the Secretariat under the supervision of the officers of the Commission on Human Rights, prepare a draft International Bill of Human Rights and circulate such draft to the Members of the United Nations for their observations and comments.

Mr. RIDDLE (Canada) accepted Mr. Chang’s amendment. Mr. KAMINSKY (Byalorussian [sic] Soviet Socialist Republic) stated that he wished to vote separately on the two paragraphs of the Canadian amendment. Mr. KOTSCHNIG (United States) moved the closure of the debate.

48

E/AC.7/8

The CHAIRMAN put to the vote the motion to close the debate. The motion was adopted. The CHAIRMAN put to the vote the first paragraph of the Canadian amendment. This was adopted. The second paragraph was put to the vote and adopted. Mr. BORISOV (Union of Soviet Socialist Republics) thought that the Czechoslovak and Canadian amendments as adopted were contradictory. The Chairman gave his interpretation of the Canadian amendment, stating that if the Council decided to enlarge the working group the number of members of the Commission supervising the work of the Secretariat would become seven instead of three. Mr. RIDDLE (Canada) stated that the interpretation of the Chairman did not correspond with his intentions, and asked to change the word “officers” to the words “The Chairman, Vice-Chairman and Rapporteur”, in order to clarify the matter. The Committee voted to adjourn to re-examine the motion at its next meeting. The meeting adjourned at 6:15 p.m.

E/AC.7/W.7

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

49

RESTRICTED E/AC.7/W.7 21 March 1947 ORIGINAL: ENGLISH

DRAFTING SUB-COMMITTEE OF THE SOCIAL COMMITTEE ASSEMBLY RESOLUTION ON THE CRIME OF GENOCIDE The following is the text of the Resolution proposed by the Delegation of the United States and amended by the Delegation of New Zealand in the debate in the Social Committee on 20 March 1947: The Economic and Social Council, taking cognizance of the General Assembly resolution of 11 December 1946 on the subject of genocide, instructs the Secretary-General: (a) To undertake the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly and (b) After consultation with the General Assembly Committee on the Development and Codification of International Law, and reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

50

E/AC.7/W.14

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

RESTRICTED E/AC.7/W.14 26 March 1947 ORIGINAL: ENGLISH

SUMMARY RECORD OF THE DRAFTING SUB-COMMITTEE OF THE SOCIAL COMMITTEE Held on Monday, 24 March 1947 at 7:00 p.m. (Closed Session) Present: Chairman: Mr. Jan Papanek M. Mendes-France M. Guerin Dr. C. Malik M.A.P. Borisov Mr. G.L. Goodwin Mr. W. Kotschnig

(Czechoslovakia) (France) (France) (Lebanon) (Union of Soviet Socialist Republics) (United Kingdom) (United States of America)

Secretariat: Mr. C. Hogan The meeting was opened by the CHAIRMAN, who drew the attention of the Drafting Sub-Committee to the Draft Resolution on the General Assembly Resolution on the Crime of Genocide (E/AC.7/W.7) and to the Draft Resolutions on Human Rights and the International Conference on Freedom of the Press (E/AC.7/12). Dr. P.C. CHANG (China) asked the permission of the CHAIRMAN to attend the meeting, which was granted. Assembly Resolution on Genocide At the suggestion of M. BORISOV (Union of Soviet Socialist Republics), the first three lines of the text of document E/AC.7/W.7 were omitted. Following a proposal made by the CHAIRMAN, the number of the General Assembly Resolution quoted in line 5 was inserted to read: “The Economic and Social Council, taking cognizance of the General Assembly Resolution No. 96, of 11 December 1946 on the subject of genocide, instructs the Secretary-General:”

E/AC.7/W.14

51

Paragraph (a) M. MENDES-FRANCE (France) proposed the addition in line 1 of the words “with the assistance of specialists in the field of international criminal law”, after “to undertake the necessary studies”. He pointed out that the drawing up of a draft convention was a precise legal matter and although he recognized that there were legal experts in the Secretariat, he felt there were international specialists whose assistance might prove useful. This proposal had been made in the Social Committee, but it was his impression that no definite decision had been taken. Mr. KOTSCHNIG (United States of America) suggested a more general wording, “with the assitance [sic] of experts in international law”. M. BORISOV (Union of Soviet Socialist Republics) proposed the addition of the words “specialists appointed by governments Members of the United Nations”. Mr. GOODWIN (United Kingdom) did not see the necessity of making any addition, as provision had been made for consultation with the General Assembly Committee on the Development and Codification of International Law. M. MENDES-FRANCE (France) suggested that governments might be invited to send the Secretariat a list of experts in international and criminal law. The Secretariat could then select two or three particularly competent experts to assist in the drafting of the convention. Mr. KOTSCHNIG (United States of America) thought it was not necessary to include this in a formal resolution as the Secretariat would adopt this procedure in any case. The CHAIRMAN drew the attention of the Sub-Committee to the possible financial expenditure involved in calling in experts. Mr. KOTSCHNIG (United States of America) suggested that the draft could be sent to the experts in their own countries for comment. M. BORISOV (Union of Soviet Socialist Republics) stated that he would not insist on his proposal, but the Secretariat should take note of the discussion and act accordingly. The SECRETARY then read the amended text which was adopted:

52

E/AC.7/W.14

(a) To undertake, with the assistance of experts in the field of international and criminal law the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly.

Paragraph (b) Paragraph (b) was adopted as it stands. Mr. KOTSCHNIG (United States of America) said that he would raise the question of including consultation with the Commission on Human Rights at the plenary session of the Council. Mr. GOODWIN (United Kingdom) noted that the United Kingdom representative of the Social Committee had suggested that the draft might be referred to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities. [Discussions pertaining to issues other than the Genocide Convention]

E/AC.7/15

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

53

UNRESTRICTED E/AC.7/15 25 March 1947 ORIGINAL: ENGLISH

SOCIAL COMMITTEE RESOLUTIONS ON THE REPORT OF THE COMMISSION ON HUMAN RIGHTS, ON THE CONFERENCE ON FREEDOM OF INFORMATION AND ON THE CRIME OF GENOCIDE Following are the texts of draft resolutions on the Report of the Commission on Human Rights agreed by the ad hoc drafting sub-committee of the Social Committee at its meeting on 24 March: DRAFT RESOLUTION ON THE RESOLUTION OF THE GENERAL ASSEMBLY CONCERNING THE DRAFT DECLARATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS THE ECONOMIC AND SOCIAL COUNCIL, Pursuant to Resclution [sic] No. 43 of 11 December 1946, of the General Assembly (Draft Declaration on Human Rights and Fundamental Freedoms) TRANSMITS the Declaration on Human Rights and Fundamental Freedoms, presented by the Delegation of Panama, and any other draft declarations received from Member States, to the Temporary Sub-Commission and the Commission on Human Rights for consideration in their preparation of an International Bill of Human Rights. DRAFT RESOLUTION ON THE RESOLUTION OF THE GENERAL ASSEMBLY CONCERNING AN INTERNATIONAL CONFERENCE ON FREEDOM OF INFORMATION THE ECONOMIC AND SOCIAL COUNCIL REQUESTS the Sub-Commission on Freedom of Information and of the Press to prepare, guided by resolution No. 59 of 14 December 1946 of the General Assembly, a draft documented agenda for the Conference

54

E/AC.7/15

on Freedom of Information and to submit this along with proposals concerning preparations for the Conference to the Commission on Human Rights and to the Council. These proposals shall include suggestions concerning the invitation of States, not Members of the United Nations, and plans whereby appropriate specialized agencies, such as the United Nations Educational, Scientific and Cultural Organization, and appropriate non-governmental organizations may assist in the preparation of the Conference and attend it; and TRANSMITS to the Sub-Commission on Freedom of Information and of the Press the draft agenda for the Conference on Freedom of Information presented by the French Delegation (document E/355) and any other similar communications received from Member States; and further RESOLVES that the decision on the date and place of the Conference be deferred to its fifth session. DRAFT RESOLUTIONS ON THE REPORT OF THE COMMISSION ON HUMAN RIGHTS THE ECONOMIC AND SOCIAL [sic] TAKES NOTE of the Report of the Commission on Human Rights; and A. REQUESTS the Secretary-General to prepare a documented outline concerning an International Bill of Human Rights; and ESTABLISHES a temporary Sub-Commission consisting of the Members of the Commission on Human Rights for Australia, Chile, China, France, Lebanon, the Union of Soviet Socialist Republics, the United Kingdom and the United States. This temporary Sub-Commission shall be convened prior to the second session of the Commission on Human Rights and shall prepare, on the basis of documentation supplied by the Secretary-General, a preliminary draft of an International Bill of Human Rights; and DECIDES (a) that the draft prepared by the temporary Sub-Commission be submitted to the second session of the Commission on Human Rights; and (b) that the draft as developed by the Commission on Human Rights be submitted to all Members of the United Nations for their observations, suggestions and proposals; and

E/AC.7/15

55

(c) that these observations, suggestions and proposals then be considered as a basis of a redraft, if necessary, by the temporery [sic] Sub-Commission; and (d) that the resulting draft then be submitted to the Commission on Human Rights for final consideration; and (e) that the Council consider the proposed International Bill of Human Rights as submitted by the Commission on Human Rights with a view to recommending an International Bill of Human Rights to the General Assembly in 1948; and B. RESOLVES that, subject to the consent of their Governments, the Sub-Commission on Freedom of Information and of the Press be composed of the following persons: RESOLVES that the functions of the Sub-Commission be: (a) In the first instance, to examine what rights, obligations and practices should be included in the concept of freedom of information and to report to the Commission on Human Rights on any issues that may arise from such examination. (b) To perform any other functions which may be entrusted to it by the Economic and Social Council or by the Commission on Human Rights; and C. RESOLVES that, subject to the consent of their Governments, the Sub-Commission on Prevention of Discrimination and Protection of Minorities be composed of the following persons: D. RESOLVES that consideration of Chapter V of the Report of the Commission on Human Rights, entitled “Communications Concerning Human Rights”, be deferred until its fifth session. DRAFT RESOLUTION ON THE GENERAL ASSEMBLY RESOLUTION CONCERNING THE CRIME OF GENOCIDE THE ECONOMIC AND SOCIAL COUNCIL, Taking cognizance of the General Assembly resolution No. 96 of 11 December 1946, on the subject of genocide, instructs the SecretaryGeneral:

56

E/AC.7/15

(a) To undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) After consultation with the General Assembly Committee on the Development and Codification of International Law, and reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

E/AC.7/15/Add.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

57

UNRESTRICTED E/AC.7/15/Add.2 28 March 1947 ORIGINAL: ENGLISH

AMENDMENT PROPOSED TO RESOLUTIONS ON THE CRIME OF GENOCIDE (E/AC.7/15) Submitted by the Delegate for the United States It is proposed that Paragraph (b) of this resolution be amended to read as follows: (b) After consultation with the General Assembly Committee on the Development and Codification of International Law and, if feasible, the Commission on Human Rights, and after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

58

E/396/Rev.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/396/Rev.1 24 April 1947 ORIGINAL: ENGLISH

SUMMARY RECORD OF THE EIGHTY-SECOND MEETING OF THE PLENARY SESSION Held at Lake Success, New York, on Friday, 28 March 1947, at 2:45 p.m. Present: President:

Sir Ramaswami Mudaliar Mr. Kaminsky Mr. Smith Dr. Chang Mr. Santa Cruz Mr. Osuna Mr. Papanek Mr. Boris Mr. Kirpalani Mr. van Kleffens Mr. Reid Mr. Moe Mr. Arca Parro Mr. Yazici Mr. Morozov Mr. Phillips Mr. Stinebower Mr. Zuloaga

(India) (Byelorussian Soviet Socialist Republic) (Canada) (China) (Cuba) (Cuba) (Czechoslovakia) (France) (India) (Netherlands) (New Zealand) (Norway) (Peru) (Turkey) (Union of Soviet Socialist Republics) (United Kingdom) (United States of America) (Venezuela)

Secretariat: Mr. Yates [Discussions pertaining to issues other than the Genocide Convention] Mr. KOTSCHNIG (United States) proposed the insertion after “Committee on the Development and Codification of International Law” in the United States Resolution on Genocide the words “and, if feasible, the Commission on Human Rights, and after reference to all Member

E/396/Rev.1

59

Governments”, so that the paragraph would read: “After consultation with the General Assembly Committee on the Development and Codification of International Law, and, if feasible, the Commission on Human Rights, and after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.” This amendment was adopted. [Discussions pertaining to issues other than the Genocide Convention]

60

E/325

47(IV). Crime of genocide Resolution of 28 March 1947 (document E/325) The Economic and Social Council, Taking cognizance of the General Assembly resolution No. 96(I) of 11 December 19461 Instructs the Secretary-General (a) To undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) After consultation with the General Assembly Committee on the Development and Codification of International Law and, if feasible, the Commission on Human Rights and, after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

1

See Resolutions adopted by the General Assembly during the second part of its first session, pages 188, 189.

A/AC.10/41

61

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/41 6 juin 1947 ORIGINAL : FRENCH

COMMISSION CHARGEE D’ETUDIER LE DEVELOPPEMENT PROGRESSIF DU DROIT INTERNATIONAL ET SA CODIFICATION PROJET DE CONVENTION CONCERNANT LA PREVENTION ET LA REPRESSION DU GENOCIDE ET COMMENTAIRES Y RELATIFS (Préparé par le Secrétariat) TABLE DES MATIERES

Le projet de Convention Commentaires Introduction I II III IV

V

Mandat donné au Secrétaire général Comment la présente étude a été faite La délimitation de la notion de génocide Les problèmes principaux soulevés par la répression internationale du génocide

67 76 76 76 77 78 79

1°) Quels groupes humains la Convention doit-elle protéger 2°) Que faut-il entendre par génocide? 3°) La Convention aura-t-elle une portée universelle, ou ses effets seront-ils strictement limités aux états Parties à la Convention 4°) Les actes de génocide punis par la Convention seront-ils seulement [sic] actes commis par des gouvernements ou hommes d’état, ou indifféremment des actes commis par des gouvernants, fonctionnaires proprement dits, particuliers 5°) La répression du génocide par un Tribunal international 6°) Les conditions de l’entrée en vigueur de la Convention

80 80 81

De la manière dont la Convention a été rédigée

81

79 79

80

62

A/AC.10/41

Article I – Définitions générales

81

N° I de l’article I N° II de l’article I

83 84

1°) Il faut que l’acte ait été intentionnel – La guerre internationale et la guerre civile – Les violences individuelles ou collectives n’ayant pas pour but la destruction d’un groupe humain – La politique d’assimilation forcée d’un élément national 2°) Il faut que l’acte ait visé soit à détruire totalement ou partiellement le groupe, soit à entraver sa conservation ou son développement – Observations – Les trois formes de génocide 1. – Le génocide “physique” a) massacres collectifs ou exécutions individuelles b) soumission à des conditions de vie telles que faute de logement, d’habillement, de nourriture convenables, d’hygiène et de soins médicaux, ou par l’effet de travail ou d’exercices physiques excessifs, les individus sont voués à dépérir ou à mourir c) mutilations et expériences biologiques imposées sans but curatif d) privations de tout moyen d’existence par confiscation, pillage, interdiction de travailler, refus de logement et des approvisionnements accessibles aux autres habitants du territoire 2. – Le génocide “biologique” a) stérilisation des individus et avortements forcés b) séparation des sexes c) entraves au mariage 3. – Le génocide “culturel” Des moyens du génocide “culturel” a) transfert forcé des enfants dans un autre groupe humain b) éloignement forcé et systématique des éléments représentatifs de la culture du groupe

84 84 85 85

85 86 86 86 86

86 87

87 87 87 87 87 88 88 88 89

A/AC.10/41

c) interdiction d’employer la langue nationale même dans les rapports privés d) destruction systématique des livres imprimés dans la langue nationale ou des ouvrages religieux ou interdiction d’en faire paraître de nouveaux e) destruction systématique ou désaffectation des monuments historiques et des édifices du culte, destruction ou dispersion des documents et souvenirs historiques, artistiques ou religieux et des objets destinés au culte

63

89

89

89

Article II – Des faits punis

90

Commentaire – La tentative de génocide – Les actes préparatoires – La participation intentionnelle aux actes de génocide sous toutes ses formes – L’instigation directe publique aux actes de génocide – L’association ou toute forme d’entente en vue de l’accomplissement d’actes de génocide

90 90 90

Article III – De la punition d’un fait spécial

92

Commentaire – “Propagande publique” – “Caractère haineux” – Propagande “de nature à conduire au génocide ou à le faire regarder comme une action nécessaire, légitime ou excusable”

92 94 94 94

Article IV – De la qualité des coupables

94

Commentaire

94

Article V – L’ordre de la loi ou le commandement du supérieur hiérarchique

94

Commentaire

95

91 91 92

64

A/AC.10/41

Article VI – La prévision du génocide dans les législations pénales nationales

95

Commentaire

95

Article VII – Universalité de l’application de la loi pénale nationale

96

Commentaire

96

Article VIII – Extradition

96

Commentaire

97

Article IX – Cas où le génocide sera déféré à une juridiction internationale

97

Commentaire

97

Article X – Du tribunal international appelé à connaître du génocide

99

Commentaire

99

1ère formule Jugement par une cour pénale internationale possédant une compétence générale

99

2ème formule Jugement par une Cour internationale spéciale qu’organiserait la présente Convention

99

Article XI – Dissolution des groupes et organisations ayant participé au génocide

100

Commentaire

100

Article XII – De l’action des Nations Unies pour prévenir ou faire cesser le génocide

100

Commentaire

101

Article XIII – Des réparations à fournir aux victimes du génocide

102

Commentaire

102

A/AC.10/41

65

DISPOSITIONS FINALES

105

Article XIV – Règlement des différends relatifs à l’interprétation et à l’application de la Convention

105

Commentaire

105

Article XV – Langue – Date de la Convention

106

Commentaire

106

Article XVI – Quels états pourront devenir Parties à la Convention. Moyen d’y devenir Partie

106

Commentaire 1. Element commun aux deux formules 2. Explication de la première formule 3. Explication de la seconde formule

107 107 107 108

Article XVII – Réserves

108

Commentaire

108

Article XVIII – Entrée en vigueur de la Convention

109

Commentaire

109

Article XIX – Durée de la Convention – Dénonciation

110

Commentaire 1. Elément commun aux deux formules 2. Explication de la première formule 3. Explication de la seconde formule

110 110 111 111

Article XX – Abrogation de la Convention

112

Commentaire

112

Article XXI – Révision de la Convention

112

Commentaire

112

66

A/AC.10/41

Article XXII – Notification par le Secrétaire général

112

Commentaire

113

Article XXIII – Dépôt de l’original de la Convention – Envoi des copies aux gouvernements

113

Commentaire

113

Article XXIV – Enregistrement de la Convention

113

Commentaire

113

PROJET DE RECOMMANDATIONS QUE VOTERAIT L’ASSEMBLEE GENERALE

114

A/AC.10/41

67

PROJET DE CONVENTION CONCERNANT LA PREVENTION ET LA REPRESSION DU GENOCIDE. PREAMBULE. Les Hautes Parties contractantes déclarent que le génocide, qui est la destruction intentionnelle d’un groupe humain, constitue un défi à la conscience universelle, inflige à l’humanité des pertes irréparables en la privant des apports culturels et autres des groupes détruits, et contredit violemment l’esprit et les fins des Nations Unies. 1. Elles font appel à la solidarité des membres de la communautè internationale pour lutter contre ce crime odieux. 2. Elles proclament que les actes de génocide visés par la présente Convention constituent des crimes du droit des gens dont la prévention et la répression répondent à une exigence fondamentale de la civilisation [sic] de l’ordre international et de la paix. 3. Elles s’engagent à prévenir et à réprimer lesdits actes quel que soit le lieu de leur commission. ARTICLE I. Définitions générales (Des groupes protégés)

(Les actes constitutifs du génocide)

I. Le but de la présente Convention est d’empêcher la destruction des groupes humains d’ordre racial, national, linguistique, religieux ou politique. II. Dans la présente Convention, le génocide s’entend des faits criminels commis contre un des groupes humains précédemment énumérés dans le but de le détruire totalement ou partiellement ou d’entraver sa conservation ou son développement. Ces faits consistent : 1° A provoquer la mort des membres du groupe ou à porter atteinte à leur intégrité ou à leur santé par les moyens suivants : a) massacres collectifs ou exécutions individuelles ;

68

A/AC.10/41

b) soumission à des conditions de vie telles que, faute de logement, d’habillement, de nourriture convenables, d’hygiène et de soins médicaux, ou par l’effet de travail ou d’exercices physiques excessifs, les individus sont voués à dépérir ou à mourir ; c) mutilations et expériences biologiques imposées sans but curatif ; d) privation de tout moyen d’existence par confiscation, pillage, interdiction de travailler, refus du logement et des approvisionnements accessibles aux autres habitants du territoire. 2° A mettre obstacle aux naissances par les moyens suivants : a) stérilisation des individus et avortements forcés ; b) séparation des sexes ; c) entraves an mariage. 3° A détruire les caractères spécifiques du groupe par les moyens suivants : a) transfert forcé des enfants dans un autre groupe humain ; b) éloignement forcé et systématique des éléments représentatifs de la culture du groupe ; c) interdiction d’employer la langue nationale, même dans les rapports privés ; d) destruction systématique des livres imprimés dans la langue nationale ou des ouvrages religieux ou interdiction d’en faire paraître de nouveaux ; e) destruction systématique ou désaffectation des monuments historiques et des édifices du culte, destruction ou dispersion des documents et souvenirs historiques, artistiques ou religieux et des objets destinés au culte

A/AC.10/41

69

ARTICLE II. (Des faits punis)

I. Sont également considérés comme crimes de génocide : 1° la tentative du génocide ; 2° les actes préparatoires suivants : a) les études et recherches destinées à mettre au point les techniques du génocide ; b) le fait d’établir des installations, de fabriquer, de se procurer, de détenir ou de fournir des matériaux et produits, sachant qu’ils sont destinés à l’exécution des crimes de génocide ; c) les instructions, ordres, consignes, répartition des tâches en vue de l’exécution du génocide. II. Doivent aussi être punis : 1° La participation intentionnelle aux actes de génocide sous toutes ses formes ; 2° l’instigation directe publique aux actes de génocide qu’elle soit ou non suivie d’effets ; 3° l’association ou toute forme d’entente en vue de l’accomplissement d’actes de génocide.

ARTICLE III. (De la punition d’un fait spécial)

Doivent être punies les propagandes publiques qui, par leur caractère systématique et haineux, sont de nature à conduire au génocide ou à le faire regarder comme une action nécessaire, légitime ou excusable.

ARTICLE IV. (De la qualité des coupables)

Les auteurs des actes de génocide seront punis, qu’ils soient des gouvernants, des fonctionnaires ou des particuliers.

70

A/AC.10/41

ARTICLE V. (L’ordre de la loi et le commandement du supérieur hiérarchique)

L’ordre de la loi ou le commandement des supérieurs hiérarchiques ne constitue pas un fait justificatif.

ARTICLE VI. (La prévision du génocide dans les législations pénales nationales)

Les Hautes Parties contractantes doivent prévoir dans leur législation pénale les actes de génocide visés aux articles I, II et III, et les réprimer efficacement.

ARTICLE VII. (Universalité de l’application de la loi pénale nationale)

Les Hautes Parties contractantes s’engagent à punir les auteurs d’actes visés par la présente Convention se trouvant sur un territoire soumis à son contrôle, quel que soit leur nationalité ou le lieu de commission du crime.

ARTICLE VIII. (Extradition)

Les Hautes Parties contractantes déclarent que le génocide ne doit pas être considéré comme un crime politique et qu’il donne lieu à l’extradition. Les Hautes Parties contractantes s’engagent à acceder l’extradition pour actes de génocide.

ARTICLE IX. (Jugement du génocide par une juridiction internationale)

Les Hautes Parties contractantes s’engagent à déférer à la juridiction internationale les auteurs de génocide visés par la présente Convention dans les cas suivants : 1° Si elles ne sont pas disposées, ni à les juger elles-mêmes en application de l’article VII, ni à les extrader en application de l’article VIII.

A/AC.10/41

71

2° Si les actes de génocide ont été commis par les individus agissant comme organes de l’Etat, ou avec l’encouragement ou la tolérance de l’Etat.

ARTICLE X. (Du tribunal international appelé à connaître du génocide)

Une alternative est proposée : 1ère formule : la juridiction pénale prévue à l’article VIII sera la Cour internationale qui aura reçu compétence générale pour juger les crimes internationaux. 2ème formule : un tribunal international sera institué pour juger les crimes de génocide (voir annexes).

ARTICLE XI. (Dissolution des groupes et organisations ayant participé au génocide)

Les Hautes Parties contractantes s’engagent à dissoudre les groupes ou organisations aui [sic] auront participé à la commission des faits de génocide visés aux articles I, II et III.

ARTICLE XII. (De l’action des Nations Unies pour prévenir ou faire cesser le génocide)

Indépendamment des mesures prévues aux articles précédents, si dans quelque partie du monde les crimes visés par la présente Convention étaient commis, ou s’il y avait des raisons sérieuses de soupçonner qu’ils ont été commis, les Parties à la Convention saisiraient les organes compétents des Nations Unies pour que ceux-ci prennent les mesures nécessaires afin d’arrêter ou de prévenir lesdits crimes. Lesdites Parties feraient tout ce qui est en leur pouvoir pour assurer l’efficacité de l’intervention des Nations Unies.

72

A/AC.10/41

ARTICLE XIII. (Des réparations à fournir aux victimes Quand dans un pays le génocide sera du génocide) commis par un gouvernement ou par des éléments de la population sans que le gouvernement ait réussi à s’y opposer d’une façon efficace, l’Etat sera tenu de fournir aux survivants du groupe humain victime du génocide, des réparations dont la nature et le montant seront fixés par les Nations Unies.

ARTICLE XIV. (Règlement des différends relatifs à l’interpretation ou à l’application de la Convention)

Les différends relatifs à l’interpretation ou à l’application de la présente Convention, seront soumis à la Cour internationale de Justice.

ARTICLE XV. (Langue – date de la Convention)

La présente Convention dont les textes chinois, anglais, français, russe et espagnol feront égalament foi, protera la date du. . . .

ARTICLE XVI. (Quels Etats pourront devenir Partie à la Convention. Moyens d’y devenir Partie)

1ère formule : 1° Il pourra être adhéré à la présente Convention au nom de tout Membre des Nations Unies ou de tout Etat non membre auquel le Conseil économique et social aura adressé une invitation. 2° Les instruments d’adhésion seront transmis au Secrétaire général des Nations Unies. 2ème formule : 1° La présente Convention sera, jusqu’au . . . 1948, ouverte à la signature au nom de tout Membre des Nations Unies et de tout Etat non membre à qui le Conseil écono-

A/AC.10/41

73

mique et social aura adressé une invitation. La présente Convention sera ratifiée, les instruments de ratification seront transmis au Secrétaire général des Nations Unies. 2° A partir du . . . 1948, il pourra être adhéré à la présente Convention au nom de tout Membre des Nations Unies et de tout Etat non membre qui aura reçu l’invitation susmentionnée. Les instruments d’adhésion seront transmis au Secrétaire général des Nations Unies.

ARTICLE XVII. (Réserves . . .)

Aucune disposition n’est présentement proposée.

ARTICLE XVIII. (Entrée en vigueur de la Convention)

1. La présente Convention entrera en vigueur le quatre-vingt dixième jour qui suivra la réception par le Secrétaire général des Nations Unies d’au moins . . . adhésions (ou de . . . ratifications et adhésions). 2. Chaque adhésion (ou chaque ratification ou adhésion) qui interviendra après l’entrée en vigueur de la présente Convention sortira ses effets dès le quatre-vingt dixième jour qui suivra la date de sa réception par le Secrétaire général des Nations Unies.

ARTICLE XIX.

74

A/AC.10/41

1ère formule : 1. La présente Convention aura une durée de cinq ans à partir de sa mise en vigueur. 2. Elle restera en vigueur pour une nouvelle période de cinq ans, et ainsi de suite, vis-à-vis des Parties contractantes qui ne l’auront pas dénoncée six mois au moins avant l’expiration du terme. 3. La dénonciation se fera par notification écrite adressée au Secrétaire général des Nations Unies.

(Durée de la Convention – dénonciation).

2ème formule : La présente Convention pourra être dénoncée par une notification adressée au Secrétaire général des Nations Unies. Cette notification prendra effet un an après sa réception.

ARTICLE XX. (Abrogation de la Convention)

Si, par suite de dénonciation, le nombre des Membres des Nations Unies et des Etats non membres qui sont liés par la présente Convention, se trouve ramené à moins de . . ., la Convention cessera d’être en vigueur à partir de la date à laquelle la dernière de ces dénonciations prendra effet.

ARTICLE XXI. (Revision [sic] de la Convention)

Une demande de revision [sic] de la présente Convention pourra être formulée en tout temps par tout Etat Partie à la Convention par voie de notification adressée au Secrétaire général. Le Conseil économique et social décidera de la suite à donner à une telle demande.

A/AC.10/41

75

ARTICLE XXII. (Notifications par le Secrétaire général)

Le Secrétaire général des Nations Unies notifiera à tous les Membres des Nations Unies et aux Etats non membres visés à l’article 16, les adhésions (ou les signatures, ratifications et adhésions) reçues en application des articles 16, et 18, les dénonciations reçues en applications de l’article 19, l’abrogation de la Convention opérée en vertu de l’article 20, les demandes de revision de la Convention formulées en application de l’article 21.

ARTICLE XXIII. (Dépôt de l’original de la Convention, envoi de copies aux gouvernements)

1. Un exemplaire de la présente Convention revêtu de la signature du Président de l’Assemblée générale et de celle du Secrétaire général des Nations Unies sera déposé aux archives du Secrétariat. 2. Une copie certifiée conforme du texte sera communiquée à tous les Membres des Nations Unies ainsi qu’aux Etats non membres mentionnés à l’article . . .

ARTICLE XXIV. (Enregistrement de la Convention)

La présente Convention sera enregistrée par le Secrétaire général des Nations Unies à la date de son entrée en vigueur.

76

A/AC.10/41

COMMENTAIRE PAR LE SECRETAIRE GENERAL DU PROJET DE CONVENTION CONCERNANT LE GENOCIDE INTRODUCTION I – Mandat donné au Secrétaire général – Le Conseil économique et social donnant suite à une résolution de l’Assemblée générale en date du 11 décembre 1946(1) a, par une résolution en date du 28 mars 1947, chargé le Secrétaire général de préparer une étude avec un projet de convention sur le crime international de génocide. (1)

Le génocide est le refus du droit à l’existence à des groupes humains entiers, de même que l’homicide est le refus du droit à l’existence à un individu; un tel refus bouleverse la conscience humaine, inflige de grandes pertes à l’humanité, qui se trouve ainsi privée des apports culturels ou autres des groupes, et est contraire à la loi morale ainsi qu’a l’esprit et aux fins des Nations Unies. On a vu perpétrer des crimes de génocide qui ont entièrement ou partiellement détruit des groupements réciaux, religieux, politiques ou autres. La répression du crime de génocide est une affaire d’intérêt international. L’ASSEMBLEE GENERALE, EN CONSEQUENCE, AFFIRME que le génocide est un crime de droit de gens que le monde civilisé condamne, et pour lequel les auteurs principaux et leurs complices, qu’ils soient des personnes privées, des fonctionnaires ou des hommes d’état, doivent être punis qu’ils agissent pour des raisons raciales, religieuses, politiques ou pour d’autres motifs. INVITE les Etats Membres a prendre des mesures legislatives nécessaires pour prévenir et réprimer ce crime; RECOMMANDE d’organiser la collaboration internationale des Etats en vue de prendre rapidement des mesures préventives contre le crime de génocide et d’en faciliter la répression, et, a cette fin. CHARGE le Conseil économique et social d’entreprendre les études nécessaires en vue de rédiger un projet de convention sur le crime du génocide, qui sera soumis à l’Assemblée générale lors de sa prochaine session ordinaire.

La résolution du Conseil économique et social est ainsi conçue [sic] :

A/AC.10/41

77

LE CONSEIL ECONOMIQUE ET SOCIAL Prenant acte de la résolution N° 96 de l’Assemblée générale, en date du 11 décembre 1946, charge le Secrétaire général : a) d’entreprendre, avec l’aide d’experts dans le domaine du droit international et criminel, les études nécessaires en vue de rédiger un projet de convention conformément à la résolution de l’Assemblée générale ; et b) après avoir consulté la commission de l’Assemblée générale chargée d’étudier le développement progressif du droit international et sa codification et, si possible, la Commission des droits de l’homme, et après avoir appelé les remarques de tous les gouvernements membres, de présenter au Conseil économique et social à sa prochaine session, un projet de convention sur le crime de génocide.

Donnant suite à la dite résolution du Conseil économique et social, le Secrétaire général a prié le directeur de la division des droits de l’homme de préparer un projet de convention accompagné de commentaires appropriés et il a demandé à trois experts, [sic] savoir M. Donnedieu de Vabres, professeur à la faculté de droit de Paris, son Excellence M. le professeur Pella, président de l’Association internationale de droit pénal et M. le professeur Lemkin, de lui donner le concours de leurs avis autorisés. Les experts ont discuté avec le professeur Humphrey, directeur de la division des droits de l’homme, le professeur Giraud, chef de la section des recherches de la division des droits de l’homme et M. Kliava, représentant du département juridique, un avant-projet de convention. Tenant compte des observations des experts, le Secrétaire général a amendé et complété l’avant-projet qu’il avait soumis à leur examen qui est devenu le projet reproduit ci-dessous. II – Comment la présente étude a été faite – Le Secrétaire général a estimé qu’il devait en premier lieu délimiter la notion de génocide de façon à ce qu’elle n’empiète pas sur d’autres notions qui en bonne logique sont et doivent demeurer distinctes. Il a estimé en second lieu qu’il devait présenter un projet de convention aussi large qu’on pouvait raisonnablement le concevoir, de sorte que les organes des Nations Unies appelés à discuter la question trouvent autant que possible dans le projet qui leur serait présenté par le Secrétaire général tous les points susceptibles d’être retenus, étant entendu qu’ils élimineraient

78

A/AC.10/41

ce qu’ils voudraient. Le projet établi par le Secrétaire général a ainsi la caractère d’un projet “maximum” étant entendu qu’en donnant une telle extension au projet le Secrétaire général n’a entendu nullement recommander telle solution politique de préférence à telle autre, mais qu’il a voulu fournir une base de discussion complète. Les organes des Nations Unies composés de représentants des gouvernements trancheront les questions d’ordre politique que pose le problème de la prévention et de la répression du génocide. Le rôle du Secrétaire général en dressant un premier projet devait être de poser méthodiquement les questions et de mettre en évidence tous les points qui doivent retenir l’attention. III – La délimitation de la notion de génocide – Le génocide est la destruction intentionnelle d’un groupe humain. Il faut s’en tenir à cette définition littérale faute de quoi on risque d’étendre indéfiniment la notion de génocide au point d’y inclure le droit de la guerre, le droit des peuples à disposer d’eux-mêmes, la protectien des minorités, le respect des droits de l’homme . . . Il y aurait un double inconvénient à ne pas limiter soigneusement la notion de génocide. D’une part on comprendrait dans le génocide des crimes ou des abus internationaux qui, si condamnables qu’ils soient, ne constituent pas le génocide et ne pourraient être regardés comme tels que par un artifice de raisonnement. Or, il convient que l’édification du droit international se fasse sur une base rationnelle et logique excluant confusion et arbitraire, chaque notion étant convenablement délimitée et n’empiètant pas sur les autres. D’autre part en étendant exagérément la notion de génocide on risquerait de compromettre le succès de la convention appelée à prévenir et à réprimer ce crime international sans doute le plus odieux. En effet, une convention sur le génocide qui comporterait trop d’incidences et d’implications accessoires dont à première vue il ne serait pas toujours facile de bien discerner la portée risquerait de provoquer la suspicion des gouvernements et de les incliner à l’abstention. A vouloir viser trop de buts à la fois on manquerait le but essentiel que l’on doit chercher à atteindre.

A/AC.10/41

79

Droit de la guerre, droit des nationalités, protection des minorités, droits et obligations générales des états, protection des droits de l’homme sont des chapitres du droit international qui ne doivent pas se fondre totalement ou partiellement dans la question du génocide quoique le génocide ait avec eux tous de nombreux points de contact. IV – Les problèmes principaux soulevés par la répression internationale du génocide – Les problèmes principaux soulevés par la répression internationale du génocide, problèmes d’ordre gouvernemental plus encore que technique sont les suivants : 1° – Quels groupes humains la convention doit-elle protéger ? Les groupes humains sont divers, ils sont raciaux, nationaux, linguistiques, religieux, politiques. Cette énumération n’est pas limitative. Faut-il que la convention sur le génocide les protège tous ou seulement certains d’entre eux ? C’est la première question générale qui devra être tranchée. Suivant la méthode que nous avons indiquée, nous avons présenté la formule la plus large laissant aux organes des Nations Unies le soin de restreindre à leur guise (voir article 1) 2° – Que faut-il entendre par génocide ? Monsieur le professeur Lemkin distingue le génocide “physique” (destruction des individus), le génocide “biologique” (obstacle aux naissances), le génocide “culturel” (destruction brutale des caractères spécifiques d’un groupe). Faut-il admettre ces trois notions ou s’en tenir à la première et à la seconde ? – C’est la seconde question générale qui devra être tranchée. Fidèles à notre méthode nous avons présenté des formules couvrant les trois types de génocide pour qu’on puisse se faire une idée précise de [illegible].

80

A/AC.10/41

3° – La convention aura-t-elle une portée universelle, ou ses effets seront-ils strictement limités aux États parties à la convention ? Il est évident que le système d’obligation établi par la convention ne pèsera que sur les Etats parties à la Convention, autrement la condition des Etats parties à la Convention et celle des Etats non parties serait la même. Cependant on peut concevoir que les Etats limitent strictement les effets de la Convention aux actes commis sur le territoire des Etats parties à la Convention ou par les nationaux des dits Etats ou qu’au contraire les Etats parties à la Convention répriment le génocide où qu’il ait été commis et quelle que soit la nationalité de ses auteurs. Il a semblé au Secrétaire général et aux experts que le projet de Convention devait consacrer cette dernière conception, d’une part parce qu’il semble que la résolution de l’Assemblée du 11 décembre 1946 l’a déjà fait sienne et d’autre part parce que le génocide par sa nature même est un délit du droit des gens et si on lui déniait ce caractère la Convention manquerait son objet. (Voir préambule 1° – II – articles – article 8, article 12) 4° – Les actes de génocide punis par la Convention seront-ils seulement des actes commis par des gouvernants ou hommes d’état (c’est-à-dire des personnages investis d’une fonction proprement politique: ministres, membres d’assemblées législatives) ou indifféremment des actes commis par des gouvernants, des fonctionnaires proprement dits, des particuliers ? Le projet de Convention contrairement à l’avis exprimé par un expert (voir plus loin l’article V et commentaires) a présenté la formule la plus large d’une part parce que cela est conforme à la méthode générale suivie d’autre part parce que la résolution de l’Assemblée du 11 décembre 1946 semble avoir fait sienne cette formule. 5° – La répression du génocide par un tribunal international – Les tribunaux nationaux seront appelés à participer à la répression du génocide. Mais dans certains cas qui seront les plus graves, il serait, semble-t-il, très désirable que la répression fut exercée par un tribunal international. Ce tribunal pourrait être une cour pénale internationale possédant une compétence générale ; à défaut d’une telle cour il faudrait prévoir une juridiction spéciale dont la compétence se limiterait au génocide.

A/AC.10/41

81

La question de la création d’une cour pénale internationale à compétence générale dépasse la question du génocide. Il ne nous appartient pas d’aborder cette question. Cependant les organes chargés de la préparation de la Convention sur la répression du génocide pourront en liaison avec les autres organes s’occupant du droit pénal international et de la codification du droit international considérer la question. 6° – Les conditions de l’entrée en vigueur de la Convention – Etant donné que la Convention est appelée à avoir une application universelle c’est-à-dire à produire certains effets à l’égard d’Etats même non parties à la Convention, la question de savoir combien il faut prévoir d’adhésions pour que la Convention entre en vigueur présente une importance particulière. V – De la manière dont la Convention a été rédigée – Etant donné que d’une part le projet de Convention est appelé à jouer le rôle d’une base de discussion de nature à faciliter celle-ci et que d’autre part le génocide est une matière nouvelle, le projet s’efforce de sérier et d’isoler les questions, il contient dans ses premiers articles des classifications assez détaillées, des énumérations de faits qu’il ne sera peut-être pas nécessaire de maintenir dans le texte de la Convention. Une fois que l’on se serait mis d’accord sur ce que l’on entend viser ou exclure, des formules synthétiques plus brèves pourraient aisément être substituées aux formules actuelles de caractère analytique. ARTICLE I Définitions générales (Des groupes protégés)

I. Le but de la présente Convention est d’empêcher la destruction des groupes humains d’ordre racial, national, linguistique, religieux ou politique.

(Les actes constitutifs du génocide)

II. Dans la présente Convention, le génocide s’entend des faits criminels commis contre un des groupes humains précédemment énumérés dans le but de le détruire totalement ou partiellement ou d’entraver sa conservation ou son développement.

82

A/AC.10/41

Ces faits consistent : 1° A provoquer la mort des membres du groupe ou à porter atteinte à leur intégrité ou à leur santé par les moyens suivants : a) massacres collectifs ou exécutions individuelles ; b) soumission à des conditions de vie telles que, faute de logement, d’habillement, de nourriture convenables, d’hygiène et de soins médicaux, ou par l’effet de travail ou d’exercices physiques excessifs, les individus sont voués à dépérir ou à mourir ; c) mutilations et expériences biologiques imposées sans but curatif ; d) privation de tout moyen d’existence confiscation, pillage, interdiction de travailler, refus du logement et des approvisionnements accessibles aux autres habitants du territoire. 2° A mettre obstacle aux naissances par les moyens suivants : a) stérilisation des individus et avortements forcés ; b) séparation des sexes ; c) entraves an mariage. 3° A détruire les caractères spécifiques du groupe par les moyens suivants : a) transfert forcé des enfants dans un autre groupe humain ; b) éloignement forcé et systématique des éléments représentatifs de la culture du groupe ; c) interdiction d’employer la langue nationale, même dans les rapports privés ; d) destruction systématique des livres imprimés dans la langue nationale ou des ouvrages religieux ou interdiction d’en faire paraître de nouveaux ; e) destruction systématique ou désaffectation des monuments historiques et des édifices du culte, destruction ou dispersion des documents et souvenirs historiques, artistiques ou religieux et des objets destinés au culte.

A/AC.10/41

83

Commentaire de l’article I N° I de l’article I Le but de la présente Convention est d’empêcher la destruction des groupes humains d’ordre racial, national, linguistique, religieux ou politique.

1 – Le génocide, comme son nom l’indique, vise un groupe à travers les individus qui le composent. Un groupe humain est constitué par un certain élément de population dont les membres ont des traits communs qui les distinguent des autres éléments de la société. Les groupes humains, si l’on se place à un point de vue très général, sont nombreux et divers, mais si l’on considère le problème de génocide du point de vue pratique, et des expériences du passé, il est évident qu’il ne s’agit pas de protéger une catégorie professionnelle ou un groupe sportif. Les groupes humains dont on peut envisager la protection sont d’ordre : racial national linguistique religieux politique 2 – Le Secrétaire général a mentionné ces cinq groupes parce qu’à l’exception du groupe linguistique, ils étaient mentionnés dans la résolution de l’Assemblée du 11 décembre 1946 et que, parce que suivant la méthode qu’il adoptait, il devait présenter la formule la plus large. Cependant, un des experts consultés, M. Lemkin, a émis des doutes sur l’opportunité de comprendre les groupes d’ordre politique. Il a fait observer d’une part que les groupes politiques n’avaient pas la permanence et les caractères spécifiques accusés des autres groupes précités, que d’autre part, la Convention sur le génocide présentant un intérêt considérable, il ne faudrait pas risquer de provoquer un échec en voulant y introduire des notions sur lesquelles le monde est profondément divisé. Il a fait remarquer en outre que pratiquement les groupes humains les plus exposés au génocide, comme l’histoire le montre, sont les groupes raciaux, nationaux et religieux. Un autre expert, M. Donnedieu de Vabres, a combattu ce point de vue déclarant que le génocide constituait un crime odieux, quel que soit le

84

A/AC.10/41

groupe qui en était la victime et que l’exclusion des groupes politiques pourrait être considérée comme légitimant le génocide commis contre ces groupes. M. Pella a estimé que cette question si délicate était du ressort de l’Assemblée. N° II de l’article I Le premier paragraphe du n° II définit le génocide. Il s’agit d’actes intentionnels commis “dans le but de détruire un groupe humain totalement ou partiellement ou d’entraver sa conservation ou son développement.” 1° – Il faut que l’acte ait été intentionnel – C’est-à-dire qu’il ait eu pour but la destruction d’un groupe humain. Par là, certains actes qui peuvent avoir pour résultat la destruction tout au moins partielle d’un groupe humain, se trouvent exclus en principe de la notion de génocide, à savoir : la guerre internationale et la guerre civile, les violences individuelles n’ayant pas pour but la destruction d’un groupe humain, la politique d’assimilation forcée d’un élément national, le déplacement en masse d’une population. La guerre internationale et la guerre civile 1) La guerre n’a pas normalement pour but la destruction de l’ennemi. Cette destruction n’est que le moyen employé par un belligérent pour imposer sa volonté à l’autre partie. Une fois ce résultat atteint, la paix est conclue; si dure que puisse être la condition faite alors au vaincu, celui-ci conserve son droit à l’existence. 2) Le fait d’infliger des pertes même étendues aux populations civiles au cours d’opérations de guerre ne constitue pas, en principe, le génocide. En effet, dans la guerre moderne, les belligérants procèdent normalement à des destructions d’usines, de voies de communications, de bâtiments publics qui s’accompagnent fatalement de pertes plus ou moins étendues pour la population civile. Il y a certainement intérêt à limiter les pertes subies par la population civile. Diverses mesures pourraient être prises à cet effet, mais cela rentre dans le domaine de la réglementation des conditions de la guerre et non dans celui du génocide.

A/AC.10/41

85

3) Toutefois, la guerre peut s’accompagner du crime de génocide. Il en est ainsi si l’un des belligérants vise à l’extermination de la population du pays ennemi et procède à des destructions systématiques qui ne sont pas justifiées par des raisons militaires valables. Par exemple, il met à mort les prisonniers de guerre, il massacre les populations de territoires occupés ou les soumet au régime de la mort lente. Dans cas, le génocide apparaît clairement. Des violences individuelles ou collectives n’ayant pas pour but la destruction d’un groupe humain. Dans une période de tension, si des bagarres, rixes, éclatent entre partis politiques adverses ou entre adeptes de religions hostiles, ou si des partis ou factions se disputent par la force la possession du pouvoir, il peut y avoir des destructions de vies humaines; cependant ces actes ne rentrent pas dans la notion de génocide tant que la volonté de détruire physiquement un groupe humain n’existe pas. La politique d’assimilation forcée d’un élément national Une telle politique, même si l’on admet la notion du génocide “culturel” (voir plus loin), ne constitue pas, en principe, le génocide. C’est le régime de la protection des minorités qui doit, si on le juge à propos, viser à protéger les minorités contre une politique d’assimilation forcée qui n’emploie que des procédés relativement modérés. Le déplacement en masse d’une population d’une région à une autre ne constitue pas non plus un génocide. Il le deviendrait cependant si l’opération était conçue de telle sorte qu’elle dut aboutir, par suite des circonstances, à la mort de tout ou partie de la population déplacée. (Par exemple, on chasse les gens de leur domicile et on les oblige à faire de longs parcours dans un pays où ils seront exposés à la faim, à la soif, à la chaleur, au froid, aux épidémies). 2° – Il faut que l’acte ait visé, soit à détruire totalement ou partiellement le groupe, soit à “entraver sa conservation ou son développement”. La destruction systématique, ne fût-ce que d’une fraction du groupe humain, constitue un crime d’une gravité exceptionnelle.

86

A/AC.10/41

L’entrave à la conservation et au développement du groupe constitue aussi un génocide. Observations : Il est évidemment indifférent que les victimes du génocide soient des nationaux ou des étrangers. Il importe peu que le génocide soit commis en temps de paix ou en temps de guerre, (sous réserve de ce qui a été dit plus haut concernant la guerre étrangère ou la guerre civile). Les trois formes de génocide L’article i prévoit les trois formes de génocide qui ont été qualifiées par le professeur Lemkin de génocide “physique”, “biologique” et “culturel”. Pour permettre d’avoir une idée concrète et précise de ces trois formes, le projet énumère d’une façon générale les moyens matériels employés pour la Commission [sic] du génocide 1° – Le génocide physique Il s’agit de faits qui visent “à provoquer la mort des membres du groupe ou à porter atteinte à leur intégrité physique et à leur santé.” Les moyens mentionnés sont : a) massacres collectifs ou exécutions individuelles Ceci n’appelle pas de commentaires b) soumission à des conditions de vie telles que, faute de logement, d’habillement, de nourriture convenables, d’hygiène, et de soins médicaux, ou par l’effet de travail ou d’exercices physiques excessifs, les individus sont voués à dépérir ou à mourir. Il s’agit de la “mort lente”. Ici, l’intention de l’auteur du génocide peut apparaître avec moins de certitude. Evidemment, si les membres d’un groupe humain sont placés dans des camps de concentration où la mortalité est de 30 à 40% en une année, la volonté de génocide ne laisse place à aucun doute. Il peut y avoir des cas limités où une mortalité relativement élevée peut être attribuée à l’incurie, à la négligence ou à l’inhumanité, facteurs qui, tout en étant hautement coupables, n’impliqueraient pas l’intention de génocide. Mais en toute matière, il existe de ces cas limités qui sont affaire d’appréciation.

A/AC.10/41

87

c) mutilations et expériences biologiques imposées sans but curatif. Ces pratiques ont été courantes dans l’Allemagne hitlérienne. Les expériences biologiques sont condamnables même si elles avaient une valeur scientifique parce qu’elles impliquent que la vie et la santé des membres du groupe humain qui y sont assujettis est considérée comme sans valeur. d) privation de tout moyen d’existence par confiscation, pillage, interdiction de travailler, refus de logement et des approvisionnements accessibles aux autres habitants du territoire. L’homme ne peut vivre que de l’apport qu’il reçoit de la société en échange des services qu’il lui rend. Si l’Etat, systématiquement, refuse aux membres d’un certain groupe humain les moyens élémentaires d’existence dont jouissent les autres éléments de la population, il condamne ces éléments à une vie misérable alimentée par des activités illicites ou clandestines, la charité publique et, en définitive, il les condamne à une mort à moyen terme au lieu de les condamner à la mort à court terme de camps de concentration, mais ce n’est en définitive qu’une différence de degré. 2° – Le génocide “biologique” Le génocide “biologique” est constitué par des mesures qui visent à l’extinction d’un groupe humain en mettant systématiquement obstacle aux naissances sans lesquelles le groupe ne peut se perpétuer. Ces obstacles peuvent être physiques, juridiques, sociaux. L’article l énumère ces procédés : a) Stérilisation des individus et avortements forcés Ce sont des moyens physiclogiques. b) Séparation des sexes Celle-ci peut résulter de diverses causes : résidence obligatoire dans des lieux éloignés, travail assigné de façon systématique aux hommes et aux femmes dans des lieux différents. c) Entraves au mariage Il s’agit là d’obstacles d’ordre juridique.

88

A/AC.10/41

3° – Le génocide “culturel” Le génocide “culturel” consistant non en la destruction des membres du groupe ni en une entrave mise aux naissances, mais en la destruction poursuivie par des moyens brutaux des caractères spécifiques du groupe, a donné lieu à des divergences de vues parmi les experts. MM. Donnedieu de Vabres et Pella ont déclaré que le génocide “culturel” représentait une extension excessive de la notion de génocide et aboutissait à reconstituer sous le couvert de génocide, l’ancienne protection des minorités qui répondait à d’autres conceptions. M. Lemkin a soutenu, au contraire, qu’un groupe humain d’ordre racial, national ou religieux ne peut se perpétuer qu’en conservant son esprit et sa cohésion morale. Le droit à l’existence d’un tel groupe se justifie non seulement du point de vue de la moralité, mais encore du point de vue de l’intérêt de la société internationale en raison de l’apport culturel que ce groupe apporte à la civilisation universelle. La suppression des diverses cultures serait aussi funeste pour la civilisation que la destruction physique des nations. M. Lemkin a ajouté que les moyens du génocide culturel sont des actes criminels au regard des lois nationales; dès lors, rien n’empêche de les inclure dans le génocide délit du droit des gens. M. Lemkin a fait observer qu’il s’agit ici de bien plus qu’une politique ordinaire d’assimilation forcée usant une contrainte modérée comportant, par exemple, l’interdiction d’ouvrir des écoles enseignant la langue du groupe humain considéré, de publier des journaux imprimés dans ladite langue, d’employer cette langue dans les actes publics et devant les tribunaux. Il s’agit d’une politique qui, par des moyens draconiens, viserait à la disparition rapide et complète de la vie culturelle, morale, religieuse, d’un groupe humain. Des moyens du génocide culturel a) transfert forcé des enfants dans un autre groupe humain La séparation des enfants d’avec les parents a pour effet d’imposer aux individus à l’âge où ils sont maléables et réceptibles, une culture et une mentalité différentes de celles de leurs parents. Par ce procédé, on tend à obtenir la disparition à relativement brève échéance du groupe en tant qu’élément culturel.

A/AC.10/41

89

En ce qui concerne ce point, les experts se sont trouvés d’accord pour qu’il soit couvert par la Convention sur le génocide mais leur accord n’est pas allé au delà. b) éloignement forcé et systématique des éléments représentatifs de la culture du groupe Ces éléments sont représentés principalement par les savants, les littérateurs, les artistes, les professeurs et éducateurs, les ministres des cultes, les médecins, les ingénieurs, les juristes, les administrateurs, etc. . . . La vie culturelle et morale d’un groupe est entretenue par ses éléments cultivés. Si l’on éloigne ceux-ci, le groupe n’est plus qu’une masse amorphe, incapable de défense. La langue est ravalée au rang d’un patois qui met ceux qui le parlent en état d’infériorité et n’a plus de signification du point de vue politique et social. M. le professeur Lemkin eût préféré la formule suivante : “élimination systématique des éléments représentatifs de la culture du groupe par des actes de violence ou des atteintes à la liberté personnelle.” Il nous a paru que si l’on voulait adopter l’idée en question, la formule la plus simple était la meilleure. c) Interdiction d’employer la langue nationale même dans les rapports privés. Il s’agit là d’une véritable mesure de prescription de la langue nationale dont l’emploi est interdit même à la maison et dans la correspondance. M. le Professeur Lemkin a proposé une formule autre : “interdiction, sous menace de sanction pénale ou de recours à des violences, d’employer la langue nationale même dans les rapports privés”. d) destruction systématique des livres imprimés dans la langue nationale ou des ouvrages religieux ou interdiction d’en faire paraître de nouveaux. Un groupe national linguistique religieux ne peut se maintenir s’il n’a pour support que la tradition orale. e) destruction systématique ou désaffectation des monuments historiques et des édifices du culte, destruction ou dispersion des documents et souvenirs historiques, artistiques ou religieux et des objets destinés au culte. Ces procédés visent également à miner l’existence d’un groupe humain.

90

A/AC.10/41

ARTICLE II (Des faits punis)

I. Sont également considérés comme crimes de génocide : 1° la tentative du génocide ; 2° les actes préparatoires suivants : a) les études et recherches destinées à mettre au point les techniques du génocide ; b) le fait d’établir des installations, de fabriquer, de se procurer, de détenir ou de fournir des matériaux et produits, sachant qu’ils sont destinés à l’exécution des crimes de génocide ; c) les instructions, ordres, consignes, répartition des tâches en vue de l’exécution du génocide. II. Doivent aussi être punis : 1° La participation intentionnelle aux actes de génocide sous toutes ses formes ; 2° l’instigation directe publique aux actes de génocide qu’elle soit ou non suivie d’effets ; 3° l’association ou toute forme d’entente en vue de l’accomplissement d’actes de génocide.

Commentaire de l’article II – Cet article énumère d’autres actes en rapport avec les faits définis à l’article 7 qui doivent être punis (tentative, actes préparatoires, complicité, instigations, associations en vue de commettre le génocide). “La tentative du génocide” Pas de commentaires. “Les actes préparatoires” Les actes préparatoires des crimes ne tombent pas en général sous le coup de la loi pénale parce que l’agent peut ne pas donner suite à ses projets. Toutefois, il en est différemment pour certains crimes dirigés contre la Société. Les actes préparatoires du génocide doivent être punis et celà [sic] pour plusieurs raisons.

A/AC.10/41

91

D’une part le génocide est un crime d’une gravité extrême dont les effets une fois qu’il a été commis sont irréparables, d’autre part le génocide est un crime qui normalement nécessite le concours d’un plus ou moins grand nombre d’individus et une préparation assez ample. Toutefois lorsqu’on veut punir les actes préparatoires du crime de génocide il est nécessaire de définir ces actes; autrement on ouvrirait la porte à l’arbitraire en permettant de frapper des adversaires politiques pour des faits sans portée ou d’une signification douteuse. L’article 2 (n°2) énumère sous trois rubriques les faits préparatoires qui sont retenus : a) c’est en premier lieu “les études et recherches destinées à mettre au point les techniques du génocide”. Par exemple on demande à des chimiste et à des médecins de rechercher quels gaz devraient être employés pour les exécutions en masse. b) sous le b), on envisage l’aménagement d’installations, l’acquisition d’appareils et de produits qui seront employés pour commettre le génocide. Il s’agit ici de la préparation proprement matérielle du génocide. c) “les instructions, ordres, consignes, répartition des tâches en vue de l’exécution du génocide”. Il s’agit de la préparation en quelque sorte “administrative” du génocide consistant à désigner les exécutants, à les grouper en équipes, à dresser la liste des victimes futures, etc. . . . “La participation intentionnelle aux actes de génocide sous toutes ses formes”. Il s’agit tant de la participation principale que de la complicité. “L’instigation directe publique aux actes de génocide”. Il n’est pas question ici des ordres ou instructions donnés par des fonctionnaires à leurs subordonnés ou par des chefs d’une organisation à

92

A/AC.10/41

leurs affiliés. Ceci rentre dans la “préparation” du génocide dont il a été question plus haut. Il s’agit ici d’appels directs adressés au public par le moyen de discours, de la radio, de la presse, etc. . . . pour l’inciter à commettre le génocide. Ces appels pourront faire partie d’un plan concerté mais ils pourront simplement traduire une initiative purement personnelle de celui qui parle. Même dans ce dernier cas, l’instigation publique doit être punie. Il arrivera en effet que la parole légère et imprudente d’un journaliste ou d’un orateur qui serait lui-même incapable de faire ce qu’il conseille sera prise au sérieux par certains de ses auditeúrs [sic] qui considéreront comme un devoir de faire ce qui leur est recommandé. Ce sera aux juges à apprécier les circonstances et à montrer plus ou moins de sévérité selon la position du criminel et l’autorité dont il jouit selon qu’il s’agit de provocations au génocide préméditées ou de simples paroles irréfléchies. “L’association ou toute forme d’entente en vue de l’accomplissement d’actes de génocide”. Le génocide ne peut guère être perpétré sur une large échelle sans entente et concert. Il est donc nécessaire de frapper le seul fait de l’association et de l’entente en vue de l’accomplissement du génocide alors même qu’aucun “acte préparatoire” n’aurait encore eu lieu. ARTICLE III (De la punition d’un fait spécial)

Doivent être punies les propagandes publiques qui, par leur caractère systématique et haineux, sont de nature à conduire au génocide ou à le faire regarder comme une action nécessaire, légitime ou excusable.

Commentaire de l’article III Il ne s’agit pas ici de l’instigation directe et publique à commettre le génocide qui tombe sous le coup de l’article II. Dans l’hypothèse de l’article III, l’auteur de la propagande ne recommande pas la commission d’un génocide, mais il fait une propagande générale d’un caractère tel que si elle réussit ceux qu’elle aura gagnés seront amenés à envisager la commission du génocide avec une certaine faveur.

A/AC.10/41

93

Une telle propagande est en fait plus dangereuse encore que l’instigation directe à commettre le génocide. En effet, le génocide n’est possible que si un certain état d’esprit a été préalablement créé. La plupart des gens qui participeront au génocide seront des gens qui s’estiment des honnêtes gens et ne seraient pas capables de commettre un crime individuel par intérêt ou pour satisfaire une vengeance personnelle. Ils seront amenés à admettre puis à commettre le génocide parce qu’on les aura convaincus que l’existence du groupe humain appelé à être la victime du génocide est un mal très grand, que ce groupe représente l’erreur, la perversion, qu’il met en péril la Société, la nation, telle ou telle religion, tel ou tel régime politique ou social, qu’il est un obstacle au progrès, etc. . . . C’est là la préparation philosophique, idéologique du génocide. Il faut interdire une telle propagande. Mais il est nécessaire de la définir avec soin. En effet la vie politique, sociale est faite d’antagonismes et d’oppositions qui entraînent des critiques, des controverses, des discussions parfois âpres et violentes. Les groupes humains divers dont se compose la société se considèrent souvent comme des rivaux, des antagonistes, des adversaires, voire des ennemis et se traitent comme tels. Il ne saurait être question d’interdire toute critique adressée à un groupe social, cette critique fût-elle même injuste, passionnée excessive. L’interdiction du génocide ne doit pas pouvoir fournir un prétexte pour porter atteinte à la liberté d’opinion, elle ne doit pas non plus servir à réprimer les abus de la polémique. Dans les périodes électorales, par exemple, les adversaires emploient souvent un langage outrancier qui, pris à la lettre, pourrait parfois être interprété comme traduisant des intentions de génocide, alors qu’an réalité la violence n’est que dans les mots. Pour qu’une propagande puisse être considére [sic] comme de nature à préparer le génocide, il faut qu’elle réunisse certains traits nettement caractérisés. L’article III du projet présenté décrit ainsi les propagandes qui tomberaient sous le coup de la Convention. les propagandes publiques qui, par leur caractère systématique et haineux, sont de nature à conduire au génocide ou à le faire regarder comme une action nécessaire, légitime ou excusable.

Reprenons les termes de cette définition.

94

A/AC.10/41

“propagandes publiques” Il faut qu’il s’agisse de propagandes publiques, c’est-à-dire de propagandes qui s’adressent à l’ensemble ou à une fraction de l’opinion. Par là, on exclut les conversations privées auxquelles sont parties le plus souvent de simples particuliers sans responsabilité et qui n’ont qu’un effet restreint. Des conversations privées ne seraient pas susceptibles de créer les conditions psychologiques et morales capables de permettre la commission du génocide. Nous avons dit “propagandes” en employant le pluriel car les propagandes sont diverses tant en ce qui concerne leurs inspirations : politique, religieuse, qu’en ce qui concerne leur forme (discours, radio, imprimé, cinéma, etc. . . .) “Caractère systématique et haineux” – Si l’on veut faire accepter l’idée de la destruction d’un groupe humain il faut représenter ce groupe sous un jour odieux, la propagande aura donc nécessairement un caractère haineux très accentué et elle sera systématique, c’est-à-dire méthodiquement répétée. Propagandes “de nature à conduire au génocide ou à le faire regarder comme une action nécessaire, légitime ou excusable.” Si la propagande préconisait ouvertement le génocide, elle tomberait, comme on l’a déjà dit, sous le coup de l’article II (in fine). L’article III vise précisément une propagande qui, sans recommander le génocide, y conduit naturellement. En effet, les gens gagnés par cette propagande seront amenés le jour où il en sera question à regarder le génocide comme une action nécessaire, légitime, ou excusable, le groupe visé étant dénoncé comme un élément foncièrement mauvais constituant pour la nation ou la société un mortel danger. ARTICLE IV [pp. 56–57 missing in the original]

ARTICLE V (L’ordre de la loi ou le commandement L’ordre de la loi ou le commandement du supérieur hiérarchique) des supérieurs hiérarchiques ne constitue pas un fait justificatif.

A/AC.10/41

95

Commentaire de l’article V Les coupables, quels qu’ils soient, ne doivent pas pouvoir s’abriter derrière l’ordre de la loi ou le commandement d’un supérieur hiérarćhique. Après la chute du régime qui aura organisé le génocide, les particuliers et les fonctionnaires ne manqueront pas d’invoquer cette excuse. Ils diront : “Nous n’avions pas à discuter la loi qui nous régissait l’ordre qui nous venait d’un supérieur hiérarchique. Notre devoir était d’obéir et nous avons obéi”. Il faut donc avoir soin de spécifier que l’ordre de la loi ou le commandement du supérieur hiérarchique ne supprime pas la culpabilité. Sans doute, dans certains cas, l’ordre de la loi ou le commandement du supérieur hiérarchique pourrait en fait constituer une circonstance atténuante. Le juge appréciera. Mais le principe est que la responsabilité de l’individu qui a participé au génocide n’est pas supprimée par le fait que la loi ou l’ordre d’un supérieur hiérarchique l’obligeait à participer au génocide. ARTICLE VI (La prévision du génocide dans les législations pénales nationales)

Les Hautes Parties contractantes doivent prévoir dans leur législation pénale les actes de génocide visés aux articles I, II et III, et les réprimer efficacement.

Commentaire de l’article VI Il est nécessaire que les Parties à la Convention insèrent dans leurs lois pénales des textes punissant les faits de génocide définis par la Convention. Il n’a pas paru indiqué de fixer dans la Convention les peines à appliquer aux divers actes de génocide vu la diversité des systèmes pénaux et vu qu’il est préférable de laisser quelque liberté d’appréciation aux Etats chaque fois que cela ne présente pas d’inconvénient réel. Il suffit de dire que les peines devraient être suffisamment rigoureuses pour que le [sic] répression soit efficace.

96

A/AC.10/41

ARTICLE VII (Universalité de l’application de la loi pénale nationale)

Les Hautes Parties contractantes s’engagent à punir les auteurs d’actes visés par la présente Convention se trouvant sur un territoire soumis à son contrôle quel que soit neur nationalité ou le lieu où le crime a été commis.

Commentaire de l’article VII Observation préliminaire : Les articles VII, VIII et IX doivent être considérés comme un ensemble. Ils établissent les règles selon lesquelles les auteurs de faits de génocide devront être jugés par les juridictions de tel ou tel Etat ou par une juridiction internationale. Quand les auteurs de faits de génocide se trouvent sur le territoire contrôlé par un Etat, cet Etat a l’obligation d’appréhender ces individus et soit de les faire juger par ses tribunaux (article VII), soit de les livrer à un autre Etat qui a requis leur extradition (article VIII), soit de les déférer à une juridiction internationale (article IX). L’article VII envisage la première obligation. Cet article pose le principe de l’universalité de la répression qui fait que les Parties contractantes s’engagent à punir les auteurs d’actes de génocide se trouvant sur leur territoire quelle que soit leur nationalité ou le lieu où le crime a été commis. ARTICLE VIII (Extradition)

Les Hautes Parties contractantes déclarent que le génocide ne doit pas être considéré comme un crime politique et qu’il donne lieu à l’extradition. Les Hautes Parties contractantes s’engagent à accorder l’extradition pour actes de génocide.

A/AC.10/41

97

Commentaire de l’article VIII 1ère paragraphe – Ce paragraphe pose le principe que le génocide ne doit pas être considéré comme un crime politique. La conséquence est qu’il donne lieu à l’extradition. 2ème paragraphe – Les Hautes Parties Contractantes s’engagent à accorder l’exatradition [sic] pour actes de génocide, ce qui fait qu’évidemment en pareil cas elles seront dispensées de faire juger les coupables par leurs tribunaux. Il va sans dire que les Hautes Parties Contractantes ne seront pas obligées d’accorder l’extradition du seul fait qu’elle leur aura été demandée. En pareil cas elles tiendront compte des principes généraux du droit pénal international pour décider si elles doivent donner suite à la demande d’extradition. Les deux hypothèses principales où un Etat sera fondé à requérir l’extradition sont celles où le crime a été commis sur son territoire et celui où les victimes du génocide seront des nationaux même si le crime n’a pas été commis sur son territoire. ARTICLE IX (Cas où le génocide sera déféré à Les Hautes Parties Contractantes s’engagent une une juridiction internationale) à déférer à la juridiction internationale les auteurs de génocide visés par la présente Convention dans les cas suivants : 1° Si elles ne sont pas disposées à les juger elles-mêmes en application de l’article VII et si ellens ne les extradent pas en application de l’article VIII 2° Si les actes de génocide ont été commis par des individus agissant comme organes de l’Etat ou avec l’encouragement ou la tolérance de l’Etat.

Commentaire de l’article IX L’article IX indique les cas où les actes de génocide pourront ou devront être déférés à une juridiction internationale. ler cas – L’Etat qui a appréhendé les auteurs de faits de génocide a la faculté de les déférer à une juridiction internationale sans en avoir l’obligation.

98

A/AC.10/41

L’Etat refuse de juger ces individus pour des raisons diverses. Il ne s’estime pas en mesure d’assurer une bonne justice : par exemple la décision du jury qui serait appelé à intervenir risquerait d’être critiquable. Ou bien il craint que ce jugement n’ajoute au trouble de son opinion publique divisée et passionnée ou bien il craint qus le jugement de ses tribunaux ne l’expose au ressentiment d’autres Puissances – fut-il injustifié – qu’il ne désire pas encourir. L’Etat refuse d’accorder l’extradition requise soit parce qu’à tort ou à raison l’opinion publique du pays est opposée à ce que l’extradition soit accordée, soit parce que l’Etat requérant ne semble pas en mesure d’assurer une bonne justice; ou bien vise en fait à assurer l’impunité du coupable dont il réclame la livraison, ou bien sous couvert de répression du génocide, il vise à exercer une vengeance sur des adversaires politiques. Dans toutes ces hypothèses l’Etat aura la faculté de sa [sic] décharger de sa responsabilité sans nuire à la répression du génocide en déférant les coupables à la juridiction internationale. Tandis que MM. Donnedieu de Vabres et Pella se sont déclarés en faveur du 1° de l’article IX M. Lemkin s’est prononcé pour sa suppression déclarant que les individus autres que les gouvernants et les chefs d’organisations criminelles responsables des actes visés par la Convention ne devraient pas être déférés à la juridiction internationale, mais qu’ils devraient être jugés ou extradés. Le cas de ces autres individus présentant une moindre importance, il ne convient pas, dit M. Lemkin, de faire appel à une juridiction internationale impliquant la mise en mouvement d’une procédure compliquée. Le danger serait que finalement les complications de la procédure entraînent l’impunité des coupables. 2me cas – L’Etat a l’obligation de déférer les actes de génocide à la juridiction internationale. Les actes de génocide ont été commis par des individus comme organes de l’Etat ou avec l’encouragement ou la tolérance de l’Etat. Dans ce cas il s’agit de juger des gouvernants d’un Etat ou des gens qui ont agi d’entente avec ces gouvernants, c’est un cas grave qui particulièrement intéresse au plus haut point l’ensemble de la communauté internationale. C’est la juridiction internationale qui aura le plus d’autorité pour statuer.

A/AC.10/41

99

ARTICLE X (Du tribunal international appelé à Une alternative est proposée : connaître du génocide) 1ère formule : la juridiction pénale prévue à l’article VIII sera la Cour pénale internationale qui aura reçu compétence pour juger les crimes internationaux. 2ème formule : un tribunal international sera institué pour juger les crimes de génocide (voir annexes).

Commentaire de l’article X Deux formules sont présentées : 1ère formule : jugement par une Cour pénale internationale possédant une compétence générale. Si l’on créait une Cour pénale internationale possédant une compétence générale, le jugement des crimes de génocide rentrerait évidemment dans ses attributions. M. Donnedieu de Vabres a estimé que dans le cadre de la distinction faite par lui entre le jugement des gouvernants et celui des exécutants, les gouvernants devraient être jucticiables d’une chambre criminelle qu’il faudrait créer au sein de la Cour internationale de Justice. M. Pella s’est déclaré partisan d’une telle création et avec M. Donnedieu de Vabres il pense que si cette idée était retenue on pourrait prendre pour base de discussion le projet adopté en 1928 par l’Association internationale de droit pénal. Quant à M. Lemkin il estime que dans la situation présente, en l’absence d’un droit pénal international suffisamment développé la création d’une juridiction pénale permanente à compétence générale serait prématurée. Quoi qu’il en soit la question de savoir s’il faut créer une telle Cour est un problème général qui dépasse le problème spécial de la répression du génocide. 2ème formule : jugement par une Cour internationale spéciale qu’organiserait la présente Convention.

100

A/AC.10/41

Cette juridiction internationale, dont la compétence se limiterait aux cas de génocide pourrait être conçue de deux façons : Cour de caractère permanent (voir Annexe I) ou Cour ad hoc (voir Annexe II). MM. Donnedieu de Vabres et Pella ont estimé que le choix entre ces deux types de juridiction spéciale devrait être laissé à l’Assemblée. Pour faciliter l’étude du problème MM. Donnedieu de Vabres, Pella et Lemkin ont rédigé les annexes précitées concernant ces deux variantes. ARTICLE XI (Dissolution des groupes et organisations ayant participé au génocide)

Les Hautes Parties Contractantes s’engagent à dissoudre les groupes ou organisations qui auraient participé à la commission des faits de génocide visés aux articles I, II, et III.

Commentaire de l’article XI Le génocide a en fait le caractère d’un crime “social” en ce sens qu’il est toujours plus ou moins organisé, provoqué ou suscité par des mouvements, groupements, associations. Il est donc nécessaire que les groupes et organisations qui portent la responsabilité du génocide soient dissous. Il faut en outre, que toute activité que ces groupes ou organisations dissous pourraient par la suite continuer à exercer clandestinement, soit punie. Mais en pareil cas ce sont les dirigeants et membres de ces groupes ou organisations qui seront individuellement punis pour leur activité clandestine. ARTICLE XII (De l’action des Nations Unies pour prévenir ou pour faire cesser le génocide)

Indépendamment des mesures prévues aux articles précédents, si dans quelque partie du monde les crimes visés par la présente Convention étaient commis, ou s’il y avait des raisons sérieuses de soupçonner qu’ils ont été commis, les Parties à la Convention saisiraient les organes compétents des Nations Unies pour que ceux-ci prennent les mesures nécessaires afin d’arrêter les dits crimes. Les dites Parties feraient tout ce qui est en leur pouvoir pour assurer l’efficacité de l’intervention des Nations Unies.

A/AC.10/41

101

Commentaire de l’article XII 1. Toute loi pénale a un effet préventif. En effet, son existence tend à intimider et paralyser ceux qui seraient tentés de commettre le crime, Mais l’expérience montre que l’effet préventif de la menace est limité, celle-ci n’arrête pas certains criminels, soit que chez eux la passion ait détruit la prudence, soit qu’ils considèrent la menace de répression comme illusoire. Dans l’ordre international, plus encore que dans l’ordre interne, il est nécessaire de déployer une constante vigilance et il convient d’exercer une action préventive avant que le mal soit accompli ou qu’il ait pris de grandes proportions, car alors il revêt le caractere d’une catastrophe dont les effets sont dans une large mesure irréparables. Il n’y a pas lieu de s’étendre sur l’action préventive qui serait organisée par les Nations Unies, car il s’agit de l’exercice, dans un cas particulier, d’une compétence générale des Nations Unies. Il faut cependant observer que, pour que l’action préventive ait le maximum de chances de succès, il est nécessaire que les Membres des Nations Unies ne restent pas passifs ou indifférants. Il convient donc que dans la Convention qui prévoit la répression des crimes de génocide les Etats s’engagent à faire ce qui est en leur pouvoir pour seconder l’action des Nations Unies destinée à les prévenir ou à y mettre fin. 2. MM. Pella et Lemkin ont estimé qu’il serait désirable de prévoir que le Secrétaire général des Nations Unies aurait le devoir de saisir les organes compétents des Nations Unies. En effet, il pourrait arriver que les gouvernements pour des raisons diverses hésitent à prendre l’initiative de soumettre une question aux organes des Nations Unies. En pareils cas le Secrétaire général qui est dégagé des préoccupations particulières même légitimes des Etats agirait comme représentant de l’intérêt général et saisirait les organes des Nations Unies. Mais cette proposition, de l’avis même de ses auteurs, pose une question d’ordre constitutionnel qui est de savoir si une Convention à laquelle tous les membres des Nations Unies ne seront pas nécessairement parties peut conférer au Secrétaire général des facultés ou des obligations relatives au fonctionnemont de la Charte qui ne sont pas déjà établies dans la Charte.

102

A/AC.10/41

ARTICLE XIII (Des réparations à fournir aux victimes de génocide)

Quand dans un pays le génocide sera commis par un gouvernement ou par des éléments de la population sans que le gouvernement ait réussi à s’y opposer d’une façon efficace l’Etat sera tenu à fournir aux survivants du groupe humain victime du génocide des réparations dont la nature et le montant seront fixés par les Nations Unies.

Commentaire de l’article XIII 1. Cet article a au point de vue des principes une portée assez considérable. Il est une application du principe que les peuples sont dans une certaine mesure responsables des crimes que leurs gouvernements out commis qu’ils les aient approuvés ou que simplement ils aient laissé leurs gouvernements commettre. La valeur de ce principe sera peut-être contestée par certains. On dira que souvent chez les peuples l’intention criminelle qui fonde la responsabilité pénale n’a pas existé : Les [sic] crimes commis par les gouvernements l’ont été contre la volonté de la majorité de la population, le gouvernement ne représentant qu’une minorité qui s’était imposée par la force. Ou bien encore l’ensemble du pays n’a pas su ce qu’il faisait ayant été trompé par une propagande systématique faite par le gouvernement en l’absence de toute contradiction possible. A cela on répondra d’abord que les choses en fait ne se passent pas toujours de la façon indiquée plus haut. Parfois les gouvernements en agissant de façon criminelle ne trahissent pas la volonté des peuples, ils expriment fidèlement les passions, les haines et les préjugés communs à la majorité ou une grande partie de la population, le reste de la population étant indifférent, passif ou ne faisant qu’une molle opposition. Mais même dans le cas où l’intention criminelle n’a pas existé dans la majorité du pays il est juste que le pays dans son ensemble soit tenu pour responsable et cela pour différentes raisons : a) Il s’agit en l’espèce pour l’ensemble du peuple non d’une responsabilité “pénale” consistant en un châtiment mais d’une responsabilité “civile”

A/AC.10/41

103

consistant en l’obligation de fournir une réparation aux victimes des crimes de génocide. Dès lors il n’est pas nécessaire pour que cette responsabilité existe que l’intention criminelle ait existé dans l’ensemble de la nation. b) La responsabilité “civile” repose dans les conceptions juridiques traditionnelles sur l’idée d’une faute commise.* Cette faute n’a pas besoin d’être intentionnelle, la maladresse, la négligence suffisent pour fonder la responsabilité. Or à cet égard quand de mauvais gouvernements exercent leur autorité sur un peuple, celui-ci a toujours été fautif à un moment ou à un autre. On peut lui reprocher sa légèreté, sa négligence, son indifférence, sa naïveté, son manque de jugement, de sens pratique, de courage, de volonté, etc. . . . Si le peuple en question n’avait pas montré certains de ces défauts, il n’eut pas porté au pouvoir ou laissé accéder au pouvoir les gouvernants qui commirent le génocide ou ne surent pas s’y opposer. c) On ajoutera qu’il faut bien que les responsabilités “civiles” découlant du génocide soient portées par quelqu’un. Si le pays où le génocide a été commis n’est pas tenu de réparer, qui en sera tenu? 2. En quoi consisteront les réparations fournies? Ces réparations peuvent avoir pour bénéficiaires des membres du groupe humain victimes du génocide ou le groupe dans son ensemble. a) réparations au profit de membres du groupe Il n’est pas possible de ressusciter les morts, mais on peut donner des indemnités ou pensions aux conjoints, aux enfants des décédés ou aux autres personnes qui étaient à leur charge. On peut restituer les biens confisqués ou fournir une indemnité correspondant à la valeur des dits biens si la restitution de ceux-ci n’est pas possible. On peut fournir des indemnités aux personnes qui ont été emprisonnées, déportées, maltraitées. On peut donner aux survivants du groupe des avantages particuliers : construction de maisons, bourses d’éducation, etc. . . .

104

A/AC.10/41

b) réparations au profit du groupe lui-même Ces réparations peuvent affecter des formes variées : reconstitution du patrimoine moral, artistique, culturel du groupe (reconstruction de monuments, de bibliothèques, d’universités, d’églises, etc. . . . indemnités accordées au groupe pour ses besoins collectifs.) Dens certains cas peut-être pourrait-on envisager des réparations “biologiques” consistant par exemple à attribuer au groupe des jeunes enfants nés de parents inconnus. * Les conceptions nouvelles de la responsabilité qui font intervenir la notion de risque ne suppriment pas la notion de faute. Il arrive sans doute que la notion de risque entraînant une responsabilité beaucoup plus large que la notion de faute, rende la recherche de la faute inutile. Mais les deux notions souvent se combinent. Dans le cas où la responsabilité est fondée sur la notion de risque, la notion de faute n’est pas nécessairement perdue de vue. La faute sera retenue dans certaines hypothèses soit pour rendre plus lourde la responsabilité de celui qui supporte le risque s’il y a faute grave de la part de celui-ci, soit pour supprimer ou limiter la réparation due à celui qui a subi le dommage s’il y a faute grave de la part de ce dernier.

A/AC.10/41

105

DISPOSITIONS FINALES (1) ARTICLE XIV Règlement des différends relatifs à l’interprétation ou à l’application de la Convention.)

Les différends relatifs à l’interprétation ou à l’application de la présente Convention seront soumis à la Cour internationale de Justice.

Commentaire de l’article 1. Des difficultés pouvent surgir touchant le fonctionnement d’une Convention. Le moyen de les régler d’une façon convenable est de les soumettre à un tiers qui départagera les parties en désaccord. S’il s’agit d’un différend qui concerne “l’interprétation” de la Convention, c’est-à-dire qui porte sur le sens de ses dispositions ou “l’application” de la Convention, c’est-à-dire qui porte sur la question de savoir si une partie en fait s’est correctement acquittée de ses obligations, il est normal que le différend soit soumis à une instance juridictionnelle. La Cour internationale de Justice est la juridiction qui semble la plus qualifiée pour connaître les différends dont il s’agit. En effet, étant donné que la Convention vise non à régler les rapports particuliers des Etats entre eux mais à sauvegarder un intérêt essentiel de la communauté internationale, tout différend intéresse l’ensemble des parties à la Convention, il ne conviendrait donc pas qu’il fut tranché par une instance arbitrale spéciale à deux ou plusieurs Etats dont la décision n’aurait aucun titre pour s’imposer aux autres Etats. Au contraire, la Cour internationale de Justice étant un organs des Nations Unies institué par la Charte elle-même, c’est une juridiction dont l’autorité est reconnue par tous les Membres des Nations Unies. C’est donc cette Cour qui devrait, semble-t-il, recevoir compétence pour trancher les différend dont il s’agit. (1) Les articles 14 à 24 relatifs aux dispositions finales devaient être rédigés après que les experts auraient donné leur avis sur le corps de la Convention. Les experts n’ayant pas eu assez de temps pour les aborder, M. Pella proposa qu’on fît en ce qui concerne les dispositions finales confiance à l’expérience de M. le professeur Giraud.

106

A/AC.10/41

ARTICLE XV (Langue – (Date de la Convention –)

La présente Convention dont les textes chinois, anglais, français, russe et espagnol feront également foi portera la date du . . . (1)

Commentaire de l’article C’est l’Assemblée générale, c’est-à-dire l’Assemblée plénière (et ses Commissions) qui jouera le rôle que joue une conférence diplomatique convoquée pour élaborer et adopter une Convention. Quand un accord aura été réalisé au sein de l’Assemblée générale, celleci par une résolution finale adoptera la Convention et l’ouvrira soit à la signature soit à l’adhésion des Membres des Nations Unies. (2) (1) Ce sera la date du jour où l’Assemblée générale aura voté une résolution adoptant le texte de la Convention et l’ouvrant soit à la signature soit à l’adhésion des Membres des Nations Unies. (2) Pour ce qui est de savoir si la Convention doit recevoir des signatures ou des adhésions, voir plus loin article ló.

ARTICLE XVI Quels Etats pourront devenir Partie à la Convention? Moyens d’y devenir Partie.

1ère formule – 1. Il pourra être adhéré à la présente Convention au nom de tout Membre des Nations Unies ou de tout Etat non membre auquel le Conseil économique et social aura adressé une invitation. 2. Les instruments d’adhésion seront transmis au Secrétaire général des Nations Unies. 2ème formule – 1. La présente Convention sera jusqu’au 31 . . . 1948 (1) ouverte à la signature au nom de tout Membre des Nations Unies et de tout Etat non membre à qui le Conseil économique et social aura adressé une invitation.

A/AC.10/41

107

La présente Convention sera ratifiée, les instruments de ratification seront transmis au Secrétaire général des Nations Unies. 2. A partir du l . . . 1948 (2) il pourra être adhéré à la présente Convention au nom de tout Membre des Nations Unies et de tout Etat non membre qui aura reçu l’invitation susmentionnée. Les instruments d’adhésion seront transmis au Secrétaire général des Nations Unies.

Commentaire de l’article XVI 1. Elément commun aux deux formules – Il s’agit de savoir qui pourra devenir Partie à la Convention. La Convention sera évidemment ouverte à tous les Membres des Nations Unies. Quant aux Etats non membres des Nations Unies, leur participation est aussi désirable. Cependant il n’est pas possible d’employer une formule générale qui ouvrirait la Convention indistinctement à tous les Etats non membres. En effet, en ce qui concerne ces Etats, d’une part leur dénombrement n’a pas été effectué d’une façon officielle, d’autre part pour des raisons diverses la participation d’un Etat peut n’être pas désirable à un moment donné. Il doit donc appartenir à un organe des Nations Unies qui pourrait être le Conseil économique et social de décider quels Etats doivent être invités. Il est évident que le Conseil économique et social ne lancera pas des invitations une fois pour toutes. Si dans l’avenir des changements se produisent, si par exemple de nouveaux Etats se constituent, si la position de certains Etats auxquels on n’avait pas jugé convenable d’adresser une invitation change, le Conseil économique et social pourra lancer de nouvelles invitations. 2. Explication de la première formule – Cette formule laisse de côté la procédure traditionnelle qui prévoit d’une part des signatures suivies de ratifications et d’autre part des adhésions.

108

A/AC.10/41

Cette dernière procédure s’adapte au cas des conventions élaborées par des conférences diplomatiques. Les délégués à ces conférences pouvaient signer immédiatement la Convention adoptée sans lier l’Etat qu’ils représentaient, la ratification intervenait plus tard quand les délégués avaient rendu compte de leur mission à leur gouvernement ou quand le pouvoir exécutif avait obtenu du Parlement les autorisations requises. Lorsqu’il s’agit d’une Convention adoptée par l’Assemblée générale des Nations Unies, il semble que la procédure traditionnelle présente des complications inutiles. Le vote émis au sein de l’Assemblée par des délégations hautement représentatives comporte déjà une prise de position vis-à-vis de la Convention. A quoi bon solliciter une signature qui devra être suivie d’une ratification? Si, comme c’est généralement le cas, les Etats ne sont pas en mesure de se lier immédiatement, ils attendront d’être a même de le faire pour donner une adhésion qui les liera. On note que le système consacré par la première formule a déjà été employé pour certaines conventions générales et qu’il représente le système établi pour les Conventions internationales du travail. 3. Explication de la seconde formule – Cette seconde formule qui prévoit pour une première période des signatures devant être suivies de ratifications ultérieures et des adhésions à l’expiration de cette période n’appelle pas d’autres observations. (1) c’est-à-dire six mois environ après l’adoption de la Convention. (2) c’est-à-dire à l’expiration de la période de six mois précitée.

ARTICLE XVII (Réserves)

Aucune disposition n’est présentement proposée.

Commentaire Au présent stade des travaux préparatoires, la question de savoir s’il faut permettre des réserves et insérer dans la Convention un article relatif aux réserves paraît douteuse.

A/AC.10/41

109

Nous nous bornerons aux observations suivantes : 1° – Il semble que des réserves d’une portée générale n’ont pas leur place dans une Convention de ce genre qui vise non les intérêts particuliers d’un Etat mais la préservation d’un élément de l’ordre international. Par exemple, la Convention protégera tel ou tel groupe humain ou ne le protégera pas. On ne peut concevoir qu’à cet égard la portée de la Convention varie suivant les réserves dont aurait pu s’accompagner l’adhésion de certains Etats. 2° – Peut-être au cours de la discussion à l’Assemblée générale apparaîtrat-il possible d’admettre certaines réserves d’une portée limitée. Ces réserves pourraient être de deux natures : soit des réserves qui seraient définies par la Convention elle-même et que tous les Etats auraient la faculté de formuler, soit des réserves de détail que certains Etats auraient demandé à formuler et que l’Assemblée générale aurait décidé d’admettre. ARTICLE XVIII Entrée en vigueur de la Convention.

1. La présente Convention entrera en vigueur le quatre-vingt-dixième jour qui suivra la réception par le Secrétaire général des Nations Unies d’au moins . . . adhésions (ou de . . . ratifications et adhésions). (1) 2. Chaque adhésion (ou chaque ratification ou adhésion) (1) qui interviendra après l’entrée en vigueur de la présente Convention, sortira ses effets dès le quatre-vingt dixième [sic] jour qui suivra la date de sa réception par le Secrétaire général des Nations Unies.

Commentaire de l’article XVIII 1ère paragraphe – Comme on l’a dit dans l’introduction, il faut fixer le nombre minium d’adhésions nécessaires pour que la Convention entre en vigueur. Etant donné le caractère de la Convention dont certains effets seront universels, il semble nécessaire que le nombre des adhésions doive être assez élevé. Il convient de prévoir un délai de 90 jours entre la réception de la . . . ème adhésion requise pour permettre l’entrée en vigueur de la Convention et

110

A/AC.10/41

l’entrée en vigueur effective de celle-ci. Il est nécessaire, en effet, que les Etats soient informés à l’avance de l’entrée en vigueur de la Convention pour qu’ils puissent prendre, en ce qui les concerne, les mésures nécessaires. 2ème paragraphe – Une fois la Convention entrée en vigueur, les nouvelle adhésions sortiront de même leur effet 90 jours après leur réception. (1) Selon qu’on aura décidé de considérer l’adhésion comme l’unique procédé pour devenir Partie à la Convention, on qu’ on prévoira à la fois des signatures devant être suivies de ratifications et des adhésions, on emploiera l’une ou l’autre des deux formules indiquées.

ARTICLE XIX (Durée de la Convention – Dénonciation –)

1ère formule – 1. La présente Convention aura une durée de cinq ans à partir de sa mise en vigueur. 2. Elle restera en vigueur pour une nouvelle période de cinq ans et ainsi de suite, vis-à-vis des Parties contractantes qui ne l’auront pas dénoncée six mois au moins avant l’expiration du terme. 3. La dénonciation se fera par notification écrite adressée au Secrétaire général des Nations Unies. 2ème formule – La présente Convention pourra être dénoncée par une notification adressée au Secrétaire général des Nations Unies. Cette notification prendra effet un an après sa réception.

Commentaire 1. Elément commun aux deux formules Les deux formules présentées prévoient la possibilité pour les Parties à la Convention de mettre fin à leurs obligations en dénonçant la Convention. Convient-il de prévoir une faculté de dénonciation? Certains estiment que pour assurer l’avancement du droit international il ne faut pas admettre

A/AC.10/41

111

que les Etats puissent se délier des obligations qu’ils ont une fois souscrites, s’il s’agit de conventions qui ont un but d’intérêt général et une portée universelle. A la vérité, il y a trois raisons qui militent contre la conception d’une obligation de caractère perpétuel pour une convention de ce genre. 1° – Une convention de portée générale ne peut s’appliquer que si elle a l’adhésion morale des gouvernements et des peuples qu’elle oblige. Si cette condition n’est plus remplie, la convention en fait n’a plus guère de réalité. 2° – Si les Etats ne sont pas obligés de se lier, en bonne logique ils ne doivent pas être obligés de rester liés. Pratiquement quand les Etats savent qu’ils auront la possibilité de sortir de la convention, ils hésitent moins à lui donner leur adhésion. 3° – Dans le passé des gouvernements ont soutenu cette thèse que si une convention ne comporte ni faculté de dénonciation ni limitation de durée il s’ensuit non que l’obligation a un caractère perpétuel, mais qu’au contraire la convention peut être dénoncée à tout moment. 1ère formule – Cette formule permet aux Etats de se délier mais elle restreint leur liberté à cet égard et crée une certaine stabilité. La Convention serait conclue par une durée de cinq ans à partir de la date de son entrée en vigueur et serait renouvelable indéfiniment pour une même période par tacite reconduction. Mais à la fin de chaque période, les Etats auraient la faculté de se délier en envoyant un avis de dénonciation. De la sorte, la négligence ou l’inertie des gouvernements jouerait en faveur du maintien de l’obligation. 2ème formule – Cette formule permet aux Etats de se délier à tout moment en envoyant une notification qui sortirait ses effets à la suite d’un délai relativement bref (1 an).

112

A/AC.10/41

ARTICLE 20 (Abrogation de la Convention)

Si, par suite de dénonciations, le nombre des Membres des Nations Unies et des Etats non membres qui sont liés par la présente Convention,se trouve ramené à moins de . . . (1), la Convention cessera d’être en vigueur à partir de la date à laquelle la dernière de ces dénonciations prendra effet.

Commentaire de l’article 20 L’article 18 fixant à . . . le nombre des adhésions nécessaires pour permettre l’entrée en vigueur de la Convention, si par suite de dénonciations le nombre des Etats liés par la Convention se trouve ramené à moins de . . ., il est normal que la Convention cesse d’être en vigueur (1) Nombre prévu pour la mise en vigueur de la Convention.

ARTICLE 21 (Révision de la la [sic] Convention)

Une demande de révision de la présente Convention pourra être formulée en tout temps par tout Etat partie à la Convention par voie de notification adressée au Secrétaire général. Le Conseil économique et social décidera de la suite à donner à une telle demande.

Commentaire de l’article 21 Pas d’observations. ARTICLE 22 (Notifications par le Secrétaire général)

Le Secrétaire général des Nations Unies notifiera à tous les Membres des Nations Unies et aux Etats non membres visés à l’article 16 les adhésions (ou les signatures, ratifications et adhésions) reçues en application des articles 16 et 18, les dénonciations reçues en application de

A/AC.10/41

113

l’article 19, l’abrogation de la Convention opérée en vertu de l’article 20, les demandes de révision de la Convention formulées en application de l’article 21.

Commentaire de l’article 22 Le Secrétaire général doit informer les Etats intéressés, c’est-à-dire les Etats parties à la Convention ou susceptibles de le devenir, de tous les actes concernant la Convention qui lui sont notifiés : adhésions, dénonciations, etc. . . . ARTICLE 23 (Dépôt de l’original de la Convention. Envoi de copies aux gouvernements).

1. Un exemplaire de la présente Convention revêtu de la signature du Président de l’Assemblée générale et de celle du Secrétaire général des Nations Unies sera déposé aux archives du Secrétariat. 2. Une copie certifiée conforme du texte sera communiquée à tous les Membres des Nations Unies ainsi qu’aux Etats non membres mentionnés à l’article.

Commentaire de l’article 23 Pas d’observations. ARTICLE 24 (Enregistrement de la Convention)

Commentaire de l’article Pas d’observations.

La présente Convention sera enregistrée par le Secrétaire général des Nations Unies à la date de son entrée en vigueur.

114

A/AC.10/41

PROJET DE RECOMMANDATIONS QUE VOTERAIT L’ASSEMBLEE GENERALE

Messieurs Pella et Lemkin ont proposé en outre que, dans la résolution de l’Assemblée générale qui adopterait la Convention, soient insérées deux recommandations ainsi conçues : L’Assemblée recommande que : 1° – les hautes Parties contractantes prennent des mesures appropriées susceptibles d’apaiser les antagonismes ou conflits raciaux, nationaux ou religieux de nature à engendrer le génocide. 2° – Des offices nationaux spéciaux soient créés par chaque haute Partie contractante afin de centraliser les informations sur les antagonismes entre groupes humains et de les transmettre au Secrétaire général des Nations Unies. ANNEXES A L’ARTICLE 10 Deux annexes à l’article 10 ont été élaborées par les experts. Elles seront communiquées ultérieurement.

A/AC.10/42

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

115

UNRESTRICTED A/AC.10/42 6 June 1947 ENGLISH ONLY

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION DRAFT CONVENTION FOR THE PREVENTION AND PUNISHMENT OF GENOCIDE (Prepared by the Secretariat) Preamble The High Contracting Parties, proclaim that Genocide, which is the international [sic] destruction of an entire group of human beings, defies universal conscience, inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction to the spirit and aims of the United Nations. 1. They call on the solidarity of all members of the international community to oppose this heinous crime. 2. They proclaim that the acts of genocide under the present Convention are crimes against the Law of Nations, the prevention and punishment of which meet a fundamental need of civilization, international order and peace. 3. They pledge themselves to prevent all acts of genocide and to punish all persons guilty of such acts, wherever they may occur. Article 1 Definitions (Protected Groups) I. The purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings. (Acts Qualified as Genocide) II. In this Convention, the word “genocide” is understood to mean criminal acts against any one of the groups of human beings aforesaid,

116

A/AC.10/42

with the purpose of destroying them in whole or in part, or of preventing their preservation or development. Such acts consist in: 1. Causing the death of members of a group or injuring their health or physical integrity by: (a) group massacres or individual executions; (b) subjection to conditions of life wherein, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertions the individuals are doomed to weaken or die; (c) mutilations and biological experiments imposed with no curative purpose; (d) deprivation of all means of livelihood, by confiscation of property, looting, curtailment of work, housing, and supplies otherwise accessible to the other residents of the State. 2. Restricting births by: (a) sterilization of individuals and compulsory abortion; (b) segregation of the sexes; (c) obstacles to marriage. 3. Destroying the characteristics of the group by: (a) forced transportation of children into another human group; (b) forced and systematic exile of all individual representatives of the culture of a group; (c) prohibition of the use of the national language even in private relations; (d) systematic destruction of books printed in the national language or of religious books or prohibition of the publication of new books; (e) systematic destruction of historical or religious monuments or their diversion to alien uses, or destruction or dispersion of documents or objects of historical, artistic, or religious interest and of religious accessories.

A/AC.10/42

117

Article 2 (Punishable Offences) I. The following acts are also considered as the crime of genocide: 1. the attempt to commit genocide; 2. preparation for the commission of the crime of genocide by: (a) studies and research for the purpose of developing the technique of genocide; (b) the setting up of installations, the manufacture, procurement, possession or supply of articles or products, knowing that they are intended for genocide; (c) the issue of instructions, orders, and distribution of tasks intended to promote genocide. II. Are also punishable: 1. intentional participation in any form of genocide; 2. public direct incitement to genocide, whether followed or not by genocide; 3. conspiracy, under any form whatever with the purpose of committing genocide. Article 3 (Punishment of a Particular Offence) All forms of public propaganda tending to genocide by their systematic and heinous character, or tending to make it appear as a necessary, legitimate or excusable act. Article 4 (Status of Persons who Commit Genocide) Those who commit genocide shall be punished, be they governments, civil servants or individuals. Article 5 (Application of the Law and Superior Order)

118

A/AC.10/42

Genocide cannot be excused under the plea of the application of the law or instructions of a superior authority. Article 6 (Dispositions on Genocide in National Penal Laws) The High Contracting Parties shall make provision in their respective national legislation for acts of genocide under Articles 1, 2, 3, hereabove, and their effective punishment. Article 7 (Universal Enforcement of the National Penal Laws) The High Contracting Parties pledge themselves to punish any persons who commit offences against this convention and is found on territory under their jurisdiction, irrespective of nationality and/or of the place where the offence was committed. Article 8 (Extradition) The High Contracting Parties proclaim that genocide cannot be considered as a political crime and shall give cause for extradition. The High Contracting Parties pledge themselves to grant extradition of persons guilty of genocide. Article 9 (Jurisdiction of an International Court to Try Genocide) The High Contracting Parties pledge themselves to deliver all persons accused of genocide under the Convention to an international court in the following cases: 1. When they do not contemplate trying such offenders themselves under Article 7 or granting their extradition under Article 8. 2. If the acts of genocide were committed by individuals as agents of the state or have been tolerated by such state.

A/AC.10/42

119

Article 10 (International Court Called upon to Try Genocide) For this section, two drafts are submitted: 1st draft: The penal court under Article 8 shall be the International Court having jurisdiction in all matters connected with international offences. 2nd draft: An international court will be instituted to try genocide offences (cf. Annexes). Article 11 (Dissolution of Groups or Organizations Having Taken Part in Genocide) The High Contracting Parties pledge themselves to the dissolution of any group or organization which has taken part in any act of genocide mentioned in the aforesaid Articles 1, 2, 3. Article 12 (Of Action by United Nations to Suppress Genocide) Notwithstanding any dispositions under the preceding articles, should the aforesaid crimes be committed in any part of the world, or should there be serious reasons to believe that they have been committed, the High Contracting Parties may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. The said High Contracting Parties may take every measure in their power to give effect to the intervention of the United Nations. Article 13 (Indemnity to Genocide Victims) When genocide is committed in a country by the government in power or by sections of the population without the government succeeding in effectively suppressing it, the State shall pay to the survivors of any

120

A/AC.10/42

human group which is a victim of genocide such indemnity as the United Nations may decree. Article 14 (Settlement of Disputes on the Interpretation or the Application of the Convention) Disputes as to the interpretation or application of the present Convention shall be submitted to the International Court of Justice. Article 15 (Language – Date of the Convention) This Convention, of which the Chinese, English, French, Russian and Spanish texts are authentic, shall bear the date of . . . . . . Article 16 (First Draft) (What States may Accede. Means of Accession) 1. The present Convention shall be open to accession by all the Members of the United Nations and non-Member states to which the Economic and Social Council has sent an invitation. 2. The instruments of accession shall be transmitted to the SecretaryGeneral of the United Nations. (Second Draft) 1. The present Convention shall, until 31 . . . . . . . 1948 be open for signature on behalf of any Member of the United Nations and of any non-Member state to which the Economic and Social Council has sent an invitation. This present Convention shall be ratified, and the instruments of ratification shall be transmitted to the Secretary-General of the United Nations. 2. After the . . . day of . . . 1948 the present Convention may be acceded to by any Member state of the United Nations and by and non-Member state having received the aforesaid invitation.

A/AC.10/42

121

Instruments of accession shall be transmitted to the Secretary-General of the United Nations. Article 17 (Reservations) No proposition is put forward for the moment. Article 18 (Coming into Force) 1. This Convention shall come into force on the ninetieth day after the receipt by the Secretary-General of the United Nations of at least . . . accessions (or . . . ratifications and accessions). 2. After the coming into force of the Convention each subsequent accession (or each ratification or accession) shall take effect on the ninetieth day from the date of its receipt by the Secretary-General of the United Nations. Article 19 (First Draft) (Duration of the Convention) 1. The Convention shall have effect for five years from the date of its coming into force. 2. It shall remain in force for further successive periods of five years in the case of the High Contracting Parties which do not denounce it at least six months prior to the expiration of the current period. 3. Denunciation shall take place by a notification in writing addressed to the Secretary-General of the United Nations. (Second Draft) The present Convention may be denounced by a notification in writing addressed to the Secretary-General of the United Nations. This notification shall take effect one year after the date of its receipt.

122

A/AC.10/42

Article 20 (Abrogation of the Convention) Should the number of Members of the United Nations and non-Members states bound by this Convention become less than . . . as a result of denunciation the Convention shall cease to have effect from the date on which the last of these denunciations shall become operative. Article 21 (Revision of the Convention) A request for revision of the present Convention may be submitted at any time by any state bound by this Convention by notification addressed to the Secretary-General. The Economic and Social Council shall decide upon the appropriate measures to be taken in respect of such a request. Article 22 (Notifications by the Secretary-General) The Secretary-General of the United Nations shall notify all Members of the United Nations and non-Member states referred to in Article 16 of all accessions (or signatures, ratifications and accessions) received according to Articles 16 and 18, of denunciations received under Article 19 of the abrogation of the Convention effected in virtue of Article 20, of requests for revision of the Convention made in accordance with Article 21. Article 23 (Filing of Original of the Convention and Address of Copies to Governments) 1. A copy of the Convention signed by the President of the General Assembly and the Secretary-General of the United Nations shall be filed in the Archives of the Secretariat. 2. A certified copy shall be transmitted to all Members of the United Nations and to non-Member states mentioned under Article __ of this Convention.

A/AC.10/42

123

Article 24 (Registration of the Convention) The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

124

A/AC.10/42/Rev.1

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/42/Rev.1 12 June 1947 ENGLISH ORIGINAL: FRENCH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION IRAFT CONVENTION FOR THE PREVENTION AND FUNISHMENT OF GENOCIDE (Prepared by the Secretariat) Preamble The High Contracting Parties proclaim that Genocide, which is the intentional destruction of a group of human beings, defies universal conscience, inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the United Nations. 1. They appeal to the feelings of solidarity of all members of the international community and call upon them to oppose this odious crime. 2. They proclaim that the acts of genocide defined by the present Convention are crimes against the Law of Nations, and that the fundamental exigencies of civilization, international order and peace require their prevention and punishment. 3. They pledge themselves to prevent and to repress such acts wherever they may occur. Article 1 Definitions (Protected Groups) I. The purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings. (Acts qualified as Genocide)

A/AC.10/42/Rev.1

125

II. In this Convention, the word “genocide” means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying them in whole or in part, or of preventing their preservation or development. Such acts consist in: 1. Causing the death of members of a group or injuring their health or physical integrity by: (a) group massacres or individual executions; or (b) Subjection to conditions of life wherein, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion the individuals are doomed to weaken or die; or (c) mutilations and biological experiments imposed with no curative purpose; or (d) deprivation of all means of livelihood, by confiscation of property, looting, curtailment of work, housing, and supplies otherwise accessible to the other inhabitants of the territory concerned. 2. Restricting births by: (a) sterilization and/or compulsory abortion; or (b) segregation of the sexes; or (c) obstacles to marriage. 3. Destroying the specific characteristics of the group by: (a) forced transfer of children to another human group; or (b) forced and systematic exile of individuals representing the culture of a group; or (c) prohibition of the use of the national language even in private intercourse; or (d) systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or (e) systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.

126

A/AC.10/42/Rev.1

Article 2 (Punishable Offences) I. Are also considered as crimes of genocide: 1. any attempt to commit genocide; 2. the following preparatory acts: (a) studies and research for the purpose of developing the technique of genocide; (b) setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; (c) issuing instructions or orders, and distributing tasks aimed to promote genocide. II. Also shall be punishable: 1. wilful participation in acts of genocide of whatever description; 2. direct public incitement to any act of genocide, whether the incitement be successful or not; 3. conspiracy, to commit acts of genocide. Article 3 (Punishment of a Particular Offence) All forms of public propaganda tending by their systematic and heinous character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act shall be punished. Article 4 (Responsible Persons) Those who commit genocide shall be punished, be they rulers, public officials or private individuals. Article 5 (Command of the Law and Superior Order)

A/AC.10/42/Rev.1

127

Command of the law or of a supperior [sic] authority shall not justify genocide. Article 6 (Provisions concerning Genocide in National Legislation) The High Contracting Parties shall make provision in their respective national legislation for acts of genocide as defined by Articles 1, 2, 3, hereabove, and for their effective punishment. Article 7 (Universal Enforcement of National Legislation) The High Contracting Parties pledge themselves to punish any offender under this convention within any territory under their jurisdiction, irrespective of the nationality of the offender and/or of the place where the offence has been committed. Article 8 (Extradition) The High Contracting Parties proclaim that genocide shall not be considered as a political crime and therefore shall be a ground for extradition. The High Contracting Parties pledge themselves to grant extradition in case of genocide. Article 9 (Trial of Genocide by an International Court) The High Contracting Parties pledge themselves to bring all persons guilty of genocide under this Convention to an international court in the following cases: 1. When they do not contemplate trying such offenders themselves under Article 7 or granting their extradition under Article 8. 2. If the acts of genocide have been committed by individuals acting as organs of the state or have been supported or tolerated by the state.

128

A/AC.10/42/Rev.1

Article 10 (International Court competent to try Genocide) Two drafts are submitted for this section: 1st draft: The court of criminal jurisdiction under Article 9 shall be the International Court having jurisdiction in all matters connected with international crimes. 2nd draft: An international court shall be set up to try offences of genocide (vide Annexes). Article 11 (Dissolution of Groups or Organizations Having Participated in Genocide) The High Contracting Parties pledge themselves to dissolve any group or organization which has participated in any act of genocide mentioned in Articles 1, 2, 3 above. Article 12 (Action by the United Nations to Prevent or to Stop Genocide) Notwithstanding any provisions in the foregoing articles, should the crimes as defined in this Convention be committed in any part of the world, or should there be serious reasons to suspect that such crimes have been committed, the High Contracting Parties may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations. Article 13 (Reparations to Victims of Genocide) When genocide is committed in a country by the government in power or by sections of the population without the government succeeding in effectively suppressing it, the State shall grant to the survivors of the human group that is a victim of genocide a reparation the nature and amount of which is to be determined by the United Nations.

A/AC.10/42/Rev.1

129

Article 14 (Settlement of Disputes on Interpretation or Application of the Convention) Disputes relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice. Article 15 (Language – Date of the Convention) The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of. . . . . Article 16 (First Draft) (What States may become Parties to the Convention. Ways to become Party to it) 1. The present Convention shall be open to accession on behalf of any Member of the United Nations or any non-member State to which an invitation has been addressed by the Economic and Social Council. 2. The instruments of accession shall be transmitted to the SecretaryGeneral of the United Nations. (Second Draft) 1. The present Convention shall be open until. . . . 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation has been addressed by the Economic and Social Council. The present Convention shall be ratified, and the instruments of ratification shall be transmitted to the Secretary-General of the United Nations. 2. After the . . . day of . . . 1948 the present Convention may be acceded to on behalf of any Member of the United Nations and of any nonmember State that has received an invitation as aforesaid.

130

A/AC.10/42/Rev.1

Instruments of accession shall be transmitted to the Secretary-General of the United Nations. Article 17 (Reservations) No proposition is put forward for the moment. Article 18 (Coming into Force) 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of the accession (or . . . ratifications and accession) of not less than . . . Contracting Parties. 2. Accessions received after the Convention has come into force shall become effective as from the ninetieth day following the date of receipt by the Secretary-General of the United Nations. Article 19 (First Draft) (Duration of the Convention) 1. The present Convention shall remain in effect for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. (Second Draft) The present Convention may be denounced by a written notification addressed to the Secretary-General of the United Nations. Such notification shall take effect one year after the date of its receipt.

A/AC.10/42/Rev.1

131

Article 20 (Abrogation of the Convention) Should the number of Members of the United Nations and non-member States bound by this Convention become less than . . . as a result of denunciation, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative. Article 21 (Revision of the Convention) A request for the revision of the present Convention may be made at any time by any State which is a party to this Convention by means of a written notification addressed to the Secretary-General. The Economic and Social Council shall decide upon the measures to be taken in respect of such a request. Article 22 (Notifications by the Secretary-General) The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article 16 of all accessions (or signatures, ratifications and accessions) received in accordance with Articles 16 and 18, of denunciations received in accordance with Article 19, of the abrogation of the Convention effected as provided by Article 20 and of requests for revision of the Convention made in accordance with Article 21. Article 23 (Deposit of the Original of the Convention and Transmission of Copies to Governments) 1. A copy of the Convention signed by the President of the General Assembly and the Secretary-General of the United Nations shall be deposited in the Archives of the Secreteriat of the United Nations. 2. A certified copy shall be transmitted to all Members of the United Nations and to non-member States mentioned under Article ___.

132

A/AC.10/42/Rev.1

Article 24 (Registration of the Convention) The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

A/AC.10/42/Add.1

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

133

UNRESTRICTED A/AC.10/42/Add.1 10 June 1947 ENGLISH ONLY

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION DRAFT CONVENTION FOR THE PREVENTION AND PUNISHMENT OF GENOCIDE (Note by the Secretariat)* The Secretary-General in transmitting the present draft convention for the prevention and punishment of genocide does not intend to recommend any particular solution in preference to any other in regard to the various questions dealt with in the draft. The present draft has been drawn up with a view to formulating the issues in a methodical manner and presenting all those points on which careful consideration has been deemed necessary. In drawing up the present text, therefore, the Secretary-General has endeavoured to present all the viewpoints, including those of the experts who took part in preparing the draft convention. The present draft has, therefore, been drawn up in the widest possible terms so as to provide as complete a basis for discussion as possible. The Secretary-General considers that the governments and the various organs of the United Nations, which are to consider this draft conventions, will themselves settle those problems of a political nature which may arise in connection with the prevention and punishment of the crime of genocide. * A similar note appears on Page 34 of the French text of the Draft Convention, A/AC.10/41, as part of the commentary of the Secretary-General.

134

A/AC.10/15

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/15 12 May 1947 ORIGINAL: ENGLISH

LETTER FROM THE SECRETARY-GENERAL OF THE UNITED NATIONS TO THE CHAIRMAN OF THE COMMITTEE ON THE DEVELOPMENT AND CODIFICATION OF INTERNATIONAL LAW CONCERNING THE CRIME OF GENOCIDE 8 May 1947 Sir, I have the honour to inform you that, on 28 March 1947, the Economic and Social Council adopted a resolution by which the Secretary-General of the United Nations was instructed to undertake certain studies with a view to drawing up a draft convention on Genocide and, after consultation with the Committee on the Development and Codification of International Law and if feasible the Commission on Human Rights, and after reference to all Member Governments for comments, submitting a draft convention to the next session of the Council. The resolution in question was in implementation of a resolution adopted at the last session of the General Assembly on the initiative of the Delegations from Cuba, India and Panama. The question was discussed in the Sixth Committee of the Assembly where there was general agreement that Genocide should be made a crime punishable by international law. The report of this Committee was presented to the General Assembly by Professor K.H. Bailey of Australia which, on 11 December 1946, adopted the resolution already referred to which read as follows: 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; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

A/AC.10/15

135

Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern. The General Assembly, therefore, Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable. Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime. Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide; and, to this end, Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

In implementation of the resolution of the General Assembly, the Economic and Social Council, at its fourth session, adopted the following resolution, already referred to, on 28 March 1947: The Economic and Social Council, Taking cognizance of the General Assembly Resolution No. 96 of 11 December 1946, instructs the Secretary-General: (a) to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) after consultation with the General Assembly Committee on the Development and Codification of International Law and if feasible the Commission on Human Rights, and after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

The Secretary-General has already begun this work and will soon call on the assistance of experts in the field of international and criminal law as prescribed by the resolution of the Economic and Social Council. Once this work has been completed, I will have the honour to communicate

136

A/AC.10/15

the result to the Committee on the Development and Codification of International Law, in accordance with the terms of the same resolution. I have the honour to be, Sir, Your obedient Servant, Trygve Lie Secretary-General To the Chairman, Committee on the Development and Codification of International Law, United Nations, Lake Success, N.Y.

A/AC.10/29

137

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/29 19 May 1947 ENGLISH ORIGINAL: FRENCH

MEMORANDUM ON THE SUBJECT OF GENOCIDE AND CRIMES AGAINST HUMANITY SUBMITTED BY THE REPRESENTATIVE OF FRANCE At its meeting on 11 December 1946, the General Assembly of the United Nations adopted the following resolution: The General Assembly therefore, Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable; Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime. Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

Taking cognizance of this resolution, the Economic and Social Council instructed the Secretary-General: (a) To undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) After consultation with the General Assembly Committee on the Development and Codification of International Law and if possible the Commission on Human Rights and a reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

138

A/AC.10/29

This text does not define the object of the consultation asked of the Codification Committee. The drawing up of a convention, with the object of suppressing genocide or “crimes against humanity” demands a prior definition of this infringement. The French delegation therefore considers that this definition is part of the task of this Committee. In accordance with another General Assembly resolution, also of 11 December 1946, this definition would be sought by taking the principles in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal as a basis. It should nevertheless be noted that the General Assembly appears to desire to introduce important innovations in regard to this Charter and this judgment. Not only is the hitherto admitted expression “crime against humanity” replaced by a neologism, the term genocide, but the conception of the infringement is broadened. The Charter of 5 August 1945 contains (Article 6(c)) a restrictive enumeration of acts constituting crimes against humanity. In the resolution of 11 December 1946 there is only an extremely general and vague formula: 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.

Further, whilst the Charter of Nurnberg deals only with “major war criminals,” that is to say, rulers who have taken the initiative in crimes against humanity, the resolution of 11 December 1946 extends the indictment to all the principal authors and their accomplices “whether private individuals, public officials or statesmen”. If it is true that the progressive development of public international law should be undertaken with caution, caution has never been more desirable than in the present case. An excessively broad conception of “crimes against humanity” indeed presents the following dangers: (a) It may compromise the moral and retributive effect of the penal law. In general, acts causing the extermination of a human group are homicidal acts, that is to say, murders or assassinations. The draft takes into account the motive or aim and substitutes for these common law terms an exceptional term: “genocide” or “crime against humanity”. But while this motive or special aim is that of the promoters or rulers, it will frequently happen that it is foreign to the executants who are “gangsters” influenced by remuneration. In regard to these latter, why cannot the names “murderer” or “assassin” be maintained with all the odium and

A/AC.10/29

139

dishonour which tradition attaches to them? There is always a serious drawback in unnecessarily substituting exceptional law for common law. (b) It is dangerous for individual rights. We have in mind an accused person who is not always a guilty person. The destruction of a human group can be brought about by other methods than homicide: thus the Charter mentions “enslavement, departation [sic] and other inhumane acts committed against any civilian population . . . or persecutions on political, racial or religious grounds . . .

These are vague terms for characterizing infringements and they will hardly be found in positive legislation. If such indictments can be made against private persons, there is a danger that on occasion they may become instruments of persecution or blackmail. (c) Lastly, it is dangerous for the mutual independence of States. It is useless solemnly to affirm their equality, or provide for intervention, as is done in the Panama Declaration, if an easy pretext is given to each State and particularly to the strongest, and to the United Nations itself, for interfering in the internal affairs of other States. Under the semblance of creating a favourable “climate” for peace, the germs of war are being broadcast.

Were these drawbacks of an excessively broad conception of “crimes against humanity” apparent to the authors of the Charter and judgement of Nurnberg? It is possible. But it is a fact that between the one and the other the conception was gradually narrowed. (a) Having enumerated the acts which constitute a crime against humanity, the Charter (Article 6c) adds the following: . . . in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Thus crimes against humanity are not directly within the competence of the International Military Tribunal. They are only submitted to it by virtue of being connected with other acts: crimes against peace or war crimes. (b) Interpreting this formula the Tribunal considered that all inhuman acts attributable to national socialism but prior to the outbreak of hostilities were outside its competence: To constitute crimes against humanity, acts which on or before the outbreak of war must not have been in execution of a concerted plot or plan to launch and conduct a war of aggression.

140

A/AC.10/29

There must at least be a connection with the latter. The Tribunal does not consider that proof of this connection has been made, however revolting and horrible the crimes were. It cannot therefore make a general declaration that these facts attributed to Nazism and prior to 1 September 1939 are crimes against humanity within the meaning of the Charter.

(c) With regard to facts subsequent to 1 September 1939 the Tribunal makes this qualification dependent upon the proof of a connection with a crime against peace or with war crimes: on the other hand since the opening of hostilities acts bearing the double character of war crimes and crimes against humanity have been committed on a vast scale. Other acts, also subsequent to the outbreak of war and charged in the Indictment, are not, properly speaking, war crimes. But the fact that they were committed in execution of, or in connection with, aggressive war, therefore constituted them crimes against humanity.

In practice only two of the accused, Streicher and Baldur von Schirach against whom the charge of crimes against humanity was alone brought were condemned on this count. But if the facts with which they were reproached are not “properly speaking”, war crimes, they are bound up with a war of aggression by close relations of causality, with the result that a slightly more comprehensible terminology would have allowed this latter designation to be extended to them. The assiduity which the International Military Tribunal appears to have displayed in order to restrict if it did not exclude, the indictment of crimes against humanity, is explained by the fact that this was a completely new indictment and that some at any rate of the members of the Tribunal considered themselves bound by the principle of the legality of crimes and penalties. It is evident that the legislator and consequently also the Codification Committee would not have doubts of this kind. The idea of punishing the governments of peoples who violate the natural law goes back to Grotius and Vattel. Action “on behalf of humanity” has long been a commonplace of international practice. It is in line with modern evolution, characterized by the United Nations, that instead of the political character which it has borne up to the present, this action should now assume a judicial and punitive character. There should therefore be no question of excluding indictments for crimes against humanity. In order to obviate the aforementioned drawbacks, however, we propose that they should be defined according to the following rules:

A/AC.10/29

141

1. It must be specified that international punitive action presupposes the failure of the Government concerned to inflict punishment for the imputed offence; whether because that Government itself provoked the actions in question; or because it intentionally refrained from punishing the offenders. 2. It must be specified that a crime against humanity implies an attack on the lives of individuals; mere deprivation or restriction of civil or political rights inflicted on the members of a community is not enough to constitute this crime. 3. It must be specified, lastly, that the only persons who can be prosecuted under the particular head of crimes against humanity are rulers, that is to say, those who are responsible for the initiative and decision of the criminal action.

On the other hand, the indictment will extend not only to an attack directed against a race (as the word genocide seems to imply), but to all cases where the extermination of a human group is an expression of policy or a method of government. Briefly, the French delegation proposes that we should state: 1. that all extermination of individuals as members of a racial, social, political or religious group constitutes a crime against humanity; 2. that this crime, which consists of assassination by State action or toleration, and which may be perpetrated in time of peace as in time of war, is a crime against international public law; 3. that the rulers found guilty of this crime are amenable to an international jurisdiction and liable to criminal prosecution.

This idea affords a satisfactory parallel to that of the crime against peace which has entered into international usage as a result of the statute and sentences of Nurnberg. In both cases the responsibility rests with the rulers. Of course, officers and soldiers who have taken part in the war of aggression served the purposes of their rulers. If they are treated as accomplices, the scope of “the crime against peace” will be extended to them, and the appropriate penalty will be inflicted. This will remove the distinctions laid down with regard to the material acts charged by the laws of the war, as embodied in the Hague Convention for example. These laws will also not apply to soldiers in the service of the State unjustly attacked. Common sense and justice reject these consequences of an absurd logic. It is obvious that the laws of war apply to both belligerents, regardless

142

A/AC.10/29

of the justice or injustice or their cause. The fate of executives is distinct from that of instigators, because their action does not involve the moral element of an offence. This also applies to perpetrators of the crime against humanity. This crime is individual to the rulers in whose minds the criminal decision was formed, who gave the orders and took no personal part in the action. With regard to the executives, whatever their motives, they are murderers, vulgar assassins amenable to the common law, and nothing is to be gained by removing them from its sphere. It is self-evident that the argument of “superior orders” is applicable in their case, as international law has provided. This distinction between rulers and executives is reflected in the procedural field. That is why we have provided both for two classifications and for two distinct jurisdictions. If, owing to the failure of national jurisdictions an international court has to judge executives, this court will be distinct from the International Court of Justice (criminal chamber) which will determine State responsibility and decide the fate of rulers. It will function as a result of a decision taken by the International Court and, as we have pointed out elsewhere, will deal with cognate facts. It is self-evident that the exercise of these punitive powers does not exclude the previous institution of other proceedings. The protection of human groups is not ensured exclusively or even chiefly by penal courts. The French delegation suggests that the Codification Commission should refer to the Commission on Human Rights the task of studying and drawing up a definition of human rights and a procedure which might ensure their effective protection.

A/AC.10/43

143

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/43 6 June 1947 ORIGINAL: ENGLISH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION CONTINUATION OF THE REPORT OF THE RAPPORTEUR ITEMS 3(b), 3(c) OF THE AGENDA (A/AC.10/1) 19. The Committee was also asked by the General Assembly to study methods of securing the co-operation of the several organs of the United Nations in the task of the progressive development of international law and its eventual codification. On this point the Committee recommends (a) That the ILC should be authorized, if need be, to consult with any of the organs of the United Nations in any draft or project the subject matter of which is relevant to the functions of the particular organ. (b) That in projects referred to it by a competent organ of the United Nations the ILC should be authorized, if it thinks it desirable, to make interim reports to the organ concerned prior to submitting its final report to the General Assembly. This resolution was carried by a majority in the Committee. A minority of the members dissented from it on the ground that, in their view, it would not be in accordance with the provisions of the Charter for any organ of the United Nations, other than the General Assembly, to refer a project to the ILC. (c) That all ILC documents which are circulated to governments should also be circulated to the organs of the United Nations for their information, and that such organs should be free to supply any data or make any suggestions to the Commission. 20. The Committee was also asked to study methods of enlisting the assistance of such national or international bodies as might aid it in the attainment of its objective for encouraging the progressive development of international law and its eventual codification. On this point the Committee recommends

144

A/AC.10/43

(a) That the ILC should be authorized to consult any national or international organization, official or non-official, on any matter entrusted to it, if and when it believes that such a procedure might aid it in the attainment of its objectives. A minority of the members of the Committee were of the opinion that such consultation should be limited to organizations included in the list referred to in the sub-paragraph following. (b) That for the purpose of the distribution of ILC documents the Secretary-General, after consultation with ILC, should draw up a list of national and international organizations dealing with questions of international law. In drawing up this list the Secretary-General would take into account the necessity of having the national organizations of all the members of the United Nations represented on the list. (c) That in the consultations referred to in sub-paragraph (a), and in the compilation of the list referred to in sub-paragraph (b) of this paragraph the Commission and the Secretary-General should take into account the resolutions of the General Assembly and of the Economic and Social Council concerning relations with Franco Spain, and that organizations which collaborated with the Nazis and Fascists should be excluded both from consultation and from the list. (d) By a majority, the Committee decided to refer specially to the necessity and importance of frequent consultation between the ILC and the organs of the Pan-American Union whose task is the codification of international law in the Inter-American System, without, however, disregarding the claims of other systems of law. The Representative of the Soviet Union, who was one of the minority dissenting from this resolution, desires it to be recorded that in his opinion this resolution, by singling out the Pan-American Union for special mention, creates for that Union a privileged position, and thereby violates the principle of equality between nations and between systems of law. He is of the opinion that the resolution might be taken to imply that the work of states other than those represented in the Pan-American Union is of less importance for the ILC, and that the ILC need not maintain equally close contact with such other states.

A/AC.10/44

145

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/44 6 June 1947 ORIGINAL: ENGLISH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION DRAFT RESOLUTION ON THE DRAFT CONVENTION ON GENOCIDE PRESENTED BY THE DELEGATION OF THE UNITED KINGDOM The Committee took notice of the communication of the SecretaryGeneral of 8 May 1947, document A/AC.10/15, relative to Genocide and the Secretary-General’s further communication of _____ June, 1947 which enclosed a draft convention on Genocide together with a commentary. The Committee also took notice of the resolution of the Economic and Social Council of 28 March 1947 which instructed the Secretary-General “after consultation with the General Assembly Committee on the Development and Codification of International Law and if feasible the Commission on Human Rights and after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of Genocide.” The Committee was informed that the next session of the Economic and Social Council is scheduled to be held on 16 July 1947. It recognized the desirability of affording to governments an opportunity to comment on the draft convention prepared by the Secretariat prior to its consideration by the Economic and Social Council. Aside from any conclusion on the question whether the Committee, under its instructions from the General Assembly, would be authorized to study and report on the substantive provisions of the draft convention on genocide, the Committee did not wish, by engaging in such a study, to delay the process of governmental consideration which in turn might make it difficult for the Economic and Social Council to take up the draft at its next meeting. In view of these considerations, the Committee requests its Chairman to reply to the communication of the Secretary-General in the sense of the foregoing observations.

146

A/AC.10/46

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/46 10 June 1947 ORIGINAL: ENGLISH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION CONTINUATION OF THE REPORT OF THE RAPPORTEUR Item 4 of the Agenda (A/AC.10/1) 21. By a Resolution of 11 December 1946 the General Assembly directed this Committee “to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an international criminal code, of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal”. 22. The Committee considered the nature of the task entrusted to it by this Resolution. In particular it noted that the General Assembly had requested it to propose “plans for the formulation” of the Nurnberg principles, and not itself to undertake the actual formulation of those principles, which would clearly be a task demanding careful and prolonged study. The Committee therefore concluded that it was not called upon to discuss the substantive provisions of the Nurnberg principles, and that such a discussion would be better entrusted to the Expert Commission, the establishment of which it had decided to recommend to the General Assembly. It recommends therefore that the ILC should be invited to prepare (a) A draft convention incorporating the principles of international law recognized by the Charter of the Nurnberg Tribunal and sanctioned by the judgment of that Tribunal,(1) and (b) A detailed draft plan of general codification of offences against the peace and security of mankind in such a manner that the plan should clearly indicate the place to be accorded to the principles mentioned in sub-paragraph (a) of this paragraph. The Committee further desires to record its opinion that this task would not preclude the ILC from drafting in due course a code of international penal law.

A/AC.10/46

147

23. The Committee also resolved to draw the attention of the General Assembly to the fact that to give effect to the application of the principles of the Charter of the Nurnberg Tribunal and its judgment, and to secure the punishment of other international crimes which may be recognized as such by international legislation, may render desirable the existence of an international judicial authority to exercise jurisdiction over such crimes. The Delegates for Egypt, Poland, the United Kingdom, the Union of Soviet Socialist Republics, and Yugoslavia desired to have their dissent from this Resolution recorded in this Report. In their opinion the question of establishing an international court falls outside the terms of reference from the General Assembly to the Committee. (1) The Delegate for Poland desired to have it placed on record that the Polish Government considers that propaganda of aggressive wars constitutes a crime under international law and falls under the scope of preparation to such wars as listed in Article 6a of the Statute of Nurnberg. This crime is a dangerous form of preparation, likely to cause and increase international friction and lead to armed conflicts. It is a form of psychological armaments as opposed to the notion of moral disarmament. The Criminal Code of Poland, which is in force from 1 September 1932, contains the prohibition of propaganda of wars of aggression in its Article 113. The Polish Government expects that a similar provision will be incorporated into the codification of Crimes against Peace and Security, and requests that the International Law Commission take appropriate action on this matter as one of primary importance. The Delegate for Yugoslavia associates himself with this statement.

148

A/AC.10/46/Corr.1

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/46/Corr.1 16 June 1947 ORIGINAL: ENGLISH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION REPORT OF THE COMMITTEE Item 4 of the Agenda (A/AC.10/1) 1. By a Resolution of 11 December 1946 the General Assembly directed this Committee “to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an international criminal code, of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal”. 2. The Committee considered the nature of the task entrusted to it by this Resolution. In particular it noted that the General Assembly had requested it to propose “plans for the formulation” of the Nurnberg principles, and the Committee by a majority decided not to undertake the actual formulation of those principles, which would clearly be a task demanding careful and prolonged study. The Committee therefore concluded that it was not called upon to discuss the substantive provisions of the Nurnberg principles, and that such a discussion would be better entrusted to the International Law Commission, the establishment of which it had decided to recommend to the General Assembly. It recommends unanimously that the ILC should be invited to prepare (a) A draft convention incorporating the principles of international law recognized by the Charter of the Nurnberg Tribunal* and sanctioned by the judgment of that Tribunal,* and (b) A detailed draft plan of general codification of offences against the peace and security of mankind in such a manner that the plan should clearly indicate the place to be accorded to the principles mentioned in sub-paragraph (a) of this paragraph.

A/AC.10/46/Corr.1

149

The Committee further desires to record its opinion that this task would not preclude the ILC from drafting in due course a code of international penal law. 3. The Committee also decided by a majority to draw the attention of the General Assembly to the fact that the implementation of the principles of the Nurnberg Tribunal and its judgment, as well as the punishment of other international crimes which may be recognized as such by international multipartite conventions may render desirable the existence of an international judicial authority** to exercise jurisdiction over such crimes. The Representatives for Egypt, Poland, the United Kingdom, the Union of Soviet Socialist Republics, and Yugoslavia desired to have their dissent from this decision recorded in this Report. In their opinion the question of establishing an international court falls outside the terms of reference from the General Assembly to the Committee. * The Representative of France submitted a memorandum on 27 May 1947 concerning draft texts relating to the Principles of the Charter and Judgment of the Nurnberg Tribunal. (A/AC.10/34) * The Representative of Poland desired to have it placed on record that the Polish Government considers that propaganda of aggressive wars constitutes a crime under international law and falls under the scope of preparation to such wars as listed in Article 6a of the Statute of Nurnberg. This crime is a dangerous form of preparation, likely to cause and increase international friction and lead to armed conflicts. It is a form of psychological armaments as opposed to the notion of moral disarmament. The Criminal Code of Poland, which is in force from 1 September 1932, contains the prohibition of propaganda of wars of aggression in its Article 113. The Polish Government expects that a similar provision will be incorporated into the codification of Crimes against Peace and Security, and requests that the International Law Commission take appropriate action on this matter as one of primary importance. The Representative of Yugoslavia and the Soviet Union associate themselves with this statement. ** The Representative of France submitted a memorandum on 15 May 1947 concerning a draft proposal for the establishment of an international court of criminal jurisdiction.

150

A/AC.10/SR.28

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/SR.28 24 June 1947 ENGLISH ORIGINAL: FRENCH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION SUMMARY RECORD OF THE TWENTY-EIGHTH MEETING Held at Lake Success on Friday, 13 June 1947, at 3 p.m. CHAIRMAN: Sir Dalip Singh

(India)

MEMBERS:

(Argentina) (Australia) (Brazil) (China) (Colombia) (Egypt) (France) (Netherlands) (Poland) (Sweden) (Union of Soviet Socialist Republics) (United Kingdom) (United States) (Venezuela) (Yugoslavia)

Dr. Enrique Ferrer Vieyra Mr. A.H. Body Dr. Gilberto Amado Dr. Shu-hsi Hsu Prof. Jesus M. Yepes Mr. Osman Ebeid Prof. Henri Donnedieu de Vabres Dr. J.G. de Beus Dr. Alexander Bramson Mr. Erik Sjoborg Prof. Vladimir Koretsky Prof. J.L. Brierly Prof. P.C. Jessup Dr. Perez Perozo Prof. Milan Bartos

The CHAIRMAN opened the meeting and called upon the delegate of Colombia, who wished to make a statement. Prof. Jesus M. YEPES (Colombia) read his delegation’s official statement and asked for its reproduction in full in the summary record: The Colombian delegation did not think it necessary to press the point brought up in the course of the discussion concerning the power granted to the I.L.C. to appoint a Rapporteur not a member of the Commission. The Colombian delegation requests permission to reaffirm its vote against this proposal on the grounds that such a power is contrary to parliamentary

A/AC.10/SR.28

151

tradition which requires a Rapporteur to be a member of his Commission in his own right. That has been the well-established custom and law for a long time. Furthermore, my delegation believes that among the many Commission members, who have to be recognized authorities on international law working full time for the Commission, there must surely be one or more jurists fully qualified to serve as Rapporteurs to the General Assembly. My delegation believes that, since the Rapporteur is ex officio the Commission’s spokesman and the liaison between the Commission and the Assembly, it would be not only more natural, but perhaps even more constitutional to ask one of the members of the Commission elected by the General Assembly and by the Security Council to perform this function.

Dr. Alexander BRAMSON (Poland) shared the views expressed by the Colombian delegation. The CHAIRMAN then asked the Committee to continue the consideration of the Rapporteur’s Report (Document A/AC.10/43). He read the introduction to paragraph 19: The Committee was also asked by the General Assembly to study methods of securing the co-operation of the several organs of the United Nations in the task of the progressive development of international law and its eventual codification. On this point, the Committee recommends:

This text was adopted without discussion. The CHAIRMAN then read sub-paragraph (a): (a) That the I.L.C. should be authorized, if need be, to consult with any of the organs of the United Nations in any draft or project the subject matter of which is relevant to the functions of the particular organ.

Prof. P.C. JESSUP (United States) requested that the English text be changed by inserting the word “on” instead of the word “in” between the words “United Nations” and the words “any draft.” The CHAIRMAN noted this point and declared sub-paragraph (a) adopted. The CHAIRMAN read sub-paragraph (b): (b) That in projects referred to it by a competent organ of the United Nations, the I.L.C. should be authorized, if it thinks it desirable, to make interim reports to the organ concerned prior to submitting its final report to the General Assembly.

152

A/AC.10/SR.28

This resolution was carried by a majority in the Committee. A minority of the members dissented from it on the grounds that in their view it would not be in accordance with the provisions of the Charter for any organ of the United Nations other than the General Assembly to refer a project to the I.L.C.

Dr. Alexander BRAMSON (Poland), without wishing to reopen the debate, recalled that his delegation while sharing the minority view believed that, in addition to the General Assembly, the Economic and Social Council also had the right to place questions before the I.L.C. and requested that this remark be recorded in the report. Nevertheless, it seemed illogical to him that the I.L.C., after preparing an interim report for the Economic and Social Council, should submit a final report to the Assembly without waiting for action by the Economic and Social Council. Prof. Milan BARTOS (Yugoslavia) repeated his opinion that while it was permissible for the I.L.C. to submit provisional reports to the Economic and Social Council, this did not mean that the Council could take the initiative of suggesting to the I.L.C. which problems it ought to consider. He requested that his opinion be noted in the Summary Record. Dr. Alexander BRAMSON (Poland) said that a statement similar to the one he had just made appeared in the report under Item 9; he did not share the opinion of the other delegates who formed the minority. Prof. Milan BARTOS (Yugoslavia) endorsed the views of the delegate of Poland. The CHAIRMAN stated that that view would be mentioned in the report as a footnote. He then read sub-paragraph (c): (c) That all I.L.C. documents which are circulated to Governments should also be circulated to the organs of the United Nations for their information, and that such organs should be free to supply any data or make any suggestions to the Commission.

Sub-paragraph (c) was adopted. Mr. A.H. BODY (Australia) wished to make the following remarks on the whole of paragraph 19: The development of international law would be assured and respect for the rule of law promoted if all the difficult legal problems coming before the organs of the United Nations were referred to the International Court

A/AC.10/SR.28

153

of Justice for an advisory opinion. There were already arrangements for requesting such advice and it might, perhaps, be desirable for this Committee to suggest to the General Assembly the adoption of a short resolution recommending the other organs of the United Nations to refer to the International Court of Justice and to request the Court’s advisory opinion whenever a legal question of special importance arose.

This question would be submitted to the Assembly by his delegation. The CHAIRMAN read the introduction to paragraph 20: 20. The Committee was also asked to study methods of enlisting the assistance of such national or international bodies as might aid it in the attainment of its objective for encouraging the progressive development of international law and its eventual codification. On this point, the Committee recommends:

Prof. J.L. BRIERLY (United Kingdom) (Rapporteur) requested that the word “for” in the first line of the second page in the English document be changed to “of ”. The introduction was adopted. The CHAIRMAN read the first sentence of sub-paragraph (a): (a) That the I.L.C. should be authorized to consult any national or international organization, official or non-official, on any matter entrusted to it, if and when it believes that such a procedure might aid it in the attainment of its objectives.

This sentence was adopted. He then read the second sentence: A minority of the members of the Committee were of the opinion that such consultation should be limited to organizations included in the list referred to in the sub-paragraph following.

This sentence was adopted. He then read the first sentence of sub-paragraph (b): That for the purpose of the distribution of I.L.C. documents the Secretary-General, after consultation with the I.L.C., should draw up a list of national and international organizations dealing with questions of international law.

This sentence was adopted.

154

A/AC.10/SR.28

He then read the second sentence: In drawing up this list, the Secretary-General should take into account the necessity of having the national organizations of all the Members of the United Nations represented on the list.

This sentence was adopted. He then read sub-paragraph (c): That in the consultations referred to in sub-paragraph (a) and in the compilation of the list referred to in subparagraph (b) of this paragraph, the Commission and the Secretary-General should take into account the resolutions of the General Assembly and of the Economic and Social Council concerning relations with Franco Spain, and that organizations which collaborated with the Nazis and Fascists should be excluded both from consultation and from the list.

Sub-paragraph (c) was adopted. The Chairman then read the first sentence of sub-paragraph (d): By a majority the Committee decided to refer specially to the necessity and importance of frequent consultation between the I.L.C. and the organs of the Pan-American Union whose task is the codification of international law in the Inter-American System without, however, disregarding the claims of other systems of law.

Prof. Jesus M. YEPES (Colombia) requested a slight change in this first sentence. The agencies of the Pan-American Union concerned with codification were not autonomous and hence it would be necessary to state that consultations should take place between the I.L.C. and the Pan-American Union. Prof. Milan BARTOS (Yugoslavia) disagreed, for such an amendment would amount to instructing the I.L.C. to consult with a political instead of a purely technical agency. Prof. Jesus M. YEPES (Columbia) believed there was some misunderstanding. The phrase “the Pan-American Union” meant not a political agency, but simply the Secretariat of the Union. Prof. Milan BARTOS (Yugoslavia) did not agree with the view of the delegate of Colombia. The Congresses of the Pan-American Union played a political role. The words “Pan-American Union” could not mean merely the Secretariat of the Union.

A/AC.10/SR.28

155

Mr. Osman EBEID (Egypt) reminded the Committee that he was one of the minority objecting to singling out the Pan-American Union for special mention in the report. The Arab League also constituted a system of law which ought to be mentioned, at least as an example. The main point was the peculiar characteristics of every system of law and he believed accordingly that the text ought not to be amended. Prof. Henry DONNEDIEU DE VABRES (France) also considered that the text should remain unchanged. Prof. Jesus M. YEPES (Colombia) had not realized that his amendment would give rise to discussion. Accordingly, he withdrew it. The CHAIRMAN read the last two sentences of sub-paragraph (d): The representative of the Union of Soviet Socialist Republics, who was one of the minority dissenting from this resolution, desires it to be recorded that in his opinion this resolution, by singling out the Pan-American Union for special mention, creates for that Union a privileged position, and thereby violates the principle of equality between nations and between systems of law. He is of the opinion that the resolution might be taken to imply that the work of States other than those represented in the Pan-American Union is of less importance for the I.L.C., and that the I.L.C. need not maintain equally close contact with such other States.

Prof. Milan BARTOS (Yugoslavia) spoke on a point of order: This part of sub-paragraph (d) reproduced the opinion of the Soviet delegate who was not present. A decision on this question should be deferred until the delegate attended. Dr. Enrique FERRER VIEYRA (Argentina) agreed with this suggestion provided the discussion was not reopened. Prof. Jesus M. YEPES (Colombia) felt that no single State should be referred to by name in the report. That might be in order in the summary record, but not in the report. The CHAIRMAN reminded the Committee that it had been agreed that in future any delegate was entitled to put in documents stating his opinions, which would merely be mentioned in the report. Prof. Milan BARTOS (Yugoslavia) stated that the point of view of the minority and not just that of the Soviet delegate was involved. That might be mentioned in the report.

156

A/AC.10/SR.28

Dr. Enrique FERRER VIEYRA (Argentina) opposed such changes in the report The CHAIRMAN saw no reason why this request should not be acceded to. Prof. Henry DONNEDIEU DE VABRES (France) did not wish the report to mention the minority opinion instead of naming the delegate of the USSR. He himself had voted with the minority, but he had not shared the views expresses [sic] by the delegate of the USSR. Dr. Enrique FERRER VIEYRA (Argentina) thought that the two sentences should be kept as they stood or oritted [sic] entirely. Prof. Milan BARTOS (Yugoslavia) recalled that four of the members of the minority had shared the opinion of the delegate of the USSR. Prof. Henry DONNEDIEU DE VABRES (France) proposed changing the text so as to indicate that this was the opinion of four of the members of the minority. Prof. Jesus M. YEPES (Colombia) proposed that the four members of the minority should be mentioned by name. Prof. Milan BARTOS (Yugoslavia) personally saw no reason why this last proposal should not be adopted, but reminded the Committee that it had been decided that members in a minority should remain anonymous. If this rule were changed, the whole report would have to be revised. Mr. Osman EBEID (Egypt) thought the rule should not be changed. Dr. Alexander BRAMSON (Poland) pointed out that he had not himself voted for including these words, but had abstained. The CHAIRMAN stated that accordingly the minority consisted of three delegates and not four, as had been said previously. Prof. P.C. JESSUP (United States) reminded the Committee that it had been decided that the Chairman would send a letter to the SecretaryGeneral asking him to request Member States to communicate their observations and comments on the draft declaration of the rights and duties of States submitted by the delegation of Panama. The Assistant Secretary-General had declared that such procedure would be perfectly legal. By virtue of this precedent, he submitted the following proposal:

A/AC.10/SR.28

157

1. The Committee for the Progressive Development of International Law and its Codification requests the Secretary-General to transmit its Report to the Governments of Members of the United Nations at the earliest possible moment. 2. The Secretary-General is further requested: (a) to call to the special attention of Governments to that part of the Report which contains the proposals for the nomination and election of members of an International Law Commission; (b) to suggest to Governments that, in anticipation of the possible approval of these proposals by the General Assembly they may wish to give consideration to the desirability of being prepared promptly to make nominations for members of the proposed International Law Commission in order that the contemplated election might take place before the adjournment of the Second Session.”

Prof. Milan BARTOS (Yugoslavia) raised an objection: if delegates were to discuss this text usefully, it ought to be presented to them in the two working languages and not only in English. The CHAIRMAN ruled therefore that the Committee would study this text later. The next point to be considered was the section of the Rapporteur’s report covering Item IV of the agenda (draft formulation of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal) as given in document A/AC.10/46. Dr. LIANG (Secretary of the Committee) requested that this item be dealt with in a separate report because it had been referred to the Committee in a separate resolution of the General Assembly. He thought this procedure was the most convenient. Dr. J.G. DE BEUS (Netherlands) asked whether the same procedure would be followed with respect to other items which had been referred under different resolutions. Dr. LIANG (Secretary of the Committee) answered in the affirmative. The CHAIRMAN noted that the Committee had accepted its Secretary’s suggestion. He read paragraph 21 of document A/AC.10/46 (paragraph 1 of the separate report): By a resolution of 11 December 1946, the General Assembly directed this Committee ‘to treat as a matter of primary importance plans for the

158

A/AC.10/SR.28

formulation, in the context of a general codification of offences against the peace and security of mankind, or of an international criminal code, of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal.’

This paragraph was adopted. The CHAIRMAN then read the first two sentences of paragraph 2 (former paragraph 22): The Committee considered the nature of the task entrusted to it by this resolution. In particular, it noted that the General Assembly had requested it to propose ‘plans for the formulation’ of the Nurnberg principles, and not itself to undertake the actual formulation of those principles which would clearly be a task demanding careful and prolonged study.

Dr. Alexander BRAMSON (Poland) reminded the Committee that, while the first part of this text had been adopted unanimously, the second part beginning with the words “and not itself to undertake” had been adopted by a majority. Hence he proposed amending the text so as to make it clear that this was merely a majority recommendation. The CHAIRMAN noted that the delegates agreed to this and proceeded to read the third sentence: The Committee therefore concluded that it was not called upon to discuss the substantive provisions of the Nurnberg principles and that such a discussion would be better entrusted to the Committee of Experts, the establishment of which it had decided to recommend to the General Assembly.

Prof. J.L. BRIERLY (United Kingdom) (Rapporteur) proposed that the words “Committee of Experts” be changed to “I.L.C.” Dr. Alexander BRAMSON (Poland) proposed that it should be made clear that this resolution had also been adopted by a majority. Prof. Henri DONNEDIEU DE VABRES (France) said that this was brought out clearly by the wording of the preceding sentence. Dr. Alexander BRAMSON (Poland) agreed with the French delegate and withdrew his amendment. The CHAIRMAN read the last sentence of the introduction to paragraph 2: It recommends therefore that the I.L.C. should be invited to prepare . . .

A/AC.10/SR.28

159

Prof. Milan BARTOS (Yugoslavia) pointed out that the recommendations which followed had been adopted unanimously, and hence the word “therefore” should be changed to “unanimously.” The last sentence of the introduction was adopted. The CHAIRMAN then read sub-paragraph (a): “a draft convention incorporating the principles of international law recognized by the Charter of the Nurnberg Tribunal and sanctioned by the judgment of that Tribunal,(1) and” This sub-paragraph was adopted. The CHAIRMAN read sub-paragraph (b): (b) A detailed draft plan of general codification of offences against the peace and security of mankind, in such a manner that the plan should clearly indicate the place to be accorded to the principles mentioned in sub-paragraph (a) of this paragraph.

This sub-paragraph was adopted. The CHAIRMAN then read the second part of the new paragraph 2: The Committee further desires to record its opinion that this task would not preclude the I.L.C. from drafting in due course a code of international penal law.

This sentence was adopted. Prof. J.L. BRIERLY (United Kingdom) (Rapporteur) noted that there was a footnote concerning sub-paragraph (a). The CHAIRMAN read the footnote and said that the delegates of Poland and of Yugoslavia requested that this footnote should stand. Dr. LIANG (Secretary of the Committee) proposed that in the English text the word “delegate” be changed to “representative.” The CHAIRMAN read the text of the first sentence of paragraph 3 (old paragraph 23): The Committee also resolved to draw the attention of the General Assembly to the fact that, to give effect to the application of the principles of the Charter of the Nurnberg Tribunal and its judgment, and to secure the punishment of other international crimes which may be recognized as such

160

A/AC.10/SR.28

by international legislation, may render desirable the existence of an international judicial authority to exercise jurisdiction over such crimes.

Dr. J.G. DE BEUS (Netherlands) pointed out that the words “international legislation” had been changed to the words “international multilateral conventions” at the request of the delegate of the USSR. Dr. LIANG (Secretary of the Committee) said that this change had been adopted by the majority. Prof. Henri DONNEDIEU DE VABRES (France) drew the Committee’s attention to the fact that the French text of paragraph 3, as it stood in document A/AC.10/46, did not tally with the text previously adopted. The earlier text should be substituted. The CHAIRMAN noted that there was full agreement on all these points and proceeded to read the second sentence of paragraph 3: The delegates of Egypt, Poland, the United Kingdom, the USSR and Yugoslavia desire to have their dissent from this resolution recorded in this report. In their opinion, the question of establishing an international court falls outside the terms of reference from the General Assembly to the Committee.

Prof. J.L. BRIERLY (United Kingdom) (Rapporteur) proposed that the phrase “part of the” be introduced between the words “this” and “resolution” in the first sentence. Prof. Jesus M. YEPES (Colombia) noted that, contrary to the agreed rule, the delegations in a minority had been mentioned by name. Prof. J.L. BRIERLY (United Kingdom) (Rapporteur) proposed that instead of naming the delegations forming the minority, the text should say “five.” Prof. Vladimir KORETSKY (USSR) said that a question of principle was involved and that the dissenting delegations should be specified. The CHAIRMAN ruled that the text would accordingly be left as it stood. Dr. LIANG (Secretary of the Committee) drew the attention of the members of the Committee to the fact that the word “resolved,” in the first sentence of the English text of paragraph 3, was incorrect. Only the Gen-

A/AC.10/SR.28

161

eral Assembly passed resolutions, while the Committee merely submitted recommendations. Therefore, he proposed that the word “resolved” be changed to “decided.” Dr. Enrique FERRER VIEYRA (Argentina) proposed that the words “international court” in the second sentence of paragraph 3 be changed to read “international judicial authority,” in accordance with the wording of the first part. Prof. Vladimir KORETSKY (USSR) disagreed with such a change. Dr. Enrique FERRER VIEYRA (Argentina) said his reason for proposing the amendment was that he did not think this Committee was empowered to discuss the establishment of an international penal court. The CHAIRMAN put the amendment submitted by the delegate of Argentina to the vote. Prof. Vladimir KORETSKY (USSR) raised a point of order: The text represented the minority opinion; therefore the majority could not amend it by a vote. Prof. J.L. BRIERLY (United Kingdom) (Rapporteur) fully agreed with the delegate of the USSR. Prof. Milan BARTOS (Yugoslavia) agreed and added that the present wording reflected their discussion on this question. Both the possibility of establishing a criminal court within the International Court of Justice and of establishing a special criminal court had been mentioned. Dr. Enrique FERRER VIEYRA (Argentina) withdrew his amendment. Dr. Alexander BRAMSON (Poland) moved a vote of thanks to the delegate of the United Kingdom, who had discharged his duties as Rapporteur with such distinction. This was accepted by acclamation. Prof. J.L. BRIERLY (United Kingdom) (Rapporteur) thanked the representative of Poland and his other colleagues. The CHAIRMAN said the Committee now came to Item 6 of the agenda: “Letter of the Secretary-General regarding the Resolution adopted by the Economic and Social Council on 28 March 1947, concerning the crime

162

A/AC.10/SR.28

of genocide.” A number of documents concerning the crime of genocide and, in particular, a note of the Secretary-General (A/AC.10/42/Add.1) were before the delegates. Dr. LIANG (Secretary of the Committee) felt he ought to give certain explanations concerning this document circulated in English only. The Secretariat had prepared a document entitled “Draft Convention on the Prevention and Punishment of Genocide and Comments Thereon” (A/AC.10/41), published in French only for the time being, page 34 of which reproduced the substance of the Secretary-General’s note published as document A/AC/10/42/ Add.1. For that reason the latter document had not been distributed in French. The Draft Convention had been published in English without comments in document A/AC.10/42. The CHAIRMAN said that in addition the representative of France had submitted a memorandum on the subject of genocide and crimes against humanity (document A/AC.10/29). Prof. P.C. JESSUP (United States) requested permission to read the following statement to be fully reproduced in the summary record: All of the Governments represented on this Committee, as well as the Governments of every other Member of the United Nations, were united in adopting the General Assembly’s resolution of 11 December 1946, whereby it was affirmed that ‘Genocide is a crime under international law which the civilized world condemns.’ This unanimous resolution of the General Assembly reflected the sense of horror and outrage which the civilized world has felt as a result of the atrocities committed by the Nazis and Fascists with a view to the extermination of racial and religious groups. As the General Assembly asserted in its resolution, those crimes result in ‘great losses to humanity in the form of cultural and other contributions represented by these human groups.’ Although these acts of genocide committed by the Axis Governments constitute the most recent and most shocking instances of such lawless and immoral conduct, the world is not oblivious to the fact that they were not the first instances of this kind in human history. In this Committee we are charged with the obligation of recommending to the General Assembly plans for the progressive development of international law and its eventual codification. Our debates have clearly revealed our realization of the fact that international law needs to be so extended as to bring within legal control acts which have hitherto gone unpunished because that law has not been adquately [sic] developed. The definition of genocide by an international convention, to which it is hoped that all States of the world will subscribe, is an essential step in this process of the development

A/AC.10/SR.28

163

of international law. The Government of the United States has frequently expressed its conviction that this step should and must be taken. The draft resolution on the draft convention on genocide which has been presented to our Committee by the representative of the United Kingdom in document A/AC.10/44 describes the circumstances which confront us in our consideration of this vital subject. Were it possible for this Committee to make a greater contribution toward the achievement of the goal, which I am confident we all seek to reach, by adopting some other plan of procedure, the delegation of the United States would press for such action. However, for the reasons explained in the paper presented by the representative of the United Kingdom, it appears that the action which is there proposed would be most conducive to the ultimate attainment of the objective. For this reason the delegation of the United States supports that proposal.

Prof. H. DONNEDIEU DE VABRES (France) said he was speaking in a double capacity. As representative of France he had tabled document A/AC.10/29. As a member of the Committee of Experts he had taken part in the preparation of the Draft Convention contained in document A/AC.10/41. Perhaps he should add that he had been one of the judges of the International Military Tribunal of Nurnberg, which had had to deal with crimes against humanity related to the crime of genocide. The Statute of London of 4 August 1945, which established this Tribunal, contained a definition and even a list of crimes against humanity, but in that Statute crimes against humanity are closely bound up with war crimes. The Tribunal also placed a restrictive interpretation on the crimes against humanity by limiting them solely to war crimes. The Statute and the judgment of Nurnberg had served as a basis for the Draft Convention prepared by the Secretariat with the assistance of experts. Actually this was not a draft but, at the utmost, a preliminary draft or, even more exactly, a programme in which the experts had tried to collate all the possible solutions as regards the crime of genocide, including the worst excesses. It was, so to speak, a maximum programme and the authors of the Convention would be able to draw from it as they considered appropriate, in view of the fact that controversial questions had been raised. The first of these questions was how to define the crime of genocide proper. The draft distinguished between three varieties of genocide: the physical, the biological, and the cultural. The next question was how to define against what kind of groups the crime of genocide might be committed: e.g. racial groups only (for instance, the Jews), or would religious, linguistic and political groups be covered too?

164

A/AC.10/SR.28

There was also the question of deciding whether genocide meant only positive action undertaken by a State, or whether abstention amounting to complicity, on the part of the State would be included. Then there was the problem of deciding who was liable: should none but Governments be held responsible for the crime of genocide, or executive agents as well as any other persons carrying on propaganda, for instance, against the Jews? Again, what Courts should try crimes of genocide? Should they be the ordinary State Courts or International Courts specially created for this purpose? He did not think that the Committee had the necessary time to consider the substance of the problem of genocide. In document A/AC.10/29, the French delegation had taken a definite position concerning some of the problems listed above. For the French delegation the issue was to give modern shape to what had been called humane intervention. The French delegation conceded the possibility of international prosecution, but only in cases where the State in question had at least been guilty of wilful abstention and only against the rulers of such States. Finally, the French delegation was unable to recognize any but physical genocide. He supported the proposal of the delegate of the United Kingdom that the question of genocide be referred to the Economic and Social Council, which was to meet on 15 July 1947. It was practically impossible to consult the Governments before that date concerning a Draft Convention. He would however like to note that two other agencies might also take an interest in the question of genocide. There was, in the first place, the Human Rights Commission, since the question of punishment was not the only one involved and the question of prevention ought to be considered too. Secondly, there was the I.L.C., the establishment of which this Committee would recommend. The Committee had pointed out that the I.L.C. ought to deal with crimes against the peace and security of mankind and these, as had been stated before, were cognate to the crime of genocide. Therefore, the delegate proposed that the draft resolution submitted by the delegate of the United Kingdom should be amended so as to mention the two agencies of which he had spoken. Dr. Alexander BRAMSON (Poland) abstained from giving his views on genocide in general as defined in the Secretariat draft. Nevertheless he felt compelled to remind the Committee that genocide was not necessarily

A/AC.10/SR.28

165

related to war crimes, and that it had been committed in the past in times of peace. Poland, and in particular that part of the country formerly under Prussian rule, had experienced genocide before World War I. In using the word “ausrotten”, Bismarck had meant the so-called physical genocide, but although they did not go quite so far at the time, the Germans did unquestionably commit cultural genocide by forbidding not only the teaching of Polish, but even the use of that language in schools. Poland had lost six million citizens in the course of World War II: three million Jews and just as many others which proved that this problem was more than merely a Jewish problem. He could not understand the proposal of the delegate of the United Kingdom, who had suggested that a letter be sent to the Secretary-General stating that this Committee could not deal with the question of genocide. The delegate of the United Kingdom had adduced three arguments in support of his proposal. In the first place, he mentioned the fact that a resolution of the Economic and Social Council had referred the question to this Committee, which was responsible only to the General Assembly and had received its mandate from the Assembly alone. Secondly, the Economic and Social Council was to meet very soon, in July 1947; and, finally, that it was well-nigh impossible to collect all the documentation within such a short period. The delegate did not believe that the conclusions which the delegate of the United Kingdom had drawn from these facts were the correct ones. The Economic and Social Council, by its resolution of 28 March 1947, had planned three parallel steps: – Consultation with this Committee; – Consultation with the Human Rights Commission, if feasible; – Consultation with the Governments for the Council’s own information, for admittedly the Governments’ answers were not to be submitted to this Committee, but considered by the Council itself. Hence, by adopting the draft resolution submitted by the delegate of the United Kingdom, this Committee would deprive the Economic and Social Council of the benefit of its advice, contrary to the Council’s wishes as expressed in its resolution. The Committee had the duty to discuss at least the general principles contained in Article 1 of the Draft Convention, and to submit its views to the Economic and Social Council. It would be inexcusable if the Committee refused to answer the question referred to it.

166

A/AC.10/SR.28

The CHAIRMAN, speaking as representative for India, observed that in the proposal submitted by the representative for the United Kingdom there were two points. In the first place, it was suggested that this Committee, which was set up by and answerable to the General Assembly and not the Economic and Social Council, might not be competent to examine a problem referred to it by the Council. This matter of the competence of the present Committee would have to be decided by the Committee itself. In the second place, the United Kingdom representative considered that if this Committee took up the study of the problem of genocide this would only result in delay. He could not follow this argument. The Committee did not have to study the replies of the Governments and conversely any proposals by the Committee need not be referred to Governments. For the moment he would refrain from discussing the substance of the problem of genocide. Prof. BRIERLY (United Kingdom) (Rapporteur) wished to reply to the objections which had been raised. This Committee had been set up by the General Assembly, which could have referred the question of genocide to it. But the General Assembly did not do so and, on the contrary, referred this problem to the Economic and Social Council. Moreover, this Committee consisted of representatives of the various Governments, which had not yet seen the Draft Convention on the crime of genocide and consequently, had not been able to give their instructions. For all these reasons this Committee had no power to take up the substance of the matter. Prof. M. BARTOS (Yugoslavia) said his country was one of those which had suffered most from genocide. Nevertheless, the Yugoslav Government noted with concern that neither it nor the Governments of other countries which had suffered most from genocide had been consulted, and that this draft had been prepared by three non-governmental experts. Before anything was done, the Governments of countries which had suffered most and others, should be consulted. Genocide was nothing new and was not necessarily connected with war crimes. No Draft Convention could be prepared until after a thorough study on the spot where the crime of genocide had been committed.

A/AC.10/SR.28

167

The explanations accompanying this Draft Convention seemed to imply a denial of the existence of cultural genocide. But, in his country, the mere fact of holding a degree had been sufficient to condemn the holder of it to death. He concluded by signifying agreement with the Rapporteur as to his conclusion; but as to the substance he agreed with the Chairman. This Committee was actually not empowered to deal with genocide, but it ought to stress that this problem was of the greatest importance and that it was extremely grave. Prof. H. DONNEDIEU DE VABRES (France) said he felt bound to protest against the way in which the delegate of Yugoslavia had interpreted the opinion which he had given as a member of the Committee of Experts. As a judge on the Nurnberg Tribunal, he denounced the odious and painful deeds which some describe as “cultural genocide.” But it was not for the Committee to condemn but to establish a new offence and define the acts covered by it. The Committee of Experts had done their best and prepared a text comprising all the possible solutions; all the future legislator would have to do was to draw upon it at will. Dr. Alexander BRAMSON (Poland) emphasized that the Economic and Social Council was one of the principal agencies of the United Nations. Accordingly the Committee ought to comply with any of the Council’s wishes, all the more so since the matter had been referred to the Council by virtue of an Assembly resolution. Thus the question whether the Committee was competent was answered in the affirmative. He wished to add, in reply to the delegate of Yugoslavia, that any Committee of Experts was composed of representatives of Governments, a fact which did not prevent it from debating. Undoubtedly, this Committee was not composed of representatives with full powers to sign a convention, but it was fully empowered to answer and advise the Economic and Social Council as requested. He asked that his statement be recorded in the summary record. Prof. M. BARTOS (Yugoslavia) in reply to the French delegate, read the following passage from page 47 of document A/AC.10/41 which gave the views of that delegate as a member of the Committee of Experts:

168

A/AC.10/SR.28

Mr. Donnedieu de Vabres and Mr. Pella stated that ‘cultural’ genocide represented too far-reaching an extension of the concept of genocide and would lead to the reconstruction, behind the screen of genocide of the old idea of protection of minorities, which was designed to meet different needs.

Dr. LIANG (Secretary of the Committee) wished to make a few remarks. In the first place, the question of genocide had been considered by the Sixth Committee of the General Assembly, which recommended that the Economic and Social Council take up the study of this problem. This recommendation was accepted by the General Assembly and incorporated in the Assembly’s resolution. Therefore, it was clear that the Assembly had referred this problem to the Economic and Social Council and not to this Committee, which was established by virtue of another resolution. Secondly, in point of fact, there was no Committee of Experts properly so called. As a result of the resolution adopted by the Economic and Social Council three experts had simply been invited to study the problem of genocide. These experts did not constitute a committee or commission. They had been appointed as individuals by the Secretary-General by reason of their personal competence. Lastly, the Draft Convention on the crime of genocide had been prepared by the Secretariat with the help of these three experts. The draft had been prepared by the Human Rights Division of the Secretariat, with the help of one member of the Section on the Development of International Law and its Codification. Prof. YEPES (Colombia) wished to make a statement on behalf of his delegation. As the Government of Colombia considered the crime of genocide to be of the greatest importance, he requested his statement to be included verbatim in the summary record. He said: The Colombian delegation considers the problem under discussion at the present time to be of the greatest importance, though not because we fear lest our country might one day become the scene of actions known as genocide. Our humanitarian attitude, and the welcome which we extend to men of all races, of all religions and of all languages has placed us beyond any fears in this respect; we have always condemned all persecution for racial, religious or political reasons. At the Pan-American Conference, held at Lima in 1938, we supported and voted for the resolution condemning the persecutions then raging in Europe. At the General Assembly last year, the Colombian delegation was noted for the determination with which it worked for clear condemnation of the crime of genocide. This shows you

A/AC.10/SR.28

169

that it is our very sincere hope that the Convention on this matter, prepared by eminent experts such as our colleague, Prof. Henri Donnedieu de Vabres, may one day in the near future become part and parcel of international law. Unfortunately, since this Draft Convention – and I stress the fact that this is a Draft Convention and not only a preliminary draft – has been presented to us so late, and, on the other hand, because of the great importance of this Draft Convention, which our Governments ought to study in great detail before coming to any decision, we are prevented from broaching the substance of this problem. We might, perhaps, have a general discussion on genocide, and leave the detailed study of it to the projected International Law Commission. One last point which I should like to mention, if only very briefly, is that the Pan-American Union has already taken the initiative in this matter. I spoke a moment ago of the resolution adopted by the Lima Conference in 1938. Here is the text of this resolution: Art. 36: The Republics represented at the Eighth International Conference of American States declare that, in accordance with the fundamental principles of equality before the Law, any persecution on account of racial or religious motives which makes it impossible for a group of human beings to live decently is contrary to the political and juridical systems of America. This shows that, up to a certain point, we are pioneers in this field and that, in offering our support to any plan to condemn and punish the crime of genocide, we are only continuing to carry out an American tradition of which we may be justly proud. Finally, I wish to say that we are voting for the proposal submitted by the delegate of the United Kingdom solely in view of the present circumstances. But, at the same time, we wish to state that we hope that this question will be decided at the earliest possible date.

Mr. DE BEUS (Netherlands) stated that his country, which had also suffered greatly from the evil described as genocide, attached the greatest importance to this problem. The Netherlands lost 265,000 lives during the last war, at least three-fourths of them through extermination. Accordingly, his Government believed that it was absolutely necessary to conclude an international convention on the crime of genocide. Nevertheless, like the Rapporteur, he thought that this Committee was not empowered to consider an problem, but being composed of Government representatives, had been instructed to explore problems of procedure only not the substance of the law. On behalf of his Government he requested this Committee to refrain from considering the substance of the problem, which was to be studied by other competent agencies, in particular the I.L.C., the establishment of which this Committee had recommended.

170

A/AC.10/SR.28

The CHAIRMAN noted that various arguments had been advanced for the point of view that this Committee should not study the substance of the problem of genocide. It had been said that this Committee was incompetent as it had been created by the General Assembly and not by the Economic and Social Council. Further it had been said that the Committee was inter-governmental and that the representatives had not received instructions from their respective Governments. And then time was running short. Speaking as representative for India and not as Chairman, he requested the adjournment or the debate until the following day. The Committee would then have to settle on the crucial question of its competence. Still speaking as representative for India, the Chairman reserved the right to take the floor or the substance of the question. The meeting rose at 6 p.m.

A/AC.10/SR.29

171

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/SR.29 24 June 1947 ORIGINAL: ENGLISH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION SUMMARY RECORD OF THE TWENTY-NINTH MEETING Held at Lake Success, New York, on Monday, 16 June 1947, at 2:00 p.m. Present: Chairman: Sir Dalip Singh Dr. Enrique Ferrer Vieyra Mr. A.H. Body Dr. Gilberto Amado Dr. Shuhsi Hsu Prof. Dr. Jesus M. Yepes Mr. Osman Ebeid Prof. Henri Donnedieu de Vabres Dr. J.G. de Beus Dr. Aleksander Bramson Mr. B.Q.S. Petren Prof. Dr. Vladimir Koretsky Prof. J.L. Brierly Prof. P.C. Jessup Dr. Perez Perozo Prof. Milan Bartos

(India) (Argentina) (Australia) (Brazil) (China) (Colombia) (Egypt) (France) (Netherlands) (Poland) (Sweden) (Union of Soviet Socialist Republics) (United Kingdom) (United States of America) (Venezuela) (Yugoslavia)

The CHAIRMAN opened the meeting and gave the floor to Professor KORETSKY (Union of Soviet Socialist Republics) who wanted to make a statement. Professor KORETSKY, referring to the statement the representative for Poland had made at the nineteenth meeting (A/AC.10/SR.19, page 6) on the crime of propaganda of a war of aggression with which the representative for Yugoslavia had associated himself (A/AC.10/SR.20, page 23), requested that it be inserted in the Report that the representative

172

A/AC.10/SR.29

for the Union of Soviet Socialist Republics also associated himself with this statement. Professor BRIERLY (Rapporteur) agreed to do this. The CHAIRMAN opened the discussion on the RAPPORTEUR’s Report on Item 5 of the Agenda (document A/AC.10/49) concerning the draft Declaration on the rights and duties of States presented by the Government of Panama and proposed to take up this report paragraph by paragraph. Paragraph 1 was accepted without discussion. In the initial part of Paragraph 2 Professor KORETSKY (Union of Soviet Socialist Republics) proposed to insert between “international” and “bodies” the word “nongovernmental”, to which the Committee agreed. With regard to Sub-Paragraph (a) Professor KORETSKY suggested a slight redrafting of the text. As it now stood it seemed to imply that the procedure for the work of the ILC recommended by this Committee was sure to be accepted by the General Assembly, whereas, of course, the Assembly could modify the Committee’s suggestions. He therefore proposed to replace the words “procedure suggested” by the words “procedure finally adopted by the General Assembly”. The Committee agreed to this change of wording. With regard to Sub-Paragraph (b) Professor KORETSKY asked for an explanation as he had not been present at the discussion on the Panamanian draft. Was it the Committee’s intention that the ILC should have to take the Panamanian draft as the only basis of study? Professor KORETSKY expressed his appreciation to the Government of Panama for having taken the initiative in this problem, but did not think it proper to thus tie down the ILC to a definite basic document. Other governments might also submit proposals. Was it the Committee’s intention that such proposals could only be considered as amendments to the Panamanian draft? Professor KORETSKY asked whether the Committee’s decision had been unanimous. The CHAIRMAN replied that to his recollection the Committee had been unanimous on this point, but of course the ILC would study all proposals placed before it. Professor KORETSKY (Union of Soviet Socialist Republics) considered that the wording of Sub-Paragraph (b) excluded other drafts from being

A/AC.10/SR.29

173

considered on an equal footing and preferred to use “a basis” instead of “the basis”. Professor YEPES (Colombia) supported Professor KORETSKY (Union of Soviet Socialist Republics) and proposed to use the words “one of the bases” which was accepted by Professor KORETSKY and also by the RAPPORTEUR, Professor KORETSKY emphasizing that of course the Panamanian draft would be one of the principal documents for study. The CHAIRMAN stated that subject to the changes decided on above the RAPPORTEUR’s Report had been adopted. The CHAIRMAN continued the discussion on Item 6 of the Agenda concerning the draft convention on genocide (Doc. A/AC.10/41 and 42) which had begun at the previous meeting and recalled that three points of view had been expressed: firstly, that the Committee was not competent to deal with this matter, secondly, that the time at its disposal was too short, and thirdly, that, as it was impossible for the members of this Committee, who were Government representatives, to get instructions from their Governments in the short time available, the Committee could not do justice to the matter. Dr. AMADO (Brazil) observed that crimes coming under the notion of genocide were unknown in his country and that this crime did not interest Brazil directly, but the people of Brazil absolutely shared the distaste of all civilized countries for this crime. As to the point whether this Committee was competent to deal with this matter, Dr. AMADO considered that in the first place this Committee was only set up to study methods, and moreover, its members had no instructions from their governments. In Dr. AMADO’s opinion not only the seventeen Governments represented on this Committee should have an opportunity to give their opinions on this draft. He expressed his agreement with the observations made by the Representative for the United Kingdom at the previous meeting and laid down in the draft resolution presented by the United Kingdom Delegation (A/AC.10/44). Mr. EBEID (Egypt) expressed the hope that future plans for preventing the crime of genocide would be farsighted enough not only to eliminate this crime in one direction, but also to prevent it from developing in another direction.

174

A/AC.10/SR.29

Mr. BODY (Australia) agreed with the point of view held by the representative for the United Kingdom and considered that this Committee [p. 4-line 4] could not discuss the details of the Panamanian draft. The members of the Committee were Government representatives and had not yet been able to consult their Governments. Moreover, in view of this Committee’s recommendation that the ILC be established, Mr. BODY considered that it should be recommended that the ILC be consulted before final action was taken with regard to genocide and also that the matter should be studied in connection with the subject matter of Item 4 of the Agenda. He acknowledged that the problem was complicated as the General Assembly had already adopted a resolution for specific action, in requesting the Economic and Social Council to prepare a draft convention for submission to the next session of the General Assembly. In his opinion it would be appropriate to reply to the Secretary-General’s letter of 8 May 1947 (document A/AC.10/15) that the Committee, having made a recommendation on the establishment of an International Law Commission, felt that this Commission, if and when established, should be asked to study the draft of genocide at the appropriate stage of its work and that the method should be studied in connection with the Nurnberg principles. Mr. BODY proposed the following text: The Committee requests the CHAIRMAN, in replying to the SecretaryGeneral’s communication of 8 May 1947, to inform him that it has recommended to the General Assembly the establishment of the ILC and that it considers that at an appropriate stage the draft convention on genocide should be referred to the ILC, if the ILC be established as recommended.

Dr. VIEYRA (Argentina), referring to the General Assembly resolution on genocide, considered that the Economic and Social Council had given a wrong interpretation to the General Assembly’s Resolution, when by its Resolution of 28 May 1947, it instructed the Secretary-General to undertake certain studies with a view to the drawing up a draft convention and requested him to consult this Committee and, if feasible, the Commission on Human Rights. In the opinion of the Argentine delegation this Committee, from a constitutional point of view, was competent to study the draft convention on genocide, but only for the purpose of an examination whether its clauses did or did not violate the provisions of the Charter. Dr. VIEYRA did not

A/AC.10/SR.29

175

consider that this Committee should study whether the draft convention as embodied in document A/AC.10/41 was a good draft on the subject of genocide itself. Dr. VIEYRA referred to the various instances when the General Assembly had referred some subjects on the agenda to the Sixth Committee only for the purpose of examining whether the proposed resolutions were contrary or not to the Charter provisions and not with a view to their substance, e.g. financial problems were referred both to the Fourth and Sixth Committees, political problems to the First and Sixth Committees. In Dr. VIEYRA’s opinion the fact that the subject matter of genocide, while mainly the concern of the Economic and Social Council, was also referred to this Committee, should be viewed in the same light and the Chairman could reply to the Secretary-General that it had studied the draft only with respect to its constitutionality. In his opinion this restricted interpretation of the Committee’s task with regard to this item would also accelerate the proceedings as a whole. Dr. VIEYRA proposed to make a formal motion after the other members of the Committee had expressed themselves on the principle involved. Dr. HSU (China) observed that genocide was very important also for the development of international law. As to the matter of competence, it was enough that this subject had been referred to the Committee by the Economic and Social Council, which was a United Nations organ. The difficulty was that the draft had been submitted much too late and that no member of the Committee had instructions from his Government in this respect. It might be possible to wait for such instructions, but the Committee had really been appointed for a different purpose and the Economic and Social Council would have to accept the Committee’s excuse that it had no time at its disposal and that any pronouncement on the draft given at the present time would not do justice to the draft. Dr. HSU even doubted whether the Committee should recommend that the draft be referred to the ILC. Obviously the General Assembly would do so if it decided to establish the ILC, and he feared that a recommendation by this Committee that the draft be referred to the ILC might be interpreted as an unfavourable judgment on the draft, which would not be correct either. He therefore considered preferable that in his reply to the Secretary-General the CHAIRMAN only expressed the Committee’s regret that it had not been able to deal with this draft.

176

A/AC.10/SR.29

Professor KORETSKY (Union of Soviet Socialist Republics) considered that it was difficult for the Committee to restrict itself to a purely formal point of view on the subject of genocide, and referred to the many countries (e.g. Poland) which counted millions of victims of this crime. He also pointed out that for many of these countries the crime of genocide had not been committed for the first time. He also feared that this crime would still be a menace for peoples living near the German frontier, not only in theory but also in practice. The Governments of the countries concerned surely had a right to insist that effective measures be taken to prevent and punish this crime. On the other hand, Professor KORETSKY appreciated the difficulties expressed by the previous speakers: that the members of this Committee were Government representatives and should first consult their Governments before giving their opinion on the draft. Moreover, Professor KORETSKY considered that a draft convention should contain complete proposals on which the Governments should be able to give their opinion. The General Assembly referred the matter of genocide to the Economic and Social Council and this Council, in its turn, referred it to the Secretary-General. The Secretary-General, instead of addressing himself to the Governments, set up a Committee of Experts which did not have the experience of Government representatives and could not get the view-points of the Governments. Consequently, the draft now submitted to this Committee did not represent the views of Governments, either directly or indirectly, and in Professor KORETSKY’s opinion it did not give any value to the political point of view. On account of this fundamental failing he considered that the draft could not be taken as a basis for the Committee’s work. In order to correct this failing the draft should be submitted to the Governments within the shortest possible time and they should be asked for their comments on it. It could be suggested to the General Assembly that this Committee be convened again to study the draft after the Governments’ replies had been received. Of course the Committee could not continue its session just to wait for these replies to come in, nor could it take a decision now. For the only reason that this Committee did not have any Government comments on the draft at its disposal and that the draft did not represent the opinion of Governments, but was prepared by individual experts, Professor KORETSKY declared that he would abstain from the voting.

A/AC.10/SR.29

177

Professor DONNEDIEU DE VABRES (France) observed that the Committee of Experts had received criticism from the representative of the Union of Soviet Socialist Republics. As a member of this Committee he referred to the difficult task with which it had been confronted. There had been no preparatory work at all on the subject of genocide, which term in itself was new and vague. The Secretary-General did not request the experts to draw up a convention. The draft submitted could not even be called preliminary draft (“avant-projet”), but it was only a maximum programme. As the experts only met during a few days, they were just as unable as this Committee to study the substance of the matter. In order to get out of this difficulty they decided to limit themselves to an enumeration of the issues that could possibly be brought under the term of genocide. The commentary to be found in document A/AC.10/41 clearly showed that the experts were often not in agreement. In his opinion they did useful work, they did not take any decisions which would bind any future body to which the subject of genocide was referred, but they only drew up a programme to be used for future work. Professor DONNEDIEU DE VABRES absolutely agreed that this Committee need not give an opinion on the draft, as it most certainly was not a draft convention at all. Genocide gave rise to many problems and this Committee could not pronounce itself on them. Professor DONNEDIEU DE VABRES referred to the draft Declaration on the rights and duties of States in connection with which the Committee had also decided that it could not give its opinion, as only six replies from governments had been placed before it. A similar decision had been taken with regard to the Nurnberg principles, although in his opinion this decision had been rather too prudent. A fortiori this Committee could not take a decision on this entirely new problem of genocide and this should be expressed in the reply to the Secretary-General. Professor DONNEDIEU DE VABRES considered however that a suggestion that the matter be referred to the ILC was appropriate. However, there was a general agreement in the Committee that genocide, from which so many countries had suffered, and France not in the last place, should receive a severe condemnation. In his opinion the Committee should not limit itself to a suggestion that the matter be referred to the ILC, but it should also express that the problem of genocide was connected with the crimes against peace and humanity and with the matter of an international criminal jurisdiction.

178

A/AC.10/SR.29

Mr. PETREN (Sweden) observed that his country also desired measures against genocide to be taken, but in view of the fact that he had no instructions from his Government, he expressed his agreement with the proposal submitted by Mr. BODY (Australia) which wanted the matter of genocide to be referred to the ILC. Professor BARTOS (Yugoslavia) emphasized that the peoples of Yugoslavia vividly desired a convention on genocide. However, in spite of this desire the Yugoslav delegation was obliged to make the following statement: (1) The Yugoslav delegation is surprised and astonished that the draft convention on genocide (as submitted to our Committee) has been elaborated and published without a previous consultation of the governments whose peoples in a very recent past have been the principal victims of the commission of the crime of genocide and whose scientists are engaged in a thorough study of this criminal phenomenon with which its history is so closely concerned. (2) In the opinion of the Yugoslav delegation a draft convention cannot be discussed either by our Committee or by the Economic and Social Council or by any other Organ of the United Nations, if such draft has not been presented by a thorough consultation with the Governments of the Members of the United Nations, particularly taking into account the Governments referred to in Paragraph 1. (3) The Yugoslav delegation requests the Secretary-General to consider the draft submitted to our Committee neither as a draft convention nor even as a preliminary draft, but only as documentation for the internal work of the Secretariat and, consequently, to withdraw it as an official draft. We request the Secretary-General not to define this draft as a “programme”, not even as a maximum “programme”, which definition has been used several times in the Committee. (4) The Yugoslav delegation considers that in following the procedure envisaged for the method to be followed for the work of the ILC, the results should be awaited of the request for Government comments referred to Sub. (1) and (2). (5) As in general the proposal made by the Polish delegation* guarantees that the future draft of the convention on genocide shall be the result of scientific work based on the needs of practical life, the Yugoslav delegation, in principle, takes a favourable view of the proposal of the Polish delegation. On the other hand, in view of the fact that the draft submitted has been elaborated in a manner which is not permissible, either as far as the substance is concerned or as regards the composition of the organ which was engaged in the drawing up of the draft, or as regards the procedure followed by this organ, the Yugoslav delegation

A/AC.10/SR.29

179

shall abstain from voting on each proposal which refers to this so-called draft.

Dr. DE BEUS (Netherlands) observed that a majority of the Committee seemed to agree with the Australian proposal. As this proposal was, however, only concerned with a final recommendation with regard to genocide and as a preliminary decision leading up to this recommendation had to be taken, Dr. DE BEUS made a proposal to the following effect: that the Committee request the CHAIRMAN in replying to the letter of the Secretary-General to state (a) that the Committee considers a convention on genocide desirable; (b) that the draft had been received so late that it was impossible to get Government comments and that the Committee therefore would not express its opinion on it; (c) that the Economic and Social Council should be requested to submit the draft to the Governments and then (d) the Australian proposal concerning reference of the crime of genocide to the ILC. Professor KORETSKY (Union of Soviet Socialist Republics) asked the representative of the Netherlands why the Committee should express its opinion that a convention was desirable, as the General Assembly had already done so. Dr. DE BEUS (Netherlands) replied that he considered the Committee should also express its own opinion. The CHAIRMAN proposed that this motion be distributed in both English and French. Professor KORETSKY (Union of Soviet Socialist Republics) wanted to make some general observations in the meantime. In the first place he referred to the fact that Professor DONNEDIEU DE VABRES (France) had said that the draft submitted was not a draft convention and he wondered whether Professor DONNEDIEU DE VABRES spoke as a representative for France or as a member of the Committee of Experts. Secondly, with regard to bringing genocide in connection with the Nurnberg principles, Professor KORETSKY considered that with regard to the Nurnberg principles the Committee had only been instructed to make a plan for the formulation of these principles and it had complied with this request. With regard to the Panamanian Draft Declaration on the rights and duties of States, the Committee was also justified in saying that it could not take up this draft, as it had not sufficient governmental replies at its disposal. Thirdly, genocide is a new conception of crime and

180

A/AC.10/SR.29

in certain parts of the globe it might become an imminent danger so that a quick action is necessary. In Professor KORETSKY’s opinion the fact that this Committee did not contain a sufficient number of criminologists was no justification for not taking up the matter, as it was for the Governments to send specialists for the subject matters on the Agenda. However, genocide should be decided by Governments representatives on the basis of Government comments and he agreed with Professor BARTOS (Yugoslavia) that it could not be studied before these comments were available. The Secretariat had submitted to the Committee a text which the Secretariat itself did not consider a proper draft, as it left it to the consulted Committees and Governments to make selections from the enumeration of issues it contained. In Professor KORETSKY’s opinion this was a strange method: instead of submitting a proper draft to the Governments, the Secretariat put the task on the shoulders of the Governments which were to do the selecting of those issues. The text now available, being merely an enumeration, could not be used as a basis for the Governments in expressing their opinions on genocide, but only as a working document. So in reality the work must be begun anew. Professor KORETSKY considered these observations indispensable as the Committee must express its objections to the unsatisfactory method used with regard to this problem which was a part of the development of international law, and it proved clearly that the Committee’s decision to use only the method of conventions implying the participation of the Governments had been correct. Dr. AMADO (Brazil) observed that there seemed to be some misunderstanding. The Committee of course wanted the crime of genocide to be liable to punishment, but on the other hand, the representatives of the countries most interested in the achievement of this object seemed to be in favour of a postponement of the matter which seemed rather strange, although Dr. AMADO fully agreed that the problem needs a thorough study as it was an entirely new problem. With regard to codification of international law the Committee received two instructions, one with regard to the Nurnberg principles and the second with regard to the Panamanian draft Declaration on the rights and duties of States. If the General Assembly Resolution on genocide was to be carried out, the only procedure possible was to send the result of the preparatory work done by the Economic and Social Council and the Secretariat to the Governments for their comments and to take further action after these comments had

A/AC.10/SR.29

181

been received. In Dr. AMADO’s opinion, however, a reference of genocide to the International Law Commission would entail a too prolonged postponement as the ILC had not yet been constituted, and several countries could not agree to such a postponement of this matter which concerned them so deeply. Also, the ILC would have an enormous task and would not be able to take a speedy decision in the matter. Therefore Dr. AMADO was opposed to the Australian proposal and appealed to all those members who want rapid action on the matter of genocide not to suggest a reference of the matter to the ILC. Dr. KERNO (Assistant Secretary-General) observed that the representative for Yugoslavia had desired that the text under discussion be withdrawn from circulation even as a preliminary draft. He pointed out that the Secretary-General was the servant not only of this Committee but also of the Economic and Social Council and therefore could only carry out the Economic and Social Council’s resolution instructing him to submit a draft convention on genocide to the next session of the Council after having consulted this Committee and the Commission on Human Rights. The Secretary- General considered that the Economic and Social Council had been too optimistic where it requested this draft to be submitted to it at its next session, for the time was too short for a proper consultation with the two Commissions referred to and for receiving comments from all the Governments as was also mentioned in the Resolution of the Economic and Social Council. Therefore the Secretary-General had been compelled to consult only the Commission on Human Rights and the experts referred to by previous speakers and this Committee. The hurry in which this was done explained the imperfection of the results. The Committee should not consider the text submitted as a draft convention, but only as a working document. The Secretary-General understood perfectly that this Committee could not take a decision on the basis of this text. He would now send this text to the Governments with a request for their comments and their comments should be studied before the final draft convention was submitted to the Economic and Social Council. The Secretary-General understood likewise the criticism made of the submitted text, but it was really the consequence of the Economic and Social Council having allowed far too little time for the various consultations which it instructed the SecretaryGeneral to carry out.

182

A/AC.10/SR.29

Professor DONNEDIEU DE VABRES (FRANCE) replying to Dr. AMADO’s observations observed that he would regret it if the reference of the matter to the International Law Commission were to be interpreted as a first class burial of the problem and he had no fears as to the usefulness of such reference. In reply to Professor KORETSKY, Professor DONNEDIEU DE VABRES stated that he was in favour of a general recommendation on genocide, confirming that the draft submitted was really only a “table of contents”. He fully endorsed the observations made by Dr. KERNO with regard to the short time allowed by the Economic and Social Council. The experts had not been able to do more than make a preliminary study of the field. As a member of this Committee he had also been unable to get the opinion of his Government and his reply, therefore, did not bind his Government, but the opinion of the French consultative Commission on the codification of international law had been laid down in the memorandum on genocide which he had presented to the Committee (A/AC.10/29). Professor DONNEDIEU DE VABRES summarized this point of view as follows: (1) that genocide only occurred if a Government committed this crime or was guilty of not preventing it from being committed; (2) genocide implied an attack on the lives of individuals; and (3) the only persons to be prosecuted on account of this crime were rulers (“les gouvernants”) who ought to be judged by an international criminal jurisdiction. Professor DONNEDIEU DE VABRES considered that there was a close link between the crimes against peace and humanity and the crime of genocide. The persons who actually committed the murders constituting genocide should be punished as murderers under the common law. Even a narrow conception of genocide should not be allowed to have for its result that the individuals who committed those murders should go unpunished. The CHAIRMAN stated that there was practically a unanimity amongst the members on the point that this Committee did not have the time to study the substance of the text submitted to it. Firstly, with regard to competence, the CHAIRMAN suggested that the Committee first decide this matter. He agreed with the point of view expressed by the representative for Argentina. Secondly, with regard to lack of time, the CHAIRMAN observed that this prevented the Committee from studying the substance, but it might pronounce itself on first principles. Thirdly, a majority of the Committee seemed to consider that lack of Government instructions

A/AC.10/SR.29

183

made it impossible for them to express their opinion. In this connection he pointed out that the General Assembly Resolution already expressed that genocide was a crime and therefore in his opinion this Committee could decide, even without Government instructions, what constituted this crime which had been defined in the report of the Sixth Committee of the General Assembly as the “denial of the right of existence of entire human groups”. The CHAIRMAN considered this definition not very clear. Did it intend the destruction of individuals of the group or of the group as such? Did it also imply a prohibition of the continuation of any group, the destruction of a language of a group, etc.? With regard to the point raised by Professor BARTOS, the CHAIRMAN observed that the Secretary-General had had to obey the instructions given him and the Secretariat had done the best it could. It was not for this Committee to pass judgment either on the Economic and Social Council or on the Secretariat. The CHAIRMAN said he had no argument against the idea underlying the observations of the various speakers that, without having the opinions of their Governments at their disposal, it would be dangerous to draw up any draft convention. As the Secretary-General addressed the letter to him as CHAIRMAN of this Committee, he would have to reply to it, but he would prefer to submit the draft of this letter to the Committee. Speaking as representative for India, Sir DALIP SINGH observed that in his opinion this Committee was competent to deal with the matter under Article 22 of the Charter and Rule 100 of the Rules of Procedure. If this Committee could not be said to be a subsidiary organ, the General Assembly would have appropriated a right which was not given to it in the Charter and this seemed very unlikely. In his opinion there was no difference between committees and subsidiary organs. Article 71 of the Charter gave the Economic and Social Council the right to make arrangements for consultation with non-governmental organizations. Could not this Committee be regarded as a non-governmental organization? In any case the Economic and Social Council could consult with the General Assembly in connection with the tasks entrusted to it and this Committee being a General Assembly Committee could likewise be

184

A/AC.10/SR.29

consulted by the Economic and Social Council. Secondly, with regard to the objection that there was no time at the disposal of the Committee Sir DALIP SINGH considered that the whole of the next day could be given to the subject. The Committee would then have to study: (a) what was the correct definition of genocide, i.e. whether it was directed towards the destruction of individuals or groups as such; (b) what kinds of genocide should be contained in the draft: this point was closely connected with the requirement of instructions from the Governments represented on this Committee, but Sir DALIP SINGH considered that every representative could decide for himself, for it should not be forgotten that all the Governments already had the General Assembly Resolution before them. As to the combined Australian-Netherlands proposal now distributed to the effect that the subject of genocide be referred to the International Law Commission, Sir DALIP SINGH considered that it was quite possible that it might be one or two years before the ILC could commence its work and it had already been suggested to refer many problems to the ILC. All of which might cause a lengthy postponement. Sir DALIP SINGH considered it preferable, therefore, to leave the matter to the Economic and Social Council and its subsidiary bodies. Professor BARTOS (Yugoslavia) on a point of order observed that the CHAIRMAN had interpreted his observations wrongly. He had not intended to address any reproaches to the Secretary-General, but only to point out that the Economic and Social Council gave no instructions to the Secretary-General on the proceedings to be followed by the latter and the Secretary-General had chosen this method of which Professor BARTOS disapproved. As a matter of course the Secretary-General had to obey the orders received from the Economic and Social Council. Professor BARTOS observed that he had made no proposal but only a statement. Dr. BRAMSON (Poland) referred to the proposal which he had had distributed at the meeting in the French and English text. With regard to Dr. AMADO’s objections against postponement of the genocide problem and to the objection made by the CHAIRMAN that it might take one or two years before the IIC was set up, he referred to Article 62 (3) of the Charter authorizing the Economic and Social Council to prepare draft conventions for submission to the General Assembly with respect to matters falling within its competence. Dr. BRAMSON declared in view of the fear of delay expressed by various speakers in the event that

A/AC.10/SR.29

185

the problem of genocide be referred to the IIC that he withdrew paragraph 1 of his proposal, but he wanted to maintain paragraph 2. In Dr. BRAMSON’s opinion the Governments must necessarily be consulted. He hoped that the Economic and Social Council would do its utmost to present a draft convention to the General Assembly at the next session. As to the Argentine point of view with regard to the Committee’s competence, he expressed his agreement with Dr. VIEYRA’s opinion which was also shared by the CHAIRMAN. Dr. BRAMSON considered that there was no difference of opinion on the problem of genocide itself and that this Committee could decide whether the draft was in accordance with the Charter provisions. Dr. BRAMSON repeated that he maintained the second paragraph of his proposal. Professor KORETSKY (Union of Soviet Socialist Republics) asked the representative for Poland whether he withdrew his original proposal to the effect that this Committee should study the substance of the matter. Dr. BRAMSON (Poland) replied that he did not insist on the Committee making such a study. Professor KORETSKY then asked Dr. BRAMSON whether he wanted to maintain the word “solely” in the preamble of his proposal. Dr. BRAMSON (Poland) replied that his text was based on the Resolution of the General Assembly. He understood that a majority of the Committee considered that under its terms of reference it was only concerned with methods. He did not want to reopen the discussion on this point as he had expressed his opinion at previous meetings. As to the second paragraph of his proposal, Dr. BRAMSON intended to draw the attention of the competent organs of the United Nations to some aspect which the Argentine representative called constitutional and he referred to the fact that this Committee already drew the attention of the General Assembly to the question of the desirability of the establishment of an International Criminal Court. The same procedure could be applied to important problems connected with genocide. Professor JESSUP (United States of America) in connection with the order of the various points before the Committee as given by the CHAIRMAN, observed that there was general agreement in the Committee not to discuss

186

A/AC.10/SR.29

the substance of the draft of genocide. However, the representatives took this point of view for any of three different reasons. Professor JESSUP suggested that the broadest proposal be first decided, to the effect that the Committee would not discuss the substance of genocide and thereafter it could be decided in what form the CHAIRMAN should reply to the Secretary-General. The CHAIRMAN speaking as representative for India considered that the principle of the Committee’s competence should be decided in any case, before the Committee decide whether or not it would discuss the matter. Professor KORETSKY (Union of Soviet Socialist Republics) asked whether one point had priority over others. The Committee might formally decide that it was not competent, but in his opinion this was too formalistic a point of view and it would certainly be strange if the Committee refused to consider genocide. However, Professor KORETSKY considered that it was not necessary to give all the reasons why this Committee would not discuss genocide, if the principal reason was that the representatives had no instructions from their Governments. A second argument brought forward by the representatives was the lack of time and, as far as reference to the ILC was concerned and the possibility that this Commission might not be established very soon, Professor KORETSKY considered that the Economic and Social Council could prepare a draft without consulting the ILC which had no monopoly in the field of international law. In his opinion it would be preferable to suggest to the Economic and Social Council that it consult all the Governments before preparing a draft. All the other proposals made during the discussions concerned the future work and were not appropriate now. The basic issue before the Committee was that it had no comments from Governments nor instructions from the representatives of Governments on this Committee and, secondly, that if a mention was made to the Economic and Social Council of the desirability of referring the subject to the ILC, this should not be worded as an exclusive reference but it should be attenuated to “ILC or other appropriate organ”. The General Assembly could then, if it did not establish the ILC at the 1947 session, set up another Committee or continue the present Committee for the task of dealing with genocide. Dr. PEREZ PEROZO (Venezuela) observed that one of the reasons given for the Committee’s not being able to discuss the draft, was that

A/AC.10/SR.29

187

it lacked time. He asked whether the Committee really must terminate its meetings on this day or the next. If this were not so, this reason was not acceptable. The CHAIRMAN replied that no fixed date had been set for the end of the meetings of the Committee. However, the Committee met on 12 May and it was now already 16 June. Moreover, a thorough study of the problem of genocide would undoubtedly extend beyond the date fixed for the opening of the next session of the Economic and Social Council. Professor BRIERLY (Rapporteur) agreed with Professor KORETSKY that Government comments on the draft were indispensable. Therefore, as this Committee consisted of Government representatives, it was improper for them to give their opinion without such comments. In Professor BRIERLY’s opinion, the Committee should restrict itself to this one reason for declining to take up the matter now and he suggested to the CHAIRMAN that only this reason be mentioned in his reply to the Secretary-General. Dr. AMADO (Brazil) joined the RAPPORTEUR in his support of Professor KORETSKY’s proposal. In reply to the observation from Professor DONNEDIEU DE VABRES (France) who had interpreted his words as meaning that a reference of the matter to the International Law Commission would amount to a first class burial, he emphasized that that was not at all his intention. He had only wanted to point out that not only the establishment of the ILC, but also the collection of Government replies would take some time. Therefore, a considerable period would elapse before the ILC could actually study the matter. Professor JESSUP (United States of America) also supported Professor KORETSKY’s proposal and Professor BRIERLY’s suggestion. Dr. DE BEUS (Netherlands) likewise expressed his agreement and referred to paragraph (b) of the combined Netherlands-Australian proposal which had now been distributed and which read as follows: The Committee requests its Chairman in reply to the letter of the SecretaryGeneral of 8 May 1947, to inform the Secretary-General: (a) that the Committee considers highly desirable that a convention be concluded at an early date on the crime of genocide;

188

A/AC.10/SR.29

(b) that in view of the fact that the draft convention on genocide prepared by the Secretariat (documents A/AC.10/41 and 42) could not be presented to the Governments for comments owing to the late date of its distribution, the Committee considers itself unable to express its opinion on that draft; (c) that the Committee therefore recommends to the Economic and Social Council without further delay to submit this draft (d) that the Committee has recommended to the General Assembly the establishment of an International Law Commission and that it considers that at an appropriate stage the draft convention on genocide should be referred to the ILC if the ILC be established as recommended.

In view of the fact that a reference to the ILC might undoubtedly cause a considerable delay, he suggested a slight re-wording at the end of paragraph (d): “that at an appropriate stage the draft convention of genocide might be referred to the ILC, if the ILC is established within a reasonable time”. In Dr. DE BEUS’ opinion it would be rather strange if this Committee expressed as its opinion that the genocide draft could also be referred to another organ than the ILC, as Professor KORETSKY had suggested, but this Committee should keep in mind the danger of a lengthy postponement of the problem. Professor DONNEDIEU DE VABRES (France) expressed his agreement with the proposal of Professor KORETSKY as amended by Dr. DE BEUS. Mr. BODY (Australia) likewise supported these proposals, but wanted to point out that the Economic and Social Council would not be able to cease working on the project in view of the General Assembly Resolution. He also suggested that in paragraph (d) of the Netherlands-Australian proposal the words “the draft convention” should be replaced by “the draft convention on genocide to be drawn up”. Dr. HSU (China) observed that paragraph (b) of the Netherlands-Australian proposal was worded rather confusedly. The Committee could of course form its own opinion without knowing those of the Governments. The CHAIRMAN asked that the Committee in the first place decide that the answer to be given to the Secretary-General would give as the exclusive reason for the Committee’s declining to study the matter the absence of instructions from their Governments.

A/AC.10/SR.29

189

Professor KORETSKY (Union of Soviet Socialist Republics) considered that this should be defined as an “absence of instructions on the draft submitted”. The CHAIRMAN observed that he had avoided using this term as it had been pointed out that the text submitted was not even a preliminary draft of a convention. He thereupon put to the vote the motion that the only reason why the Committee refrained from expressing its opinion on the documents submitted was the absence of instructions from their Governments. This motion was carried by 11 votes in favour and 5 abstentions. On some representatives expressing their surprise that the representative for the Union of the Soviet Socialist Republics had abstained from voting on his own motion Professor KORETSKY (Union of Soviet Socialist Republics) referred to his first speech on this subject, when he stated the reasons why he would take part in the debate but would abstain from voting. Dr. LIANG (Secretary) observed that the vote was really taken on the formulation given by the CHAIRMAN and not on Professor KORETSKY’s motion. The CHAIRMAN agreed with this point of view. In reply to an observation from Professor KORETSKY that the CHAIRMAN ought to send his reply to the Economic and Social Council, Professor JESSUP (United States of America) observed that the letter had been sent to the CHAIRMAN by the Secretary-General and that the Secretariat was the channel for all correspondence between United Nations organs, so the reply should be sent to the Secretary-General too. The Committee agreed to this point. The CHAIRMAN thereupon opened the discussions on the NetherlandsAustralian proposal and on paragraph 2 of the Polish proposal which had been maintained by Dr. BRAMSON. Professor BRIERLY (Rapporteur) observed that paragraph (b) of the Netherlands-Australian proposal had in effect been accepted by the motion just carried. Professor KORETSKY (Union of Soviet Socialist Republics) observed that the drafting of the reply to be sent to the Secretary General would have to be based on the Netherlands-Australian proposal and the Polish one. He suggested that the three movers with the RAPPORTEUR draw up a resolution which could serve as the basis for the reply to

190

A/AC.10/SR.29

the Secretary-General. In his opinion paragraph (d) of the NetherlandsAustralian proposal was superfluous and could be omitted. The General Assembly had referred the problem of genocide to the Economic and Social Council and it was not for this Committee to question whether this was appropriate. The suggestion made in paragraph (d) amounted to this Committee’s requesting the General Assembly to revise its own decision. Professor KORETSKY also considered that paragraph (a) should be redrafted as the General Assembly had already decided that a convention of genocide should be concluded at an early date and had therefore referred the matter to the Economic and Social Council which met three times a year. He suggested that paragraph (a) might be reworded to the following effect: “whereas the General Assembly desiring a conclusion of the convention on genocide at an early date” and then pass on to paragraph (b). The CHAIRMAN agreed to the suggestion of a drafting sub-committee, but preferred to have a discussion first on the separate paragraphs of the two proposals, that is to say, on the underlying ideas not on the exact wording. He opened the discussion on paragraph (a) of the NetherlandsAustralian proposal. Dr. DE BEUS (Netherlands) agreed with Professor KORETSKY that the General Assembly Resolution should be referred to, but he considered desirable that the Committee also express its own opinion to the effect that a convention on genocide should be concluded at an early date. Mr. BODY (Australia) and the other members of the Committee agreed with this point of view. The CHAIRMAN pointed out, as had already been observed by the RAPPORTEUR, that paragraph (b) of this proposal had already been accepted by the motion voted on. With regard to paragraph (c) Dr. LIANG (Secretary) observed that the Economic and Social Council had already instructed the Secretary-General to request the opinions of the Governments in its Resolution of 28 March 1947. Consequently there was no need to refer to this matter in the CHAIRMAN’s reply to the Secretary-General.

A/AC.10/SR.29

191

Dr. DE BEUS (Netherlands) observed that the intention of the movers had been to emphasize that the Economic and Social Council should not wait for the answer of this Committee before submitting the draft on genocide to the Governments. Professor JESSUP (United States of America) pointed out that the wording of the Resolution of the Economic and Social Council was perfectly clear: the Secretary-General was instructed to submit a draft convention to the next session of the Council after consultation with the present Committee and if feasible with the Commission of Human Rights and after reference to all Member Governments for comments. Consequently the obligation for the Secretary-General to submit the draft to Member Governments already exists. The members agreed that it was superfluous for the Committee to recommend that the draft be submitted the Governments. Professor KORETSKY (Union of Soviet Socialist Republics) asked whether under the Resolution of the Economic and Social Council consultation of the Governments had to take place simultaneously with consultation of the present Committee, or not. Professor JESSUP (United States of America) observed that it was for the Secretary-General and not for this Committee to interpret the resolutions of the Economic and Social Council. He observed that the CHAIRMAN’s reply to the Secretary-General should refer both to the General Assembly Resolution and to the Resolution of the Economic and Social Council. With regard to paragraph (d) the CHAIRMAN observed that it had been suggested to mention also another organ apart from the ILC or to omit paragraph (d) altogether. Professor BRIERLY (Rapporteur) and Dr. VIEYRA were in favour of omitting this paragraph. Professor DONNEDIEU DE VABRES (France) preferred this matter to be voted on, as in his opinion it would be perfectly normal for the ILC to be consulted. The CHAIRMAN put to the vote the motion that paragraph (d) be deleted, i.e. that no reference to the ILC be made in his reply to the Secretary-General. This motion was carried by 10 votes in favour, 4 against

192

A/AC.10/SR.29

and 2 abstentions. The CHAIRMAN then opened the discussion on the second paragraph of the Polish proposal reading as follows: The Committee also resolved to draw the attention of the competent organs of the United Nations to the necessity of maintaining the conformity between the convention on genocide and the principles and purposes of the United Nations as expressed in the Charter, and the Resolution of the General Assembly on genocide on 11 December 1946, and the principles recognized by the Charter of the Nuremberg Tribunal and its judgment, affirmed by the General Assembly’s Resolution of the same date.

Professor KORETSKY (Union of Soviet Socialist Republics) asked the representative for Poland not to insist on a vote on the substance of the proposal, but to request that this point should be taken into account when the substance of genocide was examined by any competent organ. The CHAIRMAN suggested that the Committee might express in abstracto that there was a close connection between genocide and the Nuremberg principles. Professor KORETSKY (Union of Soviet Socialist Republics) observed that this was obvious in view of previous decisions taken, but his idea was that the Committee could not examine the substance of the Polish proposal as it had refused all discussion on the substance of genocide. In his opinion the contents of paragraph 2 should be mentioned as a statement by the representative for Poland. Dr. BRAMSON (Poland) observed that he had not wanted the Committee to discuss the substance of his proposal, but only to draw attention to the point contained therein and he agreed to submitting it as his own statement. He referred to the instance of the memorandum presented by the French representative (document A/AC.10/29) about which it had also been decided that mention of it would be made in the Report. If no statements were made on these memoranda, Dr. BRAMSON feared that in the future a wrong interpretation might be given to the Committee’s having passed over these matters in silence. Dr. BRAMSON wanted to avoid a discussion now and only to state that the repression of genocide could not be limited to a prosecution of the rulers of the countries, for they could not be brought before an international criminal jurisdiction. In the case of genocide a military expedition might be needed and this would be a matter for the Security Council to decide and not for an international criminal jurisdiction.

A/AC.10/SR.29

193

As to the responsibility of subordinates Dr. BRAMSON referred to Article 8 of the Charter of the Nuremberg Tribunal which provided that the fact that any defendant acted pursuant to order of his Government or of his superior should not free him from responsibility. This was an important principle. In Dr. BRAMSON’s opinion there could be no different principle of responsibility in connection with the Nuremberg principles and with genocide. Dr. BRAMSON drew a comparison with the principle of criminal law that children and lunatics were not fully responsible, which principle was applied over the whole field of criminal law and not for special parts only. The underlying principle was the freedom of the human will. Dr. BRAMSON quoted Tolstoy who had observed that if the last corporal of Napoleon would have refused to march on Moscow, the campaign of 1812 would not have taken place. With regard to the limitation of genocide to the attacks on the lives of individuals forming a certain group, Dr. BRAMSON also referred to cultural genocide, a clear instance of which was the fact that over fifty million books had been destroyed in Poland alone. The crime of murder was committed against an individual as such, but genocide against a group as a whole. Dr. BRAMSON referred to a compatriot of Professor DONNEDIEU DE VABRES, Erneste Renan, who had said: “La nation c’est la langue”. Others did not agree with this conception of a nation and considered it too narrow. They indicated new elements such as a common cultural or historical tradition and a common will to cohesion, the will to live together as a group. Dr. BRAMSON considered that there might be individual victims of genocide but the crime itself was directed against a group. With regard to the fact that a draft of genocide had been submitted to the Committee as a maximum programme, it would have to be studied what groups were protected under provisions of the Charter. Dr. BRAMSON had merely wanted to draw the attention of any organ of the United Nations which might be charged with the study of genocide on these points. He observed that he wanted it to be recorded in the Summary Records and the Report but did not insist on a publication of the full text of his statement. Professor BRIERLY (Rapporteur) observed that discussion of the Polish proposal would constitute a going back on the decision taken not to discuss substance. The subject matter of the Polish proposal would have to

194

A/AC.10/SR.29

be studied by the organ to which the draft of genocide was to be finally submitted for preparation as a draft convention. Professor JESSUP (United States of America) agreed with the RAPPORTEUR that the very mention of the Polish statement would lead the Committee into the substance of genocide and he considered that Dr. BRAMSON’s statement should only be mentioned in the Summary Records. Moreover, Professor JESSUP was of the opinion that the Economic and Social Council might resent another organ of the United Nations pointing out to the Council the necessity of observing the provisions of the Charter. Dr. BRAMSON (Poland) observed that a mention in the Summary Records would be sufficient for him. Professor DONNEDIEU DE VABRES (France) also considered this the best procedure and observed that a reference to his memorandum in the Report indicated clearly that the memorandum was the opinion of the French representative and therefore could not lead to any misunderstanding. The CHAIRMAN proceeded to set up the drafting Sub-Committee and appointed the representatives for Australia, Netherlands and Poland with the RAPPORTEUR, the latter to act as convener. The CHAIRMAN opened the discussion on the United States proposal concerning the election of the members of ILC (A/AC.10/48). Professor JESSUP (United States of America), referring to observations made earlier in the discussion at this meeting and which had expressed some pessimism as to the possibility that the ILC take up its work in the immediate future, did not consider these fears justified. Several members of this Committee had influence with their Governments and Professor JESSUP asked them to exert this influence in order to render possible a speedy election of the ILC members if the General Assembly should decide to accept the Committee’s recommendation to this effect. Dr. AMADO (Brazil) repeated that he was not at all pessimistic about the future of the ILC, but that he only had some doubts as to the ILC’s being able to take up the matter of genocide at once. Dr. VIEYRA (Argentina) expressed his agreement with the proposal submitted by the United States representative.

A/AC.10/SR.29

195

Professor KORETSKY (Union of Soviet Socialist Republics) agreed that the Secretary-General should act as requested in that proposal but considered that the Secretary-General should not emphasize the necessity of the Governments preparing themselves to make their nominations and he suggested that paragraph 2 (b) be attenuated to this effect as follows: “to suggest to the Governments that they prepare themselves to make nominations.” The CHAIRMAN opened the discussion on the United States proposal paragraph by paragraph, paragraph 1 was accepted without discussion and likewise paragraph 2 (a). With regard to paragraph 2 (b), Professor KORETSKY (Union of Soviet Socialist Republics) now moved that this paragraph be deleted. Dr. VIEYRA (Argentina) considered that with this deletion there would be no point to the proposal at all and Professor JESSUP (United States of America) observed that Professor KORETSKY himself had suggested an attenuation of its wording. Professor KORETSKY (Union of Soviet Socialist Republics) considered that paragraph (a) was really sufficient, as it would follow that the Governments would make preparations for the election of the ILC’s members. He considered that the subject matter of sub-paragraph (b) exceeded the powers of this Committee. Professor JESSUP (United States of America) observed that his draft with the greatest care had avoided any suggestion of this Committee’s giving any instructions and that it only requested the Secretary-General to suggest to the Governments a certain consideration. Professor DONNEDIEU DE VABRES (France) proposed to avoid the repetitions in sub-paragraph (b) and merely to add after sub-paragraph (a): “and to insist that this election take place before the end of the Second Session of the General Assembly”. Dr. VIEYRA suggested the following addition to sub-paragraph (a): “and to the possibility that the election might take place before the closing of the Second Session of the General Assembly”. Professor DONNEDIEU DE VABRES observed that this wording was really the same as his own.

196

A/AC.10/SR.29

Professor KORETSKY (Union of Soviet Socialist Republics) suggested to add the words “if the General Assembly accept the recommendation about the establishment of an International Law Commission”, for the reason that the wording should be as clear as possible: what was evident to this Committee might be not so evident to the General Assembly. Dr. KERNO (Assistant Secretary-General) observed that he had tried to place himself in the position of a Government which had not been represented on this Committee and he had come to the conclusion that if the Secretary-General sent a letter to the Governments as now proposed, without any comment, the Governments would not be able to understand its meaning. Professor KORETSKY (Union of Soviet Socialist Republics) suggested that the Secretary-General could add any comments he considered desirable. The CHAIRMAN stated that the Committee agreed on the combined text of sub-paragraph (a) with the proposed additions and on the deletion of sub-paragraph (b). The meeting adjourned at 6:10 p.m. * See below.

A/AC.10/SR.29/Corr.1

197

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/SR.29/Corr.1 2 July 1947 ENGLISH ONLY

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION CORRIGENDUM TO A/AC.10/SR.29 – SUMMARY RECORD OF THE TWENTY-NINTH MEETING, 16 JUNE 1947, 2:00 p.m. Page 4, fourth line: delete “Panamanian”.

198

A/AC.10/SR.30

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/SR.30 24 June 1947 ORIGINAL: ENGLISH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION SUMMARY RECORD OF THE THIRTIETH MEETING Held at Lake Success, New York, on Tuesday, 17 June 1947, at 3:00 p.m. Present: Chairman: Sir Dalip Singh Dr. Enrique Ferrer Vieyra Mr. A.H. Body Dr. Gilberto Amado Dr. Shuhsi Hsu Prof. Dr. Jesus M. Yepes Mr. Osman Ebeid Prof. Henri Donnedieu de Vabres Dr. J.G. de Beus Mr. Roberto de la Guardia Dr. Aleksander Bramson Mr. Erik Sjoborg Prof. Dr. Vladimir Koretsky Prof. J.L. Brierly Prof. P.C. Jessup Dr. Perez Perozo Prof. Milan Bartos

(India) (Argentina) (Australia) (Brazil) (China) (Colombia) (Egypt) (France) (Netherlands) (Panama) (Poland) (Sweden) (Union of Soviet Socialist Republics) (United Kingdom) (United States of America) (Venezuela) (Yugoslavia)

The CHAIRMAN opened the meeting and asked Prof. BRIERLY (RAPPORTEUR) to present the report of the Sub-Committee set up at the previous meeting. Prof. BRIERLY (RAPPORTEUR) presented the report of the Sub-Committee concerning the draft letter to the Secretary-General on the draft convention of genocide which report had been drawn up on the basis of the decisions taken at the previous meeting:

A/AC.10/SR.30

199

DRAFT LETTER TO THE SECRETARY-GENERAL ON THE DRAFT CONVENTION ON GENOCIDE The Committee has received, under cover of your letter of 10 June, 1947, the text of ‘the draft convention for the prevention and punishment of the crime of genocide, drawn up by the Secretariat, with the assistance of experts in the field of international and criminal law, in accordance with the Resolution of the Economic and Social Council of 28 March 1947’. The Committee fully realizes the urgency, which was expressed in the recommendation contained in the Resolution of the General Assembly of 11 December 1946, of organizing co-operation between States with a view to facilitating the speedy prevention and punishment of the crime of genocide. It notes, however, that the text prepared by the Secretariat, owing to lack of time, has not yet been referred to the Member Governments of the United Nations for their comments, as is contemplated in the Resolution of the Economic and Social Council, and it regrets that, in the absence of information as to the views of these governments, it feels unable at present to express any opinion in the matter.

The CHAIRMAN received the report on behalf of the Committee and opened the discussions on paragraph 1. Professor BRIERLY (RAPPORTEUR) observed that this paragraph quoted verbatim the terms of the letter sent by the Secretary-General to the CHAIRMAN of the Committee, without touching on the point whether the document submitted to the Committee was actually a draft convention or not. Paragraph 1 was accepted without discussion. With regard to paragraph 2 Professor DONNEDIEU DE VABRES (FRANCE), referring to the use of the word “text” in the second sentence of that paragraph, observed that he would prefer the use of the word “draft”. He pointed out that the text submitted was not a draft convention but only a maximum programme of issues that might come into consideration for a convention on the prevention and punishment of genocide. Professor DONNEDIEU DE VABRES observed that the item on the Agenda and the first paragraph of the Sub-Committee’s report used the term “draft convention” and he therefore considered it more correct to use the word “draft” also in the second paragraph. In view of the criticism made against the draft convention Professor DONNEDIEU DE VABRES pointed out that he was not sensitive as to the merits of the draft. The lack of time from which the experts consulted

200

A/AC.10/SR.30

by the Secretary-General had suffered, had caused them to take as a basis for their discussions the Convention for the prevention and punishment of terrorism of 1937 which had been concluded on the initiative of France. The crime of terrorism had been accepted as a crime of international law with a view to its being extraditable and to its repression and submission to an international criminal jurisdiction. This Convention had not entered into force but had obtained the signature of such important governmental representatives as Messieurs Basdevant and Pella. Professor DONNEDIEU DE VABRES pointed out that the resemblance between genocide and terrorism was obvious and therefore the experts dealing with genocide had taken this Convention as a basis for their discussions. The circumstances under which they worked had obliged them to take this course but obviously the Governments would be free to follow a different procedure. Professor DONNEDIEU DE VABRES repeated the suggestion to use the word “draft” instead of “text” as the document had been submitted to this Committee in the form of a draft. Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) wanted to know whether the wording of paragraph 2 also followed that of the General Assembly Resolution. Secondly Professor KORETSKY considered that at the end of the letter it should be said that this Committee could not express an opinion as it had not received replies from the Governments. Professor BRIERLY (RAPPORTEUR), in reply to Professor KORETSKY, observed that the General Assembly Resolution was much more extensive than this draft letter, but that the latter followed the wording of the General Assembly Resolution. As to the second point raised by Professor KORETSKY, Professor BRIERLY observed that the draft letter stated clearly that this Committee did not make a study of the problem of genocide as it had no Government replies at its disposal. Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) considered that the mere statement that the Committee did not have Government replies at its disposal, did not constitute a clear reason why it could not express its opinion on the draft.

A/AC.10/SR.30

201

The CHAIRMAN suggested first to decide on the proposal made by the representative for France to the effect that the word “text” in the second paragraph be replaced by “draft”. Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) supported this proposal and Professor JESSUP (UNITED STATES OF AMERICA) also preferred to use the same wording in both paragraphs of the draft letter. Dr. BRAMSON (POLAND) pointed out that the word “text” was used in the first paragraph before the words “draft convention” and that the words placed between quotation marks in the first paragraph were the complete title of the document submitted to the Committee. Therefore, the Sub-Committee had considered it unnecessary to repeat the full title in the second paragraph and the word “text” had even seemed useful as it avoided the difficulty of defining what the document really amounted to. Professor BARTOS (YUGOSLAVIA) referring to the observations he had made at the previous meeting, stated that he could vote for the second paragraph if the word “text” were used, but not if the word “draft” was substituted. The CHAIRMAN put to the vote the French proposal to replace the word “text” by the word “draft”. The proposal was lost by 7 votes in favour and 8 against. The CHAIRMAN thereupon continued the discussion on the clarification of the text of paragraph 2 suggested by Professor KORETSKY. Professor BRIERLY (RAPPORTEUR) suggested to replace the words “regret that in the absence of information” by the words “regret that owing to the absence of information” which suggestion was accepted by Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS). Dr. HSU (CHINA) observed that at the previous meeting the Committee had decided that its only reason for not studying the draft convention submitted was the fact that its members lacked instructions from their Governments and he pointed out that paragraph 2 of the Sub-Committee’s report referred to the absence of the comments of all the Government Members of the United Nations, which was a different thing. In the second place, Dr. HSU pointed out that the letter from the Secretary-General to the CHAIRMAN of the Committee (document

202

A/AC.10/SR.30

A/AC.10/15) showed that the Governments of the United Nations were to be consulted simultaneously with this Committee. Consequently, if this Committee considered it should wait for the comments from all the Governments, it would not carry out the Resolution of the Economic and Social Council. Dr. PEROZO (VENEZUELA) observed that he shared the doubts expressed by the representative for China. Moreover, he considered that the Resolution of the Economic and Social Council had emphasized the following procedure: the Secretary-General with the assistance of experts was to prepare a draft on genocide which was to be sent to this Committee and if possible to the Commission on Human Rights, then to all the Governments Members of the United Nations and finally to the General Assembly. Therefore if this Committee were to suggest a new procedure it would put a wrong interpretation on the Resolution of the Economic and Social Council. Professor BRIERLY (RAPPORTEUR) considered that the representative for Venezuela read in the Resolution of the Economic and Social Council something which it did not contain and the Economic and Social Council had not laid down any time schedule, i.e. any order, for the various consultations which had to be carried out, so that they could be carried out simultaneously. In the RAPPORTEUR’s opinion, Dr. PEROZO seemed to propose that the Committee go back on its decision of the previous meeting. Dr. KERNO (ASSISTANT SECRETARY-GENERAL) observed that indeed the Economic and Social Council rightly or wrongly instructed the Secretary-General to carry out a triple consultation. It could be argued that the Economic and Social Council understood this Committee and the Commission on Human Rights to be something different from those Governments which had appointed representatives on these two Committees and had wanted those Committees to act as an intermediary between the experts to be consulted by the Secretary-General and the Economic and Social Council and General Assembly. If this Committee of Government representatives considered itself purely governmental to the extent that its members could not act without instructions from their Governments, it could certainly decide that it had no competence to deal with the matter but Dr. KERNO considered that this was not the view the Economic and Social Council had taken of the task of this Committee.

A/AC.10/SR.30

203

The CHAIRMAN expressed his agreement with the observations made by Dr. HSU and suggested that in the last part of the second paragraph the words “absence of information” be replaced by “absence of instructions from their Governments”. Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) considered there was some confusion in the discussion. When this Committee decided that it could not give an opinion on the genocide draft, it was because it considered that it should have at its disposal the opinions of all the Governments on the problem of genocide and not only those of the Governments that were represented on this Committee. This was also the underlying idea in the Economic and Social Council when it instructed the Secretary-General to ask all the Governments for their comments. He considered Dr. HSU’s observations to the wording of the second paragraph as too formalistic. What the Committee had had in mind during yesterday’s discussion was that it needed a comment from all the fifty-five Governments. Therefore, Professor KORETSKY preferred not to change the wording of paragraph 2. Dr. AMADO (BRAZIL) supported Professor KORETSKY’s point of view. In his opinion the Sub-Committee’s report was excellent: firstly, it stated that in the matter of genocide urgency was required. Secondly, it expressed the necessity of co-operation between the States in this field. Thirdly, it expressed its regret that the Committee could not comply with the request of the Economic and Social Council as transmitted by the Secretary-General both owing to lack of time to make a thorough study of the problem and owing to the lack of Government comments. Dr. AMADO would prefer the text to remain as submitted. Dr. HSU (CHINA) in reply to Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) insisted that the members of this Committee needed instructions from their respective governments. These instructions may be the same as the opinions of the other Governments of the Members of the United Nations. Of course an opinion given by this Committee would be of assistance to the Economic and Social Council, but only if it knew that the Committee’s opinion was based on the comments of the Governments expressed as a group and not on the opinions of its individual members. Dr. LIANG (SECRETARY) referring to the discussions in the SubCommittee observed that there was a connection between the first and

204

A/AC.10/SR.30

second part of paragraph 2 and he did not share the observations made by Dr. HSU to the effect that the first part referred to consultation of all the Governments and the last part to instructions from the Governments represented on this Committee only. Dr. LIANG considered that what the Sub-Committee had wanted to express was that this Committee, to its regret, felt itself unable to study the problem of genocide both owing to the lack of time and to the fact that the Governments had not yet been consulted. With regard to the point whether the Committee’s declining to take up the genocide draft was based on the lack of instructions from the seventeen Governments represented on the Committee or on the lack of replies from the fifty-five Governments represented on the United Nations, Dr. LIANG considered that yesterday’s decision had been motivated by the general idea that Government comments were indispensable, as they would constitute an important part of the documentation required for a thorough study of the matter. Professor BARTOS (YUGOSLAVIA) approved of the text of the second paragraph with the one change already accepted. The problem of genocide was first taken up by the General Assembly and therefore concerned all fifty-five Member States. Consequently, they should all be consulted and at least given an opportunity of making their opinions known. The text as now worded correctly expressed the principles of equality between all States. Dr. BRAMSON (POLAND) supplementing Dr. LIANG’s reference to the Sub-Committee’s discussions emphasized that the last part of paragraph 2 stated that the Committee felt itself “at present” unable to express any opinion, which words had been used in order to indicate that the Committee considered the possibility of its being reconvened when the Government replies would have been received and he mentioned that this suggestion had been made at the previous meeting by Prof. KORETSKY. Dr. PEROZO (VENEZUELA) pointed out that the Resolution of the Economic and Social Council did not state that this Commission should have all the Governments comments prior to being consulted. He appreciated the objection expressed by some members that as Government representatives they could not give their opinion without instructions from their Governments, but in his opinion this Committee could not

A/AC.10/SR.30

205

refuse to give its opinion on the ground that all the Government replies had not been placed before it. He observed that he would vote in favour of paragraph 2 if it was expressed that the Committee declined to give an opinion owing to the absence of instructions from their Governments. Prof. BRIERLY (RAPPORTEUR) agreed with the point of view expressed by Prof. BARTOS. In his opinion the General Assembly Resolution was the important document for this Committee which did not have to take instructions from the Economic and Social Council. Of course, this Committee could comply with a request made to it by the Economic and Social Council, but it need not do so if it considered that it lacked the necessary information on the subject. The CHAIRMAN observed that there were two points before the Committee: in the first place what had been the decision taken at the previous meeting on which the Sub-Committee had based its discussion and report. In his opinion the difficulty had been that the Committee could not discuss the genocide draft owing to the lack of instructions from their Governments and speaking as representative for India he had partially accepted this point of view. The second point was referred to by the SECRETARY to the effect that in the last part of paragraph 2 both the absence of Government comments and the absence of Government instructions were implied. However, in his opinion without touching on the matter whether this Committee had to take instructions from the Economic and Social Council, there was no absolute necessity for this Committee to insist on receiving the comments from all the Governments before taking up the matter of genocide. The CHAIRMAN suggested the following re-wording of the last part of paragraph 2 “owing to the absence of instruction from their Governments and the absence of the information as to the views of all Governments” and emphasized that he proposed this wording by way of compromise. Prof. KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) observed that the CHAIRMAN’s suggestion was not a compromise as the instructions from the seventeen Governments represented on the Committee was included in the absence of information from the Governments and he therefore preferred to leave the text as it was. Prof. DONNEDIEU DE VABRES (FRANCE) agreed to this point of view and considered that the advantage of the present text was that it gave

206

A/AC.10/SR.30

satisfaction to both the members who considered the lack of instructions from their Governments of primary importance and to those who wanted the Committee to dispose of the comments of all the Governments. Prof. BARTOS (YUGOSLAVIA) expressed his disagreement with the CHAIRMAN’s motion but in view of the fact that it was an amendment to the Sub-Committee’s report he considered that it should be voted on first. Dr. HSU (CHINA) formally moved another amendment, i.e. that “information as to the view of these Governments” be replaced by the words “instruction from their Governments.” Prof. KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) objected to this wording. The CHAIRMAN observed that he had not yet made a formal motion. Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) suggested that vote be taken first on the question as to whether the Committee wanted to give any expression to the difference between Government comments generally and instructions from their own Governments. Professor KORETSKY proposed to eliminate the word “these” before Governments at the end of paragraph 2. The CHAIRMAN put to the vote Dr. HSU’s (CHINA) motion for replacing “information as to the views of these Governments” by “instruction from their governments”, which motion was lost by 3 votes in favour and 7 against. Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS) observed that if the CHAIRMAN withdrew his proposal, he would also withdraw his own, whereupon Dr. DE BEUS (NETHERLANDS) pointed out that if the word “these” were maintained, it would be necessary to bring the French translation into conformity with the English text and should be made to read “de ces gouvernements”, whereas now the French translation was entirely in conformity with Professor KORETSKY’s proposal. Professor DONNEDIEU DE VABRES (FRANCE) also considered that the French wording was best, as this Committee had rejected Dr. HSU’s motion to the effect that only the instructions from the seventeen Governments represented on this Committee were required and had consequently

A/AC.10/SR.30

207

expressed the view that the comments from all the fifty-five Governments were needed. The CHAIRMAN stated the agreement of the Committee to bring the English text into conformity with the French wording, that is, to replace the word “these” by “the”. After Dr. DE BEUS (NETHERLANDS) had pointed out an error in document A/AC.10/49 and Professor DONNEDIEU DE VABRES (FRANCE) a wrong translation in document A/AC.10/46, the CHAIRMAN stated that the Committee had no items left on its Agenda. Professor JESSUP (UNITED STATES OF AMERICA) expressed his profound appreciation of the CHAIRMAN’s guidance of the discussions of the Committee and asked the Members of the Committee to accept a formal motion of appreciation and gratitude which was seconded by Professor KORETSKY (UNION OF SOVIET SOCIALIST REPUBLICS). On Dr. HSU’s (CHINA) moving a vote of thanks to the RAPPORTEUR, Professor JESSUP (UNITED STATES OF AMERICA) accepted this as an amendment to his own motion. The CHAIRMAN expressed his gratitude for the feelings expressed by the previous speakers and asked the Committee’s pardon for any errors, delinquencies and derelictions he might have committed in guiding the Committee’s work and expressed his thanks for the kindness of the delegates. Professor BRIERLY (RAPPORTEUR) observed that his work had been light and moved a resolution to express the Committee’s thanks to the Secretariat for their assistance to the Committee and himself as RAPPORTEUR, which words were acknowledged by Dr. KERNO (ASSISTANT SECRETARY-GENERAL). The CHAIRMAN closed the meeting at 4:30 p.m.

208

A/AC.10/55

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/AC.10/55 18 June 1947 ORIGINAL: ENGLISH

COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION LETTER FROM THE CHAIRMAN OF THE COMMITTEE TO THE SECRETARY-GENERAL ON THE DRAFT CONVENTION ON GENOCIDE 17 June 1947 His Excellency Mr. Trygve Lie Secretary-General, United Nations Lake Success, New York Sir, The Committee has received, under cover of your letter of 10 June 1947 the text of “the draft convention for the prevention and punishment of the crime of genocide, drawn up by the Secretariat, with the assistance of experts in the field of international and criminal law, in accordance with the Resolution of the Economic and Social Council of 28 March 1947.” The Committee fully realizes the urgency, which was expressed in the recommendation contained in the Resolution of the General Assembly of 11 December 1946, of organizing cooperation between States with a view to facilitating the speedy prevention and punishment of the crime of genocide. It notes, however, that the text prepared by the Secretariat, owing to lack of time, has not yet been referred to the Member Governments of the United Nations for their comments, as is contemplated in the Resolution of the Economic and Social Council, and it regrets that, in the absence of information as to the views of the governments, it feels unable at present to express any opinion in the matter. I have the honour to be, Sir, Your obedient Servant, Sir Dalip Singh, Chairman, Committee on the Progressive Development of International Law and its Codification

Secretariat Draft E/447

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

209

UNRESTRICTED E/447 26 June 1947 ENGLISH ORIGINAL: FRENCH

DRAFT CONVENTION ON THE CRIME OF GENOCIDE This draft convention was prepared by the Secretary-General of the United Nations in pursuance of the resolution of the Economic and Social Council dated 28 March 1947.

210

Secretariat Draft E/447

TABLE OF CONTENTS

Part I. Draft Convention for the Prevention and Punishment of Genocide Part II. Comments on the Draft Convention

214 222

Section I. Introduction

222

I. II. III. IV.

222 222 223

Instructions to the Secretary-General How the present study was prepared Definition of the notion of genocide The chief problems involved in the international punishment of genocide 1. What human groups should be protected by the Convention? 2. What is meant by genocide? 3. Will the Convention be universal, or will its application be strictly limited to the States parties to the Convention? 4. Are the acts of genocide punishable under the Convention to be only acts committed by rulers or statesmen (i.e., persons having strictly political functions such as Ministers and members of legislative assemblies), or acts committed by rulers, officials properly so-called, and private persons without distinction? 5. Punishment of genocide by an international tribunal 6. Conditions of entry into force of the Convention V. How the Convention was drafted Section II. Comments Article by Article

224 224 224 224

225 225 225 226 228

A. BODY OF THE CONVENTION Article I – General Definitions

228

No. I of Article I No. II of Article I 1. The act must be intentional International war and civil war

228 228 230 231

Secretariat Draft E/447

Acts of violence by individuals or communities not aimed at the destruction of a group of human beings Policy of forced assimilation of a section of the population 2. The act must be aimed either at the destruction of the whole or part of a group or at “preventing its preservation or development” Remarks The three forms of genocide 1. “Physical” genocide (a) Group massacres or individual executions (b) Subjection to conditions of life wherein, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion, the individuals are doomed to weaken or die (c) Mutilations and biological experiments imposed with no curative purpose (d) Deprivation of all means of livelihood by confiscation of property, looting, curtailment of work, denial of housing and supplies otherwise accessible to the other inhabitants of the territory concerned 2. “Biological” genocide (a) Sterilization and/or compulsory abortion (b) Segregation of the sexes (c) Obstacles to marriage 3. “Cultural” genocide The means of “cultural” genocide (a) Forced transfer of children to another human group (b) Forced and systematic exile of individuals representing the culture of a group (c) Prohibition of the use of the national language even in private intercourse (d) Systematic destruction of books printed in the national language, or of religious works, or prohibition of new publications (e) Systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value, and of objects used in religious worship

211

231 232

232 232 232 233 233

233 233

233 234 234 234 234 234 235 235 235 236

236

236

212

Secretariat Draft E/447

Article II – Punishable Offences “Attempts to commit genocide” “Preparatory acts” “Wilful participation in acts of genocide in all its forms” “Direct public incitement to any act of genocide” “Conspiracy to commit acts of genocide” Article III – Punishment of a Particular Offence “All forms of public propaganda” “Their systematic and heinous character” Propaganda “tending . . . to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act” Article IV – Responsible persons Article V – Command of the Law and Superior Order Article VI – Provisions Concerning Genocide in National Legislation Article VII – Universal Enforcement of National Legislation Article VIII – Extradition Article IX – Trial of Gènocide [sic] by an International Court Article X – International Court competent to Try Genocide 1st Draft: Trial by an international court of criminal jurisdiction having general competence 2nd Draft: Trial by a special international court to be set up under the present Convention Article XI – Dissolution of Groups or Organizations Having Participated in Genocide Article XII – Action by the United Nations to Prevent or to Stop Genocide Article XIII – Reparations to Victims of Genocide

236 237 237 238 238 239 239 240 240 240 241 242 242 243 243 244 245 246 246 247 247 249

B. FINAL PROVISIONS Article XIV – Settlement of Disputes on Interpretation or Application of the Convention Article XV – Language – Date of the Convention Article XVI – What States May Become Parties to the Convention. Ways to Become Party to It 1. Common feature of the two drafts 2. Explanation of the first draft 3. Explanation of the second draft

251 252 252 253 254 254

Secretariat Draft E/447

213

Article XVII – Reservations Article XVIII – Coming into Force Article XIX – Duration of the Convention – Denunciation 1. Common feature of the two drafts 2. Explanation of the first draft 3. Explanation of the second draft Article XX – Abrogation of the Convention Article XXI – Revision of the Convention Article XXII – Notifications by the Secretary-General Article XXIII – Deposit of the Original of the Convention and Transmission of Copies to Governments Article XXIV – Registration of the Convention

254 255 256 256 257 257 257 258 258

Suggestions Submitted by the Experts

259

Part III. Opinion of the Committee on the Progressive Development of International Law and its Codification

260

Annex I. Establishment of a Permanent International Criminal Court for the Punishment of Acts of Genocide Annex II. Establishment of an Ad Hoc International Criminal Court for the Punishment of Acts of Genocide

259 259

262 273

214

Secretariat Draft E/447

PART I DRAFT CONVENTION FOR THE PREVENTION AND PUNISHMENT OF GENOCIDE

Preamble The High Contracting Parties proclaim that Genocide, which is the intentional destruction of a group of human beings, defies universal conscience, inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the United Nations. 1. They appeal to the feelings of solidarity of all members of the international community and call upon them to oppose this odious crime. 2. They proclaim that the acts of genocide defined by the present Convention are crimes against the Law of Nations, and that the fundamental exigencies of civilization, international order and peace require their prevention and punishment. 3. They pledge themselves to prevent and to repress such acts wherever they may occur. Article I Definitions (Protected Groups)

I. The purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings.

(Acts qualified as Genocide)

II. In this Convention, the word “genocide” means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or development.

Secretariat Draft E/447

215

Such acts consist of: 1. Causing the death of members of a group or injuring their health or physical integrity by: (a) group massacres or individual executions; or (b) subjection to conditions of life which, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion are likely to result in the debilitation or death of the individuals; or (c) mutilations and biological experiments imposed for other than curative purposes; or (d) deprivation of all means of livelihood, by confiscation of property, looting, curtailment of work, denial of housing and of supplies otherwise available to the other inhabitants of the territory concerned. 2. Restricting births by: (a) sterilization and/or compulsory abortion; or (b) segregation of the sexes; or (c) obstacles to marriage. 3. Destroying the specific characteristics of the group by: (a) forced transfer of children to another human group; or (b) forced and systematic exile of individuals representing the culture of a group; or (c) prohibition of the use of the national language even in private intercourse; or (d) systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or (e) systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.

216

Secretariat Draft E/447

Article II (Punishable Offences)

I. The following are likewise deemed to be crimes of genocide: 1. any attempt to commit genocide; 2. the following preparatory acts: (a) studies and research for the purpose of developing the technique of genocide; (b) setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; (c) issuing instructions or orders, and distributing tasks with a view to committing genocide. II. The following shall likewise be punishable: 1. wilful participation in acts of genocide of whatever description; 2. direct public incitement to any act of genocide, whether the incitement be successful or not; 3. conspiracy to commit acts of genocide.

Article III (Punishment of a Particular Offence)

All forms of public propaganda tending by their systematic and hateful character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act shall be punished.

Article IV (Persons Liable)

Those committing genocide shall be punished, be they rulers, public officials or private individuals

Article V (Command of the Law and Superior Orders)

Command of the law or superior orders shall not justify genocide.

Secretariat Draft E/447

217

Article VI (Provisions concerning Genocide in Municipal Criminal Law)

The High Contracting Parties shall make provision in their municipal law for acts of genocide as defined by Articles I, II, and III, above, and for their effective punishment.

Article VII (Universal Enforcement of Municipal The High Contracting Parties pledge Criminal Law) themselves to punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed.

Article VIII (Extradition)

The High Contracting Parties declare that genocide shall not be considered as a political crime and therefore shall be grounds for extradition. The High Contracting Parties pledge themselves to grant extradition in cases of genocide.

Article IX (Trial of Genocide by an International Court)

The High Contracting Parties pledge themselves to commit all persons guilty of genocide under this Convention for trial to an international court in the following cases: 1. When they are unwilling to try such offenders themselves under Article VII or to grant their extradition under Article VIII. 2. If the acts of genocide have been committed by individuals acting as organs of the State or with the support or toleration of the State.

218

Secretariat Draft E/447

Article X (International Court competent to try Genocide)

Two drafts are submitted for this section: 1st draft: The court of criminal jurisdiction under Article IX shall be the International Court having jurisdiction in all matters connected with international crimes. 2nd draft: An international court shall be set up to try crimes of genocide (vide Annexes).

Article XI (Disbanding of Groups or Organizations Having Participated in Genocide)

The High Contracting Parties pledge themselves to disband any group or organization which has participated in any act of genocide mentioned in Articles I, II, and III, above.

Article XII (Action by the United Nations to Prevent or to Stop Genocide)

Irrespective of any provisions in the foregoing articles, should the crimes as defined in this Convention be committed in any part of the world, or should there be serious reasons for suspecting that such crimes have been committed, the High Contracting Parties may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations.

Article XIII (Reparations to Victims of Genocide)

When genocide is committed in a country by the government in power or by sections of the population, and if the government fails to resist it successfully, the State shall grant to the survivors of the human group that is a victim of genocide redress of a nature and in an amount to be determined by the United Nations.

Secretariat Draft E/447

219

Article XIV (Settlement of Disputes on Interpretation or Application of the Convention)

Disputes relating to the interpretation or . . . [sic] application of this Convention shall be submitted to the International Court of Justice.

Article XV (Language – Date of the Convention)

The present Convention, of which the . . . . . . ., . . . . . . ., . . . . . . , . . . . . . . and . . . . . . . texts are equally authentic, shall bear the date of. . . . .

Article XVI (First Draft) (What States may become Parties to the Convention. Ways to become Party to it) 1. The present Convention shall be open to accession on behalf of any Member of the United Nations or any non-member State to which an invitation has been addressed by the Economic and Social Council. 2. The instruments of accession shall be transmitted to the Secretary-General of the United Nations.

(Second Draft) 1. The present Convention shall be open until 31. . . . 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation has been addressed by the Economic and Social Council. The present Convention shall be ratified, and the instruments of ratification shall be transmitted to the Secretary-General of the United Nations. 2. After 1. . . . 1948 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be transmitted to the Secretary-General of the United Nations.

Article XVII (Reservations)

No proposition is put forward for the moment.

220

Secretariat Draft E/447

Article XVIII (Coming into Force)

1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of the accession (or . . . ratifications and accession) of not less than . . . Contracting Parties. 2. Accessions received after the Convention has come into force shall become effective as from the ninetieth day following the date of receipt by the Secretary-General of the United Nations

Article XIX (First Draft) (Duration of the Convention)

1. The present Convention shall remain in effect for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the SecretaryGeneral of the United Nations.

(Second Draft) The present Convention may be denounced by a written notification addressed to the Secretary-General of the United Nations. Such notification shall take effect one year after the date of its receipt.

Article XX (Abrogation of the Convention)

Should the number of Members of the United Nations and non-member States bound by this Convention become less than . . . . as a result of denunciations, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative.

Secretariat Draft E/447

221

Article XXI (Revision of the Convention)

A request for the revision of the present Convention may be made at any time by any State which is a party to this Convention by means of a written notification addressed to the Secretary-General. The Economic and Social Council shall decide upon the measures to be taken in respect of such a request.

Article XXII (Notifications by the Secretary- The Secretary-General of the United Nations General) shall notify all Members of the United Nations and non-member States referred to in Article XVI of all accessions (or signatures, ratifications and accessions) received in accordance with Articles XVI and XVIII, of denunciations received in accordance with Article XIX, of the abrogation of the Convention effected as provided by Article XX and of requests for revision of the Convention made in accordance with Article XXI.

Article XXIII (Deposit of the Original of the 1. A copy of the Convention signed by the Convention and Transmission President of the General Assembly and the of Copies to Governments) Secretary-General of the United Nations shall be deposited in the Archives of the Secretariat of the United Nations. 2. A certified copy shall be transmitted to all Members of the United Nations and to nonmember States mentioned under Article.

Article XXIV (Registration of the Convention)

The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

222

Secretariat Draft E/447

PART II COMMENTS ON THE DRAFT CONVENTION SECTION I. INTRODUCTION

I. Instructions to the Secretary-General The Economic and Social Council, acting on a resolution of the General Assembly dated 11 December 1946*, by a resolution dated 28 March 1947 instructed the Secretary-General to undertake studies and to prepare a draft convention on the international crime of genocide. In pursuance of the above resolution of the Economic and Social Council, the Secretary-General asked the Director of the Division of Human Rights to prepare a draft convention with suitable comments and requested three experts, Mr. Donnedieu de Vabres, Professor at the Paris Faculty of Law, His Excellency, Professor Pella, President of the International Association for Penal Law, and Professor Lemkin, to give him the assistance of their valuable advice. The experts discussed a preliminary draft of the Convention with Professor Humphrey, Director of the Division of Human Rights, Professor Giraud, Chief of the Research Section of the Division of Human Rights, and Mr. Kliava, representing the Legal Department. On the basis of the comments of these experts, the Secretary-General amended and supplemented the preliminary draft which he had submitted to their consideration; this has now become the draft Convention reproduced above. II. How the present study was prepared The Secretary-General felt that he ought to define the notion of genocide in such a way as not to encroach on other notions which logically are and should be distinct. In determining what should be included in the draft, he was guided by the Assembly resolution of 11 December 1946 concerning genocide, and he adopted the principles and methods of application established therein.

Secretariat Draft E/447

223

For the rest he considered that the first draft to be submitted to the competent organs of the United Nations ought, as far as possible, to embrace all the points likely to be adopted, it being left to these organs to eliminate what they wished. In so doing the Secretary-General did not intend to recommend one political solution rather than another, but wished to offer a basis for full discussion and bring out all the points deserving of notice. The organs of the United Nations, consisting of representatives of Governments, will be entirely free to decide the political question raised by the problem of the prevention and punishment of genocide. III. Definition of the notion of genocide Genocide is the deliberate destruction of a human group. This literal definition must be rigidly adhered to; otherwise there is a danger of the idea of genocide being expanded indefinitely to include the law of war, the right of peoples to self-determination, the protection of minorities, the respect of human rights, etc. Absence of a careful definition of the notion of genocide would present two disadvantages. Firstly, there would be a tendency to include under genocide international crimes or abuses which, however reprehensible they may be, do not constitute genocide and cannot be regarded as such by any normal process of reasoning. International law must be built up on a rational and logical basis and exclude confusion and arbitrary opinions; each idea must be properly defined and not overlap others. Secondly, if the notion of genocide were excessively wide, the success of the convention for the prevention and punishment of what is perhaps the most odious international crime would be jeopardized. If the convention on genocide were to include too many accessory reservations and implications whose significance was not always easy to discern at first sight, Governments might become suspicious and tend to abstain. A multiplicity of objectives might lead to the chief target being missed. The law of war, the law of nationality, the protection of minorities, the general rights and obligations of States, the protection of human rights –

224

Secretariat Draft E/447

these are so many chapters of international law which should not completely, or even partially, coincide with the question of genocide, even though genocide may have many points of contact with them. IV. The chief problems involved in the international punishment of genocide The chief problems involved in the international punishment of genocide, which are governmental rather than technical problems, are the following: 1. What human groups should be protected by the Convention? Human beings exist variously in racial, national, linguistic, religious and political groups, and even this list is not exhaustive. Should the Convention on genocide protect all or only some of these? That is the first general question which will have to be settled. The General Assembly’s resolution speaks of “racial, religious, political and other groups” and we adopted this formula (see Article I). 2. What is meant by genocide? Professor Lemkin distinguishes between “physical” genocide (destruction of individuals), “biological” genocide (prevention of births), and “cultural” genocide (brutal destruction of the specific characteristics of a group). Should all these three notions be accepted or only the first and second? That is the second general question to be decided. According to the method we have indicated, we have submitted formulas covering the three types of genocide so as to convey an exact idea of what they represent, and thus enable the United Nations organs to reach a decision. (See Article I). 3. Will the Convention be universal or will its application be strictly limited to the States parties to the Convention? Obviously the obligations established by the Convention should apply only to the States parties to it, for otherwise States parties and States not parties to the Convention would be on an equal footing. It is conceivable, however, that States might limit the application of the Convention strictly to acts committed in the territories of States parties thereto, or by nationals of such States or, on the contrary, that States

Secretariat Draft E/447

225

parties to the Convention might punish genocide wherever committed and regardless of the nationality of the criminals. The Secretary-General and the experts were of the opinion that the draft Convention should adopt the last-mentioned point of view, firstly because that seems to be the intention of the Assembly resolution of 11 December 1946, and secondly, because genocide is by its nature an offence under international law; and if this were ignored the Convention would fail in its object. (See Preamble 1, 2, Articles VII, VIII, XII). 4. Are the acts of genocide punishable under the Convention to be only acts committed by rulers or statesmen (i.e., persons having strictly political functions such as Ministers and members of legislative assemblies), or acts committed by rulers, officials properly so called, and private persons without distinction? Contrary to the opinion expressed by an expert (see below Article V and comments), the draft Convention has adopted the widest formula, firstly because this is in accordance with the general method followed, and secondly because the Assembly resolution of 11 December 1946 would seem to have endorsed that formula. 5. Punishment of genocide by an international tribunal National courts will be called upon to play a part in the punishment of genocide, but in the more serious cases it would appear to be highly desirable that it should be punished by an international tribunal. Such a tribunal might be an international criminal court with general jurisdiction; in the absence of such a court, a special court with jurisdiction limited to genocide would have to be provided for. The question of the establishment of an international criminal court with general jurisdiction exceeds the scope of the question of genocide. It is not for us to deal with this question, but the bodies entrusted with the preparation of the Convention on the punishment of genocide may consider the question in liaison with the other bodies dealing with international criminal law and the codification of international law. 6. Conditions of entry into force of the Convention In view of the fact that the Convention is to be of universal application, i.e. in some respects even to affect States not parties to the Convention,

226

Secretariat Draft E/447

the question of how many accessions will be needed before the Convention can come into force is of special importance. V. How the Convention was drafted In view both of the fact that the draft Convention is intended to form a basis of discussion and to facilitate such discussion and that genocide is a new subject, an effort has been made to deal with the questions in order and to isolate them in the draft. The earlier articles give a somewhat detailed classification and lists of acts which perhaps need not be maintained in the final text of the Convention. The method followed was that of induction; once agreement has been reached on what is to be included or excluded, shorter synthetic formulas might be substituted for the present analytical texts. * 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; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirity [sic] and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern. The General Assembly, therefore, Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable. Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime. Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide; and, to this end, Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

Secretariat Draft E/447

227

The resolution of the Economic and Social Council reads as follows: The Economic and Social Council, Taking cognizance of the General Assembly Resolution No. 96 of 11 December 1946, instructs the Secretary-General: (a) to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) after consultation with the General Assembly Committee on the Development and Codification of International Law and if feasible the Commission on Human Rights, and after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

228

Secretariat Draft E/447

SECTION II. COMMENTS ARTICLE BY ARTICLE A. BODY OF THE CONVENTION ARTICLE I General Definitions (Protected Groups)

I. The purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings.

(Acts qualified as Genocide)

II. In this Convention, the word “genocide” means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or development. Such acts consist of: 1. Causing the death of members of a group or injuring their health or physical integrity by: (a) group massacres or individual executions; or (b) subjection to conditions of life which, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion are likely to result in the debilitation or death of the individuals; or (c) mutilations and biological experiments imposed for other than curative purposes; or (d) deprivation of all means of livelihood, by confiscation of property, looting, curtailment of work, denial of housing and of supplies otherwise available to the other inhabitants of the territory concerned. 2. Restricting births by: (a) sterilization and/or compulsory abortion; or (b) segregation of the sexes; or (c) obstacles to marriage.

Secretariat Draft E/447

229

3. Destroying the specific characteristics of the group by: (a) forced transfer of children to another human group; or (b) forced and systematic exile of individuals representing the culture of a group; or (c) prohibition of the use of the national language even in private intercourse; or (d) systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or (e) systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.

COMMENTS ON ARTICLE I I. Article I – Section I “The purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings.” 1. Genocide, as its name suggests, is aimed at a group through the individual members which compose it. A human group is made up of a certain part of the population whose members have common characteristics distinguishing them from other members of society. From a very general point of view, there are many and diverse human groups; but if the problem of genocide is considered from the practical point of view and in the light of past experience, it is obvious that protection is not meant to cover a professional or athletic group. The human groups to be protected are:

230

Secretariat Draft E/447

racial national linguistic religious political. 2. The Secretary-General mentioned these five groups because, apart from the linguistic group, they were mentioned in the Assembly resolution of 11 December 1946 and because, in virtue of the method adopted, he was to submit the widest possible formula. One of the experts consulted, Professor Lemkin, voiced some doubts, however, on the advisability of including political groups. He pointed out, on the one hand, that political groups have not the permanency and the specific characteristics of the other groups referred to and, on the other hand, that the Convention on Genocide being of general interest, it should not run the risk of failure by introducing ideas on which the world is deeply divided. He also pointed out that in practice the human groups most likely to suffer from genocide as history has shown, are racial, national and religious groups. Another expert, Professor Donnedieu de Vabres, opposed this point of view and said that genocide was an odious crime, regardless of the group which fell victim to it and that the exclusion of political groups might be regarded as justifying genocide in the case of such groups. Professor Pella felt that this very delicate question was a matter for the Assembly. Of course the protection of political groups, if agreed to by governments, would not cover activities by political groups with Nazi or Facist [sic] tendencies, for those are the very groups which in the past were guilty of committing or instigating the crime of genocide. II. Article I – Section II The first paragraph of this Section defines genocide as a deliberate act “with the purpose of destroying groups of human beings in whole or in part or of preventing their preservation or development.” 1. The act must be deliberate This means that its object must be the destruction of a group of human beings.

Secretariat Draft E/447

231

By this definition, certain acts which may result in the total or partial destruction of a group of human beings are in principle excluded from the notion of genocide, namely, international or civil war, isolated acts of violence not aimed at the destruction of a group of human beings, the policy of compulsory assimilation of a national element, mass displacements of population. International War and Civil War 1. War is not normally directed at the destruction of the enemy: such destruction is only the means used by a belligerent to impose his will on the opponent. When that result has been achieved, peace is concluded. However harsh the conditions imposed on the defeated party may be, it retains the right to existence. 2. The infliction of losses, even heavy losses, on the civilian population in the course of operations of war, does not as a rule constitute genocide. In modern war belligerents normally destroy factories, means of communication, public buildings, etc. and the civilian population inevitably suffers more or less severe losses. It would of course be desirable to limit such losses. Various measures might be taken to achieve this end, but this question belongs to the field of the regulation of the conditions of war and not to that of genocide. 3. War may, however, be accompanied by the crime of genocide. This happens when one of the belligerents aims at exterminating the population of enemy territory and systematically destroys what are not genuine military objectives. Examples of this are the execution of prisoners of war, the massacre of the populations of occupied territory and their gradual extermination. These are clearly cases of genocide. Acts of violence by individuals or communities not aimed at the destruction of a group of human beings In times of stress, when there are brawls or clashes between opposing political parties or adherents of hostile religions, or when parties or factions contend for power by force, there may be loss of human life; but such acts are outside the notion of genocide so long as the intention physically to destroy a group of human beings is absent.

232

Secretariat Draft E/447

Policy of forced assimilation of a section of the population Such a policy, even if the notion of “cultural” genocide (see below) is admitted, does not as a rule constitute genocide. The system of protection of minorities, if applicable, should provide for the protection of minorities against a policy of forced assimilation employing relatively moderate methods. Mass displacements of populations from one region to another also does not constitute genocide It would, however, become genocide if the operation were attended by such circumstances as to lead to the death of the whole or part of the displaced population. (if, for example, people were driven from their homes and forced to travel long distances in a country where they were exposed to starvation, thirst, heat, cold and epidemics). 2. The act must be aimed either at the destruction of the whole or part of a group or at “preventing its preservation or development” The systematic destruction even of a fraction of a group of human beings constitutes an exceptionally heinous crime. Measures to prevent the preservation or development of a group is also genocide. Remarks: Obviously it makes no difference whether the victims of genocide are nationals or aliens. It makes little difference whether genocide is committed in time of war or peace. (subject to what has been said above concerning foreign or civil war) The three forms of genocide Article I describes the three forms of genocide which Professor Lemkin has called “physical”, “biological” and “cultural” genocide. In order to convey a concrete and exact idea of these three forms, the draft gives a general enumeration of the material means used for committing genocide.

Secretariat Draft E/447

233

1. “Physical” genocide This involves acts intended to “cause the death of members of a group, or injuring their health or physical integrity”. The means referred to are: (a) Group massacres or individual executions This calls for no comments. (b) Subjection to conditions of life which, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion, are likely to result in the debilitation or death of the individuals This is what may be termed “slow death”. In such cases, the intention of the author of genocide may be less clear. Obviously, if members of a group of human beings are placed in concentration camps where the annual death rate is thirty per cent to forty per cent, the intention to commit genocide is unquestionable. There may be borderline cases where a relatively high death rate might be ascribed to lack of attention, negligence or inhumanity, which, though highly reprehensible, would not constitute evidence of intention to commit genocide. At all events, there are such borderline cases which have to be dealt with on their own merits. (c) Mutilations and biological experiments imposed with no curative purpose These practices were current in Hitlerite Germany. Biological experiments are to be condemned even if they have a scientific value because they imply that the life and health of the members of the group of human beings subjected to them are regarded as worthless. (d) Deprivation of all means of livelihood by confiscation of property, looting, curtailment of work, denial of housing and of supplies otherwise available to the other inhabitants of the territory concerned Man cannot live without the help he receives from the community in exchange for his services to it. If the State systematically denies to members of a certain group the elementary means of existence enjoyed by other sections of the population, it condemns such persons to a wretched

234

Secretariat Draft E/447

existence maintained by illicit or clandestine activities and public charity, and in fact condemns them to death at the end of a medium period instead of to a quick death in concentration camps; there is only a difference of degree. 2. “Biological” genocide This is characterized by measures aimed at the extinction of a group of human beings by systematic restrictions on births without which the group cannot survive. Such restrictions may be physical, legal or social. Article I lists these processes as follows: (a) Sterilization and/or compulsory abortion These are biological means. (b) Segregation of the sexes This may be induced by various causes such as compulsory residence in remote places, or the systematic allocation of work to men and women in different localities. (c) Obstacles to marriage These are legal restrictions. 3. “Cultural” genocide This consists not in the destruction of members of a group nor in restrictions on birth, but in the destruction by brutal means of the specific characteristics of a group; this section gave rise to divergent views among the experts. Professor Donnedieu de Vabres and Professor Pella held that cultural genocide represented an undue extension of the notion of genocide and amounted to reconstituting the former protection of minorities (which was based on other conceptions) under cover of the term genocide. Professor Lemkin, on the contrary, argued that a racial, national, or religious group cannot continue to exist unless it preserves its spirit and moral unity. Such a group’s right to existence was justified not only from

Secretariat Draft E/447

235

the moral point of view, but also from the point of view of the value of the contribution made by such a group to civilization generally. If the diversity of cultures were destroyed, it would be as disastrous for civilization as the physical destruction of nations. He added that means of cultural genocide were criminal acts under municipal law and that hence there was no reason why they should not be included in the international crime of genocide. Professor Lemkin pointed out that cultural genocide was much more than just a policy of forced assimilation by moderate coercion – involving for example, prohibition of the opening of schools for teaching the language of the group concerned, of the publication of newspapers printed in that language, of the use of that language in official documents and in court, and so on. It was a policy which by drastic methods, aimed at the rapid and complete disappearance of the cultural, moral and religious life of a group of human beings. Means of cultural genocide (a) Forced transfer of children to another human group The separation of children from their parents results in forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents’. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time. The experts were agreed that this point should be covered by the Convention on genocide, but their agreement did not go further than that. (b) Forced and systematic exile of individuals representing the culture of a group Such individuals are chiefly scholars, writers, artists, teachers and educators, ministers of religion, doctors of medicine, engineers, lawyers, administrators, etc. The cultural and moral life of a group is sustained by its cultured members. If these are removed, the group is no more than an amorphous and defenceless mass. Its language is degraded to the rank of a dialect, and hence those using it are reduced to a position of inferiority, and the language has no longer any political or social significance.

236

Secretariat Draft E/447

Professor Lemkin expressed preference for the following wording: “systematic elimination of the individuals representing the culture of the group by acts of violence or infringement of personal liberty.” It seems to us that if this idea is to be adopted, the simpler text is preferable. (c) Prohibition of the use of the national language even in private intercourse This amounts to outlawing the language and its use even in the home or in correspondence. Professor Lemkin proposed the following different formula: “prohibition, on threat of criminal punishment or violent measures, of the use of the national language even in private intercourse.” (d) Systematic destruction of books printed in the national language, or of religious works, or prohibition of new publications A religious linguistic national group cannot continue to exist if it relies on oral tradition only. (e) Systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value, and of objects used in religious worship Such measures are also directed at undermining the existence of a group of human beings. ARTICLE II (Punishable Offences)

I. The following are likewise deemed to be crimes of genocide: 1. any attempt to commit genocide; 2. the following preparatory acts: (a) studies and research for the purpose of developing the technique of genocide; (b) setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide;

Secretariat Draft E/447

237

(c) issuing instructions or orders, and distributing tasks with a view to committing genocide. II. The following shall likewise be punishable: 1. wilful participation in acts of genocide of whatever description; 2. direct public incitement to any act of genocide, whether the incitement be successful or not; 3. conspiracy to commit acts of genocide.

Comments on Article II This article lists other acts which are punishable under Article VII (attempts, preparatory acts, complicity, incitement, conspiracy to commit genocide.) “Attempts to commit genocide” No comments “Preparatory acts” As a rule preparatory acts do not fall under criminal law because the agent is unable to carry out his schemes. But it is different in the case of certain crimes against society. Preparatory acts for the crime of genocide should be punishable for a number of reasons. On the one hand genocide is an extremely grave crime, the effects of which, once it has been committed, are irreparable; on the other hand it is a crime which normally requires the support of a comparatively large number of individuals and substantial preparation. In order to make acts preparatory to the crime of genocide punishable, however, such acts must first be defined, otherwise there would be the possibility of arbitrary proceedings against political opponents for acts of no serious import or of doubtful significance. Article II, Section 2 gives the preparatory acts under three headings as follows:

238

Secretariat Draft E/447

(a) Firstly “studies and research for the purpose of defining the technique of genocide”. For example, chemists and dectors [sic] might be asked to undertake research in the gases to be used for mass executions. (b) This refers to the setting up of installations and the obtaining of articles or substances intended for genocide and covers the actual material preparations for genocide. (c) Instructions or orders and the distribution of tasks with a view to committing genocide. This refers to what might be called the “administrative” preparation of genocide by the designation of persons to carry out the policy, their grouping in teams, the establishment of a list of future victims, etc. “Wilful participation in acts of genocide in all its forms” This refers to participation by both principals and accessories. “Direct public incitement to any act of genocide” This does not mean orders or instructions by officials to their subordinates, or by the heads of an organization to its members, which are covered by the “preparatory acts” referred to above. It refers to direct appeals to the public by means of speeches, radio or press, inciting it to genocide. Such appeals may be part of an agreed plan but they may simply reflect a purely personal initiative on the part of the speaker. Even in the latter case, public incitement should be punished. It may well happen that the lightly or imprudently spoken word of a journalist or speaker himself incapable of doing what he advises will be taken seriously by some of his audience who will regard it as their duty to act on his recommendation. Judges will have to weigh the circumstances and show greater or lesser severity according to the position of the criminal and his authority, according to whether his incitement is premeditated or merely represents thoughtless words.

Secretariat Draft E/447

239

“Conspiracy to commit acts of genocide” Genocide can hardly be committed on a large scale without some form of agreement. Hence the mere fact of conspiracy to commit genocide should be punishable even if no “preparatory act” has yet taken place. ARTICLE III (Punishment of a Particular Offence)

All forms of public propaganda tending by their systematic and hateful character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act shall be punished.

Comments on Article III This Article is not concerned with direct and public incitement to any act of genocide, which falls within Article II. In cases provided for by Article III, the author of the propaganda would not recommend the commission of genocide, but would carry on such general propaganda as would, if successful persuade those impressed by it to contemplate the commission of genocide in a favourable light. Such propaganda is even more dangerous than direct incitement to commit genocide. Genocide cannot take place unless a certain state of mind has previously been created. The majority of people participating in genocide would be persons believing themselves to be honest citizens incapable of committing individual crimes for gain or in order to satisfy personal vengeance. They will be induced first to condone and later to commit genocide, because they will have been convinced that the existence of the human group designated as the victim of genocide is a very great evil, that this group represents error and perversion, that it imperils society, the nation, some religion, some political or social system, that it is an obstacle to progress, etc. . . . That is the philosophical and ideological preparation for genocide. Such propaganda must be prohibited, but it must also be carefully defined Political and social life is, in fact, composed of antagonisms and oppositions which often involve bitter and violent criticism, controversies and discussions. The various human groups of which society is composed often regard each other as rivals, antagonists, adversaries, or even enemies, and treat each other as such. There can be no question of prohibiting all criticism directed against a social group, even if this criticism is unjust,

240

Secretariat Draft E/447

impassioned and excessive. The prohibition of genocide must not provide a pretext for any infringement of the freedom of opinion nor be used as a means of preventing abuse of polemical campaigns. During elections, for instance, opponents often use exaggerated language which, taken literally, might at times be interpreted as reflecting intentions of genocide, whereas the violence really only lies in the language. Before any propaganda can be considered as likely to be preparatory to genocide, it must possess certain clearly defined characteristics. Article III of the draft submitted describes the propaganda falling under the Convention as follows: All forms of public propaganda tending by their systematic and hateful character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act . . .

Let us analyze the terms of this definition. “All forms of public propaganda” The propaganda must be public, that is to say, it must be addressed to public opinion as a whole or to a fraction of it. This excludes private conversations, which are usually carried on by ordinary private persons without responsibility and have only a slight influence. Private conversations are not likely to bring about the psychological and moral conditions in which genocide can be committed. We have said “all forms of propaganda”, using the plural, because not only are the sources of propaganda various (political, religious) but it may also assume many forms (speeches, broadcasts, the press, cinema, etc . . .) “Their systematic and hateful character” In order to make the idea of destroying a human group acceptable, this group must be represented in an odious light, the propaganda must necessarily be heavily charged with hatred and must be systematic, that is to say, repeated methodically. Propaganda “tending . . . to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act” If the propaganda openly advocated genocide, it would come within Article II (end), as already pointed out.

Secretariat Draft E/447

241

Article III provides specifically for propaganda which, without recommending it, inevitably leads to genocide. Persons won over by this propaganda will, when the question becomes acute, tend to regard genocide as a necessary, legitimate or excusable act, because the group concerned has already been denounced as a fundamentally bad element, constituting a mortal danger for the nation or for society. ARTICLE IV (Persons Liable)

Those committing genocide shall be punished, be they rulers, public officials or private individuals

Comments on Article IV 1. The Assembly resolution of 11 December 1946 states that “genocide is a crime under international law . . . for the commission of which principals and accomplices – whether private individuals, public officials or statesmen . . . are punishable.” The perpetration of genocide can indeed be the act of statesmen, officials or individuals. The heaviest responsibility is that of statesmen or rulers in the broad sense of the word, that is to say, heads of state, ministers and members of legislative assemblies, whose duty it is to abstain from organizing genocide personally and from provoking it and to prevent its commission by others. Nevertheless, officials who commit genocide at government orders – the most frequent case – or do so on their own initiative, also bear a heavy responsibility. Finally, private persons, that is to say, persons who are neither rulers nor officials, can also commit acts of genocide (“public incitement to any act of genocide”, Article 2 – II – 20, and propaganda – Article 3), either by collective action (through a political group, league, or clandestine or other association), or by individual action. 2. Mr. Donnedieu de Vabres, while admitting that the General Assembly resolution made no distinction between rulers and executives, thought that the definition of genocide should be restricted to the actions of rulers. He thought that, although the agents were subject to international jurisdiction, they would be prosecuted at common law (crime of homicide, etc.).

242

Secretariat Draft E/447

ARTICLE V (Command of the Law and Superior Orders)

Command of the law or superior orders shall not justify genocide.

Comments on Article V It should not be possible for offenders, whoever they may be, to take shelter behind a command of the law or superior orders. After the fall of a regime which has organized genocide, individuals and officials will no doubt invoke this excuse. They will say: “It was not for us to question the law whereby we were governed, or the commands which came to us from a superior authority. Out duty was to obey, and we obeyed.” Hence great care must be taken to provide expressly that command of the law or superior orders are no defence. In certain cases, of course, a command of the law or superior orders may constitute extenuating circumstances. That is a question for the judge. The principle, however, is that an individual who participated in genocide will not escape liability by pleading that the law or superior orders forced him to participate in genocide. ARTICLE VI (Provisions concerning Genocide in Municipal Criminal Law)

The High Contracting Parties shall make provision in their municipal law for acts of genocide as defined by Articles I, II, and III, above, and for their effective punishment.

Comments on Article VI It is essential that the Parties to the Convention should introduce into their criminal law provisions for the punishment of the acts of genocide as defined by the Convention. It did not seem advisable to establish in the Convention the punishments to be applied to various acts of genocide, because penal systems vary and because it is preferable to leave some freedom of action to States, whenever this does not present any real disadvantage. It is enough to say that the penalties should be sufficiently rigorous to make punishment effective.

Secretariat Draft E/447

243

ARTICLE VII (Universal Enforcement of Municipal Criminal Law)

The High Contracting Parties pledge themselves to punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed.

Comments on Article VII Preliminary Remarks Articles VI, VIII and IX should be considered as a whole. They lay down rules providing for trial of persons guilty of genocide by the courts of the one or other state or by an international court. When persons guilty of acts of genocide are in territory under the jurisdiction of a State, such State is bound to arrest these individuals and either to bring them before its own courts (Article VII), or to hand them over to another State which has requested their extradition (Article VIII), or to bring them before an international court (Article IX). Article VII provides for the first obligation. This article lays down the principle of the universality of punishment, which means that the contracting Parties undertake to punish those persons guilty of genocide who are in their territory, irrespective of their nationality or of the place where the crime was committed. ARTICLE VIII (Extradition)

The High Contracting Parties declare that genocide shall not be considered as a political crime and therefore shall be grounds for extradition. The High Contracting Parties pledge themselves to grant extradition in cases of genocide.

Comments on Article VIII Paragraph 1 This paragraph lays down the principle that genocide should not be considered as a political crime. It therefore constitutes grounds for extradition.

244

Secretariat Draft E/447

Paragraph 2 The High Contracting Parties pledge themselves to grant extradition for acts of genocide, which means that in such cases they would be released or their duty to bring the offenders before their own courts. Needless to say, the High Contracting Parties will not be obliged to grant extradition on a simple request. In such cases, they would be influenced by the general principles of international law in deciding whether to accede to a request for extradition. The two main contingencies in which a State would be justified in requesting extradition would be if the crime had been committed in its territory or if the victims of genocide were its nationals, even if the crime was not committed in its territory. ARTICLE IX (Trial of Genocide by an International Court)

The High Contracting Parties pledge themselves to commit all persons guilty of genocide under this Convention for trial to an international court in the following cases: 1. When they are unwilling to try such offenders themselves under Article VII or to grant their extradition under Article VIII. 2. If the acts of genocide have been committed by individuals acting as organs of the State or with the support or toleration of the State.

Comments on Article IX Article IX refers to cases in which the acts of genocide can or must be brought before an international court. First Case – The State which has arrested the persons guilty of genocide is free to bring them before an international court, although not obliged to do so. The State may refuse to try these persons for various reasons. It may not consider itself capable of seeing that justice is done; for instance, if the decision of the jury empanelled for the case is open to criticism. The State may also fear lest the trial further disturb its divided and excited public opinion, or it may be reluctant to risk the possibility of a decision by its courts attracting the animosity of other Powers, however unjustified.

Secretariat Draft E/447

245

The State may refuse to grant extradition on request, either because public opinion in the country, rightly or wrongly, objects; because the State requesting it does not appear capable of ensuring justice; because the latter State is in fact endeavouring to let the offender whose extradition it is requesting go unpunished; or because the State requesting extradition proposes to take revenge on political opponents under cover of punishing genocide. In all these cases, the State will have the option of being released from its responsibility without prejudicing the punishment of genocide by bringing the offenders before the international court. Whereas Mr. Donnedieu de Vabres and Mr. Pella were in favour of paragraph 1 of Article IX, Mr. Lemkin spoke in favour of its omission, since he thought that persons, other than rulers and leaders of criminal organizations, responsible for the acts defined by the Convention should not be brought before the international court, but should be tried or extradited. He said that as the cases of these other persons were of lesser importance, no action should lie in an international court, since this involved the use of complicated procedure. The danger would be that the complexities of the procedure might eventually result in the offenders going unpunished. Second Case – The State is obliged to bring acts of genocide before an international court, if these acts of genocide have been committed by individuals acting as organs of the State or with the support or toleration of the State. This relates to the trial of the rulers of a State, or of persons who conspired with these reulers [sic]; these constitute serious cases, of the greatest interest to the whole international community. The international court would be the final authority in such cases. ARTICLE X (International Court competent Two drafts are submitted for this section: to try Genocide) 1st draft: The court of criminal jurisdiction under Article IX shall be the International Court having jurisdiction in all matters connected with international crimes. 2nd draft: An international court shall be set up to try crimes of genocide (vide Annexes).

246

Secretariat Draft E/447

Comments on Article X Two drafts have been submitted: First draft: trial by an international court of criminal jurisdiction having general competence. If an international court having general competence is established, the trial of crimes of genocide will, of course be one of its functions. Mr. Donnedieu de Vabres thought that, on the basis of the distinction he had drawn between the trial of rulers and of agents, rulers should be justiciable in a criminal chamber to be set up within the International Court of Justice. Mr. Pella was in favour of creating such a chamber and agreed with Mr. Donnedieu de Vabres that if this idea were adopted, the draft adopted in 1928 by the International Association for Penal Law might be taken as a basis of discussion. Mr. Lemkin, however, thought that in the existing circumstances, and in the absence of a sufficiently developed international criminal law, the establishment of a permanent court of criminal jurisdiction having general competence would be premature. In any case, the question whether such a Court should be established is a general problem, outside the scope of the special problem of the punishment of genocide. Second draft: trial by a special international court to be set up under the present Convention. There may be two views on such an international court, with jurisdiction limited to cases of genocide: a permanent court (see Annex I) or an ad hoc court (see Annex II). Mr. Donnedieu de Vabres and Mr. Pella thought that the choice between there two types of special courts should be left to the Assembly. In order to facilitate the study of this problem, Mr. Donnedieu de Vabres, Mr. Pella and Mr. Lemkin amended the aforementioned annexes concerned with these two variants. (see Page . . . . . . of present text).

Secretariat Draft E/447

247

ARTICLE XI (Disbanding of Groups or The High Contracting Parties pledge themOrganizations Having Participated selves to disband any group or organizain Genocide) tion which has participated in any act of genocide mentioned in Articles I, II, and III, above.

Comments on Article XI The crime of genocide is of a “social” nature, in the sense that it is always, to a greater or smaller extent, organized, provoked or instigated by movements, groups and associations. Hence groups and organizations bearing the responsibility for genocide must be disbanded. Furthermore, any clandestine activities which these groups or organizations may continue to exercise after their dissolution must be punished. In such cases, however, the leaders and members of these groups or organisations should be punished individually for their clandestine activities. ARTICLE XII (Action by the United Nations to Irrespective of any provisions in the foregoing Prevent or to Stop Genocide) articles, should the crimes as defined in this Convention be committed in any part of the world, or should there be serious reasons for suspecting that such crimes have been committed, the High Contracting Parties may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations.

Comments on Article XII 1. All criminal law has a preventive effect. The fact that there is a law tends to deter and prevent action by persons who might be tempted to commit a crime. Experience shows, however, that the preventive effect of threats is limited, since these do not stop certain criminals, either because

248

Secretariat Draft E/447

their passions overwhelm their prudence or because they consider the threat of punishment illusory. In the international field even more than in the national, it is essential to exercise constant vigilance, and preventive action must be taken, either before the harm is done or before it has assumed wide proportions, for then it takes on the nature of a catastrophe, the effects of which are to a great extent irreparable. There is no need to expatiate on the preventive action which would be taken by the United Nations, for this is a question of the general competence of the United Nations being applied in a particular case. It must nevertheless be pointed out that, if preventive action is to have the maximum chances of success, the Members of the United Nations must not remain passive or indifferent. The Convention for the punishment of crimes of genocide should, therefore, bind the States to do [page 46] everything in their power to support any action by the United Nations intended to prevent or stop these crimes. 2. Mr. Pella and Mr. Lemkin thought it desirable to provide that the Secretary-General of the United Nations should have the duty of informing the competent organs of the United Nations. For various reasons, Governments might hesitate to take the initiative in submitting a question to the organs of the United Nations. In such cases, the Secretary-General, being free of the particular (and possibly perfectly legitimate) preoccupations of States, would act as a representative of the common cause and lay the matter before the organs of the United Nations. This proposal, however, even in the opinion of its authors, raises the constitutional question whether a Convention to which not every Member of the United Nations will necessarily be a party may confer upon the Secretary-General powers or duties relating to the application of the Charter which are not already laid down by the Charter. [page 46 end]

Secretariat Draft E/447

249

ARTICLE XIII (Reparations to Victims of When genocide is committed in a country by the Genocide) government in power or by sections of the population, and if the government fails to resist it successfully, the State shall grant to the survivors of the human group that is a victim of genocide redress of a nature and in an amount to be determined by the United Nations.

Comments on Article XIII 1. This article contains far-reaching principles. It represents an application of the principle that populations are to a certain extent answerable for crimes committed by their governments which they have condoned or which they have simply allowed their governments to commit. Some, perhaps, will contest the validity of this principle by arguing that often criminal intent, the basis of criminal liability, was absent in the population and that the crimes committed by governments were so committed against the will of the majority of the people, the government representing only a minority which forced its will on the people; or again, that the country as a whole did not know what it was doing because it was misled by systematic government propaganda without any means of opposition. The first answer to that will be that things do not actually always happen like that. Sometimes criminal conduct by governments does not betray the will of the people but accurately reflects the passions, hatreds and prejudices common to the majority or a large part of the population, the remainder of the population being indifferent, passive or offering only mild opposition. But even where there was no criminal intent on the part of the majority of the people of the country, it is just that the country as a whole should be held to account for the following reasons: (a) In this case, the nature of the liability of a whole population is not “penal ”, involving punishment, but “civil”, involving the obligation to make reparations to victims of genocide. Hence, such liability can

250

Secretariat Draft E/447

be created even in the absence of a general criminal intent on the part of the nation as a whole. (b) “Civil” liability, in traditional legal thought, is based on the idea of a wrongful act.* Such wrong need not be intentional: ineptitude or negligence are sufficient grounds for liability. Whenever bad governments rule over a people the latter has always been to blame at some time or other. It may be charged with irresponsibility, negligence, indifference, naiveté, lack of judgment, or practical good sense, of courage and will, etc. If the people concerned had not displayed some of those faults it would never have brought or allowed to come to power the governments which committed genocide, or were unable to prevent it. (c) Furthermore, “civil” liability for genocide must be borne by somebody. If the country in which genocide was committed is not to be held responsible for reparations, who is? 2. What is redress to consist of? Redress may be made to members of the human group who are victims of genocide, or to the group as a whole. (a) Redress for members of the group The dead cannot be brought back to life but compensation or pensions may be given to the spouses, children, or other persons maintained by the deceased. There may be restitution of seized property or compensation corresponding to the value of the goods in question, wherever such restoration is not possible. Compensation may be made to persons who have been imprisoned, deported or maltreated. Special benefits may be granted to survivors of the group in the form of houses, scholarships, etc. (b) Redress for the group as such Such redress may take various forms: reconstitution of the moral, artistic and cultural inheritance of the group (reconstruction of monuments,

Secretariat Draft E/447

251

libraries, universities, churches, etc. and compensation to the group for its collective needs). * The modern view of liability as being based in part on the idea of risk does not exclude the idea of a wrong. It can, of course, happen that the idea of risk, involving much more far-reaching liability than the idea of a wrong, makes it unnecessary to look for a wrong. But the two ideas are often present together. Where liability is founded on the idea of risk, the idea of a wrong is not necessarily ignored. The wrong is taken into account in certain cases e.g. as a factor aggravating liability of the persons who in accepting the risk committed a serious wrong; or, if the person who suffered the injury himself committed a serious wrong, as a factor excluding or limiting the amount of damages.

B. FINAL PROVISIONS* ARTICLE XIV (Settlement of Disputes on Interpretation or Application of the Convention)

Disputes relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice.

Comments on this article 1. Difficulties may arise regarding the operation of a Convention. A suitable method of settling them is to submit them to a third party who shall decide between the conflicting parties. If a dispute arises regarding “the interpretation” of the Convention, i.e. regarding the meaning of its provisions, or “the application” of the Convention, i.e. if it is to be ascertained whether one of the parties has faithfully discharged his obligations, it is normal procedure for the dispute to be submitted to a judicial authority. The International Court of Justice would appear to be the judicial authority best qualified to deal with such disputes. Since the Convention is not intended to regulate the particular relations between States but to protect an essential interest of the international community, any dispute is a matter affecting all the parties to the Convention. Hence, such dispute should not be settled by an authority arbitrating between two or more States exclusively, for then its decision would lack any claim to be binding on other States.

252

Secretariat Draft E/447

The International Court of Justice, on the contrary, is an organ of the United Nations established by virtue of the Charter itself; it is a court whose authority is recognized by all the Members of the United Nations, and should consequently be given jurisdiction to settle the disputes concerned. * Articles XIV–XXIV concerning final arrangements were to be drafted after the experts had stated their opinion on the Convention as a whole. As the experts had not had sufficient time to deal with them, Mr. Pella proposed that the final provisions might confidently be entrusted to one of Prof. Giraud’s experience.

ARTICLE XV (Language – Date of the Convention)

The present Convention, of which the . . . . . . . , . . . . . . ., . . . . . , . . . . . . . and . . . . . . . texts are equally authentic, shall bear the date of . . . . .

Comments on this article The General Assembly, that is to say the Plenary Assembly (and its Committees) will play the part of a diplomatic Convention summoned to prepare and adopt a Convention. When agreement has been reached within the General Assembly, the latter shall by passing a final resolution adopt the Convention and open it either for signature or accession by Members of the United Nations.** * This will be the date when the General Assembly passes a resolution adopting the text of the Convention and opening it either for signature or for accession by the Members of the United Nations. ** Regarding the question of whether the Convention is to be open to signatures or accessions, see Article XVI below.

ARTICLE XVI (First Draft) (What States may become Parties to the Convention. Ways to become Party to it) 1. The present Convention shall be open to accession on behalf of any Member of the United Nations or any non-member State to which an invitation has been addressed by the Economic and Social Council.

Secretariat Draft E/447

253

2. The instruments of accession shall be transmitted to the Secretary-General of the United Nations.

(Second Draft) 1. The present Convention shall be open until 31 . . . . 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation has been addressed by the Economic and Social Council. The present Convention shall be ratified, and the instruments of ratification shall be transmitted to the Secretary-General of the United Nations. 2. After 1 . . . . . . . . . 1948** the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be transmitted to the Secretary-General of the United Nations.

Comments on Article XVI 1. Common feature of the two drafts The question is who may become a Party to the Convention. Obviously the Convention will be open to all Members of the United Nations. Participation of States not Members of the United Nations, is also desirable. It is not possible, however, to employ a general formula which would open the Convention indiscriminately to all non-Member States. Firstly, there is no official list of such States, and secondly, participation by a State may not be desirable at a given moment for various reasons. The choice of States to be invited should therefore be in the hands of a United Nations organ, which might be the Economic and Social Council. Obviously, the Economic and Social Council will not issue invitations once and for all. If changes should occur in the future, if, for example, new States are formed or if there is a change in the attitude of certain States which had not been considered eligible to receive an invitation, the Economic and Social Council will be free to issue new invitations.

254

Secretariat Draft E/447

2. Explanation of the first draft This draft departs from the traditional procedure providing on the one hand for signature followed by ratification: and on the other hand for accessions. This latter procedure is appropriate in the case of conventions prepared by diplomatic conferences. The delegates to these conferences used to be able to sign forthwith the adopted Convention without binding the State they represented, and ratification would take place later after the delegates had reported on their mission to their governments or when the executive power had obtained requisite authorization from Parliament. In the case of a Convention adopted by the General Assembly of the United Nations, it seems that the traditional procedure involves unnecessary complications. The vote cast in the Assembly by highly representative delegations denotes the assumption of a definite attitude towards the Convention. What purpose would there be then in asking for a signature which has to be followed by ratification? If, as is generally the case, States are not able to bind themselves immediately they can wait with committing themselves until they are able to do so by acceding to the Convention. It is to be noted that the system represented by the first draft has already been employed for certain general Conventions and that it constitutes the system regularly used for International Labour Conventions. 3. Explanation of the second draft The second draft which provides for a preliminary signature period to be followed by later ratifications and accessions upon the expiry of that period, does not call for any further comment. * i.e. about 6 months after the adoption of the Convention. ** i.e. at the end of the 6 months period aforesaid.

ARTICLE XVII (Reservations)

No proposition is put forward for the moment.

Comment At the present stage of the preparatory work, it is doubtful whether reservations ought to be permitted and whether an article relating to reservations ought to be included in the Convention.

Secretariat Draft E/447

255

We shall restrict ourselves to the following remarks: 1. It would seem that reservations of a general scope have no place in a Convention of this kind which does not deal with the private interests of a State, but with the preservation of an element of international order. For example, the Convention will or will not protect this or that human group. It is unthinkable that in that respect the scope of the Convention should vary according to the reservations possibly accompanying accession by certain States. 2. Perhaps in the course of discussion in the General Assembly it will be possible to allow certain limited reservations. These reservations might be of two kinds: either reservations which would be defined by the Convention itself, and which all the States would have the option to express, or questions of detail which some States might wish to reserve and which the General Assembly might decide to allow. ARTICLE XVIII (Coming into Force)

1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of the accession (or . . . . ratification and accession)* of not less than . . . Contracting Parties. 2. Accessions* received after the Convention has come into force shall become effective as from the ninetieth day following the date of receipt by the SecretaryGeneral of the United Nations.

Comment on Article XVIII First paragraph – As stated in the introduction, the minimum number of accessions necessary to enable the Convention to come into force must be fixed. In view of the nature of the Convention, parts of which will be universally applicable, it would seem necessary that the number of accessions should be rather high. A term of 90 days should be allowed to elapse between the receipt of the accession required to enable the Convention to come into force, and its actual coming into force. The States should be given prior notice of the Convention’s entry into force in order that they may take the necessary steps as far as they themselves are concerned.

256

Secretariat Draft E/447

Second paragraph – When once the Convention has come into force, new accessions shall similarly take effect 90 days after receipt. * The two forms indicated above are alternative, depending on whether it is decided to consider accession as the only procedure necessary for becoming Party to the Convention, or whether signature followed by ratification and accession, is required.

ARTICLE XIX (Duration of the Convention – 1st draft Denunciation) 1. The present Convention shall remain in effect for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. 2nd draft The present Convention may be denounced by a written notification addressed to the SecretaryGeneral of the United Nations. Such notification shall take effect one year after the date of its receipt.

Comments 1. Common feature of the two drafts Both the drafts submitted provide for the possibility of Parties to the Convention terminating their obligations by denouncing the Convention. Should there be a right of denunciation? Some consider that, in the interests of the progress of international law, States should not be allowed to relieve themselves of their obligations, once they have contracted them, in the case of Conventions serving a purpose of general interest and having universal application.

Secretariat Draft E/447

257

There are, however, three reasons against regarding obligations under Conventions of this type as permanent. 1. A Convention of general application cannot be enforced unless it has the moral support of the governments and peoples bound by it. As soon as that condition ceases to be fulfilled, the Convention becomes practically augatory. 2. If States are not obliged to bind themselves, then sound logic dictates that they should not be obliged to remain bound. Practically speaking, when States know that they will be able to escape the Convention, they will be less reluctant to accede to it. 3. In the past, governments have argued that if a Convention neither provides for denunciation nor is limited in time, it follows, not that the obligation is of a permanent character, but, on the contrary, that the Convention may be dencounced [sic] at any moment. Explanation of the first draft This draft permits States to dissociate themselves, but it restricts their freedom in that respect and creates a certain stability. The Convention would be concluded for a period of six years from the date of its coming into force, renewable indefinitely for a like period by tacit consent. At the end of each period, however, States would have the right to be released by giving notice of denunciation. In that way, negligence or inertia on the part of governments concerned would operate in favour of the continuance of the obligation. Explanation of the second draft This draft allows States to be released at any time by giving notice which would be effective after a comparatively short period (1 year). ARTICLE XX (Abrogation of the Convention)

Should the number of Members of the United Nations and non-member States bound by this Convention become less than. . . . .* as a result of denunciation, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative.

258

Secretariat Draft E/447

Comments on Article XX Since Article XVIII requires . . . . . . accessions to bring the Convention into operation, then, if it is logical that the Convention lapses, if as a result of denunciation the number of States bound by the Convention drops below . . . . . . * Number required to make the Convention operative.

ARTICLE XXI (Revision of the Convention)

A request for the revision of the present Convention may be made at any time time [sic] by any State which is a party to this Convention by means of a written notification addressed to the Secretary-General.

The Economic and Social Council shall decide upon the measures to be taken in respect of such a request. Comments on Article XXI No comments. ARTICLE XXII (Notifications by the SecretaryGeneral)

The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XVI of all accessions (or signatures, ratifications and accessions) received in accordance with Article XVI and XVIII, of denunciations received in accordance with Article XIX, of the abrogation of the Convention effected as provided by Article XX and of requests for revision of the Convention made in accordance with Article XXI.

Comments on Article XXII The Secretary-General is to inform the States interested, that is to say the States parties to the Convention or likely to become parties to the Convention, of all the acts regarding the Convention of which he has been notified: accessions, denunciations, etc.

Secretariat Draft E/447

259

ARTICLE XXIII (Deposit of the Original of the Convention and Transmission of Copies to Governments)

1. A copy of the Convention signed by the President of the General Assembly and the Secretary-General of the United Nations shall be deposited in the Archives of the Secretariat of the United Nations. 2. A certified copy shall be transmitted to all Members of the United Nations and to non-member States mentioned under Article. . . . . .

Comments on Article XXIII No comments. ARTICLE XXIV (Registration of the Convention) The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

Comments on Article XXIV No comments. SUGGESTIONS SUBMITTED BY THE EXPERTS Prof. Pella and Prof. Lemkin proposed that the resolution of the General Assembly adopting the Convention should contain two recommendations reading as follows: The Assembly recommends that: 1. The High Contracting Parties should take suitable steps likely to allay such racial, national, or religious antagonisms or conflicts as may lead to genocide. 2. Special national offices should be created by each High Contracting Party in order to centralize information on antagonisms between human groups and to transmit such information to the Secretary-General of the United Nations.

260

Secretariat Draft E/447

PART III OPINION OF THE COMMITTEE ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION

The resolution of the Economic and Social Council dated 28 March 1947 requests that the Secretary-General consult the Committee set up by the General Assembly to study progressive development of International Law and its codification. That Committee’s Chairman, by a letter dated 17 June 1947 to the Secretary-General replied as follows to the request for an opinion: The Committee has received, under cover of your letter of 10 June 1947 the text of “the draft convention for the prevention and punishment of the crime of genocide, drawn up by the Secretariat, with the assistance of experts in the field of international and criminal law, in accordance with the Resolution of the Economic and Social Council of 28 March 1947.” The Committee fully realizes the urgency, which was expressed in the recommendation contained in the Resolution of the General Assembly of 11 December 1946, of organizing co-operation between States with a view to facilitating the speedy prevention and punishment of the crime of genocide. It notes, however, that the text prepared by the Secretariat, owing to lack of time, has not yet been referred to the Member Governments of the United Nations for their comments, as is contemplated in the Resolution of the Economic and Social Council, and it regrets that, in the absence of information as to the views of the governments, it feels unable at present to express any opinion in the matter.

ANNEXES CONCERNING ARTICLE X Two drafts were submitted for this article of the Convention. The first draft provides that crimes of genocide shall be brought before the International Criminal Court having general jurisdiction to try international crimes. The second draft submitted to provide for the case of the absence of such Court and for the establishment of an International Tribunal with jurisdiction limited to the international trial of crimes of genocide.

Secretariat Draft E/447

261

Such a Tribunal might be either a permanent Tribunal or an ad hoc Tribunal constituted for the specific purpose of trying cases of genocide. The experts consulted by the Secretary-General prepared two annexes corresponding to these two possibilities. They were guided by the Convention for the Creation of an International Criminal Court for the Prevention and Punishment of Terrorism concluded at Geneva on 16 November 1937 after the assassination at Marseille. NOTE: Some articles of Annexes I and II reproduce textually articles from the Convention of 16 November 1937 for the Creation of International Criminal Court whilst others reproduce articles from the said Convention with amendments which are mostly purely of form. In the margin, we give the numbers of the articles of the Convention of 16 November 1937 which were taken as models and we add “amended” whenever such article is not reproduced entirely, the new passages being in italics.

262

Secretariat Draft E/447

ANNEX I ESTABLISHMENT OF A PERMANENT INTERNATIONAL CRIMINAL COURT FOR THE PUNISHMENT OF ACTS OF GENOCIDE

Convention 16 Nov. 1937 (Article 1 amended) Article 1 An International Criminal Court for the trial, as hereinafter provided, of persons accused of an offence dealt with in the Convention for the Prevention and Punishment of Genocide is hereby established. Article 2 1. In cases of acts of Genocide committed by individuals acting as organs of the State or having been supported or tolerated by the State, each High Contracting Party and any other State which arrested such individuals on its territory may, if unwilling to extradite or punish the said individuals, request* . . . . . . . . . . . . . . . . . . . . . . to commit them for trial to the Court. 2. The act whereby a State requests . . . . . . . . . . . . . . . . . . .* to commit an accused for trial to the Court shall contain a statement of the main charges and evidence in support thereof. 3. If the . . . . . . . . . . . . . . . . . .* is of the opinion that the accused should be committed for trial to the Court, it shall designate the persons instructed to act for the prosecution. 4. The . . . . . . . . . . . . . . . . . . .* shall transmit to the Court all the dossiers containing the incriminating evidence. Upon such transmission the matter shall be deemed to be before the Court. * Request to be addressed to the Economic and Social Council or to the Security Council of the United Nations.

Convention 16 Nov. 1937 (Art. 3)

Secretariat Draft E/447

263

Article 3 The Court shall be a permanent body, but shall sit only when it is seized of proceedings for an offence within its jurisdiction. Convention 16 Nov. 1937 (Art. 4 amended) Article 4 1. The seat of the Court shall be established at . . . 2. For any particular case, the President may take the opinion of the Court and the Court may decide to meet elsewhere subject to the consent of the State on whose territory such meeting is to be held. Convention 16 Nov. 1937 (Art. 5 abridged) Article 5 The Court shall be composed of judges chosen from among jurists who are acknowledged authorities on oriminal [sic] law. Convention 16 Nov. 1937 (Art. 6 amended) Article 6 The Court shall consist of seven regular judges and seven deputy judges, each belonging to a different nationality, but so that the regular judges and deputy judges shall be nationals of the High Contracting Parties. Convention 16 Nov. 1937 (Art. 7 amended) Article 7 1. Any Member of the United Nations and any non-Member State, in respect of which the Convention for the Prevention and Punishment of Genocide is in force, may nominate not more than two candidates for appointment as judges of the Court. A panel of all the candidates so nominated shall be drawn up for this purpose. 2. The International Court of Justice shall be requested to choose the regular and deputy judges from the persons so nominated. Convention 16 Nov. 1937 (Art. 8)

264

Secretariat Draft E/447

Article 8 Every member of the Court shall, before taking up his duties, give a solemn undertaking in open Court that he will exercise his powers impartially and conscientiously. Convention 16 Nov. 1937 (Art. 9) Article 9 The High Contracting Parties shall grant the members of the Court diplomatic privileges and immunities when engaged on the business of the Court. Convention 16 Nov. 1937 (Art. 10 amended) Article 10 1. Judges shall hold office for seven years. 2. Every two years, one regular and one deputy judge shall retire. 3. The order of retirement for the first period of seven years shall be determined by lot when the first election takes place. 4. Judges may be re-appointed. 5. Judges shall continue to discharge their duties until their places have been filled. 6. Nevertheless, judges, though replaced, shall finish any cases which they have begun. Convention 16 Nov. 1937 (Art. 11 amended) Article 11 1. Any vacancy, whether occurring on the expiration of a judge’s term of office or for any other reason, shall be filled as provided in Article 7. 2. In the event of the resignation of a member of the Court, the resignation shall take effect on notification being received by the Registrar. 3. If a seat on the Court becomes vacant more than twelve months before the date at which a new election to that seat would normally take place, the vacancy shall not be filled before that date. Convention 16 Nov. 1937 (Art. 12)

Secretariat Draft E/447

265

Article 12 A member of the Court cannot be dismissed unless in the unanimous opinion of all the other members, including both regular and deputy judges, he has ceased to fulfil the required conditions. Convention 16 Nov. 1937 (Art. 13) Article 13 A judge appointed in place of a judge whose period of appointment has not expired shall hold the appointment for the remainder of his predecessor’s term. Convention 16 Nov. 1937 (Art. 14 amended) Article 14 The Court shall elect its President and Vice-President from its members for a term of seven years. In the event of the Presidency or Vice-Presidency becoming vacant, the Court shall hold fresh elections which may be conducted by correspondence. Convention 16 Nov. 1937 (Art. 15) Article 15 The Court shall establish regulations to govern its practice and procedure. Convention 16 Nov. 1937 (Art. 17) Article 16 The Court’s archives shall be in the charge of the Registrar. Convention 16 Nov. 1937 (Art. 18 amended) Article 17 The number of members who shall sit to constitute the Court shall be seven. Convention 16 Nov. 1937 (Art. 19(1))

266

Secretariat Draft E/447

Article 18 Members of the Court may not take part in trying any case in which they have previously been engaged in any capacity whatsoever. In case of doubt, the Court shall decide. Convention 16 Nov. 1937 (Art. 19(2)) Article 19 If, for some special reason, a member of the Court consider that he should not sit to try a particular case, he shall so notify the President as soon as he has been informed that the Court is seized of that case. Convention 16 Nov. 1937 (Art. 20 amended) Article 20 1. If the presence of seven regular judges is not secured, the necessary number shall be made up by calling upon the deputy judges in their order on the list. 2. The list shall be prepared by the Court and shall have regard, first, to priority of appointment and, secondly, to age. Convention 16 Nov. 1937 (Art. 21 amended) Article 21 1. The substantive criminal law to be applied by the Court shall be that of the territory on which the offence was committed if the country concerned is a party to the Convention and, in in other cases, the law of the country which applied to the Court under Article 3. 2. Any dispute as to what substantive criminal law is applicable shall be decided by the Court. Convention 16 Nov. 1937 (Art. 22 amended) Article 22 If the court has to apply, in accordance with Article 21, the law of a State of which no sitting judge is a national, the Court may invite a jurist who is a national of the said State and an acknowledged authority on such law to sit with it in a consultative capacity as a legal assessor. Convention 16 Nov. 1937 (Art. 26(2))

Secretariat Draft E/447

267

Article 23 Any person directly injured by the offence may, if authorized by the Court, and subject to any conditions which it may impose, constitute himself partie civile before the Court; such person shall not take part in the oral proceeding except when the Court is dealing with the damages. Convention 16 Nov. 1937 (Art. 27) Article 24 The Court may not entertain charges against any person except the person committed to it for trial, or try any accused person for any offences other than those for which he has been committed. Convention 16 Nov. 1937 (Art. 28 amended) Article 25 The Court shall not proceed further with the case and shall order the accused to be discharged if the prosecution is withdrawn by . . .* * The Economic and Social Council or the Security Council of the United Nations.

Convention 16 Nov. 1937 (Art. 29 amended) Article 26 1. Accused persons may be defended by advocates belonging to a Bar and approved by the Court. 2. If provision is not made for the conduct of the defence by a barrister chosen by the accused, the Court shall assign to each accused or group of accused a counsel selected from advocates belonging to a Bar. Convention 16 Nov. 1937 (Art. 30) Article 27 The file of the case and the statement of the partie civile shall be communicated to the person who is before the Court for trial. Convention 16 Nov. 1937 (Art. 31)

268

Secretariat Draft E/447

Article 28 1. The Court shall decide whether a person who has been committeed [sic] to it for trial shall be placed or remain under arrest. Where necessary, it shall determine on what conditions he may be provisionally set at liberty. 2. The State on the territory of which the Court is sitting shall place at the Court’s disposal a suitable place of internment and the necessary staff of warders for the custody of the accused. Convention 16 Nov. 1937 (Art. 32) Article 29 The parties may submit to the Court the names of witnesses and experts, but the Court shall be free to decide whether they shall be summoned and heard. The Court may always, even of its own motion, hear other witnesses and experts. The same rules shall apply as regards all evidence. Convention 16 Nov. 1937 (Art. 33) Article 30 Any letters of request which the Court considers it necessary to have despatched shall be transmitted to the State competent to give effect thereto by the method prescribed by the regulations of the Court. Convention 16 Nov. 1937 (Art. 34 amended) Article 31 No examination, no hearing of witnesses or experts and no confrontation may take place before the Court except in the presence of the counsel for the accused and the representatives of . . . . . . . . . . . . . . . . . .* * The Economic and Social Council or the Security Council.

Convention 16 Nov. 1937 (Art. 35(1))

Secretariat Draft E/447

269

Article 32 The hearings before the Court shall be public. Convention 16 Nov. 1937 (Art. 36) Article 33 The Court shall sit in private to consider its judgment. Convention 16 Nov. 1937 (Art. 37) Article 34 The decisions of the Court shall be by majority of the judges. Convention 16 Nov. 1937 (Art. 38) Article 35 Every judgment or order of the Court shall state the reasons therefor and be read at a public hearing by the President. Convention 16 Nov. 1937 (Art. 39) Article 36 1. The Court shall decide whether any object is to be confiscated or be restored to its owner. 2. The Court may sentence the persons committed to it to pay damages. 3. High Contracting Parties in whose territory objects to be restored or property belonging to convicted persons are situated shall be bound to take all the measures provided by their own laws to ensure the execution of the sentences of the Court. 4. The provisions of the preceding paragraph shall also apply to cases in which pecuniary penalties imposed by the Court or costs of proceedings have to be recovered. Convention 16 Nov. 1937 (Art. 40 amended)

270

Secretariat Draft E/447

Article 37 1. Sentences involving loss of liberty shall be executed by a High Contracting Party chosen with his consent by the Court. Such consent may not be withheld by the State which brought the matter before the . . .* under Article 2 2. The Court shall determine the way in which any fines shall be dealt with. * The Economic and Social Council or the Security Council.

Convention 16 Nov. 1937 (Art. 41 amended) Article 38 If sentence of death has been pronounced, the State designated by the Court to execute the sentence shall, if its national law does not provide for the death penalty be entitled to substitute therefore the most severe penalty provided by the said law which involves loss of liberty. Convention 16 Nov. 1937 (Art. 42 amended) Article 39 The right of pardon shall be exercised by the State which has to enforce the penalty unless within a period of one month from the date on which the State concerned has informed it of its desire to exercise such right the . . .* shall have entered an objection. * The Economic and Social Council and the Security Council.

Convention 16 Nov. 1937 (Art. 43 amended) Article 40 1. Against convictions pronounced by the Court, no proceedings other than an application for revision shall be allowable. 2. The Court shall determine in its rules the cases in which an application for revision may be made.

Secretariat Draft E/447

271

3. The States mentioned in Article 2, and the persons committed for trial of the court, shall have the right to ask for a revision. Convention 16 Nov. 1937 (Art. 44 amended) Article 41 1. The judges shall while sitting receive allowances to be borne by the respective State of which each judge is a national, on the basis of a scale established by the High Contracting Parties. 2. There shall be created by contributions from the High Contracting Parties a common fund from which the costs of the proceedings and other expenses involved in the trial of cases, including any fees and expenses of counsel assigned to the accused by the Court, shall be defrayed, subject to recovery from the accused if he is convicted. The special allowance to the Registrar and the expenses of the Registry shall be met out of this fund. Convention 16 Nov. 1937 (Art. 45 amended) Article 42 1. The Court shall decide any questions as to its own jurisdiction arising during the hearing of a case; it shall for this purpose apply the provisions of the present Convention for the Prevention and Punishment of Genocide and the general principles of law. 2. If a High Contracting Party, not being the Party who sent the case in question for trial to the . . . . . . . . .*, disputes the extent of the Court’s jurisdiction in relation to the jurisdiction of his own national courts and does not see his way to appear in the proceedings in order that the question may be decided by the International Criminal Court, the question shall be treated as arising between such High Contracting Party and the High Contracting Party who sent the case for trial to the Court, and shall be settled as provided in Article 14 of the Convention for the Prevention and Punishment of Genocide. * The Economic and Social Council or the Security Council.

272

Secretariat Draft E/447

Article 43 Whenever the Court is unable to deal with a possible accumulation of actions it may establish additional sections. Such sections shall consist of seven judges. Each section shall be presided over by a regular judge of the Court elected by the regular and deputy judges of the Court in general assembly. Lots shall be drawn to elect the other judges to the various sections. If, owing to an accumulation of actions the number of regular or deputy judges is insufficient to produce a full complement of all the sections created, vacancies may be filled by lot by persons appearing on the panel referred to in Article 7, paragraph 1. In all cases however, and irrespective of the number of sections created, such sections may not be presided over except by a regular judge or, in the absence of a regular judge, by a deputy judge of the International Criminal Court.

Secretariat Draft E/447

273

ANNEX II ESTABLISHMENT OF AN AD HOC INTERNATIONAL CRIMINAL COURT FOR THE PUNISHMENT OF ACTS OF GENOCIDE

Article 1 1. Each State shall, within a period of one month from the date on which the Convention for the Prevention and Punishment of Genocide comes into force with reference to such State, designate two persons who are acknowledged authorities on Criminal Law to hold the office of judge in an International Criminal Court for the Punishment of Genocide if called upon. 2. No person may be designated who is not a national of one of the High Contracting Parties to the said Convention. 3. The names of the persons so designated shall be communicated to the President of the International Court of Justice who shall place them on the panel. Article 2 1. In the case of acts of Genocide commited [sic] by individuals acting as organs of the State or with the support or toleration of the State, each High Contracting Party and any other State which arrested such individuals on its territory may, if unwilling to extradite or punish the said individuals, request* . . . . . . . . . . . . . to commit them for trial to the Court. 2. The instrument whereby a State requests . . . . . . . . . . . . .* to commit an accused for trial to the Court shall contain a statement of the main charges and evidence in support thereof. 3. If the . . . . . . . . . . . . . . . . . .** is of the opinion that such request should be complied with, it shall forthwith approach the International Court of Justice requesting it to select seven regular and seven deputy judges from the panel provided for in Article 1.

274

Secretariat Draft E/447

4. The . . . . . . . . . . . . . . . . . . . .* shall also designate the persons instructed to act for the prosecution. * Request to be addressed to the Economic and Social Council or to the Security Council of the United Nations. ** The Economic and Social Council or the Security Council of the United Nations.

Article 3 The . . . . . . . . . . . . . . . . . . . .* shall at the same time decide where the Court is to sit. If such place shall be in territory other than that where the permanent headquarters of the United Nations is established or in territory where the seat of the International Court of Justice is established, the consent of the State to which such territory belongs shall be required. * The Economic and Social Council or the Security Council of the United Nations.

Article 4 For the purposes of constituting the International Criminal Court, the President of the International Court of Justice shall forthwith summon the persons designated under Article 1. Convention 16 Nov. 1937 (Art. 8 amended) Article 5 The first meeting of the International Criminal Court shall be presided over either by the President or Vice-President of the International Court of Justice or by a judge of that Court designated for that purpose. At such first meeting which shall be public, the members of the International Criminal Court shall before taking up their duties give a solemn undertaking to exercise their powers impartially and conscientiously. Convention 16 Nov. 1937 (Article 9) Article 6 The High Contracting Parties shall grant the members of the Court diplomatic privileges and immunities when engaged on the business of the Court. Convention 16 Nov. 1937 (Art. 12)

Secretariat Draft E/447

275

Article 7 A member of the Court cannot be dismissed unless in the unanimous opinion of all the other members, including both regular and deputy judges, he has ceased to fulfil the required conditions. Convention 16 Nov. 1937 (Art. 14 amended) Article 8 The Court shall elect its President and Vice-President from its members. Convention 16 Nov. 1937 (Art. 15) Article 9 The Court shall establish regulations to govern its practice and procedure. Convention 16 Nov. 1937 (Art. 17) Article 10 The Court’s archives shall be in the charge of the Registrar. Convention 16 Nov. 1937 (Art. 18 amended) Article 11 The number of members who shall sit to constitute the Court shall be seven. Convention 16 Nov. 1937 (Art. 19(1) ) Article 12 Members of the Court may not take part in trying any case in which they have previously been engaged in any capacity whatsoever. In case of doubt, the Court shall decide. Convention 16 Nov. 1937 (Art. 19(2) ) Article 13 If, for some special reason, a member of the Court considers that he should not sit to try a particular case, he shall so notify the President as soon as he has been informed that the Court is seized of that case. Convention 16 Nov. 1937 (Art. 20(1) amended)

276

Secretariat Draft E/447

Article 14 If the presence of seven regular judges is not secured, the necessary number shall be made up by calling upon the deputy judges in their order on the list. Convention 16 Nov. 1937 (Art. 21 amended) Article 15 1. The substantive criminal law to be applied by the Court shall be that of the territory on which the offence was committed if the country concerned is a party to the Convention and, in other cases, the law of the country which applied to the Court under Article 2. 2. Any dispute as to what substantive criminal law is applicable shall be decided by the Court. Convention 16 Nov. 1937 (Art. 22 amended) Article 16 If the Court has to apply, in accordance with Article 15, the criminal law of a State of which no sitting judge is a national, the Court may invite a jurist who is a national of the said State and an acknowledged authority on such law to sit with it in a consultative capacity as a legal assessor. Convention 16 Nov. 1937 (Art. 26(2)) Article 17 Any person directly injured by the offence may, if authorized by the Court, and subject to any conditions which it may impose, constitute himself partie civile before the Court; such person shall not take part in the oral proceeding except when the Court is dealing with the damages. Convention 16 Nov. 1937 (Art. 27) Article 18 The Court may not entertain charges against any person except the person committed to it for trial, or try any accused person for any offences other than those for which he has been committed. Convention 16 Nov. 1937 (Art. 28 amended)

Secretariat Draft E/447

277

Article 19 The Court shall not proceed further with the case and shall order the accused to be discharged if the prosecution is withdrawn by . . . . . . . . .*. * The Economic and Social Council or the Security Council of the United Nations.

Convention 16 Nov. 1937 (Art. 29 amended) Article 20 1. Accused persons may be defended by advocates belonging to a Bar and approved by the Court. 2. If provision is not made for the conduct of the defence by a barrister chosen by the accused, the Court shall assign to each accused or group of accused a counsel selected from advocates belonging to a Bar. Convention 16 Nov. 1937 (Art. 30) Article 21 The file of the case and the statement of the partie civile shall be communicated to the person who is before the Court for trial. Convention 16 Nov. 1937 (Art. 31) Article 22 1. The Court shall decide whether a person who has been committed to it for trial shall be placed or remain under arrest. Where necessary, it shall determine on what conditions he may be provisionally set at liberty. 2. The State on the territory of which the Court is sitting shall place at the Court’s disposal a suitable place of internment and the necessary staff of warders for the custody of the accused. Convention 16 Nov. 1937 (Art. 32) Article 23 The parties may submit to the Court the names of witnesses and experts, but the Court shall be free to decide whether they shall be summoned and

278

Secretariat Draft E/447

heard. The Court may always, even of its own motion, hear other witnesses and experts. The same rules shall apply as regards all evidence. Convention 16 Nov. 1937 (Art. 33) Article 24 Any letters of request which the Court considers it necessary to have despatched shall be transmitted to the State competent to give effect thereto by the method prescribed by the regulations of the Court. Convention 16 Nov. 1937 (Art. 34 amended) Article 25 No examination, no hearing of witnesses or experts and no confrontation may take place before the Court except in the presence of the counsel for the accused and of the representatives of . . . . . . . . .*. * The Economic and Social Council or the Security Council.

Convention 16 Nov. 1937 (Art. 35(1)) Article 26 The hearings before the Court shall be public. Convention 16 Nov. 1937 (Art. 36) Article 27 The Court shall sit in private to consider its judgment. Convention 16 Nov. 1937 (Art. 37) Article 28 The decisions of the Court shall be by majority of the judges. Convention 16 Nov. 1937 (Art. 38)

Secretariat Draft E/447

279

Article 29 Every judgment or order of the Court shall state the reasons therefor and be read at a public hearing by the President. Convention 16 Nov. 1937 (Art. 39) Article 30 1. The Court shall decide whether any object is to be confiscated or be restored to its owner. 2. The Court may sentence the persons committed to it to pay damages. 3. High Contracting Parties in whose territory objects to be restored or property belonging to convicted persons are situated shall be bound to take all the measures provided by their own laws to ensure the execution of the sentences of the Court. 4. The provisions of the preceding paragraph shall also apply to cases in which pecuniary penalties imposed by the Court or costs of proceedings have to be recovered. Convention 16 Nov. 1937 (Art. 40 amended) Article 31 1. Sentences involving loss of liberty shall be executed by a High Contracting Party chosen with his consent by the Court. Such consent may not be withheld by the State which brought the matter before the . . . . . . . . .* under Article 2. 2. The Court shall determine the way in which any fines shall be dealt with. * The Economic and Social Council or the Security Council.

Convention 16 Nov. 1937 (Art. 41 amended) Article 32 If sentence of death has been pronounced, the State designated by the Court to execute the sentence shall, if its national law does not provide for the death penalty be entitled to substitute therefor the most severe penalty provided by the said law which involves loss of liberty. Convention 16 Nov. 1937 (Art. 42 amended)

280

Secretariat Draft E/447

Article 33 The right of pardon shall be exercised by the State which has to enforce the penalty unless within a period of one month from the date on which the State concerned has informed it of its desire to exercise such right the . . . . . . . . .* shall have entered an objection. Convention 16 Nov. 1937 (Art. 43 amended) Article 34 1. Against convictions pronounced by the Court, no proceedings other than an application for revision shall be allowable. 2. The Court shall determine in its rules the cases in which an application for revision may be made. 3. The States mentioned in Article 2, and the persons committed for trial of the Court, shall have the right to ask for a revision. Convention 16 Nov. 1937 (Art. 44 amended) Article 35 1. The judges shall while sitting receive allowances to be borne by the respective State of which each judge is a national, on the basis of a scale established by the High Contracting Parties. 2. There shall be created by contributions from the High Contracting Parties a common fund from which the costs of the proceedings and other expenses involved in the trial of cases, including any fees and expenses of counsel assigned to the accused by the Court, shall be defrayed, subject to recovery from the accused if he is convicted. The special allowance to the Registrar and the expenses of the Registry shall be met out of this fund. Convention 16 Nov. 1937 (Art. 45 amended)

SECRETARIAT DRAFT E/447

281

Article 36 The Court shall decide any questions as to its own jurisdiction arising during the hearing of a case; it shall for this purpose apply the provisions of the present Convention for the Prevention and Punishment of Genocide and the general principles of law.

E/476

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

283

UNRESTRICTED E/476 18 July 1947 ORIGINAL: ENGLISH

DRAFT CONVENTION ON THE CRIME OF GENOCIDE Note by the Secretary-General 1. The resolution adopted by the Economic and Social Council 28 March 1947, (E/325) at its fourth session, directed the Secretary-General: (a) to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) after consultation with the General Assembly Committee on the Progressive Development of International Law and its Codification and, if feasible, the Commission on Human Rights and, after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

2. In implementation of the above resolution, the Secretariat, with the assistance of experts, has drawn up a draft convention with appropriate comments (E/447). The draft convention was referred to the Committee on the Progressive Development of International Law and its Codification. The Chairman of this Committee stated by letter, dated 17 June 1947, that, in the absence of information as to the views of the governments, the Committee felt unable at that time to express any opinion in the matter. As the next session of the Commission on Human Rights, at which consultation could take place, is scheduled for 25 August 1947, it has not been possible to consult with this Commission before the fifth session of the Economic and Social Council. The draft convention was distributed to Governments on 26 June last and it is unlikely that replies will be available until the latter part of the session of the Council.

284

E/476

3. The urgency of the presentation of a draft convention to the General Assembly, and the necessity of adequate consideration being given to this important question are clear. It seems unlikely, however, that due consideration can be given in accordance with the various stages laid down in the Council resolution, in time to enable the fifth session of the Council to transmit a draft convention to the General Assembly. In these circumstances the Council may wish to consider the appointment of a committee to draft a resolution for submission by the Council to the General Assembly accordingly.

E/SR.86

285

EIGHTY-SIXTH MEETING Held at Lake Success, New York, on Monday, 21 July 1947 at 11. a.m. Acting President: Mr. Jan Papanek (Czechoslovakia). [Discussions pertaining to issues other than the Genocide Convention] 5. Report of the Secretary-General on the draft convention on the crime of genocide (documents E/447 and E 476)1

1

For draft convention, see Resolutions adopted by the Economic and Social Council during its Fifth Session, pages 22 to 39.

The President drew the attention of members of the Council to the fact that resolution 97(I) [sic] of the General Assembly concerning the crime of genocide had to be implemented, but more time was needed to enable Governments to comment on the report of the Secretary-General on the draft convention. If no comments were received, and no final draft convention was proposed by the Council, a resolution had to be drawn up explaining the situation to the General Assembly. He proposed that the matter be referred to the Social Committee. Mr. Moe (Norway) agreed that, at its present session, the Council could not discuss the substance of a convention, but suggested that the General Assembly resolution might be implemented if the fifth session of the Council decided to call a special session of the Council to meet just before, or at the beginning of the forthcoming session of the General Assembly, to discuss a convention on the crime of genocide. The Council could request Governments to submit their comments on the report before 1 September next. Mr. Santa Cruz (Chile) and Mr. d’Ascoli (Venezuela) supported the proposal of the representative of Norway. Mr. Nehru (India) also supported the proposal of the representative of Norway, but added that the detailed provisions of the convention required very careful consideration, and the views of Governments should be given full weight before any proposal was made to the General Assembly. Mr. Thorn (New Zealand) supported the President’s proposal. He stated that the New Zealand Government had not yet had any opportunity to

286

E/SR.86

discuss the Secretary-General’s report; it would not be able to make comments on the report before the Council ended its present session, and it would be difficult for it to do so before the next session of the General Assembly. There could be no objection to the general proposals in the Secretary-General’s report, but they could have no validity unless States put them into legislation. He felt that it was essential to give time for due consideration of the subject. Mr. Thorp (United States of America) agreed with the representative of New Zealand. He observed that it had been intended to hear comments from international lawyers and also from the Commission on Human Rights. Decision: The Council decided to refer consideration of the report of the Secretary-General on the draft convention on the crime of genocide to the Social Committee. [Discussions pertaining to issues other than the Genocide Convention]

E/AC.7/22

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

287

UNRESTRICTED E/AC.7/22 23 July 1947 ORIGINAL: ENGLISH

SOCIAL COMMITTEE – GENOCIDE RESOLUTION PROPOSED BY THE DELEGATION OF NORWAY The Economic and Social Council 1. decides to hold a special session of the Council in order to consider and submit to the Second Session of the General Assembly a draft convention on the crime of genocide. 2. authorizes its President, after consultation with the Secretary-General, to fix a date for the convening of the special session immediately after the opening of the Second Session of the General Assembly. 3. appoints the representatives of the following countries to serve on a committee which shall study the draft convention presented by the Secretariat and the comments thereon offered by Member Governments and by the Commission on Human Rights and present a report to the special session of the Council. 4. requests the President of the Council to convene immediately a meeting of the committee, which shall decide on the time and method of work. 5. calls upon Member Governments to, submit to the Secretary-General as soon as possible and under no circumstances later than 1 September 1942 their comments on the draft convention prepared by the Secretariat and transmitted to them with the Secretary-General’s letter of 7 July 1947.

288

E/AC.7/23

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.7/23 25 July 1947 ORIGINAL: ENGLISH

DRAFT CONVENTION ON THE CRIME OF GENOCIDE* Draft Resolution Submitted by the Delegation of the United States * Item 4 as in E/480, the Agenda of the Fifth Session.

THE ECONOMIC AND SOCIAL COUNCIL, considering the General Assembly Resolution No. 96(I) of 11 December 1946 and HAVING REGARD to paragraph (b) of the Council’s Resolution of 28 March 1947 which provides for submission to the Fifth Session of the Economic and Social Council of a Draft Convention on Genocide “after consultation with the General Assembly Committee on Development and Codification of International Law and, if feasible, the Commission on Human Rights and, after reference to all member Governments for comments”, and TAKING NOTE of the fact that the General Assembly’s Committee on Development and Codification of International Law and the Commission on Human Rights have not considered a Draft Convention on the Crime of Genocide and that the comments of the member Governments on a Draft Convention have not been received in time for consideration at the Fifth Session of the Economic and Social Council, DECIDES: To transmit to the General Assembly the Draft Convention on the Crime of Genocide prepared by the Secretariat in accordance with paragraph (a) of the Council Resolution of 28 March 1947, together with any comments from member Governments which may be received in time for transmittal to the General Assembly.

E/AC.7/SR.15

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

289

UNRESTRICTED E/AC.7/SR.15 2 August 1947 ORIGINAL: ENGLISH

FIFTH SESSION SOCIAL COMMITTEE SUMMARY RECORD OF THE FIFTEENTH MEETING Held at Lake Success, New York, on Wednesday, 30 July 1947, at 3:00 p.m. Present: Chairman:

Mr. Finn Moe Mr. Kaminsky

(Byelorussian Soviet Socialist Republic) Mr. Smith (Canada) Mr. Santa Cruz (Chile) Mr. Hsiu Cha (China) Mr. Osuna (Cuba) Mr. Stolz (Czechoslovakia) Mr. Mendes-France (France) Mr. Clermont-Tonnerre (France) Mr. Sen (India) Mr. Malik (Lebanon) Mr. Van Heuven (Netherlands) Mr. Perry (New Zealand) Mr. Maarr (Norway) Mr. Seyersted (Norway) Mr. La valle (Peru) Mr. Sur (Turkey) Mr. Borisov (Union of Soviet Socialist Republics) Mr. Phillips (United Kingdom) Mr. Gore-Booth (United Kingdom) Mr. Stinebower (United States of America) Mrs. Woodward (United States of America) Mr. Zuloaga (Venezuela) Representatives of Specialized Agencies: Mr. Lemoine ILO Miss Maass UNESCO Miss Fenn WHO

290

E/AC.7/SR.15

Secretariat:

Prof. Humphrey (Director, Human Rights Division) Mr. Messing-Mierzejewski M. Delieurneux

Report of the Secretary-General on the Draft Convention on the Crime of Genocide (Documents E/447, E/476, E/AC.7/24, (E/AC.7/23) Mr. GOREBOOTH (United Kingdom) referred to the execution of two British hostages in Palestine and said that it was the hope of his Government that all crimes against humanity, whether directed against groups or individuals would be prevented. Mr. SEYERSTED (Norway) drew the attention of the Committee to the last paragraph of the Resolution of the General Assembly No. 96(1) requesting the Economic and Social Council to submit a draft convention on the crime of genocide to the next session of the General Assembly. He indicated the evils of the crime of genocide, and explained that, in the General Assembly it had been noted that homicide was punishable by national laws, but genocide wider in its implications, required international legislation. Mr. Seyersted stressed the urgency of drawing up a draft Convention. It had been proposed in the General Assembly to refer it to the Committee on the Development of International Law and its Codification but it was felt that the matter was urgent and should be considered apart from the general codification of international law. He referred to the decision of that Committee which had considered the Secretary-General’s Draft Convention in pursuance of the resolution of the Economic and Social Council, and noted that the Chairman’s letter of transmittal of 17 June stressed the urgency of the problem. He rejected the suggestion that had previously been made to submit the Convention to the International Law Commission, if established, on the grounds that it would cause delay. The adoption of a convention on the crime of genocide would represent positive action on the part of the United Nations, which was important for the prestige of the United Nations at the present time. Mr. SEYERSTED referred to the resolution put forward by his Delegation (document E/AC.7/22) proposing a special session of the Economic and Social Council to meet shortly before or during the General Assembly, and the appointment, at the fifth session of the Council of a committee to examine the comments from governments on the Report by the Secretary-General on the Draft Convention. He pointed out that a special session would not impose an additional burden on governments as they

E/AC.7/SR.15

291

would already be sending representatives to the General Assembly. He emphasized that he did not insist on this procedure, and would welcome any other suggestion, which would enable the Council to comply with Resolution No. 96(1) of the General Assembly Mr. ZULOAGA (Venezuela) supported the proposal of the representative of Norway and stressed the need for complying with General Assembly Resolution No. 96(1). He pointed out that the Report of the SecretaryGeneral on the Draft Convention presented a very broad draft, intended as a basis for discussion rather than as a Convention in its final form, and if the Economic and Social Council should send it with comments from Member Governments direct to the Assembly, as proposed by the Delegation of the United States (document E/AC.7/23), he felt that the Council would not have completed its task. He regretted the decision of the Committee on the Development of International Law and its Codification. Mr. SANTA CRUZ (Chile) also supported the proposal of the representative of Norway. He said that in two years the United Nations had not succeeded in signing one Convention relating to the obligations imposed by the Charter concerning respect for human rights. A draft Convention on the crime of genocide would represent positive action. He felt that the United States proposal would lead the General Assembly to defer the whole matter until 1948. Mr. STINEBOWER (United States of America) said that the Committee was unanimous in its desire to outlaw genocide. The drawing up of a draft convention was, however, a complicated legal question, and Member Governments would require at least as long to study the Report of the Secretary-General and comment on it, as the Secretary-General had found necessary to take, with the assistance of experts, to prepare it. A special session of the Council, as proposed by the representative of Norway, composed of members representing their Governments at the General Assembly, would represent little more than a formality. A special session called in advance of the General Assembly would mean additional expense to the United Nations and that should be avoided. He wondered whether the Economic and Social Council was the competent body to consider this legal problem and felt that the advice of the International Law Commission, if established, might be needed. He urged the adoption of the proposal submitted by the Delegation of the United States.

292

E/AC.7/SR.15

Mr. OSUNA (Cuba) felt that the Norwegian proposal was not a practical possibility, as it would be difficult to receive comments by 1 September and was opposed to the United States proposal as he thought the Council should comment on the Report of the Secretary General. He proposed that the Council should draft a resolution explaining the reasons why a draft Convention could not be submitted to the next session of the General Assembly. Mr. GOREBOOTH (United Kingdom) was in accord with both the representatives from Cuba and the United States. He suggested that the Secretary-General’s Report should be submitted to the General Assembly which could pass it for a limited period to the International Law Commission, if established. Mr. SEYERSTED (Norway) explained that he had intended that a special session of the Council should be summoned during the first days of the General Assembly and not after the establishment of the Legal Committee. He was opposed to referring consideration of the Convention to the International Law Commission, as that would cause delay. Mr. CLERMONTTONNERRE (France) supported the proposal of the representative of Cuba to present a resolution explaining the situation to the General Assembly. Mr. HSIU CHA (China) thought the date of 1 September was too soon for Governments to submit their comments. Mr. SMITH (Canada) agreed that a deadline of 1 September for the receipt of comments was unwise. He felt that the Economic and Social Council was a competent body to deal with a Convention on genocide: legal technicalities were involved but also important considerations of policy. He supported the Cuban proposal saying that the resolution submitted to the General Assembly should state what action had been taken, and progress made, and should inform the General Assembly that the Council would follow any further instructions. Mr. PERRY (New Zealand) said that he supported the United States representative in principle and the Cuban proposal regarding procedure. He thought the resolution should include some mention of the urgency of the problem. Mr. SEYERSTED (Norway) was willing to adopt the procedure suggested by the representative of Cuba, with the addition proposed by the repre-

E/AC.7/SR.15

293

sentative of Canada. He proposed the appointment at the fifth session of the Council, of a Committee to receive comments from governments and submit a draft Convention to the sixth session of the Council. Mr. OSUNA (Cuba) and Mr. Smith (Canada) agreed. Mr. STINEBOWER (United States of America) felt that the proposal might embarrass the General Assembly if that body wished to refer the draft convention to the International Law Commission. Mr. SMITH (Canada) felt that the comments of Governments and the Report of the Secretary-General should be consolidated, and the resolution submitted to the General Assembly should indicate the willingness of the Council to carry out the terms of Resolution No. 96(1) of the General Assembly. Mr. SANTA CRUZ (Chile) accepted the proposal of the representative of Norway. He regretted that neither the Bill of Rights nor the draft Convention on the crime of Genocide would be considered at the next session of the General Assembly. Mr. MALIK (Lebanon) pointed out that the only new aspect of the crime of genocide was the awakening of nations to the need for an international Convention on the subject. He recognized the practical difficulties of the problem before the Committee and did not consider the Norwegian compromise satisfactory. He supported the Cuban proposal to draft a resolution to the General Assembly explaining the situation, and pointed out that in 1948 the General Assembly would receive simultaneously a Bill of Human Rights and a draft Convention on the crime of genocide. Mr. SEYERSTED (Norway) withdrew his first proposal for a special session of the Council in favour of the Cuban proposal, with the addition of his proposal for a committee, appointed at the fifth session to examine the comments and draft a Convention for the sixth session. The CHAIRMAN proposed to put to the vote firstly, the United States proposal as amended by the representatives of Cuba, Canada, France and New Zealand, requesting Member Governments to speed up the consideration of a draft Convention, informing the General Assembly that the Economic and Social Council intended to proceed with the work, subject to instruction from the General Assembly; and, secondly, on the Norwegian proposal that the Council should appoint a committee to

294

E/AC.7/SR.15

proceed with the examination of the Report of the Secretary-General on the Draft Convention. The exact formulation of the text of the proposals would be left to representatives who submitted them. In answer to a point raised by the representatives of Canada and the United States concerning the transmission of the documents relating to the Draft Convention to the General Assembly, the Chairman said that formal decision of the Council would’be [sic] necessary to direct the Secretariat. Mr. STINEBOWER (United States of America) remarked that he would vote against the establishment of a committee, not out of opposition to the principle, but because he did not think it was practicable. Mr. SEYERSTED (Norway) pointed out that the next session of the Council would not be held until January 1948 and a committee appointed at the fifth session could proceed with the work and prepare a draft Convention for the next session. DECISION:

1. The proposal to request Member Governments to speed up consideration of a draft Convention on the crime of genocide, informing the General Assembly that the Economic and Social Council intended to proceed with the work, subject to instruction from the General Assembly was accepted by 16 votes with 2 abstentions. 2. The proposal to appoint a committee to proceed with the examination of the Report of the Secretary-General on the Draft Convention of the Crime of Genocide was rejected by 7 votes to 5, with 5 abstentions.

[Discussions pertaining to issues other than the Genocide Convention]

E/AC.7/31

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

295

UNRESTRICTED E/AC.7/31 1 August 1947 ORIGINAL: ENGLISH

DRAFT CONVENTION ON THE CRIME OF GENOCIDE DRAFT RESOLUTION PRESENTED TO THE SOCIAL COMMITTEE OF THE COUNCIL BY THE DELEGATIONS OF CANADA, CUBA, NORWAY AND UNITED STATES THE ECONOMIC AND SOCIAL COUNCIL, considering the General Assembly Resolution No. 96(1) of 11 December 1946 and HAVING REGARD to paragraph (b) of the Council’s Resolution of 28 March 1947 which provides for submission to the Fifth Session of the Economic and Social Council of a Draft Convention on Genocide “after consultation with the General Assembly Committee on Development and Codification of International Law and, if feasible, the Commission on Human Rights and, after reference to all member Governments for comments”, and TAKING NOTE of the fact that the General Assembly’s Committee on Development and Codification of International Law and the Commission on Human Rights have not considered the Draft Convention on the Crime of Genocide prepared by the Secretariat and that the comments of the member Governments on this Draft Convention have not been received in time for consideration at the Fifth Session of the Economic and Social Council, CALLS UPON member Governments, in view of the urgency of the matter, to submit to the Secretary-General as soon as possible their comments on the Draft Convention prepared by the Secretariat and transmitted to them with the Secretary-General’s letter of 7 July 1947, and INSTRUCTS the Secretary-General to collate such comments, DECIDES to inform the General Assembly that it proposes to proceed with the consideration of the subject as rapidly as possible, subject to any further instructions of the General Assembly; REQUESTS, in the meanwhile, the Secretary-General to transmit to the General Assembly the Draft Convention on the Crime of Genocide pre-

296

E/AC.7/31

pared by the Secretariat in accordance with paragraph (a) of the Council Resolution of 28 March 1947, together with any comments from member Governments which may be received in time for transmittal to the General Assembly.

E/AC.7/SR.17

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

297

UNRESTRICTED E/AC.7/SR.17 6 August 1947 ORIGINAL: ENGLISH

FIFTH SESSION SOCIAL COMMITTEE SUMMARY RECORD OF THE SEVENTEENTH MEETING Held at Lake Success, New York, on Monday, 4 August 1947 at 10:45 a.m. Present: Chairman: Mr. Moe Mr. Kaminsky

(Byelorussian Soviet Socialist Republic) Mr. Davidson (Canada) Mr. Smith (Canada) Mr. Gonzales (Chile) Mr. Chang (China) Mr. Wu (China) Mr. Sun (China) Mr. Osuna (Cuba) Mr. Stolz (Czechoslovakia) Mr. Boris (France) Mr. de Clermont-Tonnerre (France) Mr. de Folin (France) Mr. Ahmad (India) Mr. Sen (India) Mr. Van der Mandele (Netherlands) Miss Hampton (New Zealand) Mr. Haar (Norway) Mr. Seyersted (Norway) Mr. Sur (Turkey) Mr. Gore-Booth (United Kingdom) Mr. Mackenzie (United Kingdom) Mr. Veysey (United Kingdom) Mr. Stinebower (United States of America) Mr. Kotschnig (United States of America)

298

E/AC.7/SR.17

Secretariat:

Mr. Borisov Mr. Lomakin Mr. Stanczyk

(Union of Soviet Socialist Republics) (Union of Soviet Socialist Republics) (Representing the Assistant SecretaryGeneral for Social Affairs) Mr. Hogan (Division of Human Rights) Mr. Dumontet (Joint Division of Co-ordination and Liaison)

[Discussions pertaining to issues other than the Genocide Convention] 2. Consideration of Resolution Regarding the Draft Convention on the Consideration of Draft Resolution on the Crime of Genocide (Document E/AC.7/31) Mr. de CLERMONT-TONNERRE (France) felt that in view of the urgency of the matter the wording of the text could be more imperative. He proposed that in the fourth paragraph “as soon as possible” be replaced by “with the shortest delay possible and if possible before the next session of the General Assembly”, in paragraph 6 “proposes” be replaced by “intends”, and in the final paragraph “may be” be replaced by “have been”. Mr. KAMINSKY (Byelorussian Soviet Socialist Republic) was unable to accept the French proposal because he felt that in this case governments knowingly might be withholding information which they would submit at a later date. Mr. STINEBOWER (United States of America) explained that both the sense of urgency and the governments’ ability to collect information had been taken into consideration in the wording of the draft resolution. With regard to the possibility of discussing the question again before the meeting of the General Assembly he felt that it would fulfil no useful purpose in the light of the number of replies which would have been received. Mr. DAVIDSON (Canada) preferred the compromise text which had been drafted by the sub-committee but if any specific date were to be considered it should be the date of the meeting of the Commission on Human Rights and not of the General Assembly.

E/AC.7/SR.17

299

Mr. HAAR (Norway) suggested that a separate vote should be taken on the three French proposals since he was prepared to support the first and last but not the second. Mr. AHMAD (India) supported the French proposals because they did not give a definite date and because the date of the meeting of the Commission on Human Rights was not as yet known. DECISION: 1. The French proposal that “as soon as possible” in paragraph 4 be replaced by “with the shortest delay possible, and if possible before the next session of the General Assembly” was rejected by eleven votes to three. 2. The French proposal that “proposes” in paragraph 6 be replaced by “intends” was withdrawn after the Canadian representative suggested that the amendment was probably prompted by a difficulty in translation. 3. The French proposal for amending the last phrase of the final paragraph to read “any comments from member governments received in time . . .” was accepted by nine votes to one with one abstention. The draft Resolution as a whole, with the amendment accepted above, was adopted by thirteen votes in favour, with two abstentions. [Discussions pertaining to issues other than the Genocide Convention]

300

E/SR.107

HUNDRED AND SEVENTH MEETING Held at Lake Success, New York, on Wednesday, 6 August 1947, at 11 a.m. Acting President: Mr. Jan Papanek (Czechoslovakia) 42. Report of the Secretary-General on the draft convention on the crime of genocide (document E/522) Decision: As there were no objections, the President declared the draft resolution contained in the report adopted. 1

See Resolutions adopted by the Economic and Social Council, during its fifth session, resolution 77(V), page 21.

[Discussions pertaining to issues other than the Genocide Convention]

E/522

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

301

UNRESTRICTED E/522 4 August 1947 ORIGINAL: ENGLISH

DRAFT CONVENTION ON THE CRIME OF GENOCIDE (Item 4) The Social Committee, at its sixteenth meeting on 4 August 1947, adopted the following draft resolution for submission to the Council: THE ECONOMIC AND SOCIAL COUNCIL, considering the General Assembly Resolution No. 96(1) of 11 December 1946 and HAVING REGARD to paragraph (b) of the Council’s Resolution of 28 March 1947 which provides for submission to the Fifth Session of the Economic and Social Council of a Draft Convention on Genocide “after consultation with the General Assembly Committee on Development and Codification of International Law and, if feasible, the Commission on Human Rights and, after reference to all member Governments for comments”, and TAKING NOTE of the fact that the General Assembly’s Committee on Development and Codification of International Law and the Commission on Human Rights have not considered the Draft Convention on the Crime of Genocide prepared by the Secretariat and that the comments of the member Governments on this Draft Convention have not been received in time for consideration at the Fifth Session of the Economic and Social Council, CALLS UPON member Governments, in view of the urgency of the matter, to submit to the Secretary-General as soon as possible their comments on the Draft Convention prepared by the Secretariat and transmitted to them with the Secretary-General’s letter of 7 July 1947, and INSTRUCTS the Secretary-General to collate such comments, DECIDES to inform the General Assembly that it proposes to proceed with the consideration of the subject as rapidly as possible, subject to any further instructions of the General Assembly; REQUESTS, in the meanwhile, the Secretary-General to transmit to the General Assembly the Draft Convention on the Crime of Genocide prepared by the Secretariat in accordance with paragraph (a) of the Council Resolution of 28 March 1947, together with any comments from member Governments received in time for transmittal to the General Assembly.

302

E/573

77V. GENOCIDE Resolution of 6 August 1947 2 The Economic and Social Council, Considering the General Assembly resolution 96(I) of 11 December 1946,3 and 2 3

See document E/522. See Resolutions adopted by the General Assembly the second part of its first session, pages 188 and 189.

Having regard to paragraph (b) of the Council’s resolution of 28 March 1947,1 which provides for submission to the fifth session of the Economic and Social Council of a draft convention on genocide “after consultation with the General Assembly Committee on the Development and Codification of International Law and, if feasible, the Commission on Human Rights and after reference to all Member Governments for comments”, and 1

See Resolutions adopted by the Economic and Social Council during its fourth session, Resolution No. 47 (IV), pages 33 and 34.

Taking note of the fact that the General Assembly Committee on the Development and Codification of International Law and the Commission on Human Rights have not considered the draft convention on the crime of genocide prepared by the Secretariat, and that the comments of the Member Governments on this draft convention have not been received in time for consideration at the fifth session of the Economic and Social Council, Calls upon Member Governments, in view of the urgency of the matter, to submit to the Secretary-General as soon as possible their comments on the draft convention prepared by the Secretariat and transmitted to them with the Secretary-General’s letter of 7 July 1947; Instructs the Secretary-General to collate such comments;

E/573

303

Decides to inform the General Assembly that it proposes to proceed as rapidly as possible with the consideration of the question subject to any further instructions of the General Assembly; and Requests the Secretary-General, in the mean-while, to transmit to the General Assembly the draft convention on the crime of genocide prepared by the Secretariat in accordance with paragraph (a) of the Council resolution of 28 March 1947, together with any comments from Member Governments received in time for transmittal to the General Assembly. DRAFT CONVENTION FOR THE PREVENTION AND PUNISHMENT OF GENOCIDE2 2

See document E/447.

PREAMBLE The High Contracting Parties proclaim that genocide, which is the intentional destruction of a group of human beings, defies universal conscience, inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the United Nations. 1. They appeal to the feelings of solidarity of all members of the international community and call upon them to oppose this odious crime. 2. They proclaim that the acts of genocide defined by the present Convention are crimes against the law of nations, and that fundamental exigencies of civilization, international order and peace require their prevention and punishment. 3. They pledge themselves to prevent and to repress such acts wherever they may occur. Article I Definitions [Protected groups] I. The purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings. [Acts qualified as genocide]

304

E/573

II. In this Convention, the word “genocide” means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or development. Such acts consist of: 1. Causing the death of members of a group or injuring their health or physical integrity by: (a) Group massacres or individual executions; or (b) Subjection to conditions of life which, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion are likely to result in the debilitation or death of the individuals; or (c) Mutilations and biological experiments imposed for other than curative purposes; or (d ) Deprivation of all means of livelihood, by confiscation of property, looting, curtailment of work, denial of housing and of supplies otherwise available to the other inhabitants of the territory concerned. 2. Restricting births by: (a) Sterilization and/or compulsory abortion; or (b) Segregation of the sexes; or (c) Obstacles to marriage. 3. Destroying the specific characteristics of the group by: (a) Forced transfer of children to another human group; or (b) Forced and systematic exile of individuals representing the culture of a group; or (c) Prohibition of the use of the national language even in private intercourse; or (d ) Systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or (e) Systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.

E/573

305

Article II [Punishable offences] I. The following are likewise deemed to be crimes of genocide: 1. Any attempt to commit genocide; 2. The following preparatory acts: (a) Studies and research for the purpose of developing the technique of genocide; (b) Setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; (c) Issuing instructions or orders, and distributing tasks with a view to committing genocide. II. The following shall likewise be punishable: 1. Wilful participation in acts of genocide of whatever description; 2. Direct public incitement to any act of genocide, whether the incitement be successful or not; 3. Conspiracy to commit acts of genocide. Article III [Punishment of a particular offence] All forms of public propaganda tending by their systematic and hateful character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act shall be punished. Article IV [Persons liable] Those committing genocide shall be punished, be they rulers, public officials or private individuals. Article V [Command of the law and superior orders] Command of the law or superior orders shall not justify genocide.

306

E/573

Article VI [Provisions concerning genocide in municipal criminal law] The High Contracting Parties shall make provision in their municipal law for acts of genocide as defined by articles I, II, and III, above, and for their effective punishment. Article VII [Universal enforcement of municipal criminal law] The High Contracting Parties pledge themselves to punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed. Article VIII [Extradition] The High Contracting Parties declare that genocide shall not be considered as a political crime and therefore shall be grounds for extradition. The High Contracting Parties pledge themselves to grant extradiction [sic] in cases of genocide. Article IX [Trial of genocide by an international court] The High Contracting Parties pledge themselves to commit all persons guilty of genocide under this Convention for trial to an international court in the following cases: 1. When they are unwilling to try such offenders themselves under article VII or to grant their extradiction under article VIII. 2. If the acts of genocide have been committed by individuals acting as organs of the State or with the support or toleration of the State. Article X [International court competent to try genocide] Two drafts are submitted for this section:

E/573

307

First draft: The court of criminal jurisdiction under article IX shall be the international court having jurisdiction in all matters connected with international crimes. Second draft: An international court shall be set up to try crimes of genocide (vide annexes). Article XI [Disbanding of groups or organizations having participated in genocide] The High Contracting Parties pledge themselves to disband any group or organization which has participated in any act of genocide mentioned in articles I, II, and III, above. Article XII [Action by the United Nations to prevent or to stop genocide] Irrespective of any provisions in the foregoing articles, should the crimes as defined in this Convention be committed in any part of the world, or should there be serious reasons for suspecting that such crimes have been committed, the High Contracting Parties may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations. Article XIII [Reparations to victims of genocide] When genocide is committed in a country by the Government in power or by sections of the population, and if the Government fails to resist it successfully, the State shall grant to the survivors of the human group that is a victim of genocide redress of a nature and in an amount to be determined by the United Nations.

308

E/573

Article XIV [Settlement of disputes on Interpretation or application of the Convention] Disputes relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice. Article XV [Language, date of the convention] The present Convention, of which the——, ——, ——, ——, and —— texts are equally authentic, shall bear the date of ——. Article XVI [What States may become parties to the Convention. Ways to become party to it] First draft: 1. The present Convention shall be open to accession on behalf of any Member of the United Nations or any non-member State to which an invitation has been addressed by the Economic and Social Council. 2. The instruments of accession shall be transmitted to the SecretaryGeneral of the United Nations. Second draft: 1. The present Convention shall be open until——, 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation has been addressed by the Economic and Social Council. The present Convention shall be ratified, and the instruments of ratification shall be transmitted to the Secretary-General of the United Nations. 2. After ——, 1948 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid.

E/573

309

Instruments of accession shall be transmitted to the Secretary-General of the United Nations. Article XVII [Reservations] No proposition is put forward for the moment. Article XVIII [Coming into force of the Convention] 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of the accession (or —— ratifications and accession) of not less than —— contracting parties. 2. Accessions (or ratifications and accessions) received after the Convention has come into force shall become effective from the ninetieth day following the date of receipt by the Secretary-General of the United Nations. Article XIX [Duration of the Convention; denunciation] First draft: 1. The present Convention shall remain in effect for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such contracting parties as have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Second draft: The present Convention may be denounced by a written notification addressed to the Secretary-General of the United Nations. Such notification shall take effect one year after the date of its receipt.

310

E/573

Article XX [Abrogation of the Convention] Should the number of Members of the United Nations and non-member States bound by this Convention become less than —— as a result of denunciations, the Convention shall cease to have effect from the date on which the last of these denunciations shall become operative. Article XXI [Revision de la Convention] [sic] A request for the revision of the present Convention may be made at any time by any State which is a party to this Convention by means of a written notification addressed to the Secretary-General. The Economic and Social Council shall decide upon the measures to be taken in respect of such a request. Article XXII [Notification by the Secretary-General] The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in article XVI of all accessions (or signatures, ratifications and accessions) received in accordance with articles XVI and XVIII, of denunciations received in accordance with article XIX, of the abrogation of the Convention effected as provided by article XX and of requests for revision of the Convention made in accordance with article XXI. Article XXIII [Deposit of the original of the Convention and transmission of copies to Governments] 1. A copy of the Convention signed by the President of the General Assembly and the Secretary-General of the United Nations shall be deposited in the archives of the Secretariat of the United Nations. 2. A certified copy shall be transmitted to all Members of the United Nations and to non-member States mentioned under article XVI.

E/573

311

Article XXIV [Registration of the Convention] The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

ANNEXES CONCERNING ARTICLE X Two drafts were submitted for this article of the Convention. The first draft provides that crimes of genocide shall be brought before the international criminal court having general jurisdiction to try international crimes. The second draft, submitted to provide for the case of the absence of such a court, provides for the establishment of an international tribunal with jurisdiction limited to the international trial of crimes of genocide. Such a tribunal might be either a permanent tribunal or an ad hoc tribunal constituted for the specific purpose of trying cases of genocide. The experts consulted by the Secretary-General prepared two annexes corresponding to these two possibilities. They were guided by the Convention for the Creation of an International Criminal Court for the Prevention and Punishment of Terrorism concluded at Geneva on 16 November 1937 after the assassination at Marseille. Note: Some articles of Annexes I and II reproduce textually articles from the Convention of 16 November 1937 for the Creation of International Criminal Court, whilst others reproduce articles from the said Convention with amendments which are mostly purely of form. We give in bold type between brackets, the numbers of the articles of the Convention of 16 November 1937 which were taken as models and we add “amended” whenever such article is not reproduced entirely, the new passages being in italics.

312

E/573

ANNEX I Establishment of a permanent International Criminal Court for the Punishment of Acts of Genocide Article 1 [Convention 16 Nov. 1937 (Art. 1 amended)] An International Criminal Court for the trial, as hereinafter provided, of persons accused of an offence dealt with in the Convention for the Prevention and Punishment of Genocide is hereby established. Article 2 1. In cases of acts of genocide committed by individuals acting as organs of the State or having been supported or tolerated by the State, each High Contracting Party and any other State which arrested such individuals on its territory may, if unwilling to extradite or punish the said individuals, request . . .1 to commit them for trial to the Court. [Convention 16 Nov. 1937 (Art. 25 amended)] 2. The act whereby a State requests . . .1 to commit an accused to the Court for trial shall contain a statement of the main charges and evidence in support thereof. 3. If the . . .1 is of the opinion that the accused should be committed for trial to the Court, it shall designate the persons instructed to act for the prosecution. 4. The . . .1 shall transmit to the Court all the dossiers containing the incriminating evidence. Upon such transmission the matter shall be deemed to be before the Court. 1

The Economic and Social Council or the Security Council of the United Nations.

Article 3 [Convention 16 Nov. 1937 (Art. 3)] The Court shall be a permanent body, but shall sit only when it is seized of proceedings for an offence within its jurisdiction.

E/573

313

Article 4 [Convention 16 Nov. 1937 (Art. 4 amended)] 1. The seat of the Court shall be established at . . . 2. For any particular case, the President may take the opinion of the Court and the Court may decide to meet elsewhere subject to the consent of the State on whose territory such meeting is to be held. Article 5 [Convention 16 Nov. 1937 (Art. 5 abridged)] The Court shall be composed of judges chosen from among jurists who are acknowledged authorities on criminal law. Article 6 [Convention 16 Nov. 1937 (Art. 6 amended)] The Court shall consist of seven regular judges and seven deputy judges, each belonging to a different nationality, but so that the regular judges and deputy judges shall be nationals of the High Contracting Parties. Article 7 [Convention 16 Nov. 1937 (Art. 7 amended)] 1. Any Member of the United Nations and any non-member State, in respect of which the Convention for the Prevention and Punishment of Genocide is in force, may nominate not more than two candidates for appointment as judges of the Court. A panel of all the candidates so nominated shall be drawn up for this purpose. 2. The International Court of Justice shall be requested to choose the regular and deputy judges from the persons so nominated. Article 8 [Convention 16 Nov. 1937 (Art. 8)] Every member of the Court shall, before taking up his duties, give a solemn undertaking in open Court that he will exercise his powers impartially and conscientiously.

314

E/573

Article 9 [sic] [Convention 16 Nov. 1937 (Art. 9)] The High Contracting Parties shall grant the members of the Court diplomatic privileges and immunities when engaged on the business of the Court. Article 10 [Convention 16 Nov. 1937 (Art. 10 amended)] 1. Judges shall hold office for seven years. 2. Every two years, one regular and one deputy judge shall retire. 3. The order of retirement for the first period of seven years shall be determined by lot when the first election takes place. 4. Judges may be reappointed. 5. Judges shall continue to discharge their duties until their places have been filled. 6. Nevertheless, judges, though replaced, shall finish any cases which they have begun. Article 11 [Convention 16 Nov. 1937 (Art. 11 amended)] 1. Any vacancy, whether occurring on the expiration of a judge’s term of office or for any other reason, shall be filled as provided in article 7. 2. In the event of the resignation of a member of the Court, the resignation shall take effect on notification being received by the Registrar. 3. If a seat on the Court becomes vacant more than twelve months before the date at which a new election to that seat would normally take place, the vacancy shall not be filled before that date. Article 12 [Convention 16 Nov. 1937 (Art. 12)] A member of the Court cannot be dismissed unless in the unanimous opinion of all the other members, including both regular and deputy judges, he has ceased to fulfil the required conditions.

E/573

315

Article 13 [Convention 16 Nov. 1937 (Art. 13)] A judge appointed in place of a judge whose period of appointment has not expired shall hold the appointment for the remainder of his predecessor’s term. Article 14 [Convention 16 Nov. 1937 (Art. 14 amended)] The Court shall elect its President and Vice-President from its members for a term of seven years. In the event of the Presidency or Vice-Presidency becoming vacant, the Court shall hold fresh elections which may be conducted by correspondence. Article 15 [Convention 16 Nov. 1937 (Art. 15)] The Court shall establish regulations to govern its practice and procedure. Article 16 [Convention 16 Nov. 1937 (Art. 17)] The Court’s archives shall be in the charge of the Registrar. Article 17 [Convention 16 Nov. 1937 (Art. 18 amended)] The number of members who shall sit to constitute the Court shall be seven. Article 18 [Convention 16 Nov. 1937 (Art. 19 [1])] Members of the Court may not take part in trying any case in which they have previously been engaged in any capacity whatsoever. In case of doubt, the Court shall decide.

316

E/573

Article 19 [Convention 16 Nov. 1937 (Art. 19 [2])] If, for some special reason, a member of the Court considers that he should not sit to try a particular case, he shall so notify the President as soon as he has been informed that the Court is seized of that case. Article 20 [Convention 16 Nov. 1937 (Art. 20 amended)] 1. If the presence of seven regular judges is not secured, the necessary number shall be made up by calling upon the deputy judges in their order on the list. 2. The list shall be prepared by the Court and shall have regard, first, to priority of appointment and, secondly to age. Article 21 [Convention 16 Nov. 1937 (Art. 21 amended)] 1. The substantive criminal law to be applied by the Court shall be that of the territory on which the offence was committed if the country concerned is a party to the Convention and, in other cases, the law of the country which applied to the Court under article 3. 2. Any dispute as to what substantive criminal law is applicable shall be decided by the Court. Article 22 [Convention 16 Nov. 1937 (Art. 22 amended)] If the Court has to apply, in accordance with article 21, the law of a State of which no sitting judge is a national, the Court may invite a jurist who is a national of the said State and an acknowledged authority on such law to sit with it in a consultative capacity as a legal assessor.

E/573

317

Article 23 [Convention 16 Nov. 1937 (Art. 26 [2])] Any person directly injured by the offence may, if authorized by the Court, and subject to any conditions which it may impose, constitute himself partie civile before the Court; such person shall not take part in the oral proceeding except when the Court is dealing with the damages. Article 24 [Convention 16 Nov. 1937 (Art. 27)] The Court may not entertain charges against any person except the person committed to it for trial, or try any accused person for any offences other than those for which he has been committed. Article 25 [Convention 16 Nov. 1937 (Art. 28 amended)] The Court shall not proceed further with the case and shall order the accused to be discharged if the prosecution is withdrawn by…1 1

The Economic and Social Council or the Security Council of the United Nations.

Article 26 [Convention 16 Nov. 1937 (Art. 29 amended)] 1. Accused persons may be defended by advocates belonging to a bar and approved by the Court. 2. If provision is not made for the conduct of the defence by a barrister chosen by the accused, the Court shall assign to each accused or group of accused a counsel selected from advocates belonging to a bar. Article 27 [Convention 16 Nov. 1937 (Art. 30)] The file of the case and the statement of the partie civile shall be communicated to the person who is before the Court for trial.

318

E/573

Article 28 [Convention 16 Nov. 1937 (Art. 31)] 1. The Court shall decide whether a person who has been committed to it for trial shall be placed or remain under arrest. Where necessary, it shall determine on what conditions he may be provisionally set at liberty. 2. The State on the territory of which the Court is sitting shall place at the Court’s disposal a suitable place of internment and the necessary staff of warders for the custody of the accused. Article 29 [Convention 16 Nov. 1937 (Art. 32)] The parties may submit to the Court the names of witnesses and experts, but the Court shall be free to decide whether they shall be summoned and heard. The Court may always, even of its own motion, hear other witnesses and experts. The same rules shall apply as regards all evidence. Article 30 [Convention 16 Nov. 1937 (Art. 33)] Any letters of request which the Court considers it necessary to have despatched shall be transmitted to the State competent to give effect thereto by the method prescribed by the regulations of the Court. Article 31 [Convention 16 Nov. 1937 (Art. 34 amended)] No examination, no hearing of witnesses or experts and no confrontation may take place before the Court except in the presence of the counsel for the accused and the representatives of . . .1 1

The Economic and Social Council or the Security Council of the United Nations.

E/573

319

Article 32 [Convention 16 Nov. 1937 (Art. 35 [1])] The hearings before the Court shall be public. Article 33 [Convention 16 Nov. 1937 (Art. 36)] The Court shall sit in private to consider its judgment. Article 34 [Convention 16 Nov. 1937 (Art. 37)] The decisions of the Court shall be by majority of the judges. Article 35 [Convention 16 Nov. 1937 (Art. 38)] Every judgment or order of the Court shall state the reasons therefor and be read at a public hearing by the President. Article 36 [Convention 16 Nov. 1937 (Art. 39)] 1. The Court shall decide whether any object is to be confiscated or be restored to its owner. 2. The Court may sentence the persons committed to it to pay damages. 3. High Contracting Parties in whose territory objects to be restored or property belonging to convicted persons are situated shall be bound to take all the measures provided by their own laws to ensure the execution of the sentences of the Court. 4. The provisions of the preceding paragraph shall also apply to cases in which pecuniary penalties imposed by the Court or costs of proceedings have to be recovered.

320

E/573

Article 37 [Convention 16 Nov. 1937 (Art. 40 amended)] 1. Sentences involving loss of liberty shall be executed by a High Contracting Party chosen with his consent by the Court. Such consent may not be withheld by the State which brought the matter before the . . .1 under article 2. 2. The Court shall determine the way in which any fines shall be dealt with. Article 38 [Convention 16 Nov. 1937 (Art. 41 amended)] If sentence of death has been pronounced, the State designated by the Court to execute the sentence shall, if its national law does not provide for the death penalty, be entitled to substitute therefore the most severe penalty provided by the said law which involves loss of liberty. Article 39 [Convention 16 Nov. 1937 (Art. 42 amended)] The right of pardon shall be exercised by the State which has to enforce the penalty unless within a period of one month from the date on which the State concerned has informed it of its desire to exercise such right the . . .1 shall have entered an objection. 1

The Economic and Social Council or the Security Council of the United Nations.

Article 40 [Convention 16 Nov. 1937 (Art. 43 amended)] 1. Against convictions pronounced by the Court, no proceedings other than an application for revision shall be allowable. 2. The Court shall determine in its rules the cases in which an application for revision may be made. 3. The States mentioned in article 2, and the persons committed for trial of the Court, shall have the right to ask for a revision.

E/573

321

Article 41 [Convention 16 Nov. 1937 (Art. 44 amended)] 1. The judges shall while sitting receive allowances to be borne by the respective State of which each judge is a national, on the basis of a scale established by the High Contracting Parties. 2. There shall be created by contributions from the High Contracting Parties a common fund from which the costs of the proceedings and other expenses involved in the trial of cases, including any fees and expenses of counsel assigned to the accused by the Court, shall be defrayed, subject to recovery from the accused if he is convicted. The special allowance to the Registrar and the expenses of the Registry shall be met out of this fund. Article 42 [Convention 16 Nov. 1937 (Art. 45 amended)] 1. The Court shall decide any questions as to its own jurisdiction arising during the hearing of a case; it shall for this purpose apply the provisions of the present Convention for the Prevention and Punishment of Genocide and the general principles of law. 2. If a High Contracting Party, not being the Party who sent the case in question for trial to the . . .,1 disputes the extent of the Court’s jurisdiction in relation to the jurisdiction of his own national courts and does not see his way to appear in the proccedings [sic] in order that the question may be decided by the International Criminal Court, the question shall be treated as arising between such High Contracting Party and the High Contracting Party who sent the case for trial to the Court, and shall be settled as provided in article 14 of the Convention for the Prevention and Punishment of Genocide. Article 43 Whenever the Court is unable to deal with a possible accumulation of actions it may establish additional sections. Such sections shall consist of seven judges. Each section shall be presided over by a regular judge of the Court elected by the regular and deputy judges of the Court in general assembly.

322

E/573

Lots shall be drawn to elect the other judges to the various sections. If, owing to an accumulation of actions, the number of regular or deputy judges is insufficient to produce a full complement of all the sections created, vacancies may be filled by lot by persons appearing on the panel referred to in article 7, paragraph 1. In all cases, however, and irrespective of the number of sections created, such sections may not be presided over except by a regular judge or, in the absence of a regular judge, by a deputy judge of the International Criminal Court.

ANNEX II Establishment of an ad hoc International Criminal Court for the punishment of acts of genocide Article 1 1. Each State shall, within a period of one month from the date on which the Convention for the Prevention and Punishment of Genocide comes into force with reference to such State, designate two persons who are acknowledged authorities on criminal law to hold the office of judge in an international criminal court for the punishment of genocide if called upon. 2. No person may be designated who is not a national of one of the High Contracting Parties to the said Convention. 3. The names of the persons so designated shall be communicated to the President of the International Court of Justice who shall place them on the panel. Article 2 1. In the case of acts of genocide committed by individuals acting as organs of the State or with the support or toleration of the State, each High Contracting Party and any other State which arrested such individuals on its territory may, if unwilling to extradite or punish the said individuals, request . . .1 to commit them for trial to the Court. 2. The instrument whereby a State requests . . .1 to commit an accused for trial to the Court shall contain a statement of the main charges and evidence in support thereof.

E/573

323

3. If the . . .1 is of the opinion that such request should be complied with, it shall forthwith approach the International Court of Justice, requesting it to select seven regular and seven deputy judges from the panel provided for in article 1. 4. The . . .1 shall also designate the persons instructed to act for the prosecution. 1

The Economic and Social Council or the Security Council of the United Nations.

Article 3 1

The . . . shall at the same time decide where the Court is to sit. If such place shall be in territory other than that where the permanent head-quarters of the United Nations is established or in territory where the seat of the International Court of Justice is established, the consent of the State to which such territory belongs shall be required. 1

The Economic and Social Council or the Security Council of the United Nations.

Article 4 For the purposes of constituting the International Criminal Court, the President of the International Court of Justice shall forthwith summon the persons designated under article 1. Article 5 [Convention 16 Nov. 1937 (Art. 8 amended)] The first meeting of the International Criminal Court shall be presided over either by the President or Vice President of the International Court of Justice or by a judge of that Court designated for that purpose. At such first meeting, which shall be public, the members of the International Criminal Court shall, before taking up their duties, give a solemn undertaking to exercise their powers impartially and conscientiously.

324

E/573

Article 6 [Convention 16 Nov. 1937 (Art. 9)] The High Contracting Parties shall grant the members of the Court diplomatic privileges and immunities when engaged on the business of the Court. Article 7 [Convention 16 Nov. 1937 (Art. 12)] A member of the Court cannot be dismissed unless in the unanimous opinion of all the other members, including both regular and deputy judges, he has ceased to fulfil the required conditions. Article 8 [Convention 16 Nov. 1937 (Art. 14 amended)] The Court shall elect its President and Vice-President from its members. Article 9 [Convention 16 Nov. 1937 (Art. 15)] The Court shall establish regulations to govern its practice and procedure. Article 10 [Convention 16 Nov. 1937 (Art. 17)] The Court’s archives shall be in the charge of the Registrar. Article 11 [Convention 16 Nov. 1937 (Art. 18 amended)] The number of members who shall sit to constitute the Court shall be seven.

E/573

325

Article 12 [Convention 16 Nov. 1937 (Art. 19 [1])] Members of the Court may not take part in trying any case in which they have previously been engaged in any capacity whatsoever. In case of doubt, the Court shall decide. Article 13 [Convention 16 Nov. 1937 (Art. 19 [2])] If, for some special reason, a member of the Court considers that he should not sit to try a particular case, he shall so notify the President as soon as he has been informed that the Court is seized of that case. Article 14 [Convention 16 Nov. 1937 (Art. 20 [1] amended)] If the presence of seven regular judges is not secured, the necessary number shall be made up by calling upon the deputy judges in their order on the list. Article 15 [Convention 16 Nov. 1937 (Art. 21 amended)] 1. The substantive criminal law to be applied by the Court shall be that of the territory on which the offence was committed if the country concerned is a party to the Convention and, in other cases, the law of the country which applied to the Court under article 2. 2. Any dispute as to what substantive criminal law is applicable shall be decided by the Court. Article 16 [Convention 16 Nov. 1937 (Art. 22 amended)] If the Court has to apply, in accordance with article 15, the criminal law of a State of which no sitting judge is a national, the Court may invite a jurist who is a national of the said State and an acknowledged authority on such law to sit with it in a consultative capacity as a legal assessor.

326

E/573

Article 17 [Convention 16 Nov. 1937 (Art. 26 [2])] Any person directly injured by the offence may, if authorized by the Court, and subject to any conditions which it may impose, constitute himself partie civile before the Court; such person shall not take part in the oral proceeding except when the Court is dealing with the damages. Article 18 [Convention 16 Nov. 1937 (Art. 27)] The Court may not entertain charges against any person except the person committed to it for trial, or try any accused person for any offences other than those for which he has been committed. Article 19 [Convention 16 Nov. 1397 (Art. 28 amended)] The Court shall not proceed further with the case and shall order the accused to be discharged if the prosecution is withdrawn by . . .1 1

The Economic and Social Council or the Security Council of the United Nations.

Article 20 [Convention 16 Nov. 1937 (Art. 29 amended)] 1. Accused persons may be defended by advocates belonging to a bar and approved by the Court. 2. If provision is not made for the conduct of the defence by a barrister chosen by the accused, the Court shall assign to each accused or group of accused a counsel selected from advocates belonging to a bar. Article 21 [Convention 16 Nov. 1937 (Art. 30)] The file of the case and the statement of the partie civile shall be communicated to the person who is before the Court for trial.

E/573

327

Article 22 [Convention 16 Nov. 1937 (Art. 31)] 1. The Court shall decide whether a person who has been committed to it for trial shall be placed or remain under arrest. Where necessary, it shall determine on what conditions he may be provisionally set at liberty. 2. The State on the territory of which the Court is sitting shall place at the Court’s disposal a suitable place of internment and the necessary staff of warders for the custody of the accused. Article 23 [Convention 16 Nov. 1937 (Art. 32)] The parties may submit to the Court the names of witnesses and experts, but the Court shall be free to decide whether they shall be summoned and heard. The Court may always, even of its own motion, hear other witnesses and experts. The same rules shall apply as regards all evidence. Article 24 [Convention 16 Nov. 1937 (Art. 33)] Any letters of request which the Court considers it necessary to have despatched shall be transmitted to the State competent to give effect thereto by the method prescribed by the regulations of the Court. Article 25 [Convention 16 Nov. 1937 (Art. 34 amended)] No examination, no hearing of witnesses or experts and no confrontation may take place before the Court except in the presence of the counsel for the accused and of the representatives of . . .1 1

The Economic and Social Council or the Security Council of the United Nations.

328

E/573

Article 26 [Convention 16 Nov. 1937 (Art. 35 [1])] The hearings before the Court shall be public. Article 27 [Convention 16 Nov. 1937 (Art. 36)] The Court shall sit in private to consider its judgment. Article 28 [Convention 16 Nov. 1937 (Art. 37)] The decisions of the Court shall be by majority of the judges. [Convention 16 Nov. 1937 (Art. 38)] Every judgment or order of the Court shall state the reasons therefor and be read at a public hearing by the President. Article 30 [Convention 16 Nov. 1937 (Art. 39)] 1. The Court shall decide whether any object is to be confiscated or be restored to its owner. 2. The Court may sentence the persons committed to it to pay damages. 3. High Contracting Parties in whose territory objects to be restored or property belonging to convicted persons are situated shall be bound to take all the measures provided by their own laws to ensure the execution of the sentences of the Court. 4. The provisions of the preceding paragraph shall also apply to cases in which pecuniary penalties imposed by the Court or costs of proceedings have to be recovered.

E/573

329

Article 31 [Convention 16 Nov. 1937 (Art. 40 amended)] 1. Sentences involving loss of liberty shall be executed by a High Contracting Party chosen with his consent by the Court. Such consent may not be withheld by the State which brought the matter before the…1under article 2. 2. The Court shall determine the way in which any fines shall be dealt with. Article 32 [Convention 16 Nov. 1937 (Art. 41 amended)] If sentence of death has been pronounced, the State designated by the Court to execute the sentence shall, if its national law does not provide for the death penalty be entitled to substitute therefor the most severe penalty provided by the said law which involves loss of liberty. Article 33 [Convention 16 Nov. 1937 (Art. 42 amended)] The right of pardon shall be exercised by the State which has to enforce the penalty unless within a period of one month from the date on which the State concerned has informed it of its desire to exercise such right the . . .1 shall have entered an objection. 1

The Economic and Social Council or the Security Council of the United Nations.

Article 34 [Convention 16 Nov. 1937 (Art. 43 amended)] 1. Against convictions pronounced by the Court, no proceedings other than an application for revision shall be allowable. 2. The Court shall determine in its rules the cases in which an application for revision may be made. 3. The States mentioned in article 2, and the persons committed for trial of the Court, shall have the right to ask for a revision.

330

E/573

Article 35 [Convention 16 Nov. 1937 (Art. 44 amended)] 1. The judges shall while sitting, receive allowances to be borne by the respective State of which each judge is a national, on the basis of a scale, established by the High Contracting Parties. 2. There shall be created by contributions from the High Contracting Parties a common fund from which the costs of the proceedings and other expenses involved in the trial of cases, including any fees and expenses of counsel assigned to the accused by the Court, shall be defrayed, subject to recovery from the accused if he is convicted. The special allowance to the Registrar and the expenses of the Registry shall be met out of this fund. Article 36 [Convention 16 Nov. 1937 (Art. 45 amended)] The Court shall decide any questions as to its own jurisdiction arising during the hearing of a case; it shall for this purpose apply the provisions of the present Convention for the Prevention and Punishment of Genocide and the general principles of law.

A/362

United Nations Nations Unies GENERAL ASSEMBLY ASSEMBLEE GENERALE

331

UNRESTRICTED A/362 25 August 1947 ENGLISH ORIGINAL: FRENCH

DRAFT CONVENTION ON THE CRIME OF GENOCIDE Note by the Secretary-General 1. The General Assembly, at the second part of its first session on 11 December 1946, adopted resolution 96(I) as follows: THE GENERAL ASSEMBLY ... REQUESTS the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

2. At its fifth session, on 6 August 1947, the Economic and Social Council adopted the following resolution: THE ECONOMIC AND SOCIAL COUNCIL, CONSIDERING the General Assembly resolution 96(I) of 11 December 1946, and HAVING REGARD to paragraph (b) of the Council’s resolution 47(IV) of 28 March 1947 which provides for submission to the fifth session of the Economic and Social Council of a draft convention on genocide ‘after consultation with the General Assembly Committee on the Development and Codification of International Law and, if feasible, the Commission on Human Rights, and after reference to all Member Governments for comments’, and TAKING NOTE of the fact that the General Assembly’s Committee on the Development and Codification of International Law and the Commission on Human Rights have not considered the draft convention on the crime of genocide prepared by the Secretariat, and that the comments of the Member Governments on this draft convention have not been received in time for consideration at the fifth session of the Economic and Social Council, CALLS UPON Member Governments, in view of the urgency of the matter, to submit to the Secretary-General as soon as possible their comments on the draft convention prepared by the Secretariat and transmitted to them with the Secretary-General’s letter of 7 July 1947, INSTRUCTS the Secretary-General to collate such comments,

332

A/362

DECIDES to inform the General Assembly that it proposes to proceed as rapidly as possible with the consideration of the question, subject to any further instructions of the General Assembly, and REQUESTS the Secretary-General, in the meanwhile, to transmit to the General Assembly the draft convention on the crime of genocide prepared by the Secretariat in accordance with paragraph (a) of the Council resolution of 28 March 1947, together with any comments from Member Governments received in time for transmittal to the General Assembly.

3. In compliance with the request expressed by the Economic and Social Council, the Secretary-General has the honour to transmit to the General Assembly the following text of the draft convention on the crime of genocide prepared by the Secretariat.* The Secretary-General will later transmit such comments thereon that he may receive from Member Governments. * The draft convention, together with explanatory notes prepared by the Secretariat has already been distributed to Member Governments as document E/447.

A/362

333

DRAFT CONVENTION FOR THE PREVENTION AND PUNISHMENT OF GENOCIDE Preamble The High Contracting Parties proclaim that genocide, which is the intentional destruction of a group of human beings, is an outrage against the universal conscience, inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the United Nations. 1. They appeal to the feelings of solidarity of all members of the international community and call upon them to oppose this odious crime. 2. They proclaim that the acts of genocide defined by the present Convention are crimes against the law of nations, and that the fundamental exigencies of civilization, international order and peace require their prevention and punishment. 3. They pledge themselves to prevent and to repress such acts wherever they may occur. Article I General Definitions (Protected groups) I. The purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings. (Acts qualified as genocide) II. In this Convention, the word “genocide” means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or development. Such acts consist of; [sic] 1. Causing the death of members of a group or injuring their health or physical integrity by:

334

A/362

(a) Group massacres or individual executions; or (b) Subjection to conditions of life which, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion are likely to result in the debilitation or death of the individuals; or (c) Multilations [sic] and biological experiments imposed for other than curative purposes; or (d) Deprivation of all means of livelihood, by confiscation of property, looting, prohibition to work, denial of housing and of supplies 2. Restricting births by: (a) Sterilization and/or compulsory abortion; or (b) Segregation of the sexes; or (c) Obstacles to marriage. 3. Destroying the specific characteristics of the group by: (a) Forced transfer of children to another human group; or (b) Forced and systematic exile of individuals representing the culture of a group; or (c) Prohibition of the use of the national language even in private intercourse; or (d) Systematic destruction of books printed in the national language or of religious works, or prohibition of new publications; or (e) Systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or disporsal [sic] of documents and objects of historical, artistic or religious value and of objects used in religious worship. Article II (Punishable offences) I. The following are likewise deemed to be crimes of genocide: 1. Any attempt to commit genocide; 2. The following preparatory acts: (a) Studies and research for the purpose of developing the technique of genocide; (b) Setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; (c) Issuing instructions or orders, and distributing tasks with a view to committing genocide.

A/362

335

II. The following shall likewise be punishable: 1. Wilful participation in acts of genocide of whatever description; 2. Direct public incitement to any act of genocide whether the incitement be successful or not; 3. Conspiracy to commit acts of genocide. Article III (Punishment of a particular offence) All forms of public propaganda tending by their systematic and hateful character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act shall be punished. Article IV (Persons liable) Those committing genocide shall be punished, be they rulers, public officials or private individuals. Article V (Command of the law and superior orders) Command of the law or superior orders shall not justify genocide. Article VI (Provisions concerning genocide in municipal criminal law) The High Contracting Parties shall make provision in their municipal criminal law for acts of genocide as defined by Articles I, II and III above, and for their effective punishment. Article VII (Universal enforcement of municipal criminal law) The High Contracting Parties pledge themselves to punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed.

336

A/362

Article VIII (Extradition) The High Contracting Parties declare that genocide shall not be considered as a political crime and therefore shall be a cause for extradition. The High Contracting Parties pledge themselves to grant extradition in cases of genocide. Article IX (Trial of genocide by an international court) The High Contracting Parties pledge themselves to commit all persons guilty of genocide under this Convention for trial by an international court in the following cases: 1. When they are unwilling to try such offenders themselves under Article VII or to grant their extradition under Article VIII. 2. If the acts of genocide have been committed by individuals acting as organs of the State or with the support or toleration [sic] of the State Article X (International court competent to try genocide) Two drafts are submitted for this article (vide appendices): (First draft) The court of criminal jurisdiction under Article IX shall be the International Court having jurisdiction in all matters connected with international crimes. (Second Draft) An international court shall be set up to try crimes of genocide.

A/362

337

Article XI (Disbanding of groups or organisations having participated in genocide) The High Contracting Parties pledge themselves to disband any group or organization which has participated in any act of genocide mentioned in Articles I, II and III above. Article XII (Action by the United Nations to prevent or to stop genocide) Irrespective of any provisions in the foregoing articles, should the crimes as defined in this Convention be committed in any part of the world, or should there be serious reasons for suspecting that such crimes have been committed, the High Contracting Parties may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations. Article XIII (Reparations to victims of genocide) When genocide is committed in a country by the Government in power or by sections of the population, and if the Government fails to resist it successfully, the State shall grant to the survivors of the human group that is a victim of genocide redress of a nature and in an amount to be determined by the United Nations. Article XIV (Settlement of disputes on the interpretation or application of the Convention) Disputes relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice.

338

A/362

Article XV (Language – Date of the Convention) The present Convention, of which the . . . . . . ., . . . . . . ., . . . . . . . and . . . . . . . texts are equally authentic shall bear the date of . . . . . . . . Article XVI (First draft) (What States may become Parties to the Convention. Ways to become Party to it) 1. The present Convention shall be open to accession on behalf of any Member of the United Nations or any non-member State to which an invitation has been addressed by the Economic and Social Council. 2. The instruments of accession shall be transmitted to the SecretaryGeneral of the United Nations. (Second draft) 1. The present Convention shall be open until . . . . . 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation has been addressed by the Economic and Social Council. The present Convention shall be ratified, and the instruments of ratification shall be transmitted to the Secretary-General of the United Nations. 2. After . . . . . 1948 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be transmitted to the Secretary-General of the United Nations. Article XVII (Reservations) (No proposition is put forward for the moment.)

A/362

339

Article XVIII (Coming into force of the convention) 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of the accession (or . . . . . . ratifications and accessions) of not less than . . . . . Contracting Parties. 2. Each accession (or each ratification or accession) received after the Convention has come into force shall become effective as from the ninetieth day following the date of receipt by the Secretary-General of the United Nations. Article XIX (First draft) (Duration of the Convention – deununciation [sic]) 1. The present Convention shall remain in effect for a period of five years dating from its entry into force. 2. It shall reamin [sic] in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. (Second draft) The present Convention may be denounced by a written notification addressed to the Secretary-General of the United Nations. Such notification shall take effect one year after the date of its receipt. Article XX (Abrogation of the Convention) Should the number of Members of the United Nations and non-member States bound by this Convention become less than . . . . . as a result of denunciations, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative.

340

A/362

Article XXI (Revision of the Convention) A request for the revision of the present Convention may be made at any time by any State which is a party to this Convention by means of a written notification addressed to the Secretary-General. The Economic and Social Council shall decide upon the measures to be taken in respect of such a request. Article XXII (Notifications by the Secretary-General) The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XVI of all accessions (or signatures, ratifications and accessions) received in accordance with Articles XVI and XVIII, of denunciations received in accordance with Article XIX, of the abrogation of the Convention effected as provided by Article XX and of requests for revision of the Convention made in accordance with Article XXI. Article XXIII (Deposit of the original of the Convention and transmission of copies to Governments) 1. A copy of the Convention signed by the President of the General Assembly and the Secretary-General of the United Nations shall be deposited in the Archives of the Secretariat of the United Nations. 2. A certified copy shall be transmitted to all Members of the United Nations and to non-Member States mentioned under Article . . . Article XXIV (Registration of the Convention) The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

A/362

341

ANNEXES CONCERNING ARTICLE X*

* Some articles of Annexes I and II reproduce textually articles from the Convention of 16 November 1937 for the Creation of an International Criminal Court whilst others reproduce articles from the said Convention with amendments which are mostly purely of form. In the margin, are given the numbers of the articles of the Convention of 16 November 1937 which were taken as models and the word “amended” has been added, when the article is not reproduced entirely, the new passages being underlined.

ANNEX I ESTABLISHMENT OF A PERMANENT INTERNATIONAL CRIMINAL COURT FOR THE PUNISHMENT OF ACTS OF GENOCIDE Convention 16 November 1937 (Article 1 amended) Article 1 An International Criminal Court for the trial, as hereinafter provided, of persons accused of an offence dealt with in the Convention for the Prevention and Punishment of Genocide is hereby established. Convention 16 November 1937 (Article 2 and Article 25) Article 2 1. In cases of acts of genocide committed by individuals acting as organs of the State or having been supported or tolerated by the State, each High Contracting Party and any other State having arrested such individuals on its territory may, if unwilling to extradite or punish the said individuals, request . . . . . . . . . * to commit them for trial to the Court. 2. The act whereby a State requests . . . . . . . . . * to commit an accused for trial to the Court shall contain a statement of the main charges and evidence in support thereof.

342

A/362

* Some articles of Annexes I and II reproduce textually articles from the Convention of 16 November 1937 for the Creation of an International Criminal Court whilst others reproduce articles from the said Convention with amendments which are mostly purely of form. In the margin, are given the numbers of the articles of the Convention of 16 November 1937 which were taken as models and the word “amended” has been added, when the article is not reproduced entirely, the new passages being underlined.

3. If the . . . . . . . . . ** is of the opinion that the accused should be committed for trial to the Court, it shall designate the persons instructed to act for the prosecution. 4. The . . . . . . . . . ** shall transmit to the Court all the dossiers containing the incriminating evidence. Upon such transmission the matter shall be deemed to be before the Court. ** Request to be addressed to the Economic and Social Council or to the Security Council of the United Nations.

Convention 16 November 1937 (Article 3) Article 3 The Court shall be a permanent body, but shall sit only when it is seized of proceedings for an offence within its jurisdiction. Convention 16 November 1937 (Article 4 amended) Article 4 1. The seat of the Court shall be established at . . . . . . . . . 2. For any particular case, the President may take the opinion of the Court and the Court may decide to meet elsewhere subject to the consent of the State on the territory of which such meeting is to be held. Convention 16 November 1937 (Article 5 abridged) Article 5 The Court shall be composed of judges chosen from among jurists who are acknowledged authorities on criminal law. Convention 16 November 1937 (Article 6 amended)

A/362

343

Article 6 The Court shall consist of seven regular judges and seven deputy judges, each belonging to a different nationality, but so that the regular judges and deputy judges shall be nationals of the High Contracting Parties. Convention 16 November 1937 (Article 7 amended) Article 7 1. Any Member of the United Nations and any non-Member State, in respect of which the Convention for the Prevention and Punishment of Genocide is in force, may nominate not more than two candidates for appointment as judges of the Court. A panel of all the candidates so nominated shall be drawn up for this purpose. 2. The International Court of Justice shall be requested to choose the regular and deputy judges from the persons so nominated. Convention 16 November 1937 (Article 8) Article 8 Every member of the Court shall, before taking up his duties, give a solemn undertaking in open Court that he will exeroise [sic] his powers impartially and conscientiously. Convention 16 November 1937 (Article 9) Article 9 The High Contracting Parties shall grant the members of the Court diplomatic privileges and immunities when engaged on the business of the Court. Convention 16 November 1937 (Article 10 amended) Article 10 1. Judges shall hold office for seven years. 2. [missing] 3. The order of retirement for the first period of seven years shall be determined by lot when the first election takes place. 4. Judges may be re-appointed.

344

A/362

5. Judges shall continue to discharge their duties until their places have been filled. 6. Nevertheless, judges, though replaced, shall finish any cases which they have begun. Convention 16 November 1937 (Article 11 amended) Article 11 1. Any vacancy, whether occurring on the expiration of a judge’s term of office or for any other reason, shall be filled as provided in Article 7. 2. In the event of the resignation of a member of the Court, the resignation shall take effect on notification being received by the Registrar. 3. If a seat on the Court becomes vacant more than one year before the date at which the new election to that seat would normally take place, the vacancy shall not be filled before that date. Convention 16 November 1937 (Article 12) Article 12 A member of the Court cannot be dismissed unless in the unanimous opinion of all the other members, including both regular and deputy judges, he has ceased to fulfil the required conditions. Convention 16 November 1937 (Article 13) Article 13 A judge appointed in place of a judge whose period of appointment has not expired shall hold the appointment for the remainder of his predecessor’s term. Convention 16 November 1937 (Article 14 amended) Article 14 The Court shall elect its President and Vice-President from its members for a term of seven years. In the event the Presidency or Vice-Presidency becoming vacant, the Court shall hold fresh elections which may be conducted by correspondence. Convention 16 November 1937 (Article 15)

A/362

345

Article 15 The Court shall establish regulations to govern its practice and procedure. Convention 16 November 1937 (Article 17) Article 16 The Court’s archives shall be in the charge of the Registrar. Convention 16 November 1937 (Article 18 amended) Article 17 The number of members who shall sit to constitute the Court shall be seven. Convention 16 November 1937 (Article 19(1)) Article 18 Members of the Court may not take part in trying any case in which they have previously been engaged in any capacity whatsoever. In case of doubt, the Court shell decide [sic]. Convention 16 November 1937 (Article 19 (2)) Article 19 If, for some special reason, a member of the Court considers that he should not sit to try a particular case, he shall so notify the President as soon as he has been informed that the Court is seized of that case. Convention 16 November 1937 (Article 20 amended) Article 20 1. If the presence of seven regular judges is not secured, the necessary number shall be made up by calling upon the deputy judges in their order on the list. 2. The list shall be prepared by the Court and shall have regard, first, to priority of appointment and, secondly, to age. Convention 16 November 1937 (Article 21 amended)

346

A/362

Article 21 1. The substantive criminal law to be applied by the Court shall be that of the territory on which the offence was committed if the country concerned is a party to the Convention and, in other cases, the law of the country which applied to the Court under Article 2. 2. Any dispute as to what substantive criminal law is applicable shall be decided by the Court. Convention 16 November 1937 (Article 22 amended) Article 22 If the court has to apply, in accordance with Article 21, the law of a State of which no sitting judge is a national, the Court may invite a jurist who is a national of the said State and an acknowledged authority on such law to sit with it in a consultative capacity as a legal assessor. Convention 16 November 1937 (Article 26 (2)) Article 23 Any person directly injured by the offence may, if authorized by the Court, and subject to any conditions which it may impose, constitute himself “partie civile” before the Court; such person shall not take part in the oral proceeding except when the Court is dealing with the damages. Convention 16 November 1937 (Article 27) Article 24 The Court may not entertain charges against any person except the person committed to it for trial, or try any accused person for any offences other than those for which he has been committed. Convention 16 November 1937 (Article 28 amended)

A/362

347

Article 25 The Court shall not proceed further with the case and shall order the accused to be discharged if the prosecution is withdrawn by . . . . . . . . . . . . . .* * The Economic and Social Council or the Security Council of the United Nations.

Convention 16 November 1937 (Article 29 amended) Article 26 1. Accused persons may be defended by advocates belonging to a Bar and approved by the Court. 2. If provision is not made for the conduct of the defence by a barrister chosen by the accused, the Court shall assign to each accused or group of accused a counsel selected from advocates belonging to a Bar. Convention 16 November 1937 (Article 30) Article 27 The file of the case and the statement of the “partie civile” shall be communicated to the person who is before the Court for trial. Convention 16 November 1937 (Article 31) Article 28 1. The Court shall decide whether a person who has been committed to it for trial shall be placed or remain under arrest. Where necessary, it shall determine on what conditions he may be provisionally set at liberty. 2. The State on the territory of which the Court is sitting shall place at the Court’s disposal a suitable place of internment and the necessary staff of warders for the custody of the accused. Convention 16 November 1937 (Article 32) Article 29 The parties may submit to the Court the names of witnesses and experts, but the Court shall be free to decide whether they shall be summoned and

348

A/362

heard. The Court may always, even on its own motion, hear other witnesses and experts. The same rules shall apply as regards all evidence. Convention 16 November 1937 (Article 33) Article 30 Any letters of request which the Court considers it necessary to have despatched shall be transmitted to the State competent to give effect thereto by the method prescribed by the regulations of the Court. Convention 16 November 1937 (Article 34 amended) Article 31 No examination, no hearing of witnesses or experts and no confrontation may take place before the Court except in the presence of the counsel for the accused and the representatives of . . . . . . . . . . . . . . . .* Convention 16 November 1937 (Article 35(1)) Article 32 The hearings before the Court shall be public. Convention 16 November 1937 (Article 36) Article 33 The Court shall sit in private to consider its judgment. Convention 16 November 1937 (Article 37) Article 34 The decisions of the Court shall be by a majority of the judges. Convention 16 November 1937 (Article 38) Article 35 Every judgment or order of the Court shall state the reasons therefore and be read at a public hearing by the President. Convention 16 November 1937 (Article 39)

A/362

349

Article 36 1. The Court shall decide whether any object is to be confiscated or be restored to its owner. 2. The Court may sentence the persons committed to it to pay damages. 3. High Contracting Parties in whose territory objects to be restored or property belonging to convicted persons are situated shall be bound to take all the measures provided by their own laws to ensure the execution of the sentences of the Court. 4. The provisions of the preceding paragraph shall also apply to cases in which pecuniary penalties imposed by the Court or costs of proceedings have to be recovered. Convention 16 November 1937 (Article 40 amended) Article 37 1. Sentences involving loss of liberty shall be executed by a High Contracting Party chosen with its consent by the Court. Such consent may not be withheld by the State which brought the matter before the . . . . . . . . . . . . . . . . . . . .* under Article 2. 2. The Court shall determine the way in which any fines shall be dealt with. Convention 16 November 1937 (Article 41 amended) Article 38 If sentence of death has been pronounced, the State designated by the Court to execute the sentence shall, if its national law does not provide for the death penalty, be entitled to substitute therefor the most severe penalty provided by the said law which involves loss of liberty. Convention 16 November 1937 (Article 42 amended) Article 39 The right of pardon shall be exercised by the State which has to enforce the penalty unless within a period of one month from the date on which the

350

A/362

State concerned has informed it of its desire to exercise such right the . . . . . . . . . . . . . . . . . . .* shall have entered an objection. * The Economic and Social Council and the Security Council.

Convention 16 November 1937 (Article 43 amended) Article 40 1. Against convictions pronounced by the Court, no proceedings other than an application for revision shall be allowable. 2. The Court shall determine in its rules the cases in which an application for revision may be made. 3. The States mentioned in article 2, and the persons committed for trial by the court, shall have the right to ask for a revision. Convention 16 November 1937 (Article 44 amended) Article 41 1. The judges shall while sitting receive allowances to be borne by the respective State of which each judge is a national, on the basis of a scals [sic] established by the High Contracting Parties. 2. There shall be created by contributions from the High Contracting Parties a common fund from which the costs of the proceedings and other expenses involved in the trial of cases, including any fees and expenses of counsel assigned to the accused by the Court, shall be defrayed, subject to recovery from the accused if he is convicted. The special allowance to the Registrar and the expenses of the Registry shall be met out of this fund. Convention 16 November 1937 (Article 45 amended) Article 42 1. The Court shall decide any questions as to its own jurisdiction arising during the hearing of a case; it shall for this purpose apply the provisions of the present Convention for the Prevention and Punishment of Genocide and the general principles of law. 2. If a High Contracting Party, not being the Party which sent the case in question for trial to the . . . . . . . . . . . . . . .*, disputes the extent of the

A/362

351

Court’s jurisdiction in relation to the jurisdiction of its own national courts and does not see its way to appear in the proceedings in order that the question may be decided by the International Criminal Court, the question shall be treated as arising between such High Contracting Party and the High Contracting Party which sent the case for trial to the Court, and shall be settled as provided in article 14 of the Convention for the Prevention and Punishment of Genocide. * The Economic and Social Council or the Security Council.

Article 43 Whenever the Court is unable to deal with a possible accumulation of actions it may establish additional sections. Such sections shall consist of seven judges. Each section shall be preaided [sic] over by a regular judge of the Court elected by the regular and deputy judges of the Court in general assembly.. Lots shall be drawn to elect the other judges to the various sections. If, owing to an accumulation of setions [sic] the number of regular or deputy judges is insufficient to produce a full complement of all the sections created, vacancies may be filled by lot by persons appearing on the panel referred to in article 7, paragraph 1. In all cases however, and irrespective of the number of sections created, such sections may not be presided over except by a regular judge or, in the absence of a regular judge, by a deputy judge of the International Criminal Court.

352

A/362

ANNEX II ESTABLISHMENT OF AN AD HOC INTERNATIONAL CRIMINAL COURT FOR THE PUNISHMENT OF ACTS OF GENOCIDE Article 1 1. Each State shall, within a period of one month from the date on which the Convention for the Prevention and Punishment of Genocide comes into force with reference to such State, designate two persons who are acknowledged authorities on criminal law to hold the office of judge in an International Criminal Court for the punishment of genocide if called upon. 2. No person may be designated who is not a national of one of the High Contracting Parties to the said Convention. 3. The names of the persons so designated shall be communicated to the President of the International Court of Justice who shall place them on the panel. Article 2 1. In the case of acts of genocide committed by individuals acting as organs of the State or with the support or toleration of the State, each High Contracting Party and any other State which arrested such individuals on its territory may, if unwilling to extrauite [sic] or punish the said individuals, request . . . . . . . . . * to commit them for trial to the Court. 2. The instrument whereby a State requests . . . . . . . . . * to commit an accused for trial to the Court shall contain a statement of the main charges and evidence in support thereof. 3. If the . . . . . . . . . * is of the opinion that such request should be complied with, it shall forthwith approach the International Court of Justice requesting it to select seven regular and seven deputy judges from the panel provided for in article 1. 4. The . . . . . . . . . ** shall also designate the persons instructed to act for the prosecution.

A/362

353

Article 3 The . . . . . . . . . ** shall at the same time decide where the Court is to sit. If such place shall be in the territory other than that where the permanent headquarters of the United Nations is established or in territory where the seat of the International Court of Justice is established, the consent of the State to which such territory belongs shall be required. * Request to be addressed to the Economic and Social Council or to the Security Council of the United Nations. ** The Economic and Social Council or the Security Council of the United Nations.

Article 4 For the purposes of constituting the International Criminal Court, the President of the International Court of Justice shall forthwith summon the persons designated under article 1. Convention 16 November 1937 (Article 8 amended) Article 5 The first meeting of the International Criminal Court shall be presided over either by the President or Vice-President of the International Court of Justice or by a judge of that Court designated for that purpose. At such first meeting, which shall be public, the members of the International Criminal Court shall, before taking up their duties, give a solemn undertaking to exercise their powers impartially and conscientiously. Convention 16 November 1937 (Article 9) Article 6 The High Contracting Parties shall grant the members of the Court diplomatic privileges and immunities when engaged on the business of the Court. Convention 16 November 1937 (Article 12)

354

A/362

Article 7 A member of the Court cannot be dismissed unloss [sic] in the unanimous opinion of all the other members including both regular and deputy judges, he has ceased to fulfill the required conditions. Convention 16 November 1937 (Article 14 amended) Article 8 The Court shall elect its President and Vice-President from its members. Convention 16 November 1937 (Article 15) Article 9 The Court shall establish regulations to govern its practice and procedure. Convention 16 November 1937 (Article 17) Article 10 The Court’s archives shall be in the charge of the Registrar. Convention 16 November 1937 (Article 18 amended) Article 11 The number of members who shall sit to constitute the Court shall be seven. Convention 16 November 1937 (Article 19(1)) Article 12 Members of the Court may not take part in trying an [sic] case in which they have previously been engaged in any capacity whatsoever. In case of doubt, the Court shall decide. Convention 16 November 1937 (Article 19(2))

A/362

355

Article 13 If, for some special reason, a member of the Court considers that he should not sit to try a particular one he shall so notify the President as soon as he has been informed that the Court is seized of that case. Convention 16 November 1937 (Article 20(1) amended) Article 14 If the presence of seven regular judges is not secured, the necessary number shall be made up by calling upon the deputy judges in their order on the list. Convention 16 November 1937 (Article 21 amended) Article 15 1. The substantive criminal law to be applied by the Court shall be that of the territory on which the offence was committed if the country concerned is a part to the Convention and, in other cases, the law of the country which applied to the Court under article 2. 2. Any dispute as to what substantive criminal law is applicable shall be decided by the Court. Convention 16 November 1937 (Article 22 amended) Article 16 If the Court has to apply, in accordance with article 15, the criminal law of a State of which no sitting judge is a national, the Court may invite a jurist who is a national of the said State and an acknowledged authority on such law to sit with it in a consultative capacity as a legal assessor. Convention 16 November 1937 (Article 26(2)) Article 17 Any person directly injured by the offence may, if authorized by the Court, and subject to any conditions which it may impose, constitute himself “partie civile” before the Court; such person shall not take part in the oral proceeding except when the Court is dealing with the damages. Convention 16 November 1937 (Article 27)

356

A/362

Article 18 The Court may not entertain charges against any person except the person committed to it for trial, or try any accused person for any offences other than those for which he has been committed. Convention 16 November 1937 (Article 28 amended) Article 19 The Court shall not proceed further with the case and shall order the accused to be discharged if the prosecution is withdrawn by . . . . . . . . . . . . . . .*. * The Economic and Social Council or the Security Council of the United Nations.

Convention 16 November 1937 (Article 29 amended) Article 20 1. Accused persons may be defended by advocates belonging to a Bar and approved by the Court. 2. If provision is not made for the conduct of the defence by a barrister chosen by the accused, the Court shall assign to each accused or group of accused a counsel selected from advocates belonging to a Bar. Convention 16 November 1937 (Article 30) Article 21 The dessier [sic] of the case and the statement of the “partie civile” shall be communicated to the person who is before the Court for trial. Convention 16 November 1937 (Article 31) Article 22 1. The Court shall decide whether a person who has been committed to it for trial shall be placed or remain under arrest. Where necessary, it shall determine on what conditions he may be provisionally set at liberty.

A/362

357

2. The State on the territory of which the Court is sitting shall place at the Court’s disposal a suitable place of internment and the necessary staff of warders for the custody of the accused. Convention 16 November 1937 (Article 32) Article 23 The parties may submit to the Court the names of witnesses and experts, but the Court shall be free to decide whether they shall be free and heard. The Court may always, even of its own motion, hear other witnesses and exports. The same rules shall apply as regards all evidence. Convention 16 November 1937 (Article 33) Article 24 Any letters of request which the Court considers it necessary to have despatched shall be transmitted to the State competent to give effect thereto by the method prescribed by the regulations of the Court. Convention 16 November 1937 (Article 34 amended) Article 25 No examination, no hearing of witnesses or experts and no confrontation may take place before the Court except in the presence of the counsel for the accused and the representatives of . . . . . . . . . . . . . . .*. Convention 16 November 1937 (Article 35(1)) Article 26 The hearings before the Court shall be public. Convention 16 November 1937 (Article 36) Article 27 The Court shall sit in private to consider its judgment. Convention 16 November 1937 (Article 37)

358

A/362

Article 28 The decisions of the Court shall be by a majority of the judges. Convention 16 November 1937 (Article 38) Article 29 Every judgment or order of the Court shall state the reasons therefor and be read at a public hearing by the President. Convention 16 November 1937 (Article 39) Article 30 1. The Court shall decide whether any object is to be confiscated or be restored to its owner. 2. The Court may sentence the persons committed to it to pay damages. 3. High Contracting Parties in whose territory objects to be restored or property belonging to convicted persons are situated shall be bound to take all the measures provided by their own laws to ensure the execution of the sentences of the Court. 4. The provisions of the proceding [sic] paragraph shall also apply to cases in which pecuniary penalties imposed by the Court or costs of proceedings have to be recovered Convention 16 November 1937 (Article 40 amended) Article 31 1. Sentences involving loss of liberty shall be executed by a High Contracting Party chosen with its consent by the Court. Such consent may not be withhold by the State which brought the matter before the . . . . . . . . . * under article 2. 2. The Court shall determine the way in which any fines shall be dealt with. Convention 16 November 1937 (Article 41 amended)

A/362

359

Article 32 If sentence of death has been pronounced, the State designated by the Court to execute the sentence shall, if its national law does not provide for the death penalty, be entitled to substitue [sic] therefor the most severe penalty provided by the said law which involves loss of liberty. Convention 16 November 1937 (Article 42 amended) Article 33 The right of pardon shall be exercised by the State which has to enforce the penalty unless within a period of one month from the date on which the State concerned has informed it of its desire to exercise such right the . . . . . . . . . .* shall have entered an objection. Convention 16 November 1937 (Article 43 amended) Article 34 1. Against convictions pronounced by the Court, no proceedings other than an application for revision shall be allowable. 2. The Court shall determine in its rules the cases in which an application for revision may be made. 3. The States mentioned in article 2, and the persons committed for trial by the Court, shall have the right to ask for a revision. Convention 16 November 1937 (Article 44 amended) Article 35 1. The judges shall, while sitting, receive allowances to be borne by the respective State of which each judge is a national, on the basis of a scale established by the High Contracting Parties. 2. There shall be created by contributions from the High Contracting Parties a common fund from which the costs of the proceedings and other expenses involved in the trial of cases, including any fees and expenses of counsel assigned to the accused by the Court, shall be defrayed, subject to recovery from the accused if he is convicted. The special allowance to the Registrar and the expenses of the Registry shall be met cut of this fund. Convention 16 November 1937 (Article 45 amended)

360

A/362

Article 36 The Court shall decide any questions as to its own jurisdiction arising during the hearing of a case; it shall for this purpose apply the previsions of the present Convention for the Prevention and Punishment of Genocide and the general principles of law.

A/362

361

UNITED NATIONS NATIONS UNIES OFFICIAL RECORDS OF THE SECOND SESSION OF THE GENERAL ASSEMBLY SUPPLEMENT No. 3 REPORT BY THE ECONOMIC AND SOCIAL COUNCIL TO THE GENERAL ASSEMBLY covering the period from 3 October 1946 to 17 August 1947 DOCUMENTS OFFICIELS DE LA DEUXIEME SESSION DE L’ASSEMBLEE GENERALE SUPPLEMENT No 3 RAPPORT DU CONSEIL ECONOMIQUE ET SOCIAL A L’ASSEMBLEE GENERALE pour la période du 3 octobre 1946 au 17 août 1947 Lake Success, New York A/382 9 September 1947 [Discussions pertaining to issues other than the Genocide Convention] Genocide 86. At its fourth session, the Council, pursuant to General Assembly resolution 96(I)1 instructed the Secretary-General:2 1

2

See Resolutions adopted by the General Assembly during the second part of its first session, page 188. See Resolutions adopted by the Economic and Social Council during its Fourth Session, resolution 47(IV), page 34.

(a) To undertake with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) After consultation with the General Assembly Committee on the Development and Codification of International Law, and, if feasible, the

362

A/362

Commission on Human Rights, and, after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

In consultation with three experts, the Secretary-General prepared a draft convention and study which was submitted to the Assembly Committee on the Progressive Development of International Law and its Codification on 13 June 1947. As the Committee did not have the comments of Member Governments on the draft convention, the Chairman stated by letter of 17 June that it felt unable at that time to express any opinion in the matter. On 7 July 1947 the Secretary-General transmitted the draft convention and study to Member Governments for their comments. At its fifth session, the Council adopted a resolution1 instructing the Secretary-General to collate the comments of Member Governments; informing the General Assembly that it proposed to proceed as rapidly as possible with the consideration of the question subject to any further instructions of the General Assembly; and requesting the Secretary-General, in the meanwhile, to transmit to the General Assembly the draft convention on the crime of genocide prepared by the Secretariat in accordance with paragraph (a) of the Council resolution2 of 28 March 1947, together with any comments from Member Governments received in time for transmittal to the General Assembly.3 1

2

3

See Resolutions adopted by the Economic and Social Council during its Fifth Session, resolution 77(V), pages 21–22. See Resolutions adopted by the Economic and Social Council during its Fourth Session, resolution 47(IV), page 33. This is the subject of a separate item on the agenda of the second session of the General Assembly.

[Discussions pertaining to issues other than the Genocide Convention]

A/C.6/147

United Nations Nations Unies GENERAL ASSEMBLY ASSEMBLEE GENERALE

363

UNRESTRICTED A/C.6/147 27 September 1947 ORIGINAL: ENGLISH

SIXTH COMMITTEE DRAFT CONVENTION ON GENOCIDE Note by the Secretary-General I. The General Assembly at the Second Part of its First Session considered a draft resolution on the crime of genocide presented jointly by the delegations of Cuba, India and Panama (document A/BUR/50). This was discussed in the Sixth Committee at its twenty-third and thirtysecond meetings. On the recommendations of the Sixth Committee the General Assembly at its Fifty-fifth Plenary Meeting, held on 11 December 1946, adopted a resolution* by which, inter alia, it requested the Economic and Social Council “to undertake the necessary studies with a view to drawing up draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.” II. This resolution of the General Assembly was considered by the Economic and Social Council at its Seventieth Meeting, on 15 March 1947 (documents E/P.V.70 and E/421). After further consideration of the matter by its Committee of the Whole on Social Matters (document E/AC/7/15), the Economic and Social Council, on 28 March 1947, adopted a resolution instructing the Secretary-General: (a) to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) after consultation with the General Assembly Committee on the Development and Codification of International Law and, if feasible, the

364

A/C.6/147

Commission on Human Rights and, after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

III. In conformity with this resolution of the Economic and Social Council, the Secretary-General, with the aid of experts, prepared a Draft Convention for the Prevention and Punishment of Genocide. This draft was submitted to the Committee on the Progressive Development of International Law and its Codification which met from 12 May to 24 June 1947. The Committee on the Progressive Development of International Law and its Codification, having considered the Draft Convention at its Twenty-eighth and Twenty-ninth Meetings, on 13 June and 16 June 1947, adopted the following resolution, which was communicated by the Chairman of the Committee to the Secretary-General on 17 June 1947 (document A/AC.10/55): The Committee fully realizes the urgency, which was expressed in the recommendation contained in the Resolution of the General Assembly of 11 December 1946, of organizing co-operation between States with a view to facilitating the speedy prevention and punishment of the crime of genocide. It notes, however, that the text prepared by the Secretariat (documents A/AC.10/41 and A/AC.10/42/Rev.1), owing to lack of time, has not yet been referred to the Member Governments of the United Nations for their comments, as is contemplated in the Resolution of the Economic and Social Council, and it regrets that, in the absence of information as to the views of the Governments, it feels unable at present to express any opinion in the matter.

IV. In view of the urgency for the presentation of the Draft Convention to the General Assembly, it was submitted to the Economic and Social Council at the beginning of its Fifth Session, for consideration, although no comments had been then received from Member States. The Economic and Social Council at its Fifth Session, on 6 August 1947, adopted a resolution by which the Council, taking note of the fact that the General Assembly’s Committee on the Development and Codification of International Law and the Commission on Human Rights had not considered the Draft Convention on the Crime of Genocide prepared by the Secretariat, decided to inform the General Assembly that it proposed to proceed as rapidly as possible with the consideration of the question, subject to any further instructions of the General Assembly. It also requested the Secretary-General, in the meanwhile, to transmit to the General Assembly the Draft

A/C.6/147

V.

365

Convention on the Crime of Genocide prepared by the Secretariat, in accordance with paragraph (a) of the Council’s resolution of 28 March 1947, together with any comments from Member Governments received in time for transmittal to the General Assembly. In compliance with the request expressed by the Economic and Social Council, the Secretary-General transmitted to the Second Session of the General Assembly the Draft Convention on the Crime of Genocide for consideration.* Comments have been received as yet only from the Governments of India and Haiti (document A/401).

* Document A/362. The Draft Convention together with explanatory notes prepared by the Secretariat has also been distributed to Member States as document E/447.

366

A/401

ANNEX 3a

Draft convention on genocide Communications received by the Secretary-General Documents A/401, A/401/Add.1, A/401/Add.2, A/401/Add.3

27 September 1947

[Original text: English] 1. At its fifth session held on 6 August 1947, the Economic and Social Council adopted resolution 77(V) relating to the draft convention on the crime of genocide which had been prepared by the Secretariat. The resolution inter alia called upon the Member Governments, in view of the urgency of the matter, to submit to the Secretary-General, as soon as possible, their comments on the draft convention transmitted to them by the Secretary-General on 7 July 1947. By the same resolution, the Secretary-General was requested to communicate to the General Assembly any comments received in time for transmittal. 2. In compliance with the request made by the Economic and Social Council, the Secretary General has the honour to transmit to the General Assembly the following communications received from Member States: 1. Communication received from India New Delhi, 27 August 1947 The Minister for External Affairs and Commonwealth Relations presents his compliments to the Secretary-General of the United Nations and has the honour to say that the Government of India has no comments to offer on the draft convention on the crime of genocide received with the Secretary-General’s note No. 605-8-1-1 EG, dated 7 July 1947.

A/401

367

2. Communication received from haiti Secretariat of State for Foreign Affairs Port-au-Prince 12 September 1947 In reply to your communication No. 605-8-1-1 EG, dated 21 August 1947 last, I have the honour to send you herewith some comments and suggestions regarding the draft convention on genocide which this Department feels called upon to submit to the General Assembly of the United Nations. The idea on which these changes are based is that the principal purpose of the United Nations is to maintain lasting peace in the world and to be a centre for harmonizing the actions of nations in the attainment of the common ends stated in Article 1 of the San Francisco Charter. If none but the contracting parties are to report genocide committed by, or in complicity with one of them, the normal development of the Organization may be seriously prejudiced and the final establishment of international peace materially endangered. There is also reason to believe that by granting greater freedom of intervention to the Secretary-General, who is directly responsible to the General Assembly, the purposes of the United Nations will more easily be achieved and the progress of the Organization better ensured. With particular reference to the reporting of genocide, this Department therefore supports the opinion of Mr. Pella and Mr. Lemkin as stated on page 46 of document E/447.1 1

Document E/447 was reproduced as document A/362 and constitutes the text of Annex 3 above.

Comments Article IX. It is proposed to add the following paragraph to the two at present contained in this article: In both cases, in addition to the State on whose territory acts of genocide have been committed, any one of the High Contracting Parties or the Secretary-General acting on his own initiative, or in the name of members of the human group victims of such acts, may report the authors of such acts to the Economic and Social Council or the Security Council.

368

A/401

Article X. The Government of Haiti favours the first draft in order to avoid the difficulties inherent in the constitution of provisional tribunals. It also considers that the International Court of Justice should have jurisdiction in all matters connected with international crimes or coming within the scope of international law. Article XII. The following wording is proposed: Irrespective of any provisions in the fore-going articles, should the crimes as defined in this convention be committed in any part of the world, or should there be serious reasons for suspecting that such crimes have been committed, the Contracting Parties or the human groups affected may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations.

Article XVI. The Government of Haiti favours the second draft as being more explicit and providing a shorter time limit for the entry into force of the convention as provided for by article XVIII. Article XIX. The Government of Haiti agrees to the first draft. Article XX. The Government of Haiti considers that the convention on genocide is essential to the normal development of the world and the defence of mankind. Accordingly it proposes that the following paragraph should be added to article XX as it now stands: In that event the Secretary-General of the United Nations shall submit a new convention to the vote of the General Assembly at its first subsequent session. Such new convention shall take into account the reasons given for each one of the denunciations of the earlier convention.

3. Communication received from the Philippines Department of Foreign Affairs Manila, 9 September 1942 The Secretary of Foreign Affairs of the Philippines presents his compliments to the Secretary-General of the United Nations and has the honour to acknowledge the receipt of the Secretariat’s note (document 605-8-1-1/ EG) of 21 August 1947, enclosing copy of the resolution adopted by the Economic and Social Council on 6 August 1947 on the draft convention on the crime of genocide, calling upon Member Governments to submit

A/401

369

as soon as possible to the Secretary-General their comments on the draft convention. The delegation of the Philippines to the forthcoming General Assembly has been supplied with the materials on the subject and is believed to be in a position to present the views of its Government on the matter. 4. Communication received from Venezuela Ministry of External Relations Caracas, 12 September 1947 The Minister for External Relations presents his compliments to the Secretary-General of the United Nations and has the honour to acknowledge receipt of note No. 605-8-1-1/EG, dated 21 August last, to which was attached a copy of the resolution adopted by the Economic and Social Council relating to the draft convention on the crime of genocide which was transmitted to the Government with the Secretariat’s communication number 605-8-1-1/EG dated 7 July 1947. In accordance with the wishes expressed by the United Nations Secretariat, the Minister transmits herewith a report containing the comments of the Government of Venezuela regarding the said draft convention on the crime of genocide. Report Draft convention on the crime of genocide With the assistance of experts in the field of international and criminal law and in compliance with the request expressed by the Economic and Social Council, the United Nations Secretariat prepared a draft convention on the crime of genocide and two annexes regarding the establishment of an international court for the punishment of this new form of crime. The Secretariat observes that it is only intended to provide a basis for discussion and asks for the comments of Governments. The principal ideas of the main draft follow a most noble and generous international trend, born of the experience of the last war, and deserve unqualified support; as far as Venezuela is concerned, such fundamental concepts already constitute a national legal-political heritage, nurtured by those principles of individual equality, security and liberty which are a

370

A/401

tradition of the political system of the Republic. Indeed, the most recent National Constitution of 5 July this year (article 46, sub-paragraph (b)) prohibits racial discrimination and generally extends to all inhabitants of the country, whatever their origin, nationality, race or religion, the same fundamental individual guarantees based on the widest equality. Consequently, Venezuela is fully prepared, by its political traditions and by the liberality of its constitutional principles, to co-operate with other countries in the suppression of a hateful crime which should be highly repugnant to civilized nations. Nevertheless, the impression gained by the jurist from the United Nations draft convention is that it goes beyond the General Assembly’s resolution 96(I) of 11 December 1946. The General Assembly affirmed that genocide is a crime under international law, invited the Member States to enact the necessary legislation for its prevention and punishment, and confined itself to recommending that international co-operation be organized for this purpose. It therefore appears that the spirit of this resolution was to ensure that Members should prevent and punish the hateful acts that constitute genocide and establish a principle of international co-operation with this object in view, without demanding from Members a grave sacrifice of their sovereignty and a surrender of the criminal jurisdiction they exercise in their territory. The drafts of the Secretariat, on the other hand, appear to involve a partial surrender of these traditional principles of national and international law in favour of the establishment of an international repressive jurisdiction which may result in serious danger to Members and wound national feelings that are still over-sensitive. In the course of time, it is probable that future solutions of this type will be found; but they may be premature in the present phase of international life and politics and liable to cause friction, differences and disputes between States, which might be more dangerous to the cause of common peace and harmony than the very crimes which it is intended to suppress. Paragraph 3 of the preamble, and articles 7 and 12 of the draft convention are of this nature. The whole system envisaged for the establishment of international justice in regard to genocide also appears to be imbued with the same spirit, which seems clearly inconsistent with the principle laid down in paragraph 7 of Article 2 of the United Nations Charter.

A/401

371

The application of such extensive co-operation as that proposed by the instrument in question is also subject to technical difficulties which appear difficult to overcome. For example, many States, Venezuela among them, maintain as a fundamental principle the non-extradition of their nationals under any circumstances and, in return, undertake to try them in their own territory when the act is punishable under their own law. Such States could not accept the wording of article 8 under which extradition must be granted in all cases, nor could they surrender their nationals to international jurisdiction without violating the basic principles of their legal system. Even where foreigners are concerned, Venezuela does not grant extradition when the penalty of death or life-imprisonment may be imposed on the accused in the country applying for such extradition. Consequently, the provision contained in article 38 of the Annex does not appear to provide sufficient guarantee to a State in such a position for the safeguarding of its cardinal principles in criminal matters. Without examining the drafts at length, it appears desirable from every point of view that they should first be submitted to a deeper and more extensive study by one of the legal bodies of the United Nations, so that they may be carefully sifted and made acceptable to the greatest possible number of States. The Government of Venezuela gives its support in principle but, rather than the drafts prepared by the United Nations, would prefer a convention by which Member States undertook to adopt national criminal legislation ensuring the punishment of genocide and to apply the appropriate penalties themselves. Only when States do not fulfil such obligations would there be cause for claims by other members or by the United Nations. The establishment of international criminal jurisdiction to deal with these cases seems to be a step that should be reserved for the future, when the circumstances of international life are more favourable and the spirit of international co-operation in the legal sphere has, as is to be hoped, made further progress. If these views on the method of procedure are not accepted, Venezuela will study her possible final conclusions at greater length in the same spirit of full co-operation and defence of human integrity on which her political institutions are based.

372

A/401

5. Communication received from the United States of America Washington, 30 September 1947 The Secretary of State of the United States of America presents his compliments to the Secretary-General of the United Nations and acknowledges the receipt of his note, dated 21 August 1947 referring to his earlier note of 7 July 1947, and has the honour to transmit, as therein requested, the comments of the Government of the United States on the draft convention on the prevention and punishment of the international crime of genocide. Comments Preamble. The Preamble, as drafted, is objectionable for the reasons that it is wordy, and that it contains material of a substantive character which should be treated of in the body of the convention. Thus, the first sentence purports to define genocide, while articles I and II of the convention are also devoted to the definition of genocide. Attention is called to the fact that the important matter of “intent” is injected into the definition contained in the preamble by the inclusion of the phrase “intentional destruction”, which in any event might better read “deliberate destruction or attempt to destroy.” The latter change would bring the definition contained in the preamble more in harmony with the definition contained in the body of the convention. (See article II, dealing with “attempt to commit genocide”.) It is obviously not intended that groups must be totally destroyed before the crime of genocide exists. Another subject which appears to be inappropriately dealt with in the preamble is that of “jurisdiction”, which might well be considered to be resolved by the sentence reading: “They pledge themselves to prevent and to repress such acts wherever they may occur.” (Italics added). The jurisdictional problem should be dealt with in the body of the instrument. Should the preamble as drafted by the Secretariat be insisted upon, the United States would also object to the inclusion of the words “by depriving it of the cultural and other contributions of the group so destroyed”, language which tends to weaken the sentence in which it appears. A simply worded preamble is favoured and the following substitute draft is suggested:

A/401

373

The High Contracting Parties declare that genocide constitutes a crime under international law, which the civilized world condemns, and which the Parties to this Convention agree to prevent and repress as hereinafter provided.

The language of the proposed draft is taken, in part, from the resolution 96(I) of the General Assembly of December 11, 1946. Article I. 1. Paragraphs I and II of article I, as drafted, overlap each other and are objectionable for this reason. Thus, each paragraph deals with both “purpose” and the nature of the “act”. The two paragraphs should be consolidated. A text reading as follows is suggested: Genocide means any of the following criminal acts directed against a racial, national, religious, or political group of human beings, for the purpose of totally or partially destroying such group or of preventing its preservation or development.

In addition, the words “Such acts consist of:” should then be deleted as unnecessary, being replaced by the words “any of the following criminal acts” appearing near the beginning of the text just suggested. 2. The inclusion of “linguistic” groups is believed to be unnecessary, since it is not believed that genocide would be practiced upon them because of their linguistic, as distinguished from their racial, national or religious, characteristics. Racial, national and religious groups are covered, and that should be sufficient. 3. Considerable question has been raised as to whether “political” groups should be included in the definition. The United States is able to agree to the inclusion of political groups on the understanding that genocide as to such groups is confined to physical destruction. 4. It is important that the words “for the purpose of totally or partially destroying it or of preventing its preservation or development”, or some similar wording indicating “purpose” or “intent”, be maintained in the draft. 5. The words “physical violence” should be inserted before the words “mutilations and biological experiments” in sub-paragraph (c) of paragraph II(1) of this article, and the words “imposed for other than curative purposes” should be deleted. The inclusion of the words “physical violence” broadens the definition, to take care of other possible forms of physical violence and the elimination of the words “imposed for other than

374

A/401

curative purposes” also broadens the definition. Biological experiments, however imposed, should be made criminal if they are part of a plan to destroy one of the groups herein referred to, in whole or in part The word “and” between “mutilations” and “biological experiments” should be changed to “or”. 6. The word “all” in sub-paragraph (d ) of paragraph II(1) should be deleted. The inclusion of the word “all” in the phrase reading “deprivation of all means of livelihood”, would seem unduly to narrow the crime. 7. It is also considered that the word “compulsory”, in paragraph II(2), now modifying the word “abortion” only, should be made to modify all crimes listed under paragraph II(2), the initial line of the text thus being made to read: “Compulsory restriction of births by:” 8. The United States is opposed to the inclusion of paragraph 3 of article I, relating to “destroying the specific characteristics of the group” by different means, except as to subparagraph (a) “forced transfer of children to another human group.” Sub-paragraph (b) might be interpreted as embracing forced transfers of minority groups such as have already been carried out by Members of the United Nations. Sub-paragraphs (c), (d) and (e) relate generally to prohibition of the use of language, systematic destruction of books, and destruction or dispersion of documents and objects of historical or artistic value. The act of creating the new international crime of genocide is one of extreme gravity, and the United States feels that it should be confined to those barbarous acts directed against individuals which form the basic concept of public opinion on this subject. The acts provided for in these sub-paragraphs are acts which should appropriately be dealt with in connection with the protection of minorities. Consequently, sub-paragraph (a) of this paragraph should be substituted for the whole of paragraph 3. Article II. Article II as drafted is in two parts, namely (I) other crimes of genocide and (II) other punishable acts. It is considered desirable that the definition of genocide should be treated in Article I and that other unlawful acts related to but distinguishable from genocide proper be treated in Article II.

A/401

375

The draft as submitted by the Secretary-General seems to assume that the acts described as genocide are punishable and unlawful. Thus the initial line of paragraph II as submitted reads: “The following shall likewise be punishable”. The convention should contain a clear statement that the acts denominated as “genocide” are unlawful and punishable, as is done in the suggested draft. The preceding suggestions may be effectuated by causing article II to read: It shall be unlawful and punishable to commit genocide or to wilfully participate in an act of genocide, or to . . .

The above suggested language also places “wilful participation” in the sentence which declares genocide to be unlawful. The other specifications contained in article II, paragraph I, as drafted should properly remain there. These include “attempts” and “preparatory acts” which appear to have the same relationship to genocide as “incitement” and “conspiracy” (contained in paragraph II) in that they are related to but distinguishable from genocide proper. However, it is suggested that sub-paragraph (a) of paragraph I(2) as drafted “studies and research for the purpose of developing the technique of genocide”, should be deleted for the reason that it is considered that these acts may be too far removed from what is generally regarded as the commission of the offense. The conjunction “or” should be inserted before the word “manufacturing” in sub-paragraph (b); “or” should also be inserted in place of “and” before the word “distribution” in sub-paragraph (c). Sub-paragraphs (b) and (c) would become sub-paragraphs (a) and (b) of paragraph 2: Article II would then read: It shall be unlawful and punishable to commit genocide or to wilfully participate in an act of genocide, or to engage in any: 1. Attempt to commit an act of genocide; or 2. Any of the following preparatory acts: (a) Setting up of installations, or manufacturing, obtaining, possessing or supplying of articles or substances, with the knowledge that they are intended for genocide; or (b) Issuing instructions or orders, or distributing tasks aimed to promote genocide; or

376

A/401

3. Direct and public incitement of any person or persons to any act of genocide, whether the incitement be successful or not, when such incitement takes place under circumstances which may reasonably result in the commission of acts of genocide; or 4. Conspiracy to commit an act of genocide.

Article III. The United States considers that article III should be deleted. Under Anglo-American rules of law the right of free speech is not to be interfered with unless there is a clear and present danger that the utterance might interfere with a right of others. The United States has proposed under the preceding article that the provision on “incitement” be qualified to this effect. When “propaganda” constitutes a clear and present danger it takes on the character of “incitement” and is covered in the preceding article. Article IV. t is unnecessary here to provide that those committing genocide “shall be punished”. Article II, as drafted above, makes it “unlawful and punishable” to commit genocide. Moreover, the present article as submitted makes only “genocide” punishable, while article II, above makes certain other acts “unlawful and punishable”. Accordingly, it is suggested that this article be recast (and renumbered as article III, since it is recommended that article III of the draft submitted be incorporated into article II) to read as follows: Punishment under this Convention shall be meted out to the guilty be they rulers, public officials, private individuals, groups or organizations.

The text submitted above has the advantage or making it clear that the convention is applicable to “groups or organizations”. Article V. This article, as drafted, is also limited to “genocide” and does not include the other acts specified in article II as “unlawful and punishable”. Therefore it is suggested that instead of referring to “genocide”, the reference be to “the crimes set out in this Convention.” The Government of the United States also desires to incorporate the rule of the Nürnberg Charter (article 8) which, while providing that superior orders shall not free a defendant from responsibility, goes on to say that this “may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”

A/401

377

The article (renumbered article IV) would then read: Command of the law or superior orders shall be no defense for the crimes set out in this Convention, but may be considered in mitigation of punishment.

Article VI. Here again it is submitted that some such formula as “acts prohibited in this Convention” is broader and therefore more desirable than “genocide as defined by articles I, II, and III, above”. It is suggested that the article (renumbered article V) be rephrased to read: The High Contracting Parties shall make provision in their laws for the effective punishment, as crimes, of the acts prohibited in this Convention, which laws shall take into account all of the provisions of this Convention and each such High Contracting Party shall, subject to articles VII and VIII, try and upon conviction punish offenses committed within its jurisdiction.

Article VII. This article contains a broad jurisdictional provision. The United States agrees with the principle set forth in the draft convention, in article IX that where genocide is committed by or with the connivance of the State the accused individuals should be tried by an international court. All other cases would involve acts against the laws of the State where they are perpetrated. A second reason for opposing this provision as submitted is that it is obviously liable to be abused. The broad scope of genocide would make it relatively easy for a State to claim jurisdiction of aliens on this ground when the real purpose is political retribution. A third reason for opposing the provision is that it would apparently seek to establish a rule of law applicable to nationals of States which have not consented to it, namely, such States as may not ratify the convention. A suggested text on jurisdiction is contained above under the comment on the preceding article. It is suggested that the following be added to this suggested article: Where such acts were committed outside its jurisdiction, the High Contracting Party having an offender within its jurisdiction may, subject to articles VI, VII and VIII, and with the express consent of the State where the act was committed, itself try and upon conviction punish such offender.

378

A/401

Article VIII. The United States accepts the principle that the crimes defined in this convention (not merely “genocide”) shall not be deemed to be political offenses. Because of the fact that extradition is a technical process, involving as it does, the safeguarding of human rights and the promotion of the administration of justice, with respect to which a large network of laws and treaties have been evolved, it is believed that instead of incorporating an entire extradition convention on the subject of the crimes covered by this agreement, it would be preferable to provide that each High Contracting Party pledges itself to grant extradition in these cases in accordance with its laws or treaties. The United States therefore suggests that this article (renumbered VI) be recast to read: The High Contracting Parties agree that the crimes defined in this Convention shall not be considered political crimes and shall be ground for extradition. Each High Contracting Party pledges itself to grant extradition in such cases, in accordance with its laws or treaties.

Article IX. It is submitted that the wording of the article, as drafted, is faulty. The person is apparently to be found “guilty” of the crime before he is delivered up for trial by the international tribunal. It is suggested that a better wording would be a text reading somewhat as follows (renumbered article VII): Each High Contracting Party pledges itself to commit to such permanent or ad hoc international penal tribunal as is established pursuant to article VII, persons charged with offenses under this Convention in the following cases: 1. Where the High Contracting Party is unwilling itself to try such alleged offenders, be they nationals or non-nationals in conformity with article V, or to grant their extradition in conformity with article VI. 2. Where the alleged acts have been committed by individuals acting as organs of the State or with its support or toleration. The provisions of the present Convention shall not prejudice such jurisdiction as may be conferred upon the permanent international penal tribunal herein referred to.

The final paragraph of this proposed article recognizes that it is desirable that the jurisdiction of the contemplated permanent international penal tribunal should not be prejudiced by provisions of the present Convention.

A/401

379

Article X. The provisions contained in the respective appendices with reference to the subject of conferring on an international tribunal jurisdiction “in all matters connected with international crimes”, or jurisdiction “to try crimes of genocide” are extremely detailed. The task of drafting such a convention at least equals that of drafting a convention on genocide. That task should be undertaken as a task separate and apart from the drafting of a convention on genocide. The report of the Committee on the Progressive Development of International Law and its Codification draws attention to the possible desirability of an international penal authority. Moreover, the attachment of such a convention to the instant agreement might well provoke such controversy as to cause the failure of adoption of the convention on genocide. For these reasons, the position is taken that it would be preferable to provide for the establishment of ad hoc tribunals to be superseded by a permanent international penal tribunal with appropriate jurisdiction at such time as this may be possible. That this is feasible, is demonstrated by the fact that the Nürnberg Tribunal was an ad hoc tribunal. While it would probably have been preferable for the nations to have had a previously established international penal tribunal to which those cases could have been referred, it is submitted that the problem of the institution of such a tribunal, competent to try international crimes generally, is of such a magnitude as to necessitate a separate project, having the most careful consideration, and inviting the largest number of States possible to become party thereto. So far as the establishment of a permanent international penal tribunal is concerned, consideration should be given in the first instance to the subject by the proposed international law commission. The international law commission might well give consideration, in this connexion, to the possible desirability of providing for injunctive relief and also of providing for recovery of damages on behalf of the victims or survivors of acts made unlawful by the present convention. It is therefore suggested that an article be included in the convention, reading somewhat as follows (article VII): The High Contracting Parties agree to take steps, through negotiation or otherwise, looking to the establishment of a permanent international penal tribunal, having jurisdiction to deal with offenses under this Convention. Pending the establishment of such tribunal, and whenever a majority of the States party to this Convention agree that the jurisdiction under article VIII has been or should be invoked, they shall establish by agreement an ad hoc tribunal to deal with any such case or cases.

380

A/401

Such an ad hoc tribunal shall be provided with the necessary authority to indict, to try, and to sentence persons or groups who shall be subject to its jurisdiction, and to summon witnesses and demand production of papers and documents, and shall be provided with such other authority as may be needed for the conduct of a fair trial and the punishment of the guilty.

Article XI. Because of the possibility that members of organizations may use the organizations as tools in their endeavour to commit genocide, and the organization may thus be used unwittingly in the commission of the crime it is thought that the draft should read (article IX): The High Contracting Parties pledge themselves to cause the disbandment of any group or organization which, by the judgment of any domestic or international tribunal acting pursuant to this Convention, has been found guilty of participating in any act prohibited by this Convention.

Article XII. This article involves the competence of the United Nations to take measures for the suppression or prevention of crimes failing within the scope of the convention. It is suggested that a more satisfactory wording of article XII would be (renumbered article X): The High Contracting Parties, who are also Members of the United Nations, agree to concert their action as such Members to assure that the United Nations takes such action as may be appropriate under the Charter for the prevention and suppression of genocide.

Article XIII. It is suggested that this article is not sufficiently precise to be of value. The formulation of satisfactory procedures on this point is a matter of difficulty since while the International Court of Justice is normally the proper organ to award damages against a State, any jurisdiction which it might exercise in this case might result in conflict with a decision of the penal tribunal. It is thought that attention should be given to the problem of damages by the international law commission in formulating plans for a permanent international penal tribunal. (See comment on article X.) Until such tribunal is formed it is proposed to vest the ad hoc tribunal referred to in the comment under article X with jurisdiction to award damages. This could be done by adding the following provision to the article already proposed at that point (new article VII): In addition, such an ad hoc tribunal shall also be authorized to assess damages on behalf of persons found to have sustained losses or injuries as a result of the violation of this Convention by any High Contracting Party. Prior to the assessment of any such damages any State alleged to have violated the Convention, shall be given an opportunity to be heard and to submit

A/401

381

evidence on its behalf. Each High Contracting Party agrees to pay such damages, and costs, as may be assessed against it as a result of its failure to comply with the terms of the Convention. The ad hoc tribunal shall have authority to determine the method of distribution and payment of any amounts so awarded.

Article XIV. The words “between any of the High Contracting Parties” should be inserted after the word “Disputes”. Only States may be parties to cases before the court. Because of the jurisdiction which may be conferred upon an international tribunal, as indicated above, it seems desirable in order to prevent concurrent or conflicting jurisdiction, to add the following proviso to this article: “provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to, and is pending before or has been passed upon by a tribunal referred to in article VII.” Article XV. No comment. Article XVI. Insert the phrase “to accede” after the word “invitation” in paragraph 1 (first draft), if it is to be adopted. The second draft is preferred. However, the phrase “to sign” should be inserted after the word “invitation” in paragraph 1, and the words “deposited with” should be inserted in the place of “transmitted to” in two instances, that is to say in the second and fourth unnumbered paragraphs. Whether the Economic and Social Council is the appropriate body to issue the invitations to sign the convention will need to be determined at the time of the drafting of the agreement. Possibly “the General Assembly” should be substituted for “the Economic and Social Council.” Article XVII. An article on the subject of “reservations” should be omitted. Article XVIII. 1. In paragraph 1, delete the words “the accession or . . .” and insert instead “instruments of ”. Also change “and” to “or”; and delete “s” in the word “ratifications”. It is believed that the convention should provide for its coming into force upon the deposit of ratifications by a substantial number of States. It is suggested that twenty might be an appropriate number. 2. In paragraph 2 insert the words “Ratifications or” before the word “Accessions” at the beginning of the paragraph. Also delete the words

382

A/401

“receipt by” and insert instead “their deposit with” before the words “the Secretary-General of the United Nations” at the close of the paragraph. Article XIX. The first draft is preferred. Article XX. It is suggested instead of the words “become less than . . .” the words “become fifteen or less” be inserted. Article XXI. The following alternative text is submitted: Upon receipt by the Secretary-General of the United Nations of written communications from one-fourth of the number of High Contracting Parties, requesting consideration of the revision of the present convention and the transmission of the respective requests to the General Assembly, the Secretary-General shall transmit such communications to the General Assembly of the United Nations. The General Assembly shall decide upon the steps, if any, to be taken in respect of such requests.

Article XXII. The following text is submitted for insertion in the place of this article: The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in article XIII of all signatures, ratifications and accessions received in accordance with articles XIII and XIV, of the date upon which the present Convention has come into force, of denunciations received in accordance with article XV, of the abrogation of the Convention effected as provided by article XVI, and of requests for revision of the Convention made in accordance with article XVII.

Article XXIII. The United States suggests the following redraft of this article renumbered XIX): 1. The original of this Convention shall be deposited in the archives of the United Nations. 2. A certified copy thereof shall be transmitted to all Members of the United Nations and to non-member States referred to under article XIII.

Article XXIV. No comment. Note. The communication of 18 October 1947 from the Secretary of State of the United States of America (document A/401/Add. 2) appended a revised draft convention on genocide incorporating the suggested changes detailed above.

A/401

383

6. Communication received from France Ministry of Foreign Affairs Paris, 7 October 1947 The Secretariat of the United Nations, by letter No. 605-S-1-1/EG of 21 August 1947, requested the French Government to submit such observations or comments as it might wish to make on the draft convention on the crime of genocide prepared by the Secretariat. The French Government has the honour to offer the following comments: 1. A country with liberal traditions like France, whose Constitution and institutions respect the equality of the human races cannot but support a measure designed to prevent the recurrence of the racial persecutions whereby the Nazi regime covered Europe with blood, and to make the commission of all similar crimes impossible. 2. Nevertheless, the French Government, anxious to make the said convention more effective by clarifying it and placing it in its proper framework, regrets that the question of genocide was not considered in correlation with the principles affirmed in the statute and sentences of the Nürnberg Tribunal, and as a parallel to the conception of crime against humanity, of which genocide is merely one of the aspects. It considers that the draft convention submitted by the Secretariat is not so much a convention as a maximum programme from which future experts may draw the material for a convention; moreover, this draft is too much concerned with introducing anti-genocide clauses into the body of domestic law of each State – clauses which would seem to be of no more than relative value since this crime can be committed only with the complicity of Governments. The French Government considers that the definition of genocide should be: (a) Limited to physical and biological genocide, for to include cultural genocide invites the risk of political interference in the domestic affairs of States, and in respect of questions which, in fact, are connected with the protection of minorities;

384

A/401

(b) Conditional on some culpable act or omission by the State. According to the French conception, the punishment of this crime, as such, should therefore be restricted to rulers, the agents themselves to be prosecuted and punished by international courts (since the courts of their own countries take no action), but on a charge of murder and as common-law criminals. It does without saying that the French Government is willing to participate without delay in any discussion likely to lead to the drafting of a convention based on the foregoing considerations. If it refrains from lengthy comment on a subject which it feels deserves the most careful attention of the United Nations it is because its representative on the Committee on the Progressive Development of International Law and its Codification has already submitted a memorandum on this subject, published by the Secretariat on 19 May last as document A/AC.10/29.

A/C.6/149

385

ANNEX 3b

Draft convention on genocide Draft resolution submitted by the delegation of Venezuela Document A/C.6/149

29 September 1947 [Original text: Spanish]

The General Assembly, Taking note of the report of the Economic and Social Council (document A/382, Section 86) concerning the General Assembly request in resolution 96(I) of 11 December 1946, that the Economic and Social Council undertake the necessary studies in order to prepare a draft convention on the crime of genocide; Considering that the Economic and Social Council has expressed in its resolution 77(V) of 6 August 1947, that “it proposes to proceed as rapidly as possible with the consideration of the question subject to any further instructions of the General Assembly”; Reaffirms its statements of reprobation of the crime of genocide as embodied in its resolution 96(I) of 11 December 1946; Invites the Economic and Social Council to proceed with the consideration of the draft convention on the crime of genocide prepared by the Secretariat and to submit its report to the next regular session of the General Assembly; Maintains the existence of the Committee on the Progressive Development of International Law and its Codification in order that this Committee collaborate with the Economic and Social Council in the consideration of the draft convention on the crime of genocide prepared by the Secretariat, and authorizes it to present to the Economic and Social Council the final report on its task to be included in the report that will be submitted to the third regular session of the General Assembly by the Economic and Social Council;

386

A/C.6/149

Requests the Secretary-General to transmit to the Economic and Social Council and to the Committee on the Progressive Development of International Law and its Codification the comments of Member Governments on the draft convention prepared by the Secretariat, and to provide such assistance as the Committee may require for the fulfillment of its task.

A/C.6/SR.39

387

THIRTY-NINTH MEETING Held at Lake Success, New York, on Monday, 29 September 1947 at 11 a.m. Chairman: Mr. El-Khouri (Syria). [Discussions pertaining to issues other than the Genocide Convention] 7. Draft convention on the crime of genocide (document A/362 and A/C.6/ 149) Mr. Chaumont (France [sic] said that he did not wish at that time to embark on a detailed discussion of the matter. He thereupon outlined the background of the present draft convention on the crime of genocide. The matter had been studied in pursuance of the resolution of the General Assembly of 11 December 1946,1 and had been referred to the Economic and Social Council. That Council had requested the Secretary-General to study the matter with the help of experts. It had then been referred to the Committee on the Progressive Development of International Law and its Codification, which had placed the item last on its agenda; it had in fact not yet been considered. That Committee would not give its views on whether the Secretariat’s draft could or could not serve as a basis, giving as its reasons lack of time to consider the matter and its lack of competence to consider a matter of substance. It was also of the opinion that since no Government comments or instructions had been received, it could not express an opinion. 1

See Resolutions adopted by the General Assembly during the second part of its first session, pages 188, 189.

The comments of Member Governments had not been received, and if those comments were to be waited for, the matter might be permanently postponed. The terms of reference of the Economic and Social Council were as follows: “After reference to all Member Governments for comments.”1 Since the words used were “reference to” rather than “reception”, and the observations had already been called for, it might not be necessary to wait for such comments before referring the draft convention to the General Assembly. The delegations would now have instructions on the

388

A/C.6/SR.39

matter. The Secretariat’s draft was not a rigid framework, but simply a basis for future work. Naturally, further study would be necessary. The present draft did not propose any effective machinery for the prevention of the crime of genocide, and it would not be necessary at present to link such a draft convention with the establishment of an international criminal court. The French delegation felt that whatever method might be adopted, it was willing to accept any procedure which would adequately deal with the crime of genocide, since the United Nations could not disclaim any interest in the problem. 1

See Resolutions adopted by the Economic and Social Council during its Fourth Session, pages 33, 34.

Mr. Fahy (United States of America) stated that he agreed in general with the representative of France, but would like to clarify the matter. The General Assembly at its last session had adopted a resolution stating that genocide was a crime under international law. It had asked the Economic and Social Council to study it for the purpose of drafting a convention on genocide. The Economic and Social Council had thereupon adopted a resolution to the effect: 1. That there should be consultation with the Committee on the Progressive Development of International Law and its Codification; 2. That there should be consultation with the Commission on Human Rights, if possible; 3. That all Member Governments should be asked for their comments.

The Economic and Social Council met again in July–August 1947 and adopted a resolution1 stating that its programme had not been completed: the Commission on Human Rights could not meet before December 1947; the Committee on the Progressive Development of International Law and its Codification was authorized to discuss method, not substance; no Governments’ comments had been received. In the same resolution it requested the Secretary-General to transmit to the present session of the General Assembly the draft convention prepared by the Secretariat, together with any comments by Member Governments. It also decided “to inform the General Assembly that it proposes to proceed as rapidly as possible with the consideration of the question subject to any further instructions of the General Assembly”. The General Assembly had now referred the matter to the Sixth Committee for study.

A/C.6/SR.39

1

389

See Resolutions adopted by the Economic and Social Council during its Fifth Session, pages 21, 22.

The Government of the United States condemned genocide and was prepared to aid in the preparation of a convention which would fulfil the resolution of the General Assembly. If, however, the Sixth Committee wanted such a draft to be worked on at the present time, a new sub-committee should be set up or the matter should be referred to Sub-Committee 2. Otherwise, the only alternatives would be to refer the matter back to the Economic and Social Council, or to the international law commission if such a commission were set up. The latter method should no doubt be used in the future. The United States was ready to agree that a sub-committee of the Sixth Committee should discuss the work at the present session. However, since the existing instructions of the General Assembly put the matter in the hands of the Economic and Social Council, the Sixth Committee could not now undertake the formulation of a draft convention unless so instructed by the General Assembly. Should, however, the General Assembly recommend the matter to the Sixth Committee for preparation, it ought to do so with the proviso that if the Sixth Committee failed to finish the work, any further work should become the task of the international law commission. Sir Hartley Shawcross (United Kingdom) agreed that the matter was one for the international law commission. However, the United Kingdom had made quite clear its view that genocide is a crime, and that view had been adhered to by the Military Tribunal at Nürnberg. He felt that if a convention were drawn up, it was quite conceivable that not all States would adhere to it, and that would cast doubts on an already recognized principle. Genocide was already a crime under international law. A convention on the matter would weaken the principle rather than strengthen it. He felt that the Economic and Social Council had performed a useful and valuable study, but to attempt to draw up a convention was both unrealistic and unwise. Also the present draft fell far short of defining the crimes of murder and destruction. It was evident from lack of comment on the part of Member Governments that such Governments felt unable to commit themselves to such a draft convention in the present circumstances. It was the feeling of the United Kingdom delegation that the matter was too serious for procrastination. If a State wished to commit genocide, it would not be deterred by the existence of a convention,

390

A/C.6/SR.39

whether the State in question had adhered to it or not. Therefore, it was best to rely on existing law, such as had been formulated and executed at Nürnberg. He suggested a draft resolution to be recommended to the General Assembly: 1. Asserting again that genocide is a crime, entailing national and international responsibility; 2. Calling the attention of all Member States to the principles of the draft convention and recommending adherence to these principles in the legislative bodies of such States; 3. Referring the draft convention to the international law commission in order that it might consider whether such a draft convention was desirable or necessary.

Mr. Pérez Perozo (Venezuela) said that it was his view that the Secretariat’s draft should be presented to one or more legal bodies, in order to produce a convention that could be adopted by as many States as possible. Although he had said in the past that speed was necessary, he did not feel that the matter should now be so rushed that it would not be handled properly. The Secretariat’s draft really needed polishing, not by experts but by politicians. The destiny of the draft convention must be determined, however. He therefore suggested the following alternative methods for consideration: 1. The matter to be referred to a sub-committee of the Sixth Committee for exclusive study (he did not, however, favour this method, in view of the lack of time); 2. The matter to be referred to the international law commission (such a step, however, would have to be postponed until it were determined whether such an international law commission were to be set up); 3. The Committee on the Progressive Development of International Law and its Codification could be maintained, with a direct mandate from the General Assembly to study the matter and work on it in co-operation with the Economic and Social Council; 4. The Economic and Social Council could continue its work on the matter, since it had already expressed its willingness to do so.

The Venezuelan delegation took the view that the best method would be for the Economic and Social Council to consider the matter in conjunction with the Committee on the Progressive Development of International Law and its Codification, and then report to the General Assembly. He thereupon read a draft resolution to that effect, (document A/C.6/149) which would be submitted to the Committee. The meeting rose at 1.00 p.m.

A/C.6/151

391

ANNEX 3c

Draft convention on genocide Draft resolution submitted by the delegation of the Union of Soviet Socialist Republics Document A/C.6/151

1 October 1947 [Original text: Russian]

The General Assembly, Realizing the importance of the problem of combating the international crime of genocide; Noting that the overwhelming majority of the Governments of the States Members of the United Nations have not yet submitted comments on the draft convention on the crime of genocide circulated to those Governments by the Secretary-General on 7 July 1947; Observing that the Economic and Social Council, at its fifth session did not examine the problem of genocide in substance; Noting that resolutions 47 IV [sic] and 77 V [sic] of the Economic and Social Council of 28 March and 6 August 1947 respectively have so far not been implemented, and that consequently, the conditions for a sufficiently comprehensive examination of this problem do not at present exist; Instructs the Economic and Social Council, when it receives the comments of the Governments of States Members of the United Nations, to examine the draft convention on genocide and to report to the third session of the General Assembly.

392

A/C.6/SR.40

FORTIETH MEETING Held at Lake Success, New York, on Thursday, 2 October 1947, at 11 a.m. Chairman: Mr. El-Khouri (Syria). [Discussions pertaining to issues other than the Genocide Convention] 11. Continuation of the discussion on the draft convention on the crime of genocide (documents A/362, A/382, A/401, A/C.6/147, A/C.6/149 and A/C.6/151) Mr. Raafat (Egypt) agreed with the views previously expressed by the United Kingdom representative to the effect that he doubted the necessity of such a convention, although penal sanctions were provided in it, and although such sanctions were the pivot of the convention. Since it could not stop the crime of genocide from being perpetrated by statesmen in power, it would not work as a preventive. He was not opposed to extending the conception of genocide to certain crimes of a political nature, but he could not approve the inclusion of cultural genocide as a crime. Genocide should be restricted to the principal discriminations referred to in the Charter. The best course would be to draw the Members’ attention to the draft convention prepared by the Secretariat and ask for an expression of views before the next regular session of the General Assembly. Mr. Dihigo (Cuba) recalled that, during the last session of the General Assembly, Cuba, India and Panama had presented a resolution1 to the General Assembly denouncing genocide as a crime under international law. Now that a draft convention had been presented, in accordance with the terms of that resolution, it should be approved, amended or rejected. He disagreed with the view that adoption of the convention would weaken the prevailing law. Although some principles of international law were universally recognized, many points of law had not obtained express ratification by States and were not even accepted by authorities on law. The principles of the Nürnberg Charter had not been adopted by all countries, and to argue that a draft convention would weaken the position of prevailing international law would make all codification of international law seem useless. All that existed at present to restrain the crime of genocide was a resolution of the General Assembly,2 which was

A/C.6/SR.40

393

not obligatory. Penal law should be interpreted restrictively, and ex post facto penal laws were not regarded with favour. Hence unless the General Assembly resolution were amplified by more precise statements, it might cause any court to hesitate in condemning perpetrators of the crime of genocide. The General Assembly should pass a new resolution condemning the crime of genocide, and the Member States should be requested to ratify a convention with binding force. Even if certain States failed to ratify the convention, the resolution would still exist as a moral force created by the consensus of opinion of a world-wide assembly. 1

2

See Official Records of the second part of the first session of the General Assembly. Sixth Committee, Annex 15, page 242. See Resolutions adopted by the General Assembly during the second part of its first session, pages 188 and 189.

The meeting rose at 1.15 p.m.

394

A/C.6/155

ANNEX 3e

Draft convention on genocide Draft resolution submitted by the delegation of the United Kingdom Document A/C.6/15 [sic]

2 October 1947

[Original text: English] The General Assembly Reaffirms its resolution 96(I) of 11 December 1946 condemning genocide and declares that genocide is an international crime, entailing national and international responsibility on the part of individuals and States; Invites the attention of all Member States to the principles of the draft convention transmitted by the Economic and Social Council and recommends adherence to these principles in the executive and legislative activities of States; Refers the draft convention to the International Law Commission in order that the Commission may consider whether a convention on this matter is desirable or necessary and if so to submit a draft convention to the General Assembly.

A/C.6/SR.41

395

FORTY-FIRST MEETING Held at Lake Success, New York, on Friday, 3 October 1947, at 11 a.m. Chairman: Mr. El-Khouri (Syria). [Discussions pertaining to issues other than the Genocide Convention] 13. Continuation of the discussion on the draft convention on the crime of genocide (documents A/362, A/401, A/401/ Add.1, A/C.6/147, A/C.6/149, A/C.6/151 and A/C.6/155) Mr. Spyropoulos [sic] (Greece) recalled that certain delegations had expressed doubt as to the usefulness of a convention on genocide, as it embraced certain cases already covered by the laws of the individual countries. He reminded the Committee that the convention would cover items not covered by such laws. He believed that the signing of such a convention was desirable, and in principle, therefore, he was ready to support the proposal of the United Kingdom delegation (document A/C.6/155). Mr. Castberg (Norway) felt that a convention on genocide should be established as soon as possible. Such a convention would not weaken the principles already prevailing as embodied in the Nürnberg Charter and Judgment. One of the primary objectives of the convention was to punish acts committed in an official capacity; it was directed against States. Supplemental provisions as to specific acts would be necessary. The convention on genocide should contain a provision to the effect that serious political crimes should be punished by an international criminal court, and not by national courts. He proposed that a sub-committee should be established to study the matter. Mr. Lachs (Poland) said that, during the first session of the General Assembly, the need for a convention on genocide had been stressed. Genocide, in its fullest aspects, was not covered by the principles of the Nürnberg Charter and Judgment. Physical genocide was only the extreme degree in which the crime showed itself. He was concerned with genocide on a wider plane: the forms of genocide which did not mean physical extermination, such as discrimination against race, religion, and so forth.

396

A/C.6/SR.41

He observed that biological genocide, once committed, brought irreparable loss to humanity; any repressive action in that respect always came too late. Mr. Lachs again submitted, as he had done at the first session of the General Assembly, a proposal advocating the outlawing of propaganda against racial, religious and national groups. For that purpose, also, he felt that a convention was necessary. As certain points in the convention, such as the establishment of an international criminal court, required detailed study, he suggested that the item should be transmitted to Sub-Committee 2. Mr. Abello (Philippines) asked for the implementation of the Assembly’s resolution No. 96(I).1 He felt that the principles established at the Nürnberg trial did not sufficiently cover the matter of genocide. A more specific definition of genocide and provisions for deterring its perpetration were needed. He favoured a convention whereby the crime of genocide would be punished by an international criminal court rather than by national courts, even if to do so implied a waiver of sovereignty. He seconded the motion to refer the matter to a special sub-committee. 1

See Resolutions adopted by the General Assembly during the second part of its first session, page 188.

Mr. Vieyra (Argentina) considered that to refer the matter to the international law commission would cause too long a delay. It should be referred now to a special sub-committee. He supported the proposal by the representative of Venezuela that the Committee on the Progressive Development of International Law and its Codification should continue the consideration of the draft convention on the crime of genocide prepared by the Secretariat and present a final draft to the third session of the General Assembly. Mr. Durdenevsky (Union of Soviet Republics) observed that the lack of comment on the part of Governments evidenced the fact that the problem of genocide was a complex one, requiring further study. The creation of an international criminal court was a delicate matter, as it touched on the sovereignty of States. The draft was still in a preliminary stage and could only be considered to be a working paper; and, together with the comments of various Governments, it should be carefully considered by

A/C.6/SR.41

397

the Economic and Social Council or by the international law commission. He supported the last part of the United Kingdom proposal (document A/C.6/155) and proposed that the three draft resolutions before the Committee (documents A/C.6/149, A/C.6/151, A/C.6/155) together with any amendments should be submitted to Sub-Committee 2, which would present a single draft to the full Committee. Mr. Hsu (China) felt that genocide was a proper matter for consideration by the international law commission. As the members of the commission would not be elected during the present session of the General Assembly, an interim body would be required in order to prepare its task. Consideration of the item of genocide might be referred to that interim body. Mr. Yepes (Colombia) favoured referring the draft back for further study by the Committee on the Progressive Development of International Law and its Codification, as proposed by the representative of Venezuela. In his opinion the United Nations had a duty under the Charter to take measures against genocide. Mr. Pirzada (Pakistan) favoured a convention on genocide, believing that it would prove effective in preventing the crime, and that the General Assembly resolution demanded it. He supported the view that the draft should be sent back to the Economic and Social Council or referred to a sub-committee for further study. Mr. de Lavalle (Peru) agreed with the proposal made by the representative of Venezuela. He favoured a convention which would be positive law on the subject of genocide, and his country was prepared to include the same provisions in the Peruvian national legislation. He also considered that an international criminal court should be given jurisdiction with respect to that crime. Mr. Vieux (Haiti) was of the opinion that there should be a comprehensive convention dealing with the crime of genocide. Nations should renounce the principle of sovereignty for the sake of humanity. He took the view that the Secretariat draft should be referred to a special sub-committee, which would report promptly to the full Committee, in order that a draft convention on genocide might be completed at the present session of the General Assembly. Mr. Bartos (Yugoslavia) favoured a comprehensive definition of genocide. His delegation agreed in principle with the draft submitted by the

398

A/C.6/SR.41

Secretariat. He saw the force of the United Kingdom arguments and was uncertain whether a convention or a restatement of principles was the best method in the matter. Even if no convention were concluded, the matter would still require profound study and consultation with the Governments of all Member States. He supported the proposal that the draft resolutions should be transmitted to Sub-Committee 2, so that the organ to which the General Assembly would refer the matter would receive a single draft to study, on which it could report to the third session of the General Assembly. Mr. Amado (Brazil) felt that, considering that the members of the international law commission would not be elected during the present session of the General Assembly, and that the Committee on the Progressive Development of International Law and its Codification had already finished its task, it would be advisable to establish an ad hoc committee which would study the draft convention on genocide in conjunction with the Economic and Social Council. Governments should again be requested to send in their comments. He also considered that the matter should be referred to Sub-Committee, 2 which could study the proposals before the Committee in the light of the general discussion and present a text to the full Committee. Mr. Chaumont (France) could not agree with the proposals submitted by the delegations of Venezuela (document A/C.6/149), the Union of Soviet Socialist Republics (document A/C.6/151) or the United Kingdom (document A/C.6/155). With reference to the proposal made by the delegation of the Union of Soviet Socialist Republics, the Committee was not legally obliged to await comments by Governments before beginning its work; that attitude might cause endless delays. As the Economic and Social Council had considered the matter without much success, it should not be referred back to that Council. As regards the United Kingdom proposal, General Assembly resolution No. 96(I) of 11 December 1946 was more comprehensive, and he doubted the advisability of re-opening the disputed point of the criminal responsibility of States. Governments could not be asked to embody the principles of the draft convention in their national legislation before that convention had been studied thoroughly by the Committee. There should be no further delay. Mr. Chaumont proposed that the matter should be

A/C.6/SR.41

399

referred to Sub-Committee 2, which would have the dual task of defining clearly the crime of genocide and of setting up the mechanism for the repression of that crime. Mr. Corréa (Ecuador) supported in principle the draft resolution submitted by the delegation of Venezuela and the suggestion made by the representative of Brazil. The course he favoured was to appoint a sub-committee to draw up a single and unified text on the crime of genocide. The meeting rose at 1.15 p.m.

400

A/C.6/159

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/C.6/159 3 October 1947 ENGLISH ORIGINAL: FRENCH

SIXTH COMMITTEE DRAFT CONVENTION ON THE CRIME OF GENOCIDE AMENDMENT PROPOSED BY THE EGYPTIAN DELEGATION TO THE DRAFT RESOLUTION PROPOSED BY THE DELEGATION OF THE UNION OF SOVIET SOCIALIST REPUBLICS ON THE PROBLEM OF GENOCIDE (A/C.6/151) Replace the last paragraph by the following: Consequently, the conditions for a sufficiently comprehensive examination of this problem do not at present exist, draws the attention of Members to the urgent necessity of submitting their observations on the draft prepared by the Secretary-General (document E/447), and INSTRUCTS the Economic and Social Council, when it receives the comments of States Members of the United Nations, to re-examine the Draft Convention on combating genocide and to report to the Third Session of the General Assembly.

A/C.6/160

401

ANNEX 3f

Draft convention on genocide Proposal submitted by the delegation of Brazil Document A/C.6/160

4 October 1947 [Original text: French]

The delegation of Brazil proposes that Sub-Committee 2 draft a resolution on the problem of genocide, taking as a basis the following points: 1. The views on genocide expressed by the representatives of States Members during the present session of the General Assembly, and especially in the Sixth Committee, should be taken into consideration in any subsequent work; 2. The Governments of States Members should be again invited to submit their observations on the preliminary draft convention on genocide prepared by the Secretariat; 3. The Economic and Social Council shall be directed to prepare a draft convention on genocide for submission to the third session of the General Assembly; 4. The Economic and Social Council shall make full use of the services of any body which may, during the present session of the General Assembly, be instructed to carry out interim work during the coming year on the progressive development of international law and its codification. No final draft resolution may be drawn up by Sub-Committee 2 before it has been decided which body shall be responsible for examining certain aspects of the work on the progressive development of international law and its codification.

402

A/C.6/SR.42

FORTY-SECOND MEETING Held at Lake Success, New York, on Monday, 6 October 1947, at 3 p.m. Chairman: Mr. El-Khouri (Syria). 14. Discussion on the draft convention on the crime of genocide (documents A/362, A/401, A/401/Add.1, A/C.6/147, A/C. 6/149, A/C.6/151, A/C.6/155, A/C.6/159 and A/C.6/160) Mr. Palza (Bolivia) supported the Venezuelan proposal document A/C.6/ 149). He agreed in principle with the draft convention prepared by the Secretariat (document A/362), but felt that there should be a supplemental provision therein dealing with “economic genocide”, that is, genocide committed by means of the economic destruction of whole groups of people. He urged the necessity for speed, as world public opinion expected the United Nations to take action. Mr. Raafat (Egypt) supported the USSR proposal (document A/C.6/151) provided that Governments be requested to send their comments promptly, as expressed in the amendment presented by his delegation (A/C.6/159). Mr. Spacek (Czechoslovakia) seconded the USSR proposal to the effect that all proposals be referred to Sub-Committee 2, which would present to the full Committee a single text. Mr. Alvarez (Chile) also urged the necessity for speed. He pronounced himself in favour of a convention on genocide and supported the Venezuelan proposal. Mr. Mendez (Panama) wanted a decision to be taken during this session of the General Assembly, and together with the representatives of Cuba and India proposed the following draft resolution: The Sixth Committee, Considering the importance and urgency of concluding immediately a convention on the crime of genocide, in compliance with the resolution of the General Assembly, 96(I)1 of December 11, 1946; Considering further that the prestige of the United Nations and the attachment of the peoples of the world to this institution will be strengthened by quick action on this issue so important for mankind:

A/C.6/SR.42

403

1. Resolves that a special sub-committee of the Sixth Committee should be created for the purpose of proceeding with the immediate study of the draft convention submitted by the Secretary-General in view of revising this draft; 2. Draws the attention of the sub-committee to the necessity of deleting from this draft the more controversial issues and concentrating on issues acceptable to the greatest majority of Member States; 3. Instructs the sub-committee to work in consultation with the appropriate services of the Economic and Social Council. 1

See Resolutions adopted by the General Assembly during the second part of its first session, pages 188 and 189.

Sir Hartley Shawcross (United Kingdom) was concerned about attempting to accomplish too much during the present Assembly session. He would have been ready to support a convention had it dealt only with physical genocide, although he did not see the need of one; the value of codification was in those fields where there is uncertainty about the existing law, However, biological genocide was clearly defined by the Nürnberg trials. The draft convention, however, want beyond biological genocide, and under the guise of codification, attempted to create an entirely new body of international law. Whereas that might be worth while, it was unrealistic to suppose that the Sixth Committee, or any sub-committee thereof, would be able to approve a convention during the present session of the General Assembly. Unless such a convention were approved by a majority, it would do more harm than good. He cited instances where certain States would be reluctant to relinquish domestic jurisdiction by ratification of the convention, for example, in matters of religion involving monogamy and polygamy, and matters relevant to the repression of subversive activities by political groups. The draft convention prepared by the Secretariat raised political and social questions which went far beyond the General Assembly resolution. He called attention to the fact that under article XII of the convention the high contractint [sic] parties agree to call upon the competent organs of the United Nations to take measures for the suppression or prevention of the crime committed in any part of the world. The competent organ for trial of such offences was defined in article IX as an international court which would try the offenders in cases where the States themselves would be unwilling to try them, or in cases where offences were committed by

404

A/C.6/SR.42

individuals acting as organs of the State. It was highly improbable that any State would be prepared to surrender its citizens, or submit itself for trial by such an international court. What sanctions was such a court to apply? The only real sanction against genocide was war. The draft convention was unrealistic. It should be considered carefully and objectively and action should be taken slowly to guard against failure. He again put forth the original proposal by the United Kingdom delegation (document A/C.6/155). Mr. Vieux (Haiti) supported the views of the representatives of Panama, Cuba and India to the effect that a special sub-committee should be empowered to draft a convention for submission to the present session of the General Assembly. Without aspiring to perfection, such a convention would nevertheless be sufficient to reduce each State to bring its legislation into harmony with the spirit of the convention, even though not necessarily in strict conformity with the letter of it. There was a clear duty for the United Nations, as the crime of genocide was still being committed. Mr. Rodionov (Union of Soviet Socialist Republics) felt that it was unwise to establish a fourth sub-committee. One of the existing Sub-Committees should study the proposals before the Committee. He emphasized that as few comments had been received from Governments with regard to the draft convention, the substance should not be discussed further. Mr. Oldham (Australia) supported the arguments advanced by the representative of the United Kingdom. It was better to adopt a short resolution than to risk the possibility of a draft convention, hastily prepared, not being adopted. The judgments in Nürnberg and those which would probably be delivered in Tokyo would have a far greater effect towards preventing genocide than a convention. Mr. Pérez Perozo (Venezuela) restated his proposal (document A/C.6/ 149). He was opposed to sending the matter to the international law commission, as the members thereof would again be experts and not representatives of the Governments. It was essential to go beyond the technical stage, which had already been covered by the work of the Secretariat, and to deal with the political aspect of the matter. In his opinion the resolution of the General Assembly of last year had unequivocally expressed the view that a convention on genocide should be drawn up.

A/C.6/SR.42

405

Mr. Kaeckenbeeck (Belgium) made the following comments: The condemnation of genocide as an international crime had been the subject of General Assembly resolution 96(I). Therefore, it would be unnecessary to adopt a resolution at each subsequent session of the General Assembly. The resolution had disposed of the substantive matter. The problem for immediate consideration was the action to be taken. The draft convention was prepared by the Secretariat together with three experts, and thereafter was transmitted to Governments with the request that they send to the Secretary-General their comments and observations. Where as he agreed with the representative of France that the absence of comment need not prevent the Assembly from taking action, at any rate it rendered all hasty action inopportune. It was unnecessary to appoint a sub-committee to discuss the subject matter until the comments of Governments had been received. Governments should be reminded that it was imperative that they transmit their comments as soon as possible, in order to allow a committee or commission to co-ordinate such comments and submit a report to the next session of the General Assembly. There was divergence of opinion as to the composition of the body which would deal with the problem. His delegation favoured a commission composed of jurists. The USSR proposal to the effect that a small sub-committee, or the existing Sub-Committee 2, co-ordinate the various proposals submitted, was a practical one. The Committee discussed whether or not it would be opportune to draw up a convention at the present session. As the convention would depend on political consideration, it was necessary to await comments from Governments. Several delegations had expressed the view that there was urgent need for a convention on genocide. Although the procedure envisaged by careful study was slow, it eliminated the risks involved in hasty action. He proposed that the Committee vote first on the USSR proposal. Mr. Fahy (United States of America) supported the proposal submitted by the representatives of Cuba, India and Panama. He was ready to agree that a special sub-committee, or Sub-Committee 2, should further

406

A/C.6/SR.42

study the convention, but doubted whether it would have time in which to complete a draft convention which would meet with the approval of the General Assembly during the present session. He felt, however, that some immediate action should be taken to carry out the direction of the Assembly resolution by use of the services of the Sixth Committee during the present General Assembly session. The Chairman put to a vote the question of referring the matter of genocide, together with all the proposals, to a sub-committee. The Committee agreed by a large majority to refer the matter to a subcommittee. The Committee by a vote of 26 to 10 referred the matter to Sub-Committee 2. Sir Hartley Shawcross (United Kingdom) was of the opinion that the Sub-Committee should be instructed as to its task, which he thought should be the co-ordination of the four draft proposals submitted, all dealing with the procedure to be followed, but that the Sub-Committee should not prepare a draft convention. The representatives of Bolivia, Egypt [sic] Norway and Venezuela also considered that the Sub-Committee should receive more precise instructions. Mr. Fahy (United States of America) supported the proposal made by the representative of Panama to the effect that the Sub-Committee should also deal with the substantive matter, without attempting to perfect a draft convention during the present session of the General Assembly. The Chairman put to a vote the proposal submitted by the representatives of Cuba, India and Panama. The proposal was rejected by 25 votes to 9. The Chairman stated that this decision showed that it was the wish of the Committee that the Sub-Committee should only examine the procedure to be followed in considering the question of genocide. [Discussions pertaining to issues other than the Genocide Convention]

A/C.6/177

United Nations Nations Unies GENERAL ASSEMBLY ASSEMBLEE GENERALE

407

UNRESTRICTED A/C.6/177 30 October 1947 ENGLISH ORIGINAL: SPANISH

SIXTH COMMITTEE DRAFT CONVENTION ON THE CRIME OF GENOCIDE RESOLUTION OF THE NATIONAL ASSEMBLY OF PANAMA The following communication was received by the President of the General Assembly from the President and Secretary of the National Assembly of Panama:* * Document distributed at the request of the delegation of Panama.

I have pleasure in communicating the following resolution approved by the National Assembly of Panama: WHEREAS a Convention defining the crime of genocide and establishing measures for its repression and punishment is included in the agenda of the present session of the United Nations General Assembly, and WHEREAS the persecution and extermination of political, national, religious and racial groups by the totalitarian regimes during the course of the late war and in the years leading up to it were a crime against humanity, culture and human dignity, the repetition of which cannot be allowed as it would open the way to the total ruin of civilization, and WHEREAS the United Nations General Assembly must take cognizance of the common desire of free men throughout the world that practical steps should be taken both to avoid a new world conflagration and for the adoption of measures to prevent the recurrence of deeds which shocked the conscience of mankind, THE NATIONAL ASSEMBLY RESOLVES to request the United Nations General Assembly, on behalf of the Panamanian people, to discuss and approve during its present session the Convention on the crime of genocide which makes the extermination of political, national, racial, religious and other groups punishable by international action.

Given in Panama on the 13th day of October, 1947, HARMODIO AROSEMENA FORTE, President, D.H. TURNER, Secretary.

408

A/C.6/SC.5/W.23

United Nations Nations Unies GENERAL ASSEMBLY ASSEMBLEE GENERALE

RESTRICTED A/C.6/SC.5/W.23 6 November 1947 ENGLISH ORIGINAL: FRENCH

SIXTH COMMITTEE SUB-COMMITTEE 2 ON THE PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION DRAFT CONVENTION ON GENOCIDE: REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Draft Report Submitted by the Rapporteur During the second part of its first regular session, the General Assembly received a draft resolution on the crime of genocide, submitted jointly by the delegations of Cuba, India and Panama (A/BUR/50). After declaring in its resolution of 11 December 1946 (96 I) that genocide – a denial of the right of existence of entire human groups – was a crime against human rights, the General Assembly instructed the Economic and Social Council to undertake the necessary studies with a view to drawing up a draft convention on the crime of genocide to be submitted to the present session of the General Assembly. On 28 March 1947, the Economic and Social Council adopted a resolution whereby it instructed the Secretary-General: (a) to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) after consultation with the General Assembly Committee on the Progressive Development of International Law and its Codification, and, if feasible, the Commission on Human Rights, and after reference to all Member Governments for comments, to submit to the next session of the Council a draft convention on the crime of genocide. In consultation with three experts, the Secretary-General prepared a draft convention and study which was submitted to the Assembly Committee on the Progressive Development of International Law and its Codification

A/C.6/SC.5/W.23

409

on 13 June 1947. As it did not have the comments of Member Governments on the draft convention, the Chairman stated by letter of 17 June that the Committee felt unable at that time to express any opinion in the matter. On 7 July 1947, the Secretary-General transmitted the draft convention and study to Member Governments for their comments. On 6 August 1947, at its fifth session, the Council adopted a resolution instructing the Secretary-General to collate the comments of the Member Governments; informing the General Assembly that it proposed to proceed as rapidly as possible with the consideration of the question subject to any further instructions of the General Assembly; and requesting the Secretary-General, in the meanwhile, to transmit to the General Assembly the draft convention on the crime of Genocide prepared by the Secretariat in accordance with paragraph (a) of the Council Resolution of 28 March 1947, together with any comments from Member Governments received in time for transmittal to the General Assembly. At its ninety-first meeting on 23 September 1947, the General Assembly referred to the Sixth Committee paragraph 86 of the report of the Economic and Social Council, (document A/382), on the draft convention on Genocide. After a general debate, which took place at its thirty-ninth, fortieth, forty-first, and forty-second meetings, on 29 September and 2, 3 and 6 October 1947, the Sixth Committee referred this report to Sub-Committee 2, expressing the wish that this Committee confine itself to considering the procedure to be followed. Sub-Committee 2, accordingly, discussed at its sixteenth meeting on 4 November 1947, the question of the body to which the draft convention on Genocide should be referred and the terms of reference to be given to that body. Three different opinions were expressed with regard to the choice of the body. Certain delegations emphasized the sociological aspects of the study to be undertaken and the political nature of the problem and declared in favour of the Economic and Social Council. Other delegations, emphasizing the legal nature of the work, recommended reference to the International Law Commission. Others, in order to save time, proposed that the work be begun by the Committee which, in accordance with the intentions of the Sub-Committee will act as an interim body until the members of

410

A/C.6/SC.5/W.23

the International Law Commission have been elected, after which the work would be continued by the International Law Commission. Finally, the Sub-Committee decided, by eight votes to two, to refer the question to the Economic and Social Council. On the understanding that the Council may, if it wishes, request the assistance of the Interim Committee on the progressive development of international law and its codification. With regard to the terms of reference to be given to the Economic and Social Council, the delegations of the United Kingdom and of the Union of Soviet Socialist Republics wished to leave the body instructed to study the problem full freedom to declare itself in favour either of a convention or of any other appropriate method. The other delegations considered, however, that this question had already been decided by the resolution of the General Assembly of 11 December 1946, instructing the Economic and Social Council to undertake the necessary studies with a view to drawing up a draft convention on the crime of genocide. The latter opinion prevailed and was adopted by ten votes to two. This vote shows that, in proposing that the draft convention on Genocide should be referred to the Economic and Social Council, Sub-Committee 2’s intention was that a draft should be drawn up in the form of a convention, without specifying whether an independent convention or part of such a convention should be envisaged or whether the various aspects of genocide should be dealt with in separate instruments. The Sub-Committee accordingly proposes that the Sixth Committee recommend to the General Assembly the adoption of the following draft resolution: DRAFT RESOLUTION DRAFT CONVENTION OF GENOCIDE THE GENERAL ASSEMBLY WHEREAS the Economic and Social Council has stated in its resolution of 6 August 1947 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide subject to any further instructions of the General Assembly:

A/C.6/SC.5/W.23

411

REQUESTS the Economic and Social Council to continue the study it has begun on the repression of the crime of genocide, and to pursue the study of the draft convention prepared by the Secretariat, with the help, if it so wishes, of the Committee on the progressive development of international law and its codification; REQUESTS the Economic and Social Council to submit a report on this question to the third regular session of the General Assembly.

412

A/C.6/190

United Nations Nations Unies GENERAL ASSEMBLY ASSEMBLEE GENERALE

UNRESTRICTED A/C.6/190 11 November 1947 ENGLISH ORIGINAL: FRENCH

SIXTH COMMITTEE DRAFT CONVENTION ON GENOCIDE: REPORT OF THE ECONOMIC AND SOCIAL COUNCIL REPORT AND DRAFT RESOLUTION ADOPTED BY SUB-COMMITTEE 2 ON PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION Rapporteur: Mr. G. KAECKENBEECK (Belgium) During the second part of its first regular session, the General Assembly received a draft resolution on the crime of genocide, submitted jointly by the delegations of Cuba, India and Panama (A/BUR/50). Declaring in its resolution of 11 December 1946 (96 I) that genocide – a denial of the right of existence of entire human groups – was a crime at international law, the General Assembly instructed the Economic and Social Council to undertake the necessary studies with a view to the drawing up of a draft convention on the crime of genocide to be submitted to the present session of the General Assembly. On 28 March 1947, the Economic and Social Council adopted a resolution whereby it instructed the Secretary-General: (a) to undertake, with the assistance of experts in the fields of international and criminal law, the necessary studies with a view to the drawing up of a draft convention in accordance with the resolution of the General Assembly; and (b) after consultation with the Committee on the Progressive Development of International Law and its Codification, and, if feasible, the Commission on Human Rights, and after reference for comments to all Member Governments to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

A/C.6/190

413

In consultation with experts, the Secretary-General prepared a draft convention and a commentary which were on 13 June 1947 submitted to the Committee on the Progressive Development of International Law and its Codification. As Member Governments had not submitted their observations on the draft convention, the Chairman by letter of 17 June stated that the Committee felt unable at that time to express any opinion on the matter. On 7 July 1947, the Secretary-General transmitted the draft convention and commentary to Member Governments for their observations. On 6 August 1947, at its fifth session, the Economic and Social Council adopted a resolution instructing the Secretary-General to obtain the comments of Member Governments; informing the General Assembly that it proposed to proceed as rapidly as possible with the consideration of the question subject to any further instructions from the General Assembly; and requesting the Secretary-General, in the meantime, to transmit to the General Assembly the draft convention on the crime of genocide prepared by the Secretariat in accordance with paragraph (a) of the Council Resolution of 28 March 1947, together with any comments from Member Governments. The Secretary-General has received observations from: India, Haiti (document A/401), Philippines, Venezuela (document A/401/Add.1), United States of America (document A/402/Add.2) [sic] and France (document A/401/Add.3), which have been transmitted to the General Assembly. At its ninety-first meeting on 23 September 1947, the General Assembly referred to the Sixth Committee paragraph 86 of the report of the Economic and Social Council (document A/382), which dealt with the draft convention on genocide. Draft resolutions and amendments were proposed by the delegations of Venezuela (document A/C.6/149), the Union of Soviet Socialist Republics (document A/C.6/151, the United Kingdom (document A/C.6/155), Egypt (document A/C.6/159), and Brazil (document A/C.6/160), and a resolution adopted by the National Assembly of Panama was also presented to the Committee (document A/C.6/177). After a general debate, which took place at its thirty-ninth, fortieth, forty-first, and forty-second meetings, on 29 September and 2, 3, and

414

A/C.6/190

6 October 1947, the Sixth Committee referred the matter to its Second Sub-Committee, expressing the wish that this Sub-Committee should confine itself to a consideration of the procedure to be followed. The Second Sub-Committee accordingly, at its sixteenth and eighteenth meetings on 4 and 10 November 1947, discussed the question as to which body or organ the draft convention on genocide should be referred, and the terms of reference which should be given. Three different opinions were expressed with regard to the choice of the body. Certain delegations emphasized the sociological aspects of the study to be undertaken and the political nature of the problem, as well as the terms of the resolution adopted by the Economic and Social [p. 3-line 1] Council on 28 March 1947, and declared themselves in favour of the Economic and Social Council. Other delegations, emphasizing the legal nature of the work, suggested reference to the International Law Commission. Others, in order not to delay the matter, proposed that the work should be begun by the Committee which, in accordance with the intentions of the Sub-Committee, would act as an interim body until the members of the International Law Commission had been elected, after which the work could, if necessary, be continued by the International Law Commission. One delegation suggested that genocide in the strict sense should be considered in connection with the codification of the Nürnberg principles and that sociological aspects, such as racial and religious intolerance, should be considered by the Sub-Committee of the Commission on Human Rights dealing with the prevention of discrimination and the protection of minorities. Finally, the Sub-Committee decided, by eight votes to two, to refer the matter to the Economic and Social Council, on the understanding that the Council may, if it wishes, request the assistance of the interim committee on the progressive development of international law and its codification. With regard to the terms of reference to be given to the Economic and Social Council, some delegations wished to leave the body instructed to study the problem complete freedom to decide in favour either of a convention or of any other appropriate method.

A/C.6/190

415

Other delegations considered, however, that this question had already been decided by the resolution of the General Assembly of 11 December 1946, which instructed the Economic and Social Council to undertake the necessary studies with a view to the drawing up of a draft convention on the crime of genocide. The latter opinion was adopted by ten votes to two. The Second Sub-Committee accordingly proposes that the Sixth Committee recommend to the General Assembly the adoption of the following draft resolution: DRAFT RESOLUTION DRAFT CONVENTION ON GENOCILE THE GENERAL ASSEMBLY WHEREAS the Economic and Social Council has stated in its resolution of 6 August 1947 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide subject to any further instructions which it may receive from the General Assembly; REALIZING the importance of the problem of combating the international crime of genocide; REAFFIRMING its condemnation of the crime of genocide as embodied in its Resolution No. 96(I) of 11 December 1946; NOTING that a large majority of the Governments of Members of the United Nations have not yet submitted their observations on the draft convention on the crime of genocide prepared by the Secretariat and circulated to those Governments by the Secretary-General on 7 July 1947; DRAWS THE ATTENTION of the Member States to the urgency of submitting their observations on the draft convention. REQUESTS the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention, with the assistance, if it do desires, of the interim Committee on the Progressive Development of International Law and its Codification;

416

A/C.6/190

INFORMS the Economic and Social Council that it need not await the receipt of the observations of all Member States before commencing its work; and REQUESTS the Economic and Social Council to submit a report on this question to the third regular session of the General Assembly.

A/C.6/190/Corr.1

United Nations Nations Unies GENERAL ASSEMBLY ASSEMBLEE GENERALE

417

UNRESTRICTED A/C.6/190/Corr.1 14 November 1947 ENGLISH ORIGINAL: FRENCH

SIXTH COMMITTEE DRAFT CONVENTION ON GENOCIDE REPORT OF THE ECONOMIC AND SOCIAL COUNCIL REPORT AND DRAFT RESOLUTION ADOPTED BY SUB-COMMITTEE 2 ON PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW AND ITS CODIFICATION CORRIGENDUM Page 3, first line: “28 March” should be changed to “6 August”.

418

A/C.6/190/Rev.1

ANNEX 3g

Report of the Economic and Social Council on the Draft convention on genocide Report and draft resolution adopted by Sub-Committe [sic] 2 Document A/C.6/190/Rev.1

18 November 1947

[Original text: French] Rapporteur: Mr. Kaeckenbeeck. During the second part of its first regular session, the General Assembly received a draft resolution on the crime of genocide, submitted jointly by the delegations of Cuba, India and Panama (document A/BUR/50). Declaring in its resolution 96(I) of 11 December 1946 that genocide – a denial of the right of existence of entire human groups – was a crime at international law, the General Assembly instructed the Economic and Social Council to undertake the necessary studies with a view to the drawing up of a draft convention on genocide to be submitted to the present session of the General Assembly. On 28 March 1947, the Economic and Social Council adopted resolution 47(IV) whereby it instructed the Secretary-General: (a) To undertake, with the assistance of experts in the fields of international and criminal law, the necessary studies with a view to the drawing up of a draft convention in accordance with the resolution of the General Assembly; and (b) After consultation with the Committee on the Progressive Development of International Law and its Codification, and, if feasible, the Commission on Human Rights, and after reference for comments to all Member Governments, to submit to the next session of the Economic and Social Council a draft convention on genocide.

In consultation with experts, the Secretary-General prepared a draft convention and a commentary which were on 13 June 1947 submitted

A/C.6/190/Rev.1

419

to the Committee on the Progressive Development of International Law and its Codification. As Member Governments had not submitted their observations on the draft convention, the Chairman, by letter of 17 June, stated that the Committee felt unable at that time to express any opinion on the matter. On 7 July 1947, the Secretary-General transmitted the draft convention and commentary to Member Governments for their observations. On 6 August 1947, at its fifth session, the Economic and Social Council adopted resolution 77(V) instructing the Secretary-General to obtain the comments of Member Governments; informing the General Assembly that it proposed to proceed as rapidly as possible with the consideration of the question subject to any further instructions from the General Assembly; and requesting the Secretary-General, in the meantime, to transmit to the General Assembly the draft convention on the crime of genocide prepared by the Secretariat in accordance with sub-paragraph (a) of the Economic and Social Council’s resolution of 28 March 1947, together with any comments from Member Governments. The Secretary-General has received observations from: India and Haiti (document A/401), the Philippines and Venezuela (document A/401/ Add.1), the United States of America (document A/402/Add.2) and France (document A/401/Add.3), which have been transmitted to the General Assembly. At its ninety-first meeting on 23 September 1947, the General Assembly referred to the Sixth Committee paragraph 86 of the report of the Economic and Social Council (document A/382), which dealt with the draft convention on genocide. Draft resolutions and amendments were proposed by the delegations of Venezuela (document A/C.6/149), the Union of Soviet Socialist Republics (document A/C.6/151), the United Kingdom (document A/C.6/155), Egypt (document A/C.6/159), and Brazil (document A/C.6/160), and a resolution adopted by the National Assembly of Panama was also presented to the Committee (document A/C.6/177). After a general debate, which took place at its thirty-ninth, fortieth, fortyfirst, and forty-second meetings, on 29 September and 2, 3, and 6 October 1947, the Sixth Committee referred the matter to its Sub-Committee 2, expressing the wish that this Sub-Committee should confine itself to a consideration of the procedure to be followed.

420

A/C.6/190/Rev.1

Sub-Committee 2 accordingly, at its sixteenth and eighteenth meetings on 4 and 10 November 1947, discussed the question to which body or organ the draft convention on genocide should be referred, and the terms of reference which should be given. Three different opinions were expressed with regard to the choice of the body. Certain delegations, emphasizing the sociological aspects of the study to be undertaken and the political nature of the problem, as well as the terms of the resolution adopted by the Economic and Social Council on 6 August 1947, declared themselves in favour of the Economic and Social Council. Other delegations, emphasizing the legal nature of the work, suggested reference to the international law commission. Others, in order not to delay the matter, proposed that the work should be begun by the Committee which, in accordance with the intentions of the Sub-Committee, would act as an interim body until the members of the international law commission had been elected, after which the work could, if necessary, be continued by the commission. One delegation suggested that genocide in the strict sense would be considered in connexion with the codification of the Nürnberg principles and that sociological aspects, such as racial and religious intolerance, should be considered by the Sub-Committee of the Commission on Human Rights dealing with the prevention o discrimination and the protection of minoritiesf [sic] Finally, the Sub-Committee decided, by 8 votes to 2, to refer the matter to the Economic and Social Council, on the understanding that the Council may, if it wishes, request the assistance of the interim Committee on the Progressive Development of International Law and its Codification. With regard to the terms of reference to be given to the Economic and Social Council, some delegations wished to leave the body instructed to study the problem complete freedom to decide in favour either of a convention or of any other appropriate method. Other delegations considered, however, that this question had already been decided by the resolution of the General Assembly of 11 December 1946, which instructed the Economic and Social Council to undertake the necessary studies with a view to the drawing up of a draft convention on the crime of genocide. The latter opinion was adopted by 10 votes to 2.

A/C.6/190/Rev.1

421

Sub-Committee 2 accordingly proposes that the Sixth Committee recommend to the General Assembly the adoption of the following resolution: Draft convention on genocide The General Assembly, Realizing the importance of the problem of combating the international crime of genocide; Reaffirming its condemnation of the crime of genocide as embodied in its Resolution 96(I) of 11 December 1946; Noting that a large majority of the Governments of Members of the United Nations have not yet submitted their observations on the draft convention on the crime of genocide prepared by the Secretariat and circulated to those Governments by the Secretary-General on 7 July 1947; Considering that the Economic and Social Council has stated in its resolution 77(V) of 6 August 1947 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide subject to any further instructions which it may receive from the General Assembly; Requests the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention, with the assistance, if it so desires, of the interim Committee on the Progressive Development of International Law and its Codification; Informs the Economic and Social Council that it need not await the receipt of the observations of all Member States before commencing its work; Draws the attention of the Member States to the urgency of submitting their observations on the draft convention; and Requests the Economic and Social Council to submit a report on this question to the third regular session of the General Assembly.

422

A/C.6/192

ANNEX 3h

Draft convention on genocide Amendment proposed by the delegation of the United Kingdom to the draft resolution submitted by Sub-Committee 2 (document A/C.6/190/Rev.1) Document A/C.6/192

17 November 1947 [Original text: English]

Insert as a new paragraph 4 of the preamble of that draft resolution the following: Declares that genocide is an international crime entailing national and international responsibility on the part of individuals and States.

A/C.6/198

423

ANNEX 3i

Draft convention on genocide Amendment proposed by the delegation of Egypt to the draft resolution submitted by Sub-Committee 2 (document A/C.6/190/Rev.1) Document A/C.6/198

18 November 1947 [Original text: French]

Replace the last three paragraphs of the draft resolution of Sub-Committee 2, by the following two paragraphs: Requests the Economic and Social Council to continue the work it has begun concerning the repression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to submit a report on this question to the third regular session of the General Assembly; Informs the Economic and Social Council that it need not await the receipt of the observations of all Member States before commencing its work.

424

A/C.6/201

ANNEX 3j

Draft convention on genocide Amendments proposed by the delegation of the Union of Soviet Socialist Republics to the draft resolution submitted by Sub-Committee 2 (document A/C.6/190/Rev.1) Document A/C.6/201

20 November 1947 [Original text: Russian]

1. Replace paragraphs 5 to 8 by the following text: Requests the Economic and Social Council: (a) To proceed with the study of measures to combat the crime of genocide; (b) To study at the same time the question of whether a convention on genocide is desirable and necessary, and if so, whether there should be a separate convention on genocide, or whether the question of genocide should be considered in connexion with the drafting of the convention which would include the principles of international law recognized in the Charter of the Nürnberg Tribunal and sanctioned in the judgment of the Tribunal; (c) To consider, if conclusion of a separate convention on genocide is considered necessary, the draft convention on genocide prepared by the Secretariat, after having received comments from the Governments of States Members of the United Nations, and to submit a report on the matter to the third session of the General Assembly.

A/C.6/204

425

ANNEX 3k

Draft convention on genocide Amendment proposed by the delegation of China to the draft resolution submitted by Sub-Committee 2 (document A/C.6/190/Rev.1). Document A/C.6/204

20 November 1947 [Original text: English]

Full stop after “completion of a convention” in the seventh paragraph of the draft resolution. Insert the following between the sixth and seventh paragraphs of the draft resolution: Taking into consideration that the International Law Commission has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal, as well as the preparation of a draft code of offences against peace and security; . . .

426

A/C.6/SR.59

FIFTY-NINTH MEETING Held at Lake Success, New York, on Thursday, 20 November 1947, at 3 p.m. Chairman: Mr. El-Khouri (Syria). [Discussions pertaining to issues other than the Genocide Convention] 50. Draft report and draft resolution adopted by Sub-Committee 2 on the draft convention on genocide (document A/C. 6/190/Rev.1) The Chairman drew attention to a United Kingdom amendment (document A/C.6/192) an Egyptian amendment (document A/C.6/198) and USSR amendment (document A/C.6/201). Mr. Beckett (United Kingdom) proposed the insertion of a new paragraph in the preamble of the resolution, intended to follow the paragraph relative to the reaffirmation of the resolution of 11 December 1946,1 as he considered it possible to make a further small declaration with regard to genocide which would constitute a progressive step. Genocide was a crime against humanity which no authority and no national legislation could justify, and individuals who had committed that crime should be tried in a manner analogous to that in which war criminals were tried. Superior orders or national legislation would not protect them. Further, if genocide was ordered by Governments, States were collectively responsible just as, under the Hague Convention, a State was responsible for offences against the law of war committed by its armies. The State was internationally responsible. Although a State could not be punished by being hanged or shot, it still had an international responsibility if its Government had authorized this crime. The amendment might be reworded “entailing individual and collective responsibility” instead of “national and international responsibility”. The sense of the amendment was the same as that proposed at the last session of the Assembly jointly by the United Kingdom and France.2 1

2

See Resolutions adopted by the General Assembly during the second part of its first session, No 96(I). See Official Records of the second part of the first session of the General Assembly, Sixth Committee, Annex 15a, pages 242 and 243.

A/C.6/SR.59

427

His Government was not very enthusiastic about the rest of this draft resolution. It did not in fact think that a convention on genocide alone was very useful or that it was the best way of dealing with the matter from the point of view of the development of international law. If genocide were practised with the consent of Governments, no convention would stop it. On the other hand, from the scientific point of view of the development of international law, the crime of genocide should be dealt with in conjunction with the codification of the principles of the Nürnberg Charter, since it was so closely analogous to other crimes which would thus be codified. The work would be best done by the international law commission. The racial or religious animosities which caused genocide, as indeed they caused discriminations and persecutions, would best be considered by the Sub-Commission on Non-Discrimination of the Commission on Human Rights. However, the United Kingdom view on that point did not prevail in the Sub-Commission and, in a co-operative spirit the United Kingdom delegation now asked for the addition of a further paragraph to the preamble. Mr. Chaumont (France) said that a compromise solution had been reached on this question in 1946. He could not conceive of a State having actual penal responsibility or undergoing punishment. This was the effect that the United Kingdom amendment would have, and he felt that this would weaken the scope of the previous year’s resolution. He therefore could not accept this amendment. As far as the substantive matter stood, he felt that they were bound by the 1946 resolution and he therefore favoured the view of the Sub-Committee. Mr. Durdenevsky (Union of Soviet Socialist Republics) agreed with the United Kingdom on the amendment. Mr. Bramson (Poland) stated that the question of genocide had paramount legal aspects. This was not a new resolution. If the USSR amendment were accepted and the question was referred to the Economic and Social Council for further study to see if such a convention on genocide were necessary this might be preferable, since a free hand was needed. He preferred the USSR proposal for study of the problem and the drawing up of a convention if necessary. As far as sub-paragraph (c) of the USSR amendment (document A/C.6/201) was concerned, it was self-evident that if a convention were envisaged, it would have to be ratified by Governments. The draft resolution of the Sub-Committee made it appear that the comments of Governments were totally unimportant.

428

A/C.6/SR.59

The Chairman observed that the idea underlying this proposal was to prepare a basis for legislation in States. The States had already been invited to make comments. Mr. Côté (Canada) said that he could not associate himself with the view of the French delegation. The General Assembly resolution of 1946 had requested the Council to prepare a convention assisted by the Secretariat. That had been done and the terms of the resolution had been implemented; hence, he could not accept the USSR amendment. M. Dihigo (Cuba) said that sub-paragraph (b) of the USSR amendment implied new modifications and did not seem opportune. Once States had been informed that action was in progress they would not take internal action until the Assembly had completed its work. The General Assembly should therefore have a resolution on the matter. The representative of Mexico supported the view expressed by the representative of Cuba and favoured the report of the Sub-Committee; since the convention touched on the internal regime of States it deserved special study, and the opinions of those States must be considered. Mr. Koo (China) observed that in Sub-Committee 2 the Chinese delegation had expressed itself in favour of establishing an interim body but in view of the fact that the resolution recommending such action had been rejected in the Sixth Committee, his delegation wished to make the following statement: 1. It believed that the Economic and Social Council was not the proper place to consider juridical aspects of the convention on genocide; 2. It urged the completion of the convention without further delay, bringing it into connexion with the Nürnberg principles.

Therefore the Chinese delegation wished to present an amendment (document A/C.6/204) to the draft resolution on the draft convention on genocide contained in document A/C.6/190/Rev.1. Mr. Durdenevsky (Union of Soviet Socialist Republics) said that the Economic and Social Council should be allowed to study the question and decide if a convention were necessary. This was why the USSR had proposed a substitute text. He was not trying to weaken the scope of the previous year’s resolution, but merely wanted serious consideration given to the problem. If the Economic and Social Council should find

A/C.6/SR.59

429

it necessary, such a convention could be rapidly prepared, since so much work had already been done in the field. Mr. Chaumont (France) said that he could not accept the USSR amendment at all, since he felt that the Sixth Committee had no legal right to go back on the decisions made in the previous year, and such an amendment would appear to entail indefinite postponement. He favoured the draft resolution of the Sub-Committee, subject to deletion of reference to the interim body, but found the Egyptian amendment quite acceptable. Mr. Durdenevsky (Union of Soviet Socialist Republics) objected to Mr. Chaumont’s criticism. Mr. Raafat (Egypt) said that as far as the amendments before him were concerned he found the United Kingdom amendment neither necessary nor useful, since the General Assembly had already stated that genocide was a crime in international law. Such an amendment also raised implications of penal law. He favoured the Sub-Committee’s draft resolution and felt that the Economic and Social Council should be invited to continue and finish its work. He found the Chinese amendment acceptable. Since the interim committee had been rejected, the words “interim commission” should also be deleted from the draft resolution. Mr. Oldham (Australia) said that very good ground work had been done on the matter of genocide and it would be a great disservice to undo it now. He agreed with the Chinese amendment. Mr. Seyersted (Norway) said he supported the proposal of the Sub-Committee. The time was now ripe to deal with and dispose of the matter of genocide. The work was far advanced. If the United Kingdom amendment were to be adopted he wished the second paragraph of the draft resolution on genocide to be reworded to the effect that it would reaffirm the whole of the previous year’s resolution on genocide rather than merely the condemnation contained in the first paragraph of the said resolution, which was already repeated in the United Kingdom amendment to this year’s resolution. This would also meet the desire of the representative of Poland to stress the need for Member States to enact the necessary legislation for the prevention and punishment of genocide, as a provision to that effect was contained in the second paragraph of last year’s resolution. The Chairman put the United Kingdom amendment (document A/C.6/ 192) to the vote.

430

A/C.6/SR.59

The United Kingdom amendment was adopted by 21 votes to 6. The Chairman put the USSR amendment (document A/C.6/201) to the vote. The Rapporteur proposed an amendment to sub-paragraph (c) of the USSR amendment to insert between the words “from” and “the”, the words “most of ”. This amendment was adopted by 16 votes to 4. The USSR amendment as amended was adopted by 18 votes to 16. At the request of the representatives of Egypt and France the votes were recounted. A roll-call vote was taken at the request of Mr. Chaumont (France). The result of the vote was as follows: In favour: Argentina, Australia, Belgium, Byelorussian Soviet Socialist Republic, Canada, Chile, Czechoslovakia, Denmark, India, Iran, Liberia, Netherlands, New Zealand, Peru, Poland, Syria, Turkey, Ukrainian Soviet Socialist Republic, Union of South Africa, Union of Soviet Socialist Republics, United Kingdom, Yugoslavia. Against: Bolivia, Brazil, China, Colombia, Cuba, Dominican Republic, Ecuador, Egypt, France, Guatemala, Haiti, Mexico, Nicaragua, Norway, Panama, Sweden, United States of America, Venezuela. Abstaining: Greece. The Chairman stated that the amendment proposed by the Union of Soviet Socialist Republics as amended had been accepted by 22 votes to 18, with 1 abstention. The Egyptian amendment was withdrawn. The Norwegian amendment for the deletion of the word “condemnation” in the second paragraph was adopted by 22 votes. The report and draft resolution of Sub-Committee 2 as amended were adopted by 31 votes. [Discussions pertaining to issues other than the Genocide Convention]

A/510

431

ANNEX 32

Draft convention on genocide Report of the Sixth Committee on the report of the Economic and Social Council Rapporteur: Mr. G. Kaeckenbeeck (Belgium) Document A/510

20 November 1947 [Original text: French]

During the second part of its first session, the General Assembly received a draft resolution on the crime of genocide, submitted jointly by the delegations of Cuba, India and Panama (document A/BUR/50). Declaring in its resolution 96(I)1 of 11 December 1946 that genocide, a denial of the right of existence of entire human groups, was a crime under international law, the General Assembly instructed the Economic and Social Council to undertake the necessary studies with a view to the drawing up of a draft convention on the crime of genocide to be submitted to the present session of the General Assembly. On 28 March 1947,2 the Economic and Social Council adopted a resolution whereby it instructed the Secretary-General: 1

2

See Resolutions adopted by the General Assembly during the second part of its first session, page 188. See Resolutions adopted by the Economic and Social Council during its fourth session, resolution 47(IV), page 33.

(a) To undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly, and (b) After consultation with the General Assembly Committee on the Development and Codification of International Law and, if feasible, the Commission on Human Rights and, after reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

432

A/510

In consultation with experts, the Secretary-General prepared a draft convention and a commentary which on 13 June 1947 were submitted to the Committee on the Progressive Development of International Law and its Codification. As Member Governments had not submitted their observations on the draft convention, the Chairman, by a letter dated 17 June, stated that the Committee felt unable at that time to express any opinion on the matter. On 7 July 1947, the Secretary-General transmitted the draft convention and commentary to Member Governments for their observations. On 6 August 1947, at its fifth session, the Economic and Social Council adopted a resolution1 instructing the Secretary-General to obtain the comments of Member Governments; informing the General Assembly that it proposed to proceed as rapidly as possible with the consideration of the question subject to any further instructions from the General Assembly, and requesting the Secretary-General, in the meantime, to transmit to the General Assembly the draft convention on the crime of genocide prepared by the Secretariat in accordance with paragraph (a) of the Council resolution of 28 March 1947, together with any comments from Member Governments. The Secretary-General has received observations from: India, Haiti (document A/401), Philippines, Venezuela (document A/401/Add.1), United States of America (document A/402/Add.2) and France (document A/401/ Add.3) [sic] which have been transmitted to the General Assembly. 1

See Resolutions adopted by the Economic and Social Council during its fifth session, resolution 77 (V). page 21.

At its ninety-first meeting on 23 September 1947, the General Assembly referred to the Sixth Committee paragraph 86 of the report of the Economic and Social Council (A/382), which dealt with the draft convention on genocide. Draft resolutions and amendments were proposed by the delegations of Venezuela (document A/C.6/149), the Union of Soviet Socialist Republics (document A/C.6/151), the United Kingdom (document A/C.6/155), Egypt (document A/C.6/159) and Brazil (document A/C.6/160), and a

A/510

433

resolution adopted by the National Assembly of Panama was also presented to the Committee (document A/C.6/177). After a general debate, which took place at its thirty-ninth, fortieth, fortyfirst and forty-second meetings, on 29 September and 2, 3 and 6 October 1947, the Sixth Committee referred the matter to its Sub-Committee 2, expressing the wish that this Sub-Committee should confine itself to a consideration of the procedure to be followed. Sub-Committee 2 accordingly, at its sixteenth and eighteenth meetings, on 4 and 10 November 1947, discussed the question as to which body or organ the draft convention on genocide should be referred, and the terms of reference which should be given. Three different opinions were expressed with regard to the choice of the body. Certain delegations emphasized the sociological aspects of the study to be undertaken and the political nature of the problem, as well as the terms of the resolution adopted by the Economic and Social Council on 6 August 1947, and declared themselves in favour of the Economic and Social Council. Other delegations, emphasizing the legal nature of the work, suggested reference to the International Law Commission. Others, in order not to delay the matter, proposed that the work should be begun by the committee which, in accordance with the intentions of the SubCommittee, would act as an interim body until the members of the International Law Commission had been elected, after which the work could, if necessary, be continued by the International Law Commission. One delegation suggested that genocide in the strict sense would be considered in connexion with the codification of the Nürnberg principles and that sociological aspects, such as racial and religious intolerance, should be considered by the Sub-Committee of the Commission on Human Rights dealing with the prevention of discrimination and the protection of minorities. Finally, the Sub-Committee decided, by 8 votes to 2, to recommend that the matter be referred to the Economic and Social Council. With regard to the terms of reference to be given to the Economic and Social Council, some delegations wished to leave the body instructed to study the problem complete freedom to decide in favour either of a convention or of any other appropriate method. Other delegations considered, however, that this question had already been decided by resolution 96

434

A/510

(I) of the General Assembly of 11 December 1946, which instructed the Economic and Social Council to undertake the necessary studies with a view to the drawing up of a draft convention on the crime of genocide. The latter opinion was adopted by 10 votes to 2. The Sixth Committee had before it various amendments to the draft resolution submitted by Sub-Committee 2, namely, an amendment by the Union of Soviet Socialist Republics (document A/C.6/201) which it adopted subject to a minor Belgian amendment and a British amendment (document A/C.6/192) which it also adopted, together with a Norwegian amendment. The Sixth Committee therefore recommends to the General Assembly the adoption of the following resolution: Draft Convention on Genocide

The General Assembly, Realizing the importance of the problem of combating the international crime of genocide; Reaffirming its resolution 96(I) of 11 December 1946 on the crime of genocide; Declaring that genocide is an international crime entailing national and international responsibility on the part of individuals and States; Noting that a large majority of the Governments of Members of the United Nations have not yet submitted their observations on the draft convention on the crime of genocide prepared by the Secretariat and circulated to those Governments by the Secretary-General on 7 July 1947; Considering that the Economic and Social Council has stated in its resolution of 6 August 1947 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide, subject to any further instructions which it may receive from the General Assembly, Requests the Economic and Social Council: (a) To proceed with the studies on the problem of measures of combating the crime of genocide; (b) To study therewith the question whether a convention on genocide is desirable and necessary, and if so, whether there should be a separate convention on genocide, or whether the question of genocide should be considered in connexion with the drafting of a convention to include the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal;

A/510

435

(c) To consider, if the conclusion of a separate convention on genocide is deemed necessary, the draft convention on genocide prepared by the Secretariat, after having received comments from most of the Governments of States Members of the United Nations, and to submit a report on the matter to the third regular session of the General Assembly.1 1

For the final text of this resolution as amended by the delegations of Cuba, Egypt and Panama (document A/512) and by the delegation of China (document A/514) and adopted at the hundred and twenty-third plenary meeting on 21 November 1947, see Resolutions adopted by the General Assembly, second session, resolution 180(II).

436

A/512

ANNEX 32a

Amendment presented by the delegation[s] of Cuba, Egypt and Panama Document A/512

21 November 1947 [Original text: English]

Replace the last paragraph (a), (b) and (c) of the draft resolution by the following text: Requests the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention by the Secretariat, and to proceed with the completion of a convention; Informs the Economic and Social Council that it need not await the receipt of the observations of all Members before commencing its work; and Requests the Economic and Social Council to submit a report and the convention on this question to the third regular session of the General Assembly.

A/513

437

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/513 21 November 1947 ORIGINAL: ENGLISH

DRAFT CONVENTION ON GENOCIDE REPORT OF THE SIXTH COMMITTEE* VENEZUELA: AMENDMENT On page 4 of document A/510: 1. Delete paragraph (b) of the resolution. 2. Delete, in paragraph (c) of the resolution, the words: “if the conclusion of a separate convention on genocide is deemed necessary”. * document A/510

438

A/514

United Nations Nations Unies GENERAL ASSEMBLY ASSEMBLEE GENERALE

UNRESTRICTED A/514 21 November 1947 ORIGINAL: ENGLISH

DRAFT CONVENTION ON GENOCIDE REPORT OF THE SIXTH COMMITTEE* CHINA: AMENDMENT TO THE AMENDMENT PROPOSED BY CUBA, EGYPT AND PANAMA** Add to the end of the first paragraph after the word “convention”, the following: taking into account that the International Law Commission, which will be set up in due course in accordance with the Assembly Resolution of November 1947 has been charged with the formulation of the principles recognized in the Charter of the Nuremberg Tribunal, as well as the preparation of a draft code of offences against peace and security. * document A/510 ** document A/512

A/PV.123

439

HUNDRED AND TWENTY-THIRD PLENARY MEETING Held in the General Assembly Hall at Flushing Meadow, New York On Friday, 21 November 1947, at 3 p.m. President: Mr. O. Aranha (Brazil). [Discussions pertaining to issues other than the Genocide Convention] 121. Genocide: report of the Sixth Committee (document A/510) The President: I call upon the representative of Belgium, Rapporteur of the Sixth Committee. Mr. Kaeckenbeeck (Belgium) (translated from French): At the last session of the Assembly, the crime of genocide was the subject of a resolution, number 96(I).1 In this resolution, which condemned genocide as a crime under international law, the Assembly requested the Economic and Social Council to undertake the necessary studies with a view to drawing up a draft convention on that crime. 1

See Resolutions adopted by the General Assembly during the second part of its first session, resolution 96(I), page 188.

At the Economic and Social Council’s request, the Secretary-General, in consulation [sic] with experts, prepared a draft convention and a commentary which were submitted to the Committee on the Progressive Development of International Law and its Codification. That Committee stated, however, that as Member Governments had not submitted their observations on the draft convention, it felt unable to express any opinion on the matter. The Secretary-General then sent the general draft convention to the Members of the United Nations, inviting them to submit their observations. The Economic and Social Council later informed the General Assembly that it proposed to proceed as rapidly as possible with the consideration of the question, subject to any further instructions from the General Assembly. The Sixth Committee now recommends the Assembly to adopt a resolution reaffirming its previous resolution, declaring that genocide is an international crime entailing national and international responsibility on

440

A/PV.123

the part of individuals and States, and inviting the Economic and Social Council to continue its study of the question. The text of the resolution set out in document A/510 incorporates Soviet, British, Belgian and Norwegian amendments adopted by the Sixth Committee. It is as follows: The General Assembly, Realizing the importance of the problem of combating the international crime of genocide; Reaffirming its resolution 96(I) of 11 December 1946 on the crime of genocide; Declaring that genocide is an international crime entailing national and international responsibility on the part of individuals and States; Noting that a large majority of the Governments of Members of the United Nations have not yet submitted their observations on the draft convention on the crime of genocide prepared by the Secretariat and circulated to those Governments by the Secretary-General on 7 July 1947; Considering that the Economic and Social Council has stated in its resolution of 6 August 19472 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide, subject to any further instructions which it may receive from the General Assembly; 2

See Resolutions adopted by the Economic and Social Council during its fifth session, resolution 77(V), page 21 and following.

Requests the Economic and Social Council: (a) To proceed with the studies on the problem of measures of combating the crime of genocide; (b) To study therewith the question whether a convention on genocide is desirable and necessary, and if so, whether there should be a separate convention on genocide, or whether the question of genocide should be considered in connexion with the drafting of a convention to include the principles of international law recognized in the charter of the Nürnberg Tribunal and in the judgment of the Tribunal; (c) To consider, if the conclusion of a separate convention on genocide is deemed necessary, the draft convention on genocide prepared by the Secretariat, after having received comments from most of the Governments of States Members of the United Nations, and to submit a report on the matter to the third regular session of the General Assembly.

A/PV.123

441

The President: In addition to the resolution proposed by the Sixth Committee, the following amendments have been submitted: document A/512, which is a joint amendment proposed by Cuba, Egypt and Panama; document A/514, which is an amendment to the joint amendment, and is proposed by China; and document A/513, which is another amendment, proposed by Venezuela. The Chair has a list of six speakers, and would like to request the delegations which wish to make statements to hand in their requests as soon as possible, because I feel that in due course the list should be declared closed. I call upon the representative of Panama. Mr. Alfaro (Panama): Last year, the General Assembly, amidst the plaudits and gratification of public opinion throughout the world, adopted resolution 96(I) dated 11 December 1946, in which it said: 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; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern. The General Assembly, therefore, Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable; Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime; Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end,

442

A/PV.123

Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

In March of this year, the Economic and Social Council adopted a resolution1 whereby it instructed the Secretary-General, “to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly”. 1

See Resolutions adopted by the Economic and Social Council during its fourth session, resolution 47(IV), page 33.

The Secretariat promptly and efficiently carried out the task entrusted to it, and prepared a draft convention which was subsequently circulated among Member Governments for their observations and comments. After various occurrences, the matter came back to the second session of the General Assembly for action and was assigned to the Sixth Committee which, in turn, referred it to its Sub-Committee 2. I shall take no time to narrate the debates held in the Sub-Committee; it is necessary only to advert to the fact that the Sub-Committee adopted and recommended to the Sixth Committee a draft resolution, the pertinent part of which reads as follows: The General Assembly . . . Requests the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention . . .; Informs the Economic and Social Council that it need not await the receipt of the observations of all Member States before commencing its work . . .; and Requests the Economic and Social Council to submit a report on this question to the third regular session of the General Assembly.

This draft resolution, as may be readily seen, is in complete accord with the resolution which the General Assembly adopted on 11 December 1946. However, when the matter came back to the Sixth Committee, and was discussed at its 59th meeting yesterday, the recommendation of the Sub-Committee (document A/C.6/190/Rev.1) was set aside by means of

A/PV.123

443

an amendment, and a draft resolution was approved by a vote of 22 to 18, with one abstention. This means that sixteen nations failed to vote. The substantial part of the resolution adopted by the Committee reads as follows – it has already been read by the Rapporteur, but I want to call further attention to its terms: The General Assembly . . . Requests the Economic and Social Council: (a) To proceed with the studies on the problem of measures of combating the crime of genocide; (b) To study therewith the question whether a convention on genocide is desirable and necessary, and if so, whether there should be a separate convention on genocide, or whether the question of genocide should be considered in connexion with the drafting of a convention to include the principles of international law recognized in the charter of the Nürnberg Tribunal and in the judgment of the Tribunal; (c) To consider, if the conclusion of a separate convention on genocide is deemed necessary, the draft convention on genocide prepared by the Secretariat, after having received comments from most of the Governments of States Members of the United Nations, and to submit a report on the matter to the third regular session of the General Assembly.

I wish to call the attention of this General Assembly to the passage in paragraph (c) of the resolution requesting that the draft convention on genocide prepared by the Secretariat be considered by the Economic and Social Council, after having received comments from most of the Governments. The original amendment was to the effect that the draft should not be considered until comments had been received from all Governments. This was the equivalent of giving the right of veto on the question of the genocide convention to the fifty-seven Members of the United Nations, and this was a sure and infallible method of killing the project, because it was sufficient for one single nation not to send its comment to keep the draft convention in a state of paralysis. The original proposal was subsequently amended to read: “After having received comments from most of the Governments”, but “most of the Governments” is at least the absolute majority. Therefore, this means that, until twenty-nine Governments or more have sent in their comments, the draft convention will not even be considered. In other words, the resolution raised in opposition to the genocide convention is the result of the tremendous force of inertia, the

444

A/PV.123

inertia which unfortunately is so common in government offices when they have to deal with matters of this type. With regard to paragraph (b) of the Committee resolution which is couched in indefinite terms, with a couple of “whethers” and another couple of “its”, it may be observed that instead of straight clean-cut instructions from the General Assembly to the Economic and Social Council to undertake studies with a view to drawing up a convention on the crime of genocide which is to be submitted to the General Assembly, we have now before us a request to that body to study the question of whether a convention on genocide is desirable and necessary. In other words, what was yesterday a conviction or a decision that a certain thing had to be done, appears today beclouded by doubts and is a subject of a consultation. By virtue of such a consultation, this supreme body of the United Nations might see its decision reversed by another organ. This would be a flagrant inconsistency and a palpable absurdity. That is why the delegation of Panama proposes, in conjunction with the delegations of Cuba and Egypt, that we revert to the original position of the General Assembly by adopting the substance of the text proposed by the Sub-Committee. I do not need to extend my remarks on the disheartening effect of postponing, delaying, hindering and conflicting the considerations of a decision on those great questions of principle which concern the sacred right of human beings, their lives and their freedom. Genocide is one of those questions. Just as the conscience of mankind was horrified by the repeated perpetration of the crime of genocide in the heyday of Nazi power, so the whole world saw, with enthusiastic approval the action taken by the United Nations with the aim of avoiding the repetition of that ghastly crime. The adoption of the resolution, which was approved yesterday by a slight majority in the Sixth Committee, would mean a recession from the stand taken by this august body last year. Last year the General Assembly in categorical and unequivocal terms said: “Let us have a convention on genocide.” It would appear this year that the General Assembly is vacillating, and that the General Assembly would say to the Economic and Social Council: “Please study the question whether a convention on genocide is desirable and necessary.”

A/PV.123

445

We cannot in this manner stultify ourselves. We cannot so disappoint the opinion and sentiment of the world. Let us stand by a resolution which is an honour to the General Assembly and a hope for mankind. Let us adopt the text proposed by the Sub-Committee, which is in harmony with that resolution. Let us vote for the amendment and maintain a firm unflinching stand against crime in its most abominable form. The President: I call upon the representative of Cuba. Mr. Dihigo (Cuba) (translated from Spanish): After the brilliant speech which we have just heard from the representative of Panama, Dr. Alfaro, I have little to add except to associate myself with each and every one of his statements. As you have seen, the aim which the delegations of Egypt, Panama and Cuba have had in view has been to persuade the Assembly to adopt, not any text of ours, but rather the text recommended by Sub-Committee 2 of the Sixth Committee for, as Dr. Alfaro said, the amendment passed by a small majority of the Committee yesterday implies the frustration of this fulfilment of the resolution on genocide adopted last year. You are all aware of the impression which the adoption of that resolution created throughout the world. The horrors committed in the course of the last war, in the mass murder of human beings on the grounds of racial or political prejudice, are still too recent for people in general not to welcome the resolution adopted last year. If we now adopt what appears in the report without the amendment we suggest, the world will think that in the space of one year we have forgotten those horrors and that the United Nations is afraid to condemn genocide. The President: I call upon the representative of Egypt. Mr. Raafat (Egypt) (translated from French): I shall be very brief. I must be brief, especially after the speeches which the representatives of Panama and Cuba have just made. I only wish to remind you that in its resolution 96(I) of last year the General Assembly on 11 December 1946, while affirming that genocide was a crime under international law, requested the Economic and Social Council to undertake the necessary studies with a view to drawing up a draft convention in that crime and to submit that draft to the General Assembly at this session.

446

A/PV.123

That decision taken last year therefore decided the question of whether or not there should be a convention on genocide. It was in favour of such a convention, since it invited the Economic and Social Council to prepare it. As the representative of Panama has just reminded us, a draft convention was in fact prepared at the request of the Economic and Social Council by the Secretariat with the assistance of three experts in international criminal law. That draft was submitted for examination and comment to all the Member States. Some of them have already presented their observations on that draft, while others have not yet done so. This year, on 23 September, the General Assembly referred the said draft convention with the Economic and Social Council’s report thereon to the Sixth Committee.1 1

See the 91st plenary meeting.

The Sixth Committee, as you now know, referred the question to its Sub-Committee 2. The latter, after long discussions, submitted to the Sixth Committee a draft resolution (document A/C.6/190/Rev.1) asking the Economic and Social Council to proceed with the work it had begun on combating the crime of genocide, including the study of the draft convention prepared by the Secretariat; to draw up a convention and to present a report on that subject to the third regular session of the General Assembly. That was quite in line with your resolution of last year. Unfortunately during the discussions at the 59th meeting of the Sixth Committee, by a very small majority of 3 or 4 votes, and in the absence of some ten delegations, the Committee adopted a USSR amendment (document A/C.6/201) which puts the whole question into the melting-pot again and reopens the debate which the Assembly had closed by its resolution of last year. In fact, the draft resolution now put forward by the Sixth Committee (document A/510) requests the Economic and Social Council to re-examine whether or not a convention on genocide is necessary or desirable. You answered in the affirmative last year. You cannot draw back this year, above all on the subject of genocide, a question which arouses passionate

A/PV.123

447

interest in a large part of world public opinion, when nothing – absolutely nothing – justifies this drawing back or this hesitation. Hence, believing that yesterday’s vote in the Sixth Committee does not accurately reflect the General Assembly’s real opinion on this subject, we have brought before you again, this time in agreement with the representatives of Panama and Cuba, an amendment (document A/512), which is very like that which we presented yesterday to the Sixth Committee and which is closer to the spirit and the letter of your last year’s resolution. It is for you to decide between the Sixth Committee’s retrograde resolution – I repeat, retrograde – and the amendment which we have the honour to submit to you. The President: I call upon the representative of Venezuela. Mr. Pérez Perozo (Venezuela) (translated from Spanish): In its observations on the draft convention on the crime of genocide prepared by the Secretariat, my Government clearly expressed its desire to see that draft submitted to a legal body of the United Nations for full consideration. The delegation of Venezuela therefore proposed, in the Sixth Committee, that the draft convention be referred back to the Economic and Social Council for examination by that body in collaboration with the Committee on the Progressive Development of International Law and its Codification. Sub-Committee 2 of the Sixth Committee, after examining a number of proposals on the same subject, submitted to the Committee a draft resolution proposing that the Secretariat’s draft convention be referred to the Economic and Social Council, which could in turn request the assistance of the Committee on the Progressive Development of International Law. Yesterday, however, in deciding to dispense with the said Committee, the Sixth Committee also, by implication, rejected the recommendation made by Sub-Committee 2 and approved the resolution now before us. In this draft resolution the Assembly requests the Economic and Social Council to consider whether a convention on genocide is desirable and necessary or not. My delegation considers such a request for the opinion of the Economic and Social Council unconstitutional for two reasons; first, because the Assembly itself, at its meeting of 11 December 1946, unanimously recognized the need to draw up such a convention since, in its resolution 96(I) of that date, it instructed the Economic and Social Council to draw up a draft convention on genocide, and secondly, because

448

A/PV.123

the Assembly does not need to consult any other organ in order to know whether a proposal of this nature is desirable or not, since it is well able to form its own opinion on the matter. Moreover, such a lack of confidence in its own decisions would ill accord with the Assembly’s prestige, for that would be the implication of any vacillation as to the desirability of a convention which it unanimously decided to be necessary less than a year ago. What are the circumstances which have changed in such a short period of time to make the Assembly appear hesitant and irresolute with regard to a matter on which it was previously so sure? Can it be that in such a short space of time genocide has become less abominable and dangerous than it was before? On the contrary, the hundreds of thousands of victims which religious genocide has been claiming recently ought to prompt the Assembly to reaffirm its condemnation of that crime and vigorously press its consideration of all possible measures of combating and punishing it. The convention on genocide is one of the most effective of such measures. The Assembly ought, therefore, to stand by its judgment of last year without having to ask the Economic and Social Council for information on the matter. Otherwise the convention on genocide would be subjected to further delay, the whole question would be reopened, and there would be a danger of wasting all the work already done on the subject by the Economic and Social Council, the Secretariat and the group of experts specially engaged to assist in drawing up the draft convention. Moreover, there is an obvious contradiction in the draft resolution before us, for in the second paragraph the Assembly reaffirms its resolution 96(I) of last year, in which it deemed the convention on genocide necessary since it requested the Economic and Social Council to draw up a draft on the subject; and at the same time in the same resolution, the Assembly asks the Council for its opinion as to whether or not the convention is necessary. For the reasons stated, my delegation has proposed the amendment (document A/513) with regard to the draft resolution contained in the Sixth Committee’s report. That amendment consists merely in omitting paragraph (b) and deleting from paragraph (c) the following phrase, “if the conclusion of a separate convention on genocide is deemed necessary”. Thus the draft convention will go to the Economic and Social Council as provided in the resolution, but contrary to the latter, the Council

A/PV.123

449

will not be asked for its opinion as to whether or not a convention on genocide is necessary. The President: I still have about nine speakers on the list. Before I call upon the next speaker, I should like to announce that the list of speakers will be closed with the adjournment of the meeting. Therefore, those representatives who wish to speak on this subject are requested to have their names inscribed before the adjournment of the meeting. I call upon the representative of France. Mr. de l’a Tournelle (France) (translated from French): Following the adoption of resolution 96(I) of 11 December 1946, which contained a solemn condemnation of the crime of genocide, it might have been hoped that speedy and effective measures would be taken to arrive at definite rules on the punishment of this crime. But the work has been spread over the whole of 1947. The Economic and Social Council, the Committee on Codification and the Secretariat have continued to study the problem while waiting for the observations of the Governments. In fact it has not been possible to examine thoroughly the draft convention worked out by the Secretariat, so that when the General Assembly met again last September, no important progress had been made. The subject with which we are faced is of course a delicate one. However, we must respect and apply the General Assembly’s resolution 96(I) of 11 December 1946, which recognized the legal existence of the crime of genocide and prescribed that its punishment should be ensured by means of a convention. That is why we cannot understand the persistence with which certain delegations wish to delay the solution of this problem and criticize the use of the method of a convention. We are told that, in the present circumstances, the study of this question should be adjourned, in the name of the most elementary realism. However, if we wished to push this argument to its logical conclusion, we should be advocating that the doors of the United Nations should be closed because the spirit of international cooperation is lacking. On behalf of Europe, which has suffered so much, France appeals to all those who are anxious not to make mockery of the opening proclamation of the United Nations Charter which affirms faith in fundamental

450

A/PV.123

human rights, and in the dignity and worth of the human person. Is not the right of men and nations to existence the most obvious of those fundamental rights?. However, certain people here object to the use of the convention method. They are the same people who, in the name of realism, wish to delay the study of the problem of genocide. Is not that a real contradiction? Is it not, on the contrary, a proof of realism to consider that the subject demands an international convention which would permit of the strictest control by the Governments and hence the greatest independence in choosing their obligations? And if anyone is afraid that such a convention might not be implemented, he should not forget that the Members of the United Nations have solemnly bound themselves in the Preamble of the Charter to respect the obligations arising from treaties. That is why the French delegation cannot support the draft resolution submitted by the Sixth Committee, unless it is amended in the way which the representatives of Cuba, Egypt, Panama and Venezuela have just indicated. The draft resolution, in fact, refers the convention on genocide to the Economic and Social Council for study. The Council is composed of the representatives of States; it can therefore take action more effectively than an organ composed of persons who are not representatives, whatever their personal qualifications may be. Moreover, it has not been released from the task assigned to it by the resolution of 11 December 1946. This does not mean, however, that the Economic and Social Council should wait until it has received observations from all the Governments before beginning its work, otherwise ill will on the part of the Government of one of the States Members of the United Nations would be enough to delay the study of the convention on genocide indefinitely. In this respect the resolution which is submitted to the Assembly for approval cannot be completely satisfactory unless it is amended. It is not vain idealism which makes France concern herself in this question; it is because we are conscious of a historical necessity that we are determined on the greatest efforts to speed the progress of international law in a sphere which touches so nearly on the destinies and dignity of human society. The President: I call upon the representative of Norway.

A/PV.123

451

Mr. Seyersted (Norway): When the question of genocide was discussed for the first time by the General Assembly last year there was a complete and positive agreement on the necessity for taking steps to prevent that crime, and the General Assembly unanimously adopted the resolution to which reference has been made by other representatives. I should like to recall that this resolution actually consisted of three parts. The first was a condemnation of the crime of genocide and a declaration that it is a crime under international law. This was proposed by the United Kingdom. The second part was an invitation to Member States to enact the necessary legislation for the prevention and punishment of this crime. That was proposed by the delegation of India (document A/C.6/83) and was repeated again this year in the Sixth Committee by the delegation of Poland. Thirdly, the resolution carries the provision which has been recalled before, which requests the Economic and Social Council to present a draft convention on genocide to this session of the General Assembly. The second provision – that proposed by the delegation of India to the effect that legislation should be enacted to prevent genocide – has, I understand, already been carried out by a few Members. Other Members, like my country, already possess, in the main, the necessary legislation on that point. However, this legislation needs some adjustments; but these adjustments cannot be made until the convention is drawn up. We must know what acts will be covered by genocide, and we must also know under what conditions and in what cases we are expected to render extradition. That is one of the reasons why it is now necessary to carry out the third provision of the resolution, that a convention be drafted and adopted. Half the work in this respect has already been done. The Secretariat has presented an excellent draft which will form a good basis for the work, and this draft has been submitted to Member Governments for their comments. Some comments have already come in; others are on the way. Why should we halt the work by connecting it with other subjects such as the question of the codification of the principles of the Nürnberg Charter and of the Nürnberg Tribunal? Why should we complicate genocide, on which there is such a positive unanimity, by linking it with other and more controversial subjects? The Nürnberg Charter deals only with questions of war, but genocide is a problem of peace as well as of war. Therefore, it will only confuse the issue if we link the two together. If we are going

452

A/PV.123

to let every subject wait for other subjects to be worked out as well, then we shall never accomplish anything. Therefore, the Norwegian delegation feels that the General Assembly should immediately do its work on this limited subject which has been so well begun in order to get the convention ready for the next session of the General Assembly, without asking the Economic and Social Council to consider questions of procedure again which have already been decided, and which will only delay the matter. The representatives’ memories are fresh in respect of what happened during the war in the way of extermination of entire human groups. Let us now work out the convention on genocide in order to do what little we can to prevent it from happening again; and let us do it now while our memories are still fresh. This is why the Norwegian delegation will vote for the amendment proposed by the delegations of Cuba, Panama and Egypt. If that amendment is not adopted, the Norwegian delegation will vote for the amendment proposed by the delegation of Venezuela. The President: I call upon the representative of the United States of America. Mr. Fahy (United States of America): The United States delegation supports the amendment proposed by the delegations of Cuba, Egypt and Panama (document A/512) and the amendment to that amendment proposed by the delegation of China. Our reasons are very simple and can be briefly stated. My Government favours expeditious consideration and progress in the actual drafting of a convention on genocide, especially since, if there are any further studies needed, as is emphasized in the Committee’s draft resolution, those studies can be adequately made in connexion with the actual process of drafting a convention. We believe, too, that it might have been better if the task of drafting the convention had been entrusted to jurists rather than to the Economic and Social Council. However, since the majority of the Committee has referred the matter again to the Economic and Social Council, we do not now press our position in that regard. If, however, the Economic and Social Council completes a draft convention in the ensuing year, and if, from a legal standpoint, it should not be in proper form by the next session of the General Assembly for submission to Governments for their adherence, the matter can then be referred, in order to have the

A/PV.123

453

draft convention perfected from a legal standpoint, to the International Law Commission which will be elected at the next session of the General Assembly. However, that will be a matter for decision by the General Assembly when the draft convention shall have been submitted by the Economic and Social Council. As was stated by the representative of the United States in the Sixth Committee, we were willing this year, even during the session of the General Assembly, to proceed immediately to the drafting of a convention. Therefore, pursuing the line which has been followed by the United States delegation in regard to this subject from the beginning, we prefer the amendments to which I referred at the beginning of my remarks, because they look toward a more expeditious formulation of a convention for consideration by the General Assembly than does the draft submitted by the Sixth Committee. The President: I call upon the representative of Mexico. Mr. Villa Michel (Mexico) (translated from Spanish): The delegation of Mexico avails itself of the opportunity afforded by the discussion of the Sixth Committee’s report to express the interest with which the Mexican Government has been following the endeavour of the United Nations to set up international machinery for the prevention and repression of genocide, a crime which, though an anachronism at the present stage of our civilization, nevertheless assumed alarming proportions in certain States before and during the last war. This crime has fortunately not taken root in the Latin American countries, and is completely unknown in Mexico where various races have learnt to live together in harmony on a basis of juridical equality. The indigenous groups living together in my country are developing under a watchful policy of protection initiated in the early days of the Spanish conquest, thanks to the admirable zeal of the Franciscans, and juridically organized, later on, as the sage laws called Leyes de Indias; a policy that was reinstituted by the Mexican Revolutionary Governments upon bases and principles of their own. It is pertinent to note that at present there are in Mexico, governmental bodies and agencies for the specific purpose of preserving and fostering the culture of the native groups, of promoting their welfare, of intervening in the settlement of such special problems as may arise and of affording them legal protection in the event of any

454

A/PV.123

abuse of the law by groups which are more developed or have greater economic power. Nevertheless, the mere fact of the occurrence of genocide, in whatever part of the world, suffices to make my Government consider that, both individually and collectively through our international organization, every one of the States ought to feel it their bounden duty and a matter of the greatest importance to eliminate and above all to prevent this crime against whole groups of human beings, which criminally destroys great potentialities of culture, energy and vital activities, and constitute a direct and serious threat to the welfare of the human race. For this reason the Mexican delegation considers that the report, as presented for consideration to this Assembly, with the amendments which were made to it in the Sixth Committee, does not adequately express the desire felt by all States Members to put down the crime of genocide, and represents a serious retrograde step in the course of action outlined by the General Assembly in December 1946. Moreover, the draft resolution submitted for this Assembly’s approval, amounts in fact to a revocation of the resolution adopted by it on 11 December 1946 – a revocation which in our judgment is unnecessary, is not based on any change in the situation, and can in practice be interpreted as a piece of vacillation by the United Nations, or as an abandonment of its firm resolution against genocide. My delegation is agreeable to the study of a convention in which Governments would bind themselves to introduce before their respective legislatures, within a reasonable time, the criminal laws necessary to make genocide a crime both within their domestic jurisdiction and in the international sphere. Such a convention would involve action by legislative bodies in matters closely bound up with the internal government of States and with individual safeguards. I therefore consider it necessary to gain precise knowledge of the legal and political conditions and potentialities of States Members in this matter, and to make a careful study of the clauses which could be included in the convention to adapt it to such conditions and potentialities, so that the convention should not become a dead letter, should be acceded to by the largest possible number of States, and should be freely open to universal membership, in accordance with the General Assembly’s resolution of 11 December 1946 declaring genocide an international crime.

A/PV.123

455

My delegation also considers that the prevention of genocide deserves special attention over and above that given to it in the draft convention drawn up by the Secretariat. We think that the prevention of this crime cannot rest on the punishment of attempts or preparatory acts, or on the effectiveness of exemplary punishment, as a deterrent to this crime. In view of the peculiar nature of the crime, we consider it essential to lay more emphasis on the elimination, through the operation of the convention, of certain reprehensible acts which may also be regarded as giving rise to conditions causing, or at least predisposing to, genocide. In my recollection, the legal opinion was expressed in the course of the general discussion that, in view of the existence of the Assembly’s declaration of 11 December 1946, it would not be proper to proceed to the signature of a convention on the same topic, since to do so would be equivalent to allowing contractual freedom in a matter which, under the resolution, should be regarded as one of international law. Without desiring to start a discussion on this point, my delegation wonders whether this declaration of the General Assembly is of itself sufficient to produce the desired legal results in the international sphere. We can, however, state at once that under Mexican law, that declaration would not be a sufficient foundation for a criminal prosecution of genocide or for the extradition of any person committing it, since in Mexico nobody can be tried without a specific law enacted previous to the misdeeds exactly applicable to the case. For these reasons the Mexican delegation has the greatest pleasure in supporting the proposal (document A/512) made by the delegations of Cuba, Egypt and Panama, which satisfy it and for which it will vote. The President: I call upon the representative of Iraq. Mr. Abbass (Iraq): I had no intention of speaking, but in view of the nature of our vote in the Sixth Committee, a word of information may be necessary. When this resolution was introduced, we thought the subject of genocide was well covered by the principles of the Nürnberg Charter and by the principles of the Charter of the United Nations. We still believe it to be so. However, since some Members of the United Nations think that a convention would offer an additional guarantee for the protection of the individual, we should have no difficulty in accepting such a thesis.

456

A/PV.123

Since we intend to abide by the letter and the spirit of the Charter of the United Nations, we should have no objection to any guarantees which are based on such principles. For this reason, we wish to join with those who desire to dedicate this resolution on this occasion to the protection of the worth and dignity of the individual, and with whom we willingly and heartily join to commemorate also what the Charter says about the dignity, worth and equal rights of nations. The President: I call upon the representative of the United Kingdom. Mr. Davies (United Kingdom): In response to your very wise request, Mr. President, I shall be brief. The United Kingdom stands by the resolution as it has come before the General Assembly from the Sixth Committee. In the Sixth Committee, the United Kingdom supported the Union of Soviet Socialist Republics amendment (document A/C.6/201) which led to the resolution as it now appears before us. We supported the USSR amendment to the resolution, which gives the Economic and Social Council a very wide latitude in dealing with the matter. We consider that the latitude given there is necessary and wise, and that the latitude is far wider than that which was explained to the General Assembly just before by the representative of Panama. We say that because it appears to us it is quite clear that this resolution does not exclude the drawing up of a convention. It does not exclude it, but it does give to the Economic and Social Council the job of deciding whether a convention is necessary or not. That is how the resolution now appears before us. In the viewpoint of the United Kingdom, which was consistently expressed in both the Sub-Committee and the full Committee, genocide is so closely analogous to the crimes against humanity covered by the Nürnberg judgment that the best thing to do would be to send it to the International Law Commission, who have to codify the Nürnberg principles, and let them deal with genocide at the same time. We think in that way the question of genocide can best be dealt with and disposed of in the long run, and it would be more satisfactory to a large number of members of this General Assembly who are not favourable to conventions themselves. The majority decision of the Sixth Committee has been questioned by those who consider that a special convention on genocide is necessary in

A/PV.123

457

the interests of humanity and that nothing else will do. We cannot share that view. We think this resolution would enable enough to be done to bring about that action which we all desire. The majority decision of the Sixth Committee does not imply an attitude of indifference to the international crime of genocide. Far from it. Among the majority of the Sixth Committee were included many countries which have suffered as much from genocide as any other countries during the late war. The United Kingdom is actually engaged in Germany at the present time in carrying out punishment of the people who have committed this crime, so that no charge can be made against the United Kingdom as to its being indifferent to this horrible crime. Nor does this decision controvert the previous decision of the General Assembly, as has been suggested by several speakers. In the first place, the decision of the General Assembly session of 1946 was merely to the effect that the Economic and Social Council should cause a convention on genocide to be prepared and submitted to this General Assembly. This draft convention was prepared, as the representatives are aware, and was submitted, and when that had been done the previous decision had been fully fulfilled. There is nothing in the resolution of 1946 which even purported to affect the discretion of the present session of the General Assembly and its manner of dealing with the subject. In fact, the draft convention which was prepared through the Secretariat met with a certain amount of criticism. My delegation was not happy about that convention; many other delegations were equally unhappy. We all had our doubts as to whether it would fulfil the bill which we were setting out to achieve. Further, I would say that a great number of delegations expressed doubts in no uncertain manner as to whether a single convention on genocide was the right manner of dealing with this question at all. The present resolution of the Sixth Committee recognizes these doubts; it takes them into account, and therefore leaves it open to the Economic and Social Council either to pursue the course of recommending a single convention on genocide or of adopting another course such as that of combining genocide with the formulation of the Nürnberg principles, which is what my delegation desires. I would also add that we do not admit that we are going back on the 1946 decision, or that the resolution now submitted to the General Assembly is in conflict with the resolution of 1946. If it were admitted that it were, it

458

A/PV.123

is surely elementary doctrine that one session of the General Assembly is just as sovereign as its predecessor. There is no difference between one session and another: all are equal. A subsequent session is no more precluded from modifying or changing a previous resolution than is a parliament from revoking the legislation which it has previously passed. The United Kingdom delegation, both by its acts in Germany and by its contribution to the discussion in the Sixth Committee, has shown itself as determined as any other country that the international crime of genocide shall be repressed by any means possible. It was the United Kingdom which moved the paragraph which now appears in the preamble, declaring that genocide is an international crime entailing national and international responsibility on the part of individuals and States. We consider that this additional paragraph adopted by the Committee on a proposal of the United Kingdom marks considerable progress by the United Nations. We wonder why it is necessary to insist that there must be a convention without due deliberation; why there must be a convention which may not be the best method of carrying further this declaration and which is a method, as I have already stated, not altogether satisfactory to a large number of Members who would presumably be unwilling to accede to such a convention. The United Kingdom delegation will, therefore, stand by the original resolution as it comes before this General Assembly and it will vote against the amendment. The United Kingdom loathes and detests the abominable practice of genocide, and thinks the original resolution is the best means of tackling this terrible problem. The President: I call upon the representative of the Union of Soviet Socialist Republics. Mr. Durdenevsky (Union of Soviet Socialist Republics) (translated from Russian): First of all, I should like to emphasize that, in speaking in favour of the resolution of the Sixth Committee, which was adopted by a roll call vote, the delegation of the Union of Soviet Socialist Republics has no wish to prolong the discussion of the question of dealing with the crime of genocide. There is one important difference between the views of the delegation of the USSR and some of the other delegations whose members here spoke against the Sixth Committee’s resolution. Our colleagues from many of

A/PV.123

459

those delegations whom we heard here have had no experience of the practice of genocide. They intend to fight it by means of a convention. We know what genocide is. The USSR had to deal with the perpetrators of genocide on its own territory. We know all about Maidanek and Babiy Yar. We waged this struggle in actual fact. That is something that must not be forgotten. We shall carry on with the struggle. But the matter is a serious one, and should be dealt with seriously. That is why we always maintained, and still maintain, that this problem must be given serious study and consideration, without undue haste. What has been done so far? The Economic and Social Council was instructed to make a study of the question of genocide. But has it had time to study it? The draft convention distributed by the Secretariat was not drafted by the Economic and Social Council. It was drafted by three specialists who, as is usually the case with professors, failed to reach agreement on a number of very important points. Because we want to give the Economic and Social Council every opportunity to make a thorough investigation of the problem, it does not mean that we wish to protract the matter in any way or to go back from where we started. To tell the truth, we are still where we were at the beginning, a year ago. We cannot be blamed for that. We want the Economic and Social Council to study the draft quite freely, without the Council feeling in any way bound by a draft which, as I said, was drawn up by three specialists invited by the Secretariat. That is why we have submitted the proposal which a majority of the Sixth Committee adopted by a roll call vote, after very long discussions, and that is why we continue to support the Sixth Committee’s resolution. The President: I call upon the representative of the Dominican Republic. Mr. Henriquez Ureña (Dominican Republic) (translated from Spanish): The delegation of the Dominican Republic supports the amendment (document A/512) submitted by Cuba, Egypt and Panama to the resolution proposed in the Sixth Committee’s report. The essential difference between this amendment and the draft submitted by the Committee lies in the fact that the latter leaves the door open to determining later whether or not there should be a convention on genocide, whereas in the amendment the Economic and Social Council is clearly and definitely asked to re-examine the draft prepared by the Secretariat and draw up

460

A/PV.123

a convention to be referred for comments to all the Member States and submitted to the General Assembly. This latter course is in accordance with the Assembly’s previous resolution which, without raising any question as to whether or not such action should be taken, definitely expressed itself in favour of the idea of drawing up and examining a convention on genocide at the earliest possible date. Nor, incidentally, had the Assembly any doubt as to whether or not this word, this neologism, “genocide”, was adequate and correct in its etymology. The main point is that it is used, though I heard one of my distinguished colleagues argue the point in the committees, alleging that instead of “genocide”, which, according to him, is a hybrid word, half Greek and half Latin, the word should be “generocide”, a word derived wholly from Latin. I do not share his opinion because the Latin genitive is not always used to form a new word, and thus we have “homicide” instead of “hominocide”. If, instead of the stem, we keep the basic root gen, it might equally well be considered to come from the Latin genus as from the Greek genos. In any case, however, it would not be the first hybrid word, and in view of the close relationship between the Greek and Latin declensions, I see no reason for misgivings, and besides, the word has become established in people’s minds in this form. It will be consecrated by usage. In the committees I also heard some distinguished colleagues express their scepticism with regard to the drawing up of the convention on genocide, and one of them went so far as to say, “If it can be proved to me that the convention will save even a single human life, I would be the first to vote for its adoption as an urgent measure.” I personally do not feel any such pessimism. I think the convention would at least carry great moral weight and might, by that moral weight alone, prevent many errors and excesses, because the convention, whether multilateral or not, and whether ratified or not, would be the most forceful denunciation of that heinous crime, and would therefore mean the final condemnation of its instigators before the moral tribunal of the world. However that may be, the cry comes to us from every corner of the world that the General Assembly of the United Nations should without delay adopt a convention condemning genocide. Humanity is looking to us

A/PV.123

461

for the expression of this idea in a solemn form and for the denunciation of that crime as a crime against humanity. Indeed, the question of genocide has become a problem of public opinion, in this case world opinion. It is necessary therefore that we should, for that reason alone, give ear to that human cry against the most monstrous of crimes yet known to mankind. We ought therefore to expedite as much as possible the drawing up and adoption of a convention condemning genocide, an accursed thing, which could only exist and spread throughout the world in the fanatical atmosphere of nazism and fascism. For the reasons I have stated, the delegation of the Dominican Republic will vote in favour of the amendment submitted by Cuba, Egypt and Panama. The President: I call upon the representative of China. Mr. Wellington Koo, Junior (China): The representatives have heard the eloquent remarks made by the representatives of Panama, Cuba and Egypt against the text of the resolution submitted by the Sixth Committee. We of the Chinese delegation are also opposed to the text of this resolution, and I shall not repeat those arguments which have already been presented to us. I should like to say, however, that the Chinese delegation considers that, in the first instance, the decision on whether or not to have a convention on genocide was already decided in the resolution adopted by the General Assembly on 11 December 1946. For those representatives who have not before them the text of that resolution, I should merely say that the operative part of it reads as follows: The General Assembly . . . Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

“The next regular session” refers to this session of the General Assembly. All the work in the past year which the Economic and Social Council has done on this subject, as well as the very excellent and careful work which the Secretary-General has done in this connexion, has been with this idea in mind: that the General Assembly definitely requested that a draft convention on genocide be prepared. I have heard the opinion expressed

462

A/PV.123

from this rostrum that, even if the General Assembly had decided that a draft convention on genocide be prepared, there is nothing which can prevent this session from changing its mind and overturning the decision of the last session. I should have no quarrel with this position, except to say that the General Assembly should not change its mind lightly, and that in this present day when the peoples of the world are anxiously waiting for some decisive action on the part of the United Nations General Assembly, it would be an utterly incomprehensible and entirely inexcusable act for us to change our minds now. We therefore support fully the amendment proposed jointly by the delegations of Cuba, Egypt and Panama. However, the Chinese delegation, in recommending that immediate and effective action be taken in connexion with the completion of a draft convention on genocide, is not unappreciative of the arguments made by those delegations which feel, and perhaps rightly so, that haste makes waste. We are sensitive of the fact that the preparation of a convention on so important a subject as genocide carries with it many difficult and complicated legal considerations. The Chinese delegation, therefore, originally felt that the draft convention on genocide should be referred to a body of jurists rather than to the Economic and Social Council. However, now that the majority of the General Assembly has decided to refer it back to the Economic and Social Council, we feel that that body should be instructed to draw up the convention with a careful consideration of the exact terminology and definition of the crime of genocide. We feel that the Economic and Social Council should draw up the text of this convention on genocide bearing in mind that another body, the International Law Commission, has been charged with the responsibility of dealing with a cognate subject; namely, the formulation of the principles of the Nürnberg Tribunal, and also with the preparation of a draft code of offences against peace and security. We wish that the Economic and Social Council, in swiftly completing its task of drawing up a convention on genocide, would not do anything which would prejudice the work of this latter body. It is for this reason, and this reason only, that we have moved our amendment to the text of the joint amendment proposed by the delegations of Cuba, Egypt and Panama.

A/PV.123

463

The President: We have now exhausted the list of speakers, and as I see that no other representative desires to speak, I feel I am entitled to declare the debate closed. We shall now proceed to take action on the various proposals before the General Assembly. I propose to take up the joint amendment of the three delegations (document A/512), voting, however, first on the Chinese amendment (document A/514) to it and then on the joint amendment itself. If the joint amendment is rejected, we shall then vote on the Venezuelan amendment (document A/513). Finally, we shall vote on the Committee’s resolution as amended or in its original form, as the case may be. I call upon the representative of Venezuela. Mr. Pérez Perozo (Venezuela) (translated from Spanish): Since the main proposal in the amendment submitted by my delegation is that the Economic and Social Council should not be consulted concerning the desirability and necessity of drawing up the convention, and since that proposal is also contained in the joint amendment submitted by Panama, Mexico and Cuba, my delegation withdraws its amendment. The President: The General Assembly has heard the statement just made by the representative of Venezuela withdrawing its amendment. That simplifies the task before the General Assembly. We shall now take up the joint amendment. Mr. Camey-Herrera (Guatemala) ( from the floor): The delegation of Guatemala requests a roll-call vote. The President: That request will be granted, and we shall now vote on the joint amendment, taking the Chinese amendment first. I will ask Mr. Cordier to read it. Mr. Cordier (Executive Assistant to the Secretary-General): Add to the end of the first paragraph, after the word “convention”, the following: “taking account that the International Law Commission, which will be set up in due course in accordance with the Assembly resolution of November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal as well as the incorporation of the draft code of offences against peace and security”.

464

A/PV.123

A vote was taken by roll-call. The result of the vote was as follows: In favour: Australia, Canada, China, Costa Rica, Cuba, Dominican Republic, Egypt, El Salvador, Ethiopia, France, Guatemala, Haiti, Honduras, Iran, Iraq, Lebanon, Liberia, Mexico, New Zealand, Nicaragua, Pakistan, Panama, Paraguay, Peru, Philippines, Syria, United States of America, Venezuela, Yemen. Against: Argentina, Belgium, Bolivia, Brazil, Byelorussian Soviet Socialist Republic, Czechoslovakia, Denmark, India, Luxembourg, Netherlands, Poland, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Kingdom, Yugoslavia. Abstained: Chile, Ecuador, Greece, Norway, Saudi Arabia, Sweden, Turkey, Union of South Africa. The amendment of the Chinese delegation was adopted by 29 votes to 15 with 8 abstentions. The President: The Chair has been advised by the Secretariat that in the absence of any demand to the contrary, decisions of the General Assembly are taken by the usual simple majority unless that is contested. In that case a vote of 29 in favour, with 15 against and 8 abstentions, is sufficient to carry the amendment. Therefore, the amendment is adopted. Mr. Gromyko (Union of Soviet Socialist Republics) (from the floor): It is difficult to agree that the amendment should be adopted by a simple majority. The President: Does the representative of the Union of Soviet Socialist Republics make a motion that this amendment should be carried by a two-thirds majority? If so, I shall be glad to consult the Assembly as to its wishes in this matter. This procedure will be quite in conformity with the rules of procedure. In the absence of any such motion, the amendment is adopted. We shall now proceed to vote on the joint amendment as amended by the Chinese amendment. A simple majority will likewise be sufficient to adopt this amendment.

A/PV.123

465

A vote was taken by roll-call. The result of the vote was as follows: In favour: Argentina, Bolivia, Brazil, Chile, China, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Guatemala, Haiti, Honduras, Iran, Iraq, Lebanon, Liberia, Mexico, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Saudi Arabia, Sweden, Syria, United States of America, Venezuela, Yemen. Against: Australia, Belgium, Byelorussian Soviet Socialist Republic, Canada, Czechoslovakia, Denmark, Luxembourg, Netherlands, New Zealand, Poland, Ukrainian Soviet Socialist Republic, Union of South Africa, Union of Soviet Socialist Republics, United Kingdom, Yugoslavia. Abstained: Greece, Turkey. The joint amendment as amended by the Chinese amendment was adopted by 34 votes to 15, with 2 abstentions. The President: We shall now vote on the resolution submitted by the Committee, as amended. In other words, paragraphs (a), (b) and (c) of the original draft resolution are now replaced by the text of the joint amendment, as amended, which we have just adopted. A vote was taken by roll-call. The result of the vote was as follows: In favour: Argentina, Bolivia, Brazil, Canada, Chile, China, Costa Rica, Cuba, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Guatemala, Haiti, Honduras, India, Iran, Iraq, Lebanon, Liberia, Mexico, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Saudi Arabia, Sweden, Syria, United States of America, Venezuela, Yemen. Abstained: Australia, Belgium, Byelorussian Soviet Socialist Republic, Czechoslovakia, Greece, Luxembourg, Netherlands, Poland, Turkey, Ukrainian Soviet Socialist Republic, Union of South Africa, Union of Soviet Socialist Republics, United Kingdom, Yugoslavia. The resolution as amended was adopted by 38 votes to none, with 14 abstentions. The President: Although it is after 7 p.m. and somewhat late, perhaps it is not too late for us to carry on to complete our agenda which has only one item on it. I have been informed that the last item will not take

466

A/PV.123

up too much time. If we could complete that item, I think every one of us will feel happier in the thought that we have done a good job today and cleaned up the whole slate, having finished all the reports from all the regular committees and not having finished only the report from the Ad Hoc Committee on the Palestinian question. If there is no objection, I will take up the last item, and I hope we shall be able to dispose of it in a very brief time. [Discussions pertaining to issues other than the Genocide Convention]

United Nations General Assembly Resolution 180(II)

467

180(II). Draft convention on genocide The General Assembly, Realizing the importance of the problem of combating the international crime of genocide; Reaffirming its resolution 96(I)1 of 11 December 1946 on the crime of genocide; Declaring that genocide is an international crime entailing national and international responsibility on the part of individuals and States; Noting that a large majority of the Governments of Members of the United Nations have not yet submitted their observations on the draft convention on the crime of genocide prepared by the Secretariat2 and circulated to those Governments by the Secretary-General on 7 July 1947; Considering that the Economic and Social Council has stated in its resolution of 6 August 19473 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide, subject to any further instructions which it may receive from the General Assembly, Requests the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention, taking into account that the International Law Commission, which will be set up in due course in accordance with General Assembly resolution 174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal, as well as the preparation of a draft code of offences against peace and security; Informs the Economic and Social Council that it need not await the receipt of the observations of all Members before commencing its work, and Requests the Economic and Social Council to submit a report and the convention on this question to the third regular session of the General Assembly.

468 1

2 3

United Nations General Assembly Resolution 180(II)

See Resolutions adopted by the General Assembly during the second part of its first session, page 144. See document E/447. See Resolutions adopted by the Economic and Social Council during its fifth session, resolution 77(V), page 21.

Hundred and twenty-third plenary meeting, 21 November 1947.

E/C.2/49

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

469

UNRESTRICTED E/C.2/49 30 July 1947 ORIGINAL: ENGLISH

COMMITTEE ON ARRANGEMENTS FOR CONSULTATION WITH NON-GOVERNMENTAL ORGANIZATIONS LIST OF COMMUNICATIONS RECEIVED FROM NON-GOVERNMENTAL ORGANIZATIONS GRANTED CATEGORY (b) OR (c) CONSULTATIVE STATUS (Note: This list is submitted in accordance with paragraph 4, Part IV, of the Report of the Committee on Arrangements for Consultation with Non-Governmental Organizations, adopted by the Council, 21 June 1946 E/43/Rev.2, 1 July 1946) which states that organizations in Categories (b) and (c) “may submit written statements and suggestions on matters within their competence, and the Secretariat will prepare and distribute a list of all such communications briefly indicating the substance of each. On the request of any member of the Council, a communication will be reproduced in full and distributed. Any lengthy communications will be distributed only if sufficient copies are furnished by the organizations concerned”.)

Consultative Council of Jewish Organizations Letter 24 July 1947 to the Secretary-General, enclosing proposals for the consideration of the Economic and Social Council regarding the draft convention on the crime of Genocide prepared by the Secretary-General of the United Nations in pursuance of the Resolution of the Economic and Social Council dated 28 March 1947 (document E/447, 26 June 1947). The Consultative Council of Jewish Organizations, keenly interested in the General Assembly Resolution affirming that Genocide is a crime under international law and in the efforts to give immediate effect to this Resolution, submits for consideration of the Members of the Economic and Social Council, its proposals as follows: 1. that the words “political groups” be omitted from Article 1, Section 1, in order that the acceptance of the Convention may not be delayed by differences of opinion as to the definition of political groups;

470

E/C.2/49

2. that the Preamble be amended to include political as well as other grounds; 3. modification of Section 2, paragraph 3, since it is difficult to ascertain whether such acts as those listed therein are of a nature as to constitute cultural genocide, and in accordance with this thought, suggesting that in Article 4, Article 8, and Article 9, the term “Genocide” should be replaced by the words “an offense under this Convention” and that the following section should be added: “Rulers and public officials shall also be liable to punishment if they fail to employ every lawful means to prevent and punish offenses under this Convention”; 4. that to Article IX the following paragraphs 3 and 4 be added: “If individuals acting as organs of the State failed to employ all lawful means to prevent any offense under this Convention” and “If an individual was brought before a municipal court for an offense under this Convention but the court failed to convict him or to impose upon him a penalty commensurate with the crime as a result of a manifest miscarriage of justice”; and 5. that to Article 11 the following section be added: “Failure by the responsible officials to carry out this pledge shall be deemed to constitute an offense under this Convention”.

E/C.2/52

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

471

UNRESTRICTED E/C.2/52 8 August 1947 ORIGINAL: ENGLISH

COMMITTEE ON ARRANGEMENTS FOR CONSULTATION WITH NON-GOVERNMENTAL ORGANIZATIONS LIST OF COMMUNICATIONS RECEIVED FROM NON-GOVERNMENTAL ORGANIZATIONS GRANTED CATEGORY (b) OR (c) CONSULTATIVE STATUS (Note: This list is submitted in accordance with paragraph 4, Part IV, of the Report of the Committee on Arrangements for Consultation with Non-Governmental Organizations, adopted by the Council, 21 June 1946 (E/43/Rev.2, 1 July 1946) which states that organizations in Categories (b) and (c) “may submit written statements and suggestions on matters within their competence, and the Secretariat will prepare and distribute a list of all such communications briefly indicating the substance of each. On the request of any member of the Council, a communication will be reproduced in full and distributed. Any lengthy communications will be distributed only if sufficient copies are furnished by the organizations concerned.”)

World Jewish Congress By letter of 30 July 1947, the World Jewish Congress submits a memorandum on the Draft Convention of the Crime of Genocide for the consideration of the present Session of the Economic and Social Council. The World Jewish Congress considers the speedy adoption of this Convention essential due to present dangers and states that final action, if at all possible, should be taken up at the forthcoming Session of the General Assembly. The Congress points out that international law does not, at present, contain any effective safeguards against the crime of genocide as is shown by the fact that the Nuremburg Tribunal stated that this crime was not punishable by it because its jurisdiction was restricted to crimes committed in connection with aggressive warfare. Domestic genocide legislation, while helpful, is insufficient since such crimes can hardly be committed contrary to the wishes of the highest national authorities, leaving no possibility for legal punishment by a domestic tribunal. The Congress further recommends that: (a) The law of genocide be co-ordinated with and not overlap into the field of human rights which is within the special competence of the Commission on Human Rights.

472

E/C.2/52

(b) The Convention should specifically outlaw the systematic practice of forcibly separating children from their parents and bringing them up in a culture different from that of their parents. (c) That the United Nations make suitable arrangements for the suppression and punishment of genocide even if it occurs in territories which are not parties to the International Convention. (d) The doctrine of immunity of heads of states must be rejected as well as the defence of “superior orders”.

E/C.2/63

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

473

UNRESTRICTED E/C.2/63 31 October 1947 ORIGINAL: ENGLISH

COMMITTEE ON ARRANGEMENTS FOR CONSULTATION WITH NON-GOVERNMENTAL ORGANIZATIONS LIST OF COMMUNICATIONS RECEIVED FROM NON-GOVERNMENTAL ORGANIZATIONS GRANTED CATEGORY (b) OR (c) CONSULTATIVE STATUS (Note: This list is submitted in accordance with paragraph 4, Part IV, of the Report of the Committee on Arrangements for Consultation with Non-Governmental Organizations, adopted by the Council, 21 June 1946 (E/43/Rev.2, 1 July 1946) which states that organizations in Categories (b) and (c) “may submit written statements and suggestions on matters within their competence, and the Secretariat will prepare and distribute a list of all such communications briefly indicating the substance of each. On the request of any member of the Council, a communication will be reproduced in full and distributed. Any lengthy communications will be distributed only if sufficient copies are furnished by the organizations concerned”.)

Commission of the Churches on International Affairs (Representing the World Council of Churches and The International Missionary Council) A letter to the Secretary-General dated 1 October 1947 (request for publication dated 29 October 1947) urges the General Assembly to act promptly in seeking acceptance of an effective convention to outlaw all forms of genocide. Women’s International Democratic Federation An undated letter received 23 October 1947 urges the Sub-Commission on Prevention of Discrimination and Protection of Minorities to consider the problems of women as a political, social and economic minority group, and particularly the problems of Negro women. The Federation contends that women need protection against discrimination for the following reasons:

474

E/C.2/63

1. Women lack legal rights such as the right to vote and to hold high public office, not only in colonial nations but also in advanced industrial nations. Certain States of the United States bar women from jury service, from controlling their own children and earnings, and from making contracts. In colonial nations, the situation is far worse. 2. In most countries women are a social minority; they are barred from equal entrance into universities and often are ineligible for membership in learned or professional societies; they are attacked as incompetents in newspapers, books and on the radio. 3. In most nations women are an economic minority, being denied equal opportunity for work or equal pay for the same work. Even in the United States, the wage differential ranges from 30–100% in different industries. 4. Negro women in the United States are by far the least protected and most discriminated against minority group. They are the last to be hired and the first to be fired; they usually obtain only the lowest paid jobs (as low as $4.00 a week in domestic service). Even when college trained, they are barred from using their skills and if they live in the South, they are prevented from voting. The WIDF, therefore, urges the Sub-Commission to consider these problems and to make recommendations for intensive application of the United Nations principle of freedom and equality of all peoples regardless of sex or race.

E/C.2/64

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

475

UNRESTRICTED E/C.2/64 12 November 1947 ORIGINAL: ENGLISH

COMMITTEE ON ARRANGEMENTS FOR CONSULTATION WITH NON-GOVERNMENTAL ORGANIZATIONS LIST OF COMMUNICATIONS RECEIVED FROM NON-GOVERNMENTAL ORGANIZATIONS GRANTED CATEGORY (b) or (c) CONSULTATIVE STATUS (Note: This list is submitted in accordance with paragraph 4, Part IV, of the Report of the Committee on Arrangements for Consultation with Non-Governmental Organizations adopted by the Council, 21 June 1946 (E/43/Rev.2, 1 July 1946), which states that organizations in categories (b) and (c) “may submit written statements and suggestions on matters within their competence, and the Secretariat will prepare and distribute a list of all such communications briefly indicating the substance of each. On the request of any member of the Council, a communication will be reproduced in full and distributed. Any lengthy communications will be distributed only if sufficient copies are furnished by the organizations concerned”.)

World Federation of United Nations Associations (The following communication from the Federation is reproduced in full on request of the delegation of India and the delegation of Panama). (In submitting this communication the Federation stated: In bringing this memorandum to the attention of the United Nations, the World Federation does not imply that it urges acceptance of the present draft without amendment – in fact, certain changes would appear necessary in order to secure general agreement. We are, however, anxious that once the United Nations is seized with the question of Genocide it should give full consideration to this matter and if possible adopt a Genocide Convention as provided in the resolution adopted by the 1946 Assembly.) A CALL FOR INTERNATIONAL ACTION AGAINST GENOCIDE A year ago, the General Assembly of the United Nations unanimously affirmed that Genocide – which means the deliberate and systematic destruction of racial, religious, national and other human groups – is a crime under the law of nations which all the civilized world condemns. The member

476

E/C.2/64

States were requested to enact necessary legislation for the prevention and punishment of this crime in the future. The General Assembly also resolved that a draft Convention on the Crime of Genocide be submitted to it at its present Session. By these practical steps, the United Nations went boldly on record with its determination to bring under international protection a basic birthright – the right of existence of national, racial, religious and other human groups. The past has grimly demonstrated how this basic right and the spiritual heritage of human groups can be wiped out by tyrannical governments or by fellow-citizens blinded by racial hatred, religious and nationalistic intolerance. In an atmosphere of false peace, men, women and children have been massacred because they belonged to a different race, creed or nationality. Sources of cultural, national and religious inspiration have been obliterated by mass destruction of houses of worship, of treasures of art, of books, libraries, and by acts of violence inflicted upon spiritual leaders of communities. Throughout history, there has been no generally accepted law of nations which would provide the tools to deal effectively with such barbarism in peace and war alike. The time to act is now. The world must be made safe for a diversity of cultures, races, nationalities and creeds. With the proposed Convention on the Crime of Genocide the tools are provided. This law may not stop immediately all savagery, but it will start an era of progress and tolerance. Such a Convention, now before the General Assembly of the United Nations, might well become an international Magna Charta [sic] for life and culture – something that the world has long yearned for. We therefore urge that the United Nations act now on this great issue, and thereby redeem its solemn pledge to mankind. We call upon all men and women of good will to rally around the cause of the sanctity of human life. LUIS PODESTA COSTA, Professor, University of Buenos Aires, former Legal Adviser to the League of Nations CARLOS SAAVEDRA LAMAS, Professor, University of Buenos Aires, Nobel Prize for International Peace SAMUEL DUARTE, President, Chamber of Deputies, Brazil ARTURO ALESSANDRI, President of Senate, Chile JUAN ANTONIO COLOMA, President, Chamber of Deputies, Chile GABRIELA MISTRAL, Nobel Prize Literature, Chile LIN YUTANG, author, China BALDOMERO SANIN CANO, author, Colombia FRANCISCO FONSECA CHAMIER, President of Congresso Constitucional, Costa Rica MIGUEL A. SUAREZ FERNANDEZ, President of Senate, Cuba JOSE RAFAEL BUSTAMANTE, Vice-President of the Republic, President of Congresso Nacional, Ecuador

E/C.2/64

477

CARLOS ANDRA DE MARIN, President, Camara Diputados, Ecuador EDOUARD HERRIOT, President, National Assembly, France FRANCOIS MAURIAC, de l’Academie Francaise, France ALDOUS HUXLEY, author, Great Britain DAVID RAMIRO CASTANEDA, President, Chamber of Deputies, Mexico ALFONSO REYES, author, Mexico PAAL BERG, Former President, Supreme Court, Norway SIGRID UNDSET, Nobel Prize Literature, Norway HARMODIO AROSEMENA F., President, National Assembly, Panama COUNT FOLKE BERNADOTTE, President, Red Cross, Sweden PEARL BUCK, Nobel Prize Literature, United States of America ROBERT G. SPROUL, President, University of California, Berkley, United States of America QUINCY WRIGHT, Professor of International Law, University of Chicago, former adviser to United States Judge at International Military Tribunal at Nurnberg. ALEXANDER BELIC, President of Serbian Academy of Science, Belgrade – Dr. Belic signed in his own name and in the names of all members of the Academy.

478

E/621

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/621 26 January 1948 ENGLISH ORIGINAL: FRENCH

PREVENTION AND PUNISHMENT OF GENOCIDE HISTORICAL SUMMARY (2 November 1946 – 20 January 1948) TABLE OF CONTENTS

Page CHAPTER I: First Session of the General Assembly (23 October – 15 December 1946) .......................................... Section I: Proposals of the delegations of Cuba, India and Panama ................................................................................. Section II: The General Discussion in the Sixth Committee .... Section III: Examination by Sub-Committee No. 3 ................. Section IV: Consideration by the Sixth Committee of the Draft Report of Sub-Committee 3 ................................................. Section V: Adoption by the General Assembly of Resolution 96(I) of 11 December 1946 .................................................

481 481 482 488 489 489

CHAPTER II: Fourth Session of the Economic and Social Council (28 February to 29 March 1947) ............................................... 491 CHAPTER III: Preparation of a draft convention by the Secretariat (1 June 1947) ............................................................................ 495 CHAPTER IV: Consideration of the Draft Convention by the Committee on the Progressive Development of International Law and its Codification (12 May to 28 June 1947) ........................... 496 CHAPTER V: Fifth Session of the Economic and Social Council (19 July to 16 August 1947) .................................................... 499

E/621

CHAPTER VI: Second Session of the General Assembly (16 September to 20 November 1947) ..................................... Section I: General Discussion in the Sixth Committee ............ Section II: Consideration of the Question by Sub-Committee 2 ................................................................. Section III: Examination of the Sub-Committee’s Report by the Sixth Committee ................................................................... I. The debates ..................................................................... II. Adoption of a Draft Resolution by the Sixth Committee ...................................................................... Section IV: Discussion at a Plenary Meeting of the Assembly and Final Decision ................................................................ I. The discussion ............................................................. First question: Should the Economic and Social Council be given terms of reference to submit a convention or should it be left free to decide whether a convention is necessary? ......................... Question Two: Should the Economic and Social Council wait, in order to fulfil its task, until it has received replies from the majority of Governments? ......................................................... Question Three: Should the Economic and Social Council, in carrying out its task, take into account the fact that “the International Law Commission . . . has been charged with the formulation of the principles . . . of the Nürnberg Tribunal as well as the preparation of a draft code of offences against peace and security”? .................. Question Four: The use to be made by the Economic and Social Council of the draft convention prepared by the Secretariat ..................................... II. Resolution 180(II) adopted by the General Assembly on 23 November 1947 .............................................

479

502 502 508 509 509 512 513 513

515

517

519

522 522

480

E/621

ANNEX: Observations of the Governments of States Members and communications from non-governmental organizations on the Secretariat’s draft Convention ................................................ 524 PART I: The observations of governments ............................... 524 PART II: Communications from non-governmental organizations ......................................................................... 527

E/621

481

PREVENTION AND PUNISHMENT OF GENOCIDE HISTORICAL SUMMARY (2 November 1946 – 20 January 1948) CHAPTER I First Session of the General Assembly (23 October – 15 December 1946) SECTION I – Proposals of the Delegations of Cuba, India and Panama On 2 November 1946, the delegations of Cuba, India and Panama requested the Secretary-General to include in the agenda of the General Assembly an additional item on the prevention and punishment of the crime of genocide (document A/BUR.50, 2 November 1946). The request was accompanied by the following draft resolution: 1. WHEREAS throughout history and especially in recent times many instances have occurred when national, racial, ethnical or religious groups have been destroyed, entirely or in part, and such crimes of genocide not only shook the conscience of mankind but also resulted in great losses to humanity in the form of cultural and other contributions represented by these human groups; 2. WHEREAS genocide is a denial of the right of existence of entire human groups, in the same way as homicide is the denial of the right to live for individual human beings and that such denial of the right to existence is contrary to the spirit and aims of the United Nations; 3. WHEREAS the punishment of the very serious crime of genocide when committed in time of peace lies within the territorial jurisdiction of the judiciary of every state concerned, while crimes of relatively lesser importance such as piracy, traffic in women and children, traffic in drugs and obscene publications are declared international crimes and have been made matter of international concern; BE IT RESOLVED that the United Nations Assembly draws the attention of the Economic and Social Council to the crime of genocide and invites the Council to study this problem and to prepare a report on the possibilities of declaring genocide an international crime and assuring international co-operation for its prevention and punishment and also recommending among others that genocide and related offences should be dealt with by national legislations in the same way as other

482

E/621

international crimes such as piracy, traffic in women and children, slave traffic and others.

The General Assembly, after deciding to include this additional item in its agenda (document A/181, 7 November 1946), referred it to the Sixth Committee (document A/C.6/64, 12 November 1946). SECTION II – The General Discussion in the Sixth Committee A general debate took place at the Committee’s 22nd, 23rd and 24th meetings (Supp. No. 6 to the Journal of the First Session of the General Assembly, Nos. 41, 46 and 47 – documents A/C.6/84, A/C.6/91 and A/C.6/96). In addition to the aforementioned draft resolution the Sixth Committee had before it the following amendments: 1. A United Kingdom amendment (document A/C.6/83, 22 November 1946) deleting the third paragraph of the draft resolution and replacing it by the following text: Declares that genocide is an international crime, for the commission of which principals and accessories, as well as States, are individually responsible.

2. An amendment submitted by the delegation of India (ibid.) to add the following to the United Kingdom amendment: It calls upon the Members to get their respective national legislatures to deal with this crime in the same way as they have dealt with piracy, trade in women, children, and slaves – crimes which have been condemned by all nations as outraging the conscience of humanity.

3. An amendment from the delegation of France (ibid.) to modify the United Kingdom amendment as follows: Declares that genocide is an international crime, for which the principals and accomplices, whether private persons or responsible statesmen, should be punished.

4. An amendment submitted by the delegation of the Union of Soviet Socialist Republics (ibid.) to add the following to the United Kingdom amendment:

E/621

483

It is desirable that the Economic and Social Council should study the question of the preparatory work to be done for a convention on crimes against any particular race.

When the question of genocide came up in the Sixth Committee (22nd meeting, 22 November 1946) the representatives of the various States which had submitted the above texts made supporting statements to the following effect: The representative of Cuba (Mr. Dihigo), pointing out that genocide was not a new crime but had been committed on a vast scale during the last World War declared that it might be classed as homicide; but homicide was within the territorial jurisdiction of the State in which the crime was committed, and, genocide being usually perpetrated by those holding power, the prosecution of that crime was thereby prevented. At the Nürnberg trials it had not been possible to punish certain cases of genocide because they had been committed before war began. It was necessary to ensure that this should not recur in the future, in deference to the rule of non crimen sine lege, and Cuba therefore asked that genocide be declared an international crime. He admitted, however, that a resolution voted by the General Assembly, notwithstanding its great authority, could not be considered as a law. The United Kingdom representative (Sir Hartley Shawcross) also thought it essential to ensure that the rule nullum crimen sine lege could not be invoked in the future. His amendment had been submitted to remedy certain defects which he had noted in the wording of the third paragraph of the draft resolution. International law should protect citizens against abuses on the part of their own Governments. He concluded with the following declaration: All States should pass legislation on the subject. International conventions should be concluded; but the public denunciation of this crime would have to take place immediately.

The representative of India (Mr. Chagla) supported the principle of the United Kingdom amendment but believed that a simple statement of the criminal nature of genocide was not sufficient and that the General Assembly ought to ask States Members to provide for the punishment of genocide in their internal legislation. That was the object of his proposed addition to the United Kingdom amendment.

484

E/621

The representative of France (Mr. Chaumont) held that the General Assembly was competent in virtue of the Charter to discuss the matter and to make recommendations. He supported the Indian amendment but asked that the United Kingdom amendment be modified since “French law did not admit criminal responsibility on the part of States”. He had therefore submitted a modification to the United Kingdom amendment. The representative of the Union of Soviet Socialist Republics (Mr. Lavrischev) also warmly supported the resolution and its amendments. His own amendment called on the Economic and Social Council to study the question of the preparatory work to be done for a convention on crimes against any particular race, as his Government was especially eager to prevent racial discrimination. The representative of Uruguay (Mr. Arrosa) supported the draft resolution and its various amendments and expressed the hope that the resolution would be unanimously approved by the Committee. When the Sixth Committee resumed the general discussion on genocide at its 23rd meeting on 28 November 1946 it first heard a speech by the representative of Colombia (Mr. Yepes), who declared that the Nürnberg Tribunal had defined genocide as the “systematic extermination of a group of persons”. Several conferences of the Pan-American Union, and particularly the eighth conference at Lima, had adopted resolutions declaring that persecutions were contrary to the political and judicial systems of the new world and condemning persecutions carried out for racial and religious reasons. The representative of Saudi Arabia (Mr. Riad Bey) showed by legal analysis that genocide fulfilled all the conditions of an international crime. In order to avoid any misunderstanding with regard to the powers of the Sixth Committee he proposed that it should declare that these conditions were in fact fulfilled and that genocide was proclaimed an international crime. He proposed the adoption of the following protocol (document A/C.6/86 – 26 November 1946): WHEREAS the atrocities committed against humanity which violated the rules of International Law and shocked public conscience make it imperative for the nations of the world to take concerted action to prevent and penalize the commission of such acts in the future;

E/621

485

WHEREAS one of the most obvious violations of the rules of International Law and the laws of humanity is genocide which is as destructive of the human race as a war of aggression which is now universally condemned and outlawed by the United Nations’ Charter, therefore: The Nations signatory of this Protocol declare that genocide is an International Crime against humanity and agree to co-operate to prevent and suppress it as herein provided:

Article I – Definition Genocide is the destruction of an ethnic group, people or nation either gradually against individuals or against the whole group, people or nation. Any of the following acts may constitute the crime of genocide: (a) Mass killing of all members of a group, people or nation. (b) Destruction of the essential potentialities of the life of a group, people or nation or the intentional deprivation of elementary necessities for the preservation of health or existence. (c) Planned disintegration of the political, social or economic structure of a group, people or nation. (d) Systematic moral debasement of a group, people or nation. (e) Acts of terrorism committed for the purpose of creating a state of common danger and alarm in a group, people or nation with the intent of producing their political, social, economic or moral disintegration.

Article II – International Action The parties to this Protocol agree to make effective use of every means at their disposal, acting separately or in co-operation, to prevent and penalize genocide.

Article III – Jurisdiction Every state has jurisdiction to prohibit and punish genocide. An allegation that any act of genocide is political or has been committed under order of a superior authority shall not be available as a defence. In exercising such jurisdiction every state shall enact legislation defining the crime of genocide, conferring competence on its appropriate courts and prescribing the penalties to be inflicted upon conviction.

Article IV The acts of genocide shall be prosecuted and punished by any state regardless of the place of the commission of the offence or of the nationality of the offender, in conformity with the laws of the country prosecuting.

486

E/621

No offender shall be prosecuted or punished by any state for an act of genocide for which he has been prosecuted and convicted or acquitted in another state.

The Sixth Committee resumed the general discussion at its Twenty-Fourth Meeting (29 November 1946). There were then two fresh amendments for consideration: 1. The delegation of France had submitted a new text (document A/C.6/95 – 28 November 1946), in the place of its previous amendment which read as follows: DECLARES that genocide is an international crime, entailing the responsibility of guilty individuals, whether principals or accessories, as well as States on behalf of which they may have acted.

2. The delegation of Chile had submitted an amendment (document A/ C.6/94 – 28 November 1946) which in fact constituted a re-drafting of the resolution as a whole: THE GENERAL ASSEMBLY DECLARES that genocide is a crime under international law, which the civilized world condemns, and for which the main authors and their accomplices, whether private individuals or statesmen, must be punished; INVITES the Member States to take the necessary steps to prevent and punish this crime within the scope of their internal legislation, in the same way as piracy, traffic in women, children and slaves, and others; RECOMMENDS that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide. TO THIS END, the General Assembly requests the Economic and Social Council to undertake the necessary studies with a view to drawing up a draft convention to be submitted to the next session of the Assembly.

In the course of the discussion the representative of France (Mr. Chaumont) explained that the text of his new amendment had been drafted in collaboration with the representative of the United Kingdom. While it acknowledged the principle of the responsibility of the State for genocide, his text did not confuse this State responsibility with the criminal responsibility of guilty individuals – which would have been contrary to the accepted principles of French domestic criminal law. He proposed that the Indian amendment be modified so as to call upon the Member States (and not their Parliaments) to “provide in their respective national legislations for the punishment of this crime . . .”

E/621

487

The representative of the Netherlands (Mr. Bencker Andrae) supported the United Kingdom and French amendments but declared that “it should not be forgotten that genocide was a very rare crime, and that action taken by the United Nations should aim at prevention of the crime rather than repression”. The representative of Poland (Mr. Laks [sic]) also stressed the need to provide for prevention as well as repression – which Poland had just done by a Law of 12 October 1945. Furthermore, the proposal submitted to the Committee contained no definition of genocide, which was a new crime and had not yet been precisely defined (in recent written law, however, such as Article 6 of the Four-Power Agreement of 8 August 1945, paragraph 4, of the Nürnberg indictment, etc. “these crimes had been mentioned”). The representative of Chile (Mr. Gajardo), who had submitted an amendment, said that this was merely a summary of the various amendments that had been proposed. He drew attention to the fact that it would be better to define genocide as a “crime against peoples” than as a “crime under International Law”, thus avoiding the confusion resulting from the fact that genocide could be committed within the frontiers of a country and would thus be a national crime. In conclusion, recalling the proposal of Saudi Arabia to draft a protocol, he drew the attention of his colleagues to the last paragraph of his draft resolution proposing the drawing up of a convention; this, in his opinion, was the best method of securing international collaboration. Other speakers rose to express their agreement with the view that the adoption by the General Assembly of a resolution condemning genocide would be a useful measure, or to explain that would, in their opinion, be the best way to achieve this result. Amongst these speeches may be mentioned that of the United Kingdom representative (Mr. McKinnon Wood) who considered it highly desirable to make a firm and effective declaration against the crime of genocide, but at the same time everything possible should be done to ensure rapid measures being taken for speedy punishment of the crime. He proposed that the matter should be referred to Sub-Committee 1, to which had been assigned, on the suggestion of the United States, the question of the codification of the Nürnberg principles. He explained, however, that it might not be necessary to apply codification procedure to the question, but he thought it would be a good thing to

488

E/621

study it at the same time as the United States draft, with which it had a certain amount in common. After a brief discussion, the Committee decided to refer the various proposals and amendments (including an unpublished Polish amendment) to a Special Sub-Committee (subsequently called Sub-Committee No. 3). The Chairman announced that it would be composed of representatives of the following countries: Saudi Arabia, Chile, Cuba, France, India, Panama, Poland, Union of Soviet Socialist Republics, United Kingdom, United States of America. SECTION III – Examination by Sub-Committee No. 3 Since records are published of discussions in Sub-Committees, such discussions can only be followed in so far as they find expression in the reports of these bodies. The report of Sub-Committee No. 3 (document A/C.6/120, 6 December 1946) contains the following passage: In considering the draft resolution which might be submitted to the General Assembly the Sub-Committee felt that the Assembly’s resolution should affirm that genocide is a crime under international law, condemned by the divilized [sic] world, and that provision should be made for the punishment of principals and accomplices who may participate in the commission of this crime. The question of whether or not the responsibility of states should be mentioned in the resolution was considered; but it was the sense of the Sub-Committee that because of special problems in that connection the question of fixing state responsibility, as distinguished from the responsibility of private individuals, public officials, or statesmen, was a matter more properly to be considered at such time as a convention on the subject of genocide is prepared. The Sub-Committee felt that it was desirable for Member States to enact legislation for the prevention and punishment of the crime of genocide but that it was not necessary to compare genocide to other crimes such as piracy and traffic in women, as had been suggested in some of the proposals before the Sub-Committee. The Sub-Committee felt it was important that there should be early action looking toward the preparation of a draft convention on the subject of genocide. To that end the Sub-Committee has proposed in the draft resolution that the General Assembly request the Economic and Social Council to undertake the necessary studies and to prepare a draft convention for submission to the next session of the General Assembly. Some members of the Sub-Committee stressed the importance of the creation of a small Special Committee of Jurists to prepare the convention while others felt

E/621

489

that the Economic and Social Council should secure the co-operation of the Committee to Study the Methods of Encouraging the Progressive Development of International Law and its Codification. Various suggestions in this connection were considered for inclusion in the resolution in lieu of the language adopted. It was finally decided by the Sub-Committee that the resolution itself should place the responsibility solely with the Economic and Social Council. The Sub-Committee considered a proposal made by Poland concerning the propagation and dissemination of hatred against national or racial and religious groups as a preparatory step in the effectuation of the crime, and the punishment of those responsible therefor. It was agreed that this interesting proposal should be mentioned in the report and left for consideration in connection with the draft convention or studies made under the resolution.

The report concludes with a draft resolution, the text of which will be found below. SECTION IV – Consideration by the Sixth Committee of the Draft Report of Sub-Committee 3 The Sixth Committee then considered the Report of Sub-Committee 3 at its 32nd meeting on 9 December 1946 (Supplement No. 6 to General Assembly Journal No. 58, document A/C.6/127). The representative of China (Mr. Liu) suggested entrusting the task of drawing up a draft convention on genocide to a smaller body than the Economic and Social Council, namely the Committee on the Development of International Law and its Codification. The other representatives, however, were in favour of adopting the report without modification and this suggestion was adopted unanimously after the representative of China had withdrawn his proposal. The Report of the Sixth Committee to the General Assembly (document A/231 – 10 December 1946) is, therefore, a “verbatim” reproduction of the report which that Committee had received from Sub-Committee 3. SECTION V – Adoption by the General Assembly of Resolution 96(I) of 11 December 1946 At its 55th plenary meeting on 11 December 1946, the General Assembly adopted, without debate and unanimously, the draft resolution submitted

490

E/621

by the Sixth Committee, which has become General Assembly resolution 96(I): 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; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern. THE GENERAL ASSEMBLY THEREFORE, AFFIRMS that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private or individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable; INVITES the Member States to enact the necessary legislation for the prevention and punishment of this crime; RECOMMENDS that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, REQUESTS the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.

Resolution 96(I) of the General Assembly comprises a number of elements: 1. It “affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other ground – are punishable;”. 2. The General Assembly “invites the Member States to enact the necessary legislation for the prevention and punishment of this crime”. This refers to prevention and punishment by the national law of each of the Member States. 3. The General Assembly “recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide . . .”.

E/621

491

This refers to international action and to this end the resolution requests: “the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft Convention on the crime of genocide to be submitted to the next regular session of the General Assembly”. CHAPTER II Fourth Session of the Economic and Social Council (28 February to 29 March 1947) The problem of genocide was placed on the Agenda of the Fourth Session of the Economic and Social Council and came before the Council at its 70th plenary meeting on 15 March 1947 (Verbatim record, document E/P.V.70, 15 March 1947; Summary record, document E/421). In general, the representatives on the Council agreed that the Council should carry out the mandate entrusted to it by the General Assembly and undertake the necessary studies with a view to drawing up a draft convention on the prevention and punishment of the crime of genocide. Of the views expressed with regard to the substance of the problem, two deserve special mention: The representative of Peru (Mr. Arca Parro) emphasized the fact that the crime of genocide would be virtually impossible if the government of the country in which it was committed had not failed in its obligation under international law to protect human rights. Otherwise, none of the governments would allow such crimes to be committed. Whoever the principal criminal might be, there was always a mind behind him inspiring the deed. If genocide were committed anywhere in the world, it was because it was supported, openly or otherwise, by a government or group strong enough to place itself above the law and evade the punishments called for by such crimes. Effective punishment would therefore be possible only if they decided to declare war on any States which allowed crimes of genocide to be committed, if they won that war and captured the criminals, as in the case of Nazi Germany. Unless these conditions were fulfilled, the individuals guilty of the crime of genocide would of necessity be protected by their own Government. Some sort of machinery should therefore be set up which would be able, acting through the United Nations or some new International Court of Justice, to make representations not to individuals but to governments.

492

E/621

The representative of Venezuela (Mr. Stolk) drew the Council’s attention to the close relationship between the problem of genocide referred to in the General Assembly Resolution 96(I) and that of formulating the principles recognized by the Charter of the Nürnberg Tribunal and the judment [sic] of the Tribunal, referred to in the General Assembly Resolution 95(I), a fact which it would be well to take into account when drafting the Convention in question. There was some difference of opinion regarding the procedure to be followed. In a note to the Economic and Social Council (document E/330, 12 March 1947) the Secretary-General said: It is for the Economic and Social Council, assembled at its Fourth Session, to fulfil the mandate given to it by the General Assembly. For this purpose the Economic and Social Council may entrust the task of making the necessary studies and of drawing up a draft Convention: 1. To the Commission on Human Rights; 2. To one or several members of the Economic and Social Council. The Secretary-General would be asked to prepare a preliminary draft in order to facilitate the task to be entrusted either to certain members of the Economic and Social Council or to the Commission on Human Rights.

The representative of Cuba (Mr. Belt) supported by the representatives of Peru (Mr. Arca Parro), Venezuela (Mr. Stolk), and the Union of Soviet Socialist Republics (Mr. Morozov), was in favour of the Secretary-General’s second suggestion, namely, the appointment by the Council of a Committee made up of one or several of its own members to draw up, with the assistance of the Secretariat, the draft Convention to be communicated to the Members of the United Nations so that the Council, at its Fifth Session, could adopt it and have it submitted to the Second Session of the General Assembly. The representative of Norway (Mr. Lunde), on the other hand, proposed that, once the draft Convention was drawn up, it should be submitted to the Commission on the Development of International Law and its Codification, which was a subsidiary body set up by the General Assembly of the United Nations; while the representative of France (Mr. Querin) supported the Secretary-General’s first suggestion, namely, to entrust the Commission on Human Rights with the task of making the necessary studies.

E/621

493

The representative of the United Kingdom (Mr. Mayhew), feeling that the Commission on Human Rights already had a heavy programme before it, proposed that the Secretariat be asked to draw up the draft Convention, after which it could be decided whether or not there was any need to consult one of the existing Commissions* or some other ad hoc body of experts. The representative of the Netherlands (Mr. van Roijen) asked that the Council consult both the Commission on Human Rights and the Commission on the Development of International Law and its Codification, as the delegation of the United States had already proposed in a draft resolution it had submitted (document E/342, 17 March 1947). Finally, the representative of China (Dr. Chang) reminded his colleagues that under the Commission on Human Rights there was a Sub-Commission on Prevention of Discrimination and Protection of Minorities which ought, in his opinion, to be consulted at some stage in the drawing up of the draft Convention. The acting President (Mr. Jan Papanek, Czechoslovakia), summing up the various proposals and suggestions made in the course of the debate, proposed referring the problem of procedure to the Council’s Social Committee. The Social Committee discussed the procedure to be followed in drawing up the draft Convention at its 6th Meeting on 20 March 1947 (document E/AC.7/8). It had before it the above-mentioned United States draft resolution and a Cuban amendment submitted in the course of its meeting which proposed entrusting the task of drawing up the draft Convention to an ad hoc Committee to be appointed by the President of the Economic and Social Council. The representative of New Zealand (Mr. Nash) proposed combining the United States draft Resolution with the Cuban amendment and on the following day, 21 March 1947, submitted the following draft resolution (document E/AC.7/W.1 [sic]):

* The French representative probably had in mind the Commission on Human Rights and the Commission on the Development of International Law and its Codification, which had been mentioned in the course of the discussions.

494

E/621

The Economic and Social Council, taking cognizance of the General Assembly resolution of 11 December 1946 on the subject of genocide, instructs the Secretary-General: (a) To undertake the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly and (b) After consultation with the General Assembly Committee on the Development and Codification of International Law and reference to all Member Governments for comments, to submit to the next session of the Economic and Social Council a draft convention on the crime of genocide.

The various texts proposed were considered by the Drafting Sub-Committee of the Social Committee on 24 March 1947 (document E/AC.7/W.14, 26 March 1947). At that meeting a number of other amendments were proposed, and some of them adopted, with the result that paragraph (a) was redrafted as follows, paragraph (b) being left unchanged: (a) To undertake, with the assistance of experts in the field of international and criminal law the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly.

On 28 March 1947 the Social Committee’s Report came before the Economic and Social Council. The text of the draft resolution was reproduced in document E/AC.7/15, 25 March 1947. The delegation of the United States had also submitted a new amendment (document E/AC.7/15/Add.2, 28 March 1947). Without debate the Council adopted the draft resolution together with the United States amendment (Cf. Verbatim record, – document E/P.V.82; and Summary record – document E/396/Rev.1, 24 April 1947). The Economic and Social Council resolution adopted on 22 April 1947 (document E/325) reads as follows: THE ECONOMIC AND SOCIAL COUNCIL, Taking cognizance of the General Assembly Resolution No. 96(I) of 11 December 1946 instructs the Secretary-General: (a) to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; and (b) after consultation with the General Assembly Committee on the Development and Codification of International Law and, if feasible, the Commission on Human Rights and, after reference to all Member Governments for comments, to submit

E/621

495

to the next session of the Economic and Social Council a draft convention on the crime of genocide.

According to that resolution, the Economic and Social Council had instructed the Secretary-General to carry out the following five operations: 1. To undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view to drawing up a draft convention in accordance with the resolution of the General Assembly; 2. To consult the General Assembly Committee on the Development and Codification of International Law; 3. To consult also, if feasible, the Commission on Human Rights; 4. To ask all Member Governments for their comments on the draft Convention; 5. To submit this draft Convention to the next session of the Economic and Social Council. The Secretary-General has followed these instructions as explained hereinafter. He was unable, however, to consult the Commission on Human Rights since it has not met in the interval between the Fourth and Fifth Sessions of the Economic and Social Council. CHAPTER III Preparation of a draft convention by the Secretariat (1 June 1947) In accordance with the instructions given by the Economic and Social Council, the Secretary-General asked the Division of Human Rights to draw up a “draft Convention on the prevention and punishment of genocide”. The Division of Human Rights drew up a preliminary draft. This preliminary draft was discussed by three experts invited by the Secretary-General – Mr. Donnedieu de Vabres, Professor at the Faculté de droit of Paris, Professor Pella, Chairman of the International Penal Law Association, and Professor Lemkin – together with Professor Humphrey, Director of the Division of Human Rights, Professor Giraud, Chief of the Research Section

496

E/621

of that Division, and Mr. Kliava, representing the Legal Department of the Secretariat. In the light of the experts’ comments the Secretary-General amended and expanded the preliminary draft, which thus became the draft Convention. The draft Convention consists of twenty-four articles. Furthermore, two annexes to Article X, suggested by the experts, are attached; the first contains a draft statute for an international criminal court with general jurisdiction, and the second contains a draft statute for an international tribunal specially set up for crimes of genocide. The draft Convention with the relevant comments was distributed on 6 June 1946, as document A/AC.10/41. It was then reproduced (with the annexes and Article X) as document E/447 dated 26 June 1947. Finally, the same draft was distributed (without comments or annexes) as document A/362 dated 25 August 1947. CHAPTER IV Consideration of the Draft Convention by the Committee on the Progressive Development of International Law and its Codification (12 May to 28 June 1947) This Committee, set up under Resolution 94(I) of the General Assembly on 11 December 1946, met at Lake Success in May and June 1947. In a letter of 12 May 1947 (document A/AC.10/15), the Secretary-General informed the Chairman of this Committee of the resolution adopted by the Economic and Social Council and stated that the draft Convention then being drawn up would shortly be transmitted to him. On 19 May 1947, the representative of France submitted a memorandum to the Committee “on the subject of genocide and crimes against humanity” (document A/AC.10/29). A parallel was drawn in this memorandum between the crime of genocide as defined by Resolution 96(I) of the General Assembly and the crimes against humanity as defined by the Charter of the Nürnberg Tribunal and the sentences passed by this Tribunal. The representative of France preferred a narrower concept of crimes against humanity and was not in favour of adopting the expression “genocide”, which he considered to be a useless, even a dangerous, neologism. In concrete terms, he proposed that the Committee should make the following declaration:

E/621

497

(1) that all extermination of individuals as members of a racial, social, political or religious group constitutes a crime against humanity; (2) that this crime, which consists of assassination by State action or toleration, and which may be perpetrated in time of peace as in time of war, is a crime against international public law; (3) that the rulers found guilty of this crime are amenable to an international jurisdiction and liable to criminal prosecution.

In order to clarify the exact meaning of the third proposal, the representative of France added the following comment: . . . This crime (against humanity) is individual to the rulers in whose minds the criminal decision was formed, who gave the orders and took no personal part in the action. With regard to the executives, whatever their motives, they are murderers, common assassins amenable to the common law, and nothing is to be gained by removing them from its sphere. It is self-evident that the argument of “superior orders” is applicable in their case, as international law has provided.

The French memorandum further stated that the distinction between rulers and executives should be reflected not only in regard to qualifications, but also in regard to procedure and competence. It reads as follows: “If, owing to the failure of national jurisdictions an international court has to judge executives, this court will be distinct from the International Court of Justice (criminal chamber) which will determine State responsibility and decide the fate of rulers.” Finally, the French memorandum concluded by recalling that the exercise of punitive powers does not exhaust the problem of the struggle against such crimes: “The protection of human groups is not ensured exclusively or even chiefly by penal courts. The French delegation suggests that the Codification Commission should refer to the Commission on Human Rights the task of studying and drawing up a definition of human rights and a procedure which might ensure their effective protection.” The Committee also had before it a draft resolution submitted by the representative of the United Kingdom (document A/AC.10/44, 6 June 1947), which contained the following passage inter alia: It (the Committee) recognized the desirability of affording to governments an opportunity to comment on the draft convention prepared by the Secretariat prior to its consideration by the Economic and Social Council. Aside from any conclusion on the question whether the Committee, under its instructions from the General Assembly, would be authorized to study and

498

E/621

report on the substantive provisions of the draft convention on genocide, the Committee did not wish, by engaging in such a study, to delay the process of governmental consideration which in turn might make it difficult for the Economic and Social Council to take up the draft at its next meeting. In view of these considerations the Committee requests its Chairman to reply to the communication of the Secretary-General in the sense of the foregoing observation.

The United Kingdom representative, Professor Brierly, in reply to a number of questions put to him summarized his ideas as follows: The Committee should not consider the draft Convention for the two following reasons: This Committee had been set up by the General Assembly, which could have referred the question of genocide to it. But the General Assembly did not do so, and, on the contrary, referred this problem to the Economic and Social Council. Moreover, this Committee consisted of representatives of the various Governments, which had not yet seen the Draft Convention on the crime of genocide and consequently, had not been able to give their instructions.

The Committee discussed the problem of genocide at its 28th, 29th and 30th meetings (see Summary Records, documents A/AC.10/SR.28, 29 and 30). Certain delegations associated themselves with the views expressed by the United Kingdom representative, while others, especially the Polish representative (Mr. Bramson), were in favour of the draft being studied by the Committee. The Australian representative (Mr. Body), together with the Netherlands representative (Mr. de Beus), suggested that the draft Convention be transmitted to Governments for their observations and referred to the International Law Commission, if that Commission were set up. Some representatives, however, objected to this proposal, and said that, if the question were referred to the International Law Commission, this would be tantamount to “a first-class burial” of the draft Convention; [sic] In the end the Committee rejected the part of the draft resolution bearing on consultation with the International Law Commission, by a majority; of 10 votes to 4, with 2 abstentions.

E/621

499

Finally, at the Committee’s request, the Chairman addressed a letter; to the Secretary-General (document A/AC.10/55, 18 June 1947), which was submitted for the Committee’s approval and which read as follows: The Committee fully realizes the urgency, which was expressed in the recommendation contained in the Resolution of the General Assembly of 11 December 1946, of organizing co-operation between States with a view to facilitating the speedy prevention and punishment of the crime of genocide. It notes, however, that the text prepared by the Secretariat, owing to lack of time, has not yet been referred to the Member Governments of the United Nations for their comments, as is contemplated in the Resolution of the Economic and Social Council, and it regrets that, in the absence of information as to the views of the governments, it feels unable at present to express any opinion in the matter.

CHAPTER V Fifth Session of the Economic and Social Council (19 July to 16 August 1947) When the Economic and Social Council met for its fifth session (19 July to 16 August 1947), it had before it only the draft Convention on genocide drawn up as stated above (Chapter II) by the Secretariat with the assistance of experts (document E/447). The Commission on Human Rights had not met between the fourth and fifth sessions of the Council and the Committee on the Progressive Development of International Law and its Codification had not felt able to give its views on the substance of the draft. The draft Convention had, moreover, been transmitted to Member Governments by the Secretary-General on 7 July 1947 (document A/362) and no replies had yet been received from Governments (see the SecretaryGeneral’s note of 8 July 1947, E/476). In the absence of views and comments the Economic and Social Council did not wish to embark on a study of the draft Convention and, after a brief exchange of views, it was decided to refer consideration of the Secretary-General’s report to its Social Committee (Summary Record of the 86th Plenary Meeting, document E/SR.86). The Social Committee considered the question at its 15th meeting on 30 July 1947 (document E/AC.7/SR.15). The exchange of views which

500

E/621

followed dealt only with the procedure to be recommended to the Council. The Norwegian representative (Mr. Seyersted) stressed the urgency of the question and proposed (document E/AC.7/22) that a special session of the Economic and Social Council be held either before or at the beginning of the second regular session of the General Assembly, that is to say, in the first half of September 1947, and that, in the meantime a Committee of the Council be appointed to consider the draft Convention and the comments of Member Governments and of the Commission on Human Rights. The Economic and Social Council would thus be able to discharge the task entrusted to it under Resolution 96(I) of the General Assembly. Several representatives opposed this proposal. The United States representative (Mr. Stinebower) submitted another draft resolution, the conclusion of which reads as follows: THE ECONOMIC AND SOCIAL COUNCIL ... DECIDES: To transmit to the General Assembly the draft Convention on the Crime of Genocide prepared by the Secretariat in accordance with paragraph (a) of the Council Resolution of 28 March 1947, together with any comments from Member Governments which may be received in time for transmittal to the General Assembly. (Document E/AC.7/23).

Although he was in agreement with the United States representative, the United Kingdom representative (Mr. Gore-Booth) thought that the General Assembly might submit the draft convention to the International Law Commission “for a limited period”, if that Commission were set up. The Norwegian representative objected to the delay which would be involved by this procedure. The Cuban representative (Mr. Osuna) then suggested that a resolution be drawn up merely informing the General Assembly where the question stood. Finally, the Social Commission decided, by 16 votes to none, with 2 abstentions, to call upon Member Governments to accelerate consideration of the draft Convention and to inform the General Assembly that the Economic and Social Council proposed to proceed with its work, subject to any further instructions from the General Assembly.

E/621

501

As a result of this decision, a drafting committee, composed of the representatives of Canada, Cuba, Norway and the United States drew up a draft resolution (document E/AC.7/31), which was altered only in detail by the Social Committee at its 17th meeting (Summary record, document E/AC.7/SR.17) and which was adopted without any modifications by the Economic and Social Council at its 107th plenary meeting (document E/SR.107). This resolution, No. 77(V) of 6 August 1947 (document E/573, pp. 21–22), reads as follows: THE ECONOMIC AND SOCIAL COUNCIL CONSIDERING the General Assembly resolution No. 96(I) of 11 December 1946, and HAVING REGARD to paragraph (b) of the Council’s resolution of 28 March 1947, which provides for submission to the fifth session of the Economic and Social Council of a draft Convention on genocide after consultation with the General Assembly Committee on the Development and Codification of International Law and, if feasible, the Commission on Human Rights and after reference to all Member Governments for comments, and TAKING NOTE of the fact that the General Assembly Committee on the Development and Codification of International Law and the Commission on Human Rights have not considered the draft Convention on the crime of genocide prepared by the Secretariat, and that the comments of the Member Governments on this draft Convention have not been received in time for consideration at the fifth session of the Economic and Social Council, CALLS UPON Member Governments, in view of the urgency of the matter, to submit to the Secretary-General as soon as possible their comments on the draft Convention prepared by the Secretariat and transmitted to them with the Secretary-General’s letter of 7 July 1947; INSTRUCTS the Secretary-General to collate such comments; DECIDES to inform the General Assembly that it proposes to proceed as rapidly as possible with the consideration of the question, subject to any further instructions of the General Assembly; and REQUESTS the Secretary-General, in the meanwhile, to transmit to the General Assembly the draft Convention on the crime of genocide prepared by the Secretariat in accordance with paragraph (a) of the Council resolution of 28 March 1947, together with any comments from Member Governments received in time for transmittal to the General Assembly.

502

E/621

CHAPTER VI Second Session of the General Assembly (16 September – 20 November 1947) In accordance with the Economic and Social Council’s Resolution 77(v) of 6 August 1947 the Secretary-General submitted to the General Assembly the draft Convention on the crime of genocide prepared by the Secretariat. (Aforementioned document A/362 – and note by the Secretary-General, document A/C.6/147 of 27 September 1947). He also transmitted the observations of Governments which had been received in time, namely those of India, Haiti (document A/401, of 27 September 1947); Philippines, Venezuela (document A/401/Add.1, of 1 October 1947); United States of America (document A/401/Add.2, of 18 October 1947); France (document A/401/Add.3, of 31 October 1947) (see Annex below). The General Committee of the Assembly decided to refer the question to the Sixth Committee (Legal Committee). The procedure in the General Assembly comprised four phases: (1) General discussion in the Sixth Committee and reference to SubCommittee 2 of that Committee; (2) Consideration of the question by the Sub-Committee 2; (3) Consideration by the Sixth Committee of the Draft Report submitted by the Sub-Committee 2; (4) Discussion by the Assembly in plenary session and adoption of the Resolution. SECTION I – General Discussion in the Sixth Committee This discussion occupied part of the 39th, 40th, 41st and 42nd meeting of the Sixth Committee (see Verbatim records, document A/C.6/SR.39, of 29 September 1947; A/C.6/SR.40, of 3 October 1947, A/C.6/SR.41, of 4 October 1947 and A/C.6/SR.42, of 6 October 1947). The French representative (Mr. Chaumont), who opened the debate, said that the Assembly could act without waiting for the observations of all the Governments. He observed that the Secretariat draft was not a rigid framework but simply a practical basis for work.

E/621

503

He regretted that the draft did not propose any effective machinery for the prevention of genocide. He said it would not be necessary to link up the repression of genocide with the establishment of an international criminal court. The United States representative (Mr. Fahy) agreed in general with the representative of France, and pointed out that the Committee had a choice between the following methods: to refer the consideration of the draft Convention to the Economic and Social Council or to the International Law Commission, which it was proposed to set up, or to proceed directly to examine the draft with a view to drawing up a convention. The United Kingdom representative (Sir Hartley Shawcross) took a different view which, in brief, was as follows: (1) In the view of the United Kingdom genocide was already a crime under prevailing international law: the Military Tribunal at Nürnberg had adopted that view. In an international convention to which not all States would adhere the abstention of certain States would tend to cast doubts on an already established matter. The convention would thus defeat the purpose it sought to achieve. (2) If a State wished to commit genocide, it would not be deterred by the existence of a convention, whether the State was a signatory to it or not. (3) Certain passages in the draft Convention were open to criticism. The United Kingdom representative, therefore, tabled the following draft resolution (document A/C.6/155, of 2 October 1947): THE GENERAL ASSEMBLY OF THE UNITED NATIONS 1. REAFFIRMS its resolution of 11 December 1946 condemning genocide and declares that genocide is an international crime, entailing national and international responsibility on the part of individuals and states; 2. INVITES the attention of all Member states to the principles of the draft Convention transmitted by the Economic and Social Council and recommends adherence to these principles in the executive and legislative activities of states; 3. REFERS the draft convention to the International Law Commission in order that the Commission may consider whether a convention on this matter is desirable or necessary and if so to submit a draft convention to the General Assembly.

504

E/621

The representative of Venezuela (Mr. Perez Perozo), while he agreed that the Secretariat draft should be examined by one or more legal bodies, stated that, when all was said and done, “the real action necessary . . . was that it needed polishing, not by experts but by politicians.” As regards method he was in favour of referring the consideration the draft Convention to the Economic and Social Council which would have the help of the Committee on the Progressive Development of International Law and its Codification. He submitted a draft resolution to that effect (document A/C.6/149, of 29 September 1947). The Egyptian representative, Mr. Raafat, and the Cuban representative, Mr. Dihigo, spoke at the Sixth Committee’s 40th meeting. The Egyptian representative, who agreed with the views of the United Kingdom, considered that the convention would not work as a preventive since it would not impede governments from committing the crime of genocide. Moreover, he could not approve the inclusion of “cultural genocide” in the convention as an international crime. As regards method he thought “the best course would be to draw the Members’ attention to the draft Convention prepared by the Secretariat, and to ask for an expression of views before the next regular session of the General Assembly.” The representative of Cuba disagreed with the point of view of the United Kingdom representative, and pointed out that the General Assembly had already in its Resolution 96(I) voted for the conclusion of a convention. He added that the Nürnberg principles had not been adopted by all the countries, and that all that existed at present of universal scope was the Assembly Resolution 96(I) which stated that genocide was a crime; however this resolution had no force of law for States. Finally it should be remembered that criminal courts were bound by the rule that criminal law has no retrospective effect. Consequently, a binding convention for the punishment of genocide would not be valueless, even if certain States failed to ratify it, and, in any case, contrary to what had been suggested, it would not weaken existing law. When the Sixth Committee resumed the general discussion at its 41st meeting most of the speakers were in favour of the conclusion of a convention on genocide. Such, for instance, was the attitude of the representative of Greece (Mr. Spyropoulos) who stated that he was, nevertheless, ready

E/621

505

in principle to support the proposal of the United Kingdom delegation, of Norway (Mr. Castberg), of Poland (Mr. Laks [sic]), of the Philippines (Mr. Abello), of the Argentine [sic] (Mr. Ferrer Vieyra), of Pakistan (Mr. Pirzada), of Peru (Mr. de Lavalle), of Haiti (Mr. Vieux), of Brazil (Mr. Amado), of France (Mr. Chaumont) and of Ecuador (Mr. Correa). The above-mentioned speakers developed in a general way the arguments which had already been put forward. Special note should, however, be taken of the statements made by the representatives of Poland and of the Philippines, who considered that the principles established at the Nürnberg Trials did not cover all the aspects of genocide. The Polish representative stressed, in particular, the idea that “physical genocide was only the extreme degree in which the crime showed itself.” He was “concerned with genocide on a wider plane: the forms of genocide which do not mean physical extermination, such as discrimination against race, religion, etc.” Other speakers, although not disagreeing with the principle of a convention, and even supporting it, spoke in favour of an extensive study of the problem. The representative of the Union of Soviet Socialist Republics (Mr. Durdenevsky), in stressing certain delicate aspects of the question said that the draft convention was still only a rough draft and could only be considered as a working paper. “It should be carefully considered together with the comments of various Governments by the Economic and Social Council or by the International Law Commission.” The representative of the Union of Soviet Socialist Republics supported the conclusions of the United Kingdom proposal (document A/C.6/155 as above), but nevertheless submitted a further draft resolution (document A/C.6/151) in which the principle of a convention was not directly raised. Analogous opinions were expressed by the representatives of China (Mr. Hsu), Colombia (Mr. Yepes), Yugoslavia (Mr. Bartos, who stated that “the Yugoslav delegation agreed in principle with the draft submitted by the Secretariat”, although “he saw the force of the United Kingdom arguments”). Thus the Sixth Committee had three draft resolutions before it: (1) The United Kingdom draft which, as has been seen, recommends that the draft Convention be referred to the International Law Commission in order that the Commission may consider whether a convention on this matter is desirable or necessary, and if so, submit a draft Convention to the General Assembly;

506

E/621

(2) The Venezuelan draft, asking the Economic and Social Council to continue to study the draft resolution with the help of the Committee on the Progressive Development of International Law and its Codification, in order to report to the Third Session of the General Assembly; (3) The draft of the Union of Soviet Socialist Republics asking the Economic and Social Council, when it receives the comments of the States Members, to examine “the draft Convention on combating genocide and to report to the Third Session of the General Assembly.” The Egyptian delegation had submitted an amendment to the draft resolution of the Union of Soviet Socialist Republics (document A/C.6/159 of 3 October 1947) pointing out that the Economic and Social Council should use the Secretariat draft as a basis for its work, and the Brazilian delegation had drafted some proposals (document A/C.6/160 of 4 October 1947) which did not differ substantially from the draft of the Union of Soviet Socialist Republics. Finally, certain delegations were in favour of a direct consideration of the Secretariat’s draft, either by the Sixth Committee itself, or by one of its Sub-Committees, so that a convention could be concluded during the Second Session of the General Assembly. This latter point of view was advocated, for instance, by the representative of Panama (Mr. Mendez) who, together with the representatives of Cuba and India, submitted a fresh draft resolution at the Sixth Committee’s 42nd meeting (see the text on page 2 of the Summary Record, document A/C.6/SR.42). The Panama delegation also, asked that a resolution voted by the National Assembly of Panama on 13 October 1947 be communicated to the General Assembly (document A/C.6/177). The United Kingdom representative (Sir Hartley Shawcross) opposed the view expressed by the representative of Panama. He declared that the value of codification was in those fields where there was uncertainty about the existing law. However, the law on biological genocide had been clearly defined at the Nürnberg Trials, on the one hand, and on the other hand, the Secretariat’s draft contained a series of innovations which “under the guise of codification, attempted to create an entirely new body of international law.” Moreover, the draft Convention prepared by the Secretariat raised a number of political and social questions which went far beyond the General Assembly resolution. This draft laid down rules that were

E/621

507

unacceptable to several States. “The only real sanction against genocide was war.” He therefore maintained his point of view summarized in the draft resolution which he submitted. The Australian representative (Mr. Oldham) supported this argument and observed that “the judgments of Nürnberg and those which probably would be delivered in Tokyo, would have a far greater effect towards preventing genocide than a convention.” After several short speeches the Rapporteur (Mr. Kaeckenbeeck, Belgium) spoke against the General Assembly passing a new resolution condemning genocide, which would only be a repetition of Resolution 96(I) of 1946. He was also opposed to excessive haste and to any desire to secure, at all costs, the conclusion of a convention during the Second Session of the General Assembly. The United States representative (Mr. Fahy), on the contrary, supported the proposal submitted by the representatives of Cuba, India and Panama, but doubted whether it would be possible to achieve a final result during the second Session. The Chairman finally put the following questions to the vote: 1. Should the question of the crime of genocide, together with all the proposals, be referred to a sub-committee? The Committee agreed by a large majority to refer the matter to a subcommittee. 2. Should this sub-committee be Sub-Committee 2, which is entrusted with the problem of the Development of International Law and its Codification?

The Committee again replied in the affirmative, by a vote of twenty-six to ten. Sir Hartley Shawcross said that a third question remained to be settled: that of the Sub-Committee’s terms of reference. Was it to consider the substance of the problem of genocide, or merely make proposals regarding the procedure to be followed? The Chairman then put to the vote the proposal submitted by the representatives of Cuba, India and Panama (see above) and, this proposal having been rejected by twenty-five votes to nine, stated that the Committee’s decision reflected its wish that the Sub-Committee should consider only the procedure to be followed.

508

E/621

SECTION II – Consideration of the question by Sub-Committee 2 As no minutes were taken of the Sub-Committee’s discussions at its 16th and 18th meetings (on 4 and 5 November 1947), the only record of these discussions is contained in the Rapporteur’s report (document A/C.6/190/Rev.1 of 18 November 1947). This report states: Three different opinions were expressed with regard to the choice of the body (that is, the body to consider the problem of genocide in the future). Certain delegations emphasized the sociological aspects of the study to be undertaken and the political nature of the problem, as well as the terms of the resolution adopted by the Economic and Social Council on 6 August 1947, and declared themselves in favour of the Economic and Social Council. Other delegations, emphasizing the legal nature of the work, suggested reference to the International Law Commission. Others, in order not to delay the matter, proposed that the work should be begun by the Committee which, in accordance with the intentions of the Sub-Committee, would act as an interim body until the members of the International Law Commission had been elected, after which the work could, if necessary, be continued by the International Law Commission. One delegation suggested that genocide in the strict sense should be considered in connection with the codification of the Nürnberg principles and that sociological aspects, such as racial and religious intolerance, should be considered by the Sub-Committee of the Commission on Human Rights dealing with the prevention of discrimination and the protection of minorities. Finally, the Sub-Committee decided, by eight votes to two, to refer the matter to the Economic and Social Council, on the understanding that the Council may, if it wishes, request the assistance of the Interim Committee on the Progressive Development of International Law and its Codification.

As regards the terms of reference to be given to the Economic and Social Council two arguments were put forward: 1. Some delegations thought that that organ should be left free to decide in favour either of a convention or of any other appropriate method. 2. Other delegations considered that the question of drafting a convention had already been decided by the General Assembly resolution of 11 December 1946. The latter opinion was adopted by ten votes to two. Finally, Sub-Committee 2 proposed that the Sixth Committee recommend to the General

E/621

509

Assembly the adoption of a resolution with the following substantive paragraphs: THE GENERAL ASSEMBLY ... REQUESTS the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft Convention prepared by the Secretariat, and to proceed with the completion of a convention, with the assistance, if it so desires, of the Interim Committee on the Progressive Development of International Law and its Codification; INFORMS the Economic and Social Council that it need not await the receipt of the observations of all Member States before commencing its work; DRAWS THE ATTENTION of the Member States to the urgency of submitting their observations on the draft convention; and REQUESTS the Economic and Social Council to submit a report on this question to the third regular session of the General Assembly.

SECTION III – Examination of the Sub-Committee’s Report by the Sixth Committee I. The Debates The report of Sub-Committee 2 (document A/C.6/198) was discussed by the Sixth Committee at its 59th plenary meeting on 20 November 1947 (Summary Record, document A/C.6/SR.59, 26 November 1947*). The Committee had before it four amendments to the draft resolution proposed by Sub-Committee 2: the first was submitted by the United Kingdom delegation (document A/C.6/192, 17 November 1947); the second by the Egyptian delegation (document A/C.6/198, 18 November 1947**); the third by the Union of Soviet Socialist Republics’ delegation (document A/C.6/201, 20 November 1947); the fourth by the Chinese delegation (document A/C.6/204, 20 November 1947). It should be noted that at the same 59th meeting, before discussing the report on genocide, the Sixth Committee dropped the idea of creating an

* At the moment this document only exists in the English version which we have been obliged to use.

** However, since this amendment has been withdrawn, we shall not deal with it here.

510

E/621

interim body to study the progressive development of international law and its codification so that one element in the draft resolution submitted by Sub-Committee 2 became pointless. The British, Soviet and Chinese amendments were discussed simultaneously; however, for the sake of clarity, we shall examine each of the three questions separately. 1. The United Kingdom amendment proposed to insert in the preamble of the draft resolution a new paragraph as follows: THE GENERAL ASSEMBLY DECLARES that genocide is an international crime entailing national and international responsibility on the part of individuals and states.

The representative of the United Kingdom (Mr. Beckett) explained the point of his proposal. It meant that individuals guilty of genocide, that is to say, a crime against humanity which no authority and no national legislation could justify, could not seek protection behind the orders received, – that had been admitted at the trials of war criminals. It meant also that the State itself was responsible when the government of that State had ordered genocide. The representative of the United Kingdom quoted the similar case of the Hague Convention under which a State was responsible for offences against the law of war committed by its armies. Of course, a State could not be punished by being hanged or shot but it was still responsible. The representative of the United Kingdom saw no objection to replacing the words “entailing national and international responsibility” in his amendment by “entailing individual and collective responsibility”. (The rest of Mr. Beckett’s speech, which was a fresh criticism of the actual idea of a convention, will be considered later in connection with the Soviet amendment.) The United Kingdom amendment was supported by the representatives of the Union of Soviet Socialist Republics (Mr. Durdenevsky) and Norway (Mr. Seyersted). It was opposed by the representatives of France (Mr. Chaumont) and Egypt (Mr. Raafat). The French representative recalled that the question of the criminal responsibility of the State itself had been debated at the previous session of the Assembly and that the French point of view, which objected to such a conception, as contrary to French law, had won the day. (See above, Chapter I.)

E/621

511

The United Kingdom amendment was put to the vote and adopted by twentyone votes to six. 2. The Soviet amendment proposed to replace paragraphs 5, 6, 7, 8, in other words the substantive section of Sub-Committee 2’s draft resolution by the following text: REQUESTS the Economic and Social Council: (a) to proceed with the studies on the problem of measures of combating the crime of genocide; (b) to study therewith the question of whether a convention on genocide is desirable and necessary, and if so, whether there should be a separate convention on genocide, or whether the question of genocide should be considered in connection with drafting the convention including the principles of international law recognized in the Charter of the Nürnberg Tribunal and sanctioned in the judgment of the Tribunal; (c) to consider, if conclusion of a separate convention on genocide is considered necessary, the draft convention on genocide prepared by the Secretariat, after having received comments from the governments of States Members of the United Nations, and to submit a report on the matter to the Third Regular Session of the General Assembly.

This amendment reopened the whole question of the necessity for concluding a special convention on genocide. The representative of the Union of Soviet Socialist Republics said that the Economic and Social Council should be authorized to study the question whether or not a convention were necessary. If the Council should find it necessary, such a convention could be rapidly prepared since a lot of initial work had already been done in the matter. The representative of Poland (Mr. Bramson) spoke in favour of the Soviet amendment. The representative of France (Mr. Chaumont), on the contrary, opposed the amendment, and stated that the need for a convention had already been decided on by the resolution adopted at the First Session of the Assembly. The representatives of Cuba, (Mr. Dihigo) Mexico (Mr. Primo Villa Michel), Egypt (Mr. Raafat), and Norway (Mr. Seyersted) also thought that the substantive part of the resolution submitted by Sub-Committee 2 should be retained. The representative of China (Mr. Wellington Koo, Jr.), who had himself submitted a draft amendment (see below), also agreed that a convention

512

E/621

was needed, but thought that the Economic and Social Council was not the proper place to consider the juridical aspects of the convention which should be linked to the Nürnberg principles. The representative of the United Kingdom, though he expressed no views on the Soviet amendment, criticized the actual concept of a convention on genocide and employed the same arguments which he had previously expounded in Sub-Committee 2, namely: (1) If genocide was practised with the consent of a government no convention would stop it. (2) From the scientific point of view the crime of genocide should be dealt with in conjunction with the codification of the principles of the Nürnberg Charter, since it was so closely analogous to the other crimes covered by that instrument. (3) The racial or religious animosities which cause genocide, as indeed they cause discrimination and persecutions, would best be considered by the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Human Rights Commission. On the Rapporteur’s suggestion the Soviet amendment was modified. In the last paragraph the words “comments from the governments” were replaced by “comments from most of the governments”, to prevent the matter being held up by delay on the part of some Governments. The Soviet amendment as amended was put to the vote. A roll-call was requested, and the amendment was adopted by 22 votes to 18 with one abstention. 3. The Chinese amendment was to the effect that the body responsible for considering the question of genocide should not lose sight of the fact that the International Law Commission was responsible for formulating the Nürnberg principles. The summary record does not mention a vote on that amendment. II. Adoption of a Draft Resolution by the Sixth Committee Finally, the Sixth Committee adopted the following draft resolution: (See the Sixth Committee’s Report, document A/510, 20 November 1947). THE GENERAL ASSEMBLY, REALIZING the importance of the problem of combating the international crime of genocide;

E/621

513

REAFFIRMING its resolution 96(I) of 11 December 1946 on the crime of genocide; DECLARING that genocide is an international crime entailing national and international responsibility on the part of individuals and States; NOTING that a large majority of the Governments of Members of the United Nations have not yet submitted their observations on the draft convention on the crime of genocide prepared by the Secretariat and circulated to those Governments by the Secretary-General on 7 July 1947; CONSIDERING that the Economic and Social Council has stated in its resolution of 6 August 1947 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide, subject to any further instructions which it may receive from the General Assembly; REQUESTS the Economic and Social Council: (a) To proceed with the studies on the problem of measures of combating the crime of genocide; (b) To study therewith the question whether a convention on genocide is desirable and necessary, and if so, whether there should be a separate convention on genocide, or whether the question of genocide should be considered in connection with the drafting of a convention to include the principles of international law recognized in the Charter of the Nürnberg tribunal and in the judgment of the Tribunal. (c) To consider, if the conclusion of a separate convention on genocide is deemed necessary, the draft convention on genocide prepared by the Secretariat, after having received comments from most of the Governments of States Members of the United Nations, and to submit a report on the matter to the third regular session of the General Assembly.

SECTION IV – Discussion at a Plenary Meeting of the Assembly and Final Decision I – The Discussion – The report of the Sixth Committee was presented to the General Assembly by the Rapporteur (Mr. Kaeckenbeeck – Belgium) at its 123rd plenary meeting, 21 November 1947 (see Verbatim record, document A/PV.123, 21 November 1947). After the Report had been presented the President announced that three amendments modifying the draft resolution proposed by the Sixth Committee had been submitted, namely: (1) Joint amendment proposed by Cuba, Egypt and Panama (document A/512, 21 November 1947) which proposes that the last paragraph of the resolution should be replaced by the following text:

514

E/621

REQUESTS the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention by the Secretariat, and to proceed with the completion of a convention; INFORMS the Economic and Social Council that it need not await the receipt of the observations of all Members before commencing its work; and REQUESTS the Economic and Social Council to submit a report and the convention on this question to the third regular session of the General Assembly.

(2) Amendment proposed by China (document A/514, 21 November 1947) adding to the end of the first paragraph of the preceding amendment the following text: taking into account that the International Law Commission, which will be set up in due course in accordance with the Assembly Resolution of 21 November 1947 has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal, as well as the preparation of a draft code of offences against peace and security.

(3) Amendment proposed by Venezuela (document A/513, 21 November 1947): 1. Delete paragraph (b) of the resolution. 2. Delete, in paragraph (c) of the resolution, the words: ‘if the conclusion of a separate convention on genocide is deemed necessary’.

The Venezuelan delegation withdrew this amendment during the meeting as it believed that the point was covered by the joint resolution submitted by Egypt, Cuba and Panama. A number of questions were discussed, which may be summarized as follows: 1. Should the Economic and Social Council be instructed to submit a convention, or should it be left free to decide whether a convention was necessary? 2. Should the Economic and Social Council wait until it had received replies from most of the Governments before carrying out its task? 3. Should the Economic and Social Council, in carrying out its task, take into account the fact that “the International Law Commission . . . has been charged with the formulation of the principles recognized in the

E/621

515

Charter of the Nürnberg Tribunal as well as the preparation of a draft code of offences against peace and security”? 4. The use which the Economic and Social Council should make of the draft convention prepared by the Secretariat. First question – Should the Economic and Social Council be given terms of reference to submit a convention or should it be left free to decide whether a convention is necessary? The amendment submitted by Egypt, Cuba and Panama contained the following passage: Requests the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention by the Secretariat, and to proceed with the completion of a convention.

This amendment ran counter to the decision adopted by the Sixth Committee and was tantamount to the solution proposed by Sub-Committee 2. The authors of this amendment (Mr. Ricardo J. Alfaro – Panama; Mr. Ernesto Dihigo – Cuba and Mr. Wahid Fikry Raafat – Egypt) stressed the fact that the General Assembly by its resolution 96(I) of 11 December 1946 had declared itself in favour of a convention and that “the adoption of the resolution, which was approved . . . by a slight majority in the Sixth Committee, would mean a recession from the stand taken by this august body last year” (speech by Mr. Alfaro – Verbatim Record – 123rd plenary meeting – document A/P.V. 123 – 21 November 1947, pp. 177–180). The representative of Venezuela (Mr. Perez Perozo) who had submitted an independent amendment, but which in substance was similar to the one just referred to, expressed the same point of view: it would be wrong to request the Economic and Social Council to consider whether a convention on genocide was desirable and necessary or not, “first, because the General Assembly itself had already recognized unanimously, in its meeting last year on 11 December that it was necessary to carry through . . . a convention on genocide; and second, because the General Assembly does not need to consult any other organization or organ to know whether this sort of matter is necessary . . .” (Ibid. pp. 188–190).

516

E/621

Similarly, the representative of France (Mr. de la Tournelle) stated that the Assembly “had to respect and implement . . . the resolution of the General Assembly of 11 December 1946, which recognizes the juridical existence of the crime of genocide and recommends the suppression thereof by international action” (Ibid. pp. 193–195), and the same idea is found in the statements of the representatives of the Dominican Republic (Mr. Henriquez-Urena) (Ibid. p. 231) and of China (Mr. Wellington Koo, Jr.) (Ibid. pp. 236–241). The representative of Norway (Mr. Seyersted) put forward another argument in favour of the conclusion of a convention: “The second provision (of the resolution 96(I) of 11 December 1946) . . . to the effect that legislation should be enacted to prevent genocide, has, I understand, already been carried out by a few members. Other members, like my country, do already possess in the main the necessary legislation on that point. However, this legislation needs some adjustments, but these adjustments cannot be made until the convention is drawn up. We must know what acts will be covered by genocide, and we must also know under what conditions and in what cases we are expected to render extradition”. (Ibid. p. 201). The representative of Mexico (Mr. Primo Villa Michel) (Ibid. pp. 212–215) expressed the same idea. The representative of the United States (Mr. Fahy) pointed out that his delegation had always been in favour of the conclusion of a convention and he added: “Pursuing the line which has been followed by the United States delegation in regard to this subject from the beginning, we prefer the amendments . . . because they look toward a more expeditious formulation of a convention for consideration by the General Assembly than does the draft submitted by the Sixth Committee.” (Ibid. pp. 207–210). The representative of Iraq (Dr. Abdul Majid Abbass) also declared himself in favour of a convention (Ibid. pp. 217–220). On the other hand, the representatives of the United Kingdom (Mr. Davies) and the Union of Soviet Socialist Republics (Mr. Durdenevsky) defended the draft resolution submitted by the Sixth Committee and were, consequently, against the imperative request to draw up a convention for the prevention and suppression of the crime of genocide. The representative of the United Kingdom said: “It is quite clear that this resolution (submitted by the Sixth Committee) does not exclude the drawing up of a convention; it does not exclude it, but it does give to the Economic and Social Council

E/621

517

the job of deciding whether a convention is necessary or not.” (Ibid. pp. 217–220). He added that he did not see any contradiction between the draft resolution of the Sixth Committee and resolution 96(I) of the First General Assembly: “. . . the decision of the General Assembly of 1946 was merely to the effect that the Economic and Social Council should cause a convention on genocide to be prepared and submitted to this General Assembly. This draft convention was prepared, as the representatives are aware, and was submitted, and when that had been done the previous decision had been fully fulfilled. There is nothing in the resolution of 1946 which even purported to affect the discretion of the present General Assembly.” (Ibid. pp. 221–222, the same idea is expressed again on page 222). Finally, he declared: “We wonder why it is necessary to insist that there must be a convention without due deliberation; why there must be a convention which may not be the best method of carrying further this declaration and which is a method . . . which is not altogether satisfactory to a large number of Members who would presumably be unwilling to accede to such a convention.” (Ibid. pp. 223–225). The representative of the Union of Soviet Socialist Republics (Mr. Durdenevsky), while declaring that he was in favour of energetically combating genocide, urged that the draft convention should be studied by the Economic and Social Council with complete freedom of action, and that the latter “should not be bound by the draft which was elaborated . . . by three experts invited for that purpose by the Secretariat.” (Ibid. pp. 227–230). Question Two – Should the Economic and Social Council wait, in order to fulfil its task, until it has received replies from the majority of Governments? In accordance with the resolution of 28 March 1947 the Secretary-General was to refer “to all Member Governments for comments” on the draft convention which he was also instructed to draw up. The lack of these comments had on several occasions been mentioned by various organs of the United Nations as an obstacle to the accomplishment of their work (Committee on the Progressive Development of International Law and its Codification, Economic and Social Council in its Fifth Session, Second Ordinary Session of the General Assembly). Should the progress of the work be subordinated in future to the receipt of these observations from the Governments?

518

E/621

Sub-Committee 2 had adopted a definite position on this question by inserting in its draft resolution the following passage: Informs the Economic and Social Council that it need not await the receipt of the observations of all Member States before commencing its work.

On the other hand, the draft resolution of the Sixth Committee requested the Council (see above, page 36): to consider . . . the draft convention on genocide prepared by the Secretariat, after having received comments from most of the Governments of States Members of the United Nations . . .

The amendment submitted by Egypt, Cuba and Panama reproduced on this point the formula adopted by Sub-Committee 2 with a few textual alterations. One of the sponsors of this amendment, the representative of Panama (Mr. Ricardo J. Alfaro) stated at the General Assembly: I wish to call the attention of the General Assembly to the passage in paragraph (c) of the resolution of the Sixth Committee . . . The original amendment was to the effect that the draft (convention) should not be considered until comments had been received from all Governments. This was the equivalent of giving the right of veto on the question of the Genocide Convention to the fifty-seven members of the United Nations, and this was a sure and infallible method of killing the project, because it was sufficient for one single nation not to send its comment to keep the draft convention in a state of paralysis. The original proposal was subsequently made to read: ‘After having received comments from most of the Governments’, but ‘most of the Governments’ is at least the absolute majority. Therefore, this means that until twenty-nine Governments or more have sent in their comments, the draft convention will not even be considered. In other words, the resolution raised in opposition to the Genocide Convention is the result of the tremendous force of inertia . . . (document A/P.V. 123, pp. 172–175 and 176).

The representative of France (Mr. de la Tournelle) made a similar statement (Ibid. p. 197), as did also the representative of Norway (Mr. Seyersted) (Ibid. p. 201). The representative of the United States (Mr. Fahy), after supporting the amendment submitted by Cuba, Egypt and Panama, described what was likely to be the procedure: “If, however, the Economic and Social Council completes a draft convention in the ensuing year, and if, from a legal standpoint, it should not be in proper form by the next session of the

E/621

519

General Assembly for submission to Governments for their adherence, the matter can then be referred, in order to have the draft convention perfected from a legal standpoint, to the International Law Commission which will be elected at the next session of the General Assembly. However, that will be a matter for decision by the General Assembly when the draft convention shall have been submitted by the Economic and Social Council.” (Ibid. p. 206). The representative of the Dominican Republic (Mr. Henriquez-Urena) supported the amendment in question. He added that the Economic and Social Council should first revise the Secretariat’s draft and adopt a draft convention which it would send to the Member States for consideration, after which it would be submitted to the General Assembly. (Ibid. p. 231). Question Three – Should the Economic and Social Council, in carrying out its task, take into account the fact that “the International Law Commission . . . has been charged with the formulation of the principles . . . of the Nürnberg Tribunal as well as the preparation of a draft code of offences against peace and security”? As already stated some delegations had, during the debates in the Sixth Committee and Sub-Committee 2, urged that the problem of genocide should be studied in conjunction with that of formulating the principles of the Charter and judgment of Nürnberg. Their point of view was rejected by Sub-Committee 2 and the draft resolution adopted by the Sub-Committee was silent on this point. On the other hand, by adopting the amendment submitted by the Union of Soviet Socialist Republics, the Sixth Committee wished to instruct the Economic and Social Council “to study . . . the question whether a convention on genocide is desirable and necessary, and if so, whether there should be a separate convention on genocide, or whether the question of genocide should be considered in connection with the drafting of a convention to include the principles of international law recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal ”. As the formulation of the principles of Nürnberg had been entrusted to the International Law Commission, the members of which would not be elected till the Third Session of the General Assembly, it was obvious that,

520

E/621

if the Economic and Social Council felt that the two problems should be dealt with simultaneously, that of genocide could not be solved until the International Law Commission had made progress in its work, that is to say, not for some years. In submitting their amendments the delegations of Egypt, Cuba and Panama stressed the necessity of speedy action so as to enable the Economic and Social Council to submit a complete convention on genocide to the Third Session of the General Assembly. That is why their amendment did not mention the connection between genocide on the one hand and the principles of Nürnberg on the other – it really reproduced the formula proposed by Sub-Committee 2. The amendment submitted by the delegation of Venezuela (withdrawn by that delegation in favour of the foregoing) likewise tended to suppress the connection between the two problems. The representative of Norway (Mr. Seyersted) was strongly opposed to linking the problem of genocide with that of the principles of Nürnberg. “Why,” he said, “should we halt the work (the drawing up of the convention on genocide) by linking it up with other subjects such as the question of the codification of the principles of the Nürnberg Charter and the Nürnberg Tribunal? Why should we complicate genocide, on which there is such a positive unanimity, by linking it with other and more controversial subjects? The Nürnberg Charter deals only with questions of war, but genocide is a problem of peace as well as of war. Therefore, it will only confuse the issue if we link the two together. If we are going to let every subject wait for other subjects to be worked out as well, then we shall never accomplish anything.” (Document A/P.V. 125 [sic], p. 201). The representative of the United States (Mr. Fahy) took practically the same view, but put it less categorically: “If there are any further studies needed (other than the convention on genocide), as is emphasized in the (Sixth) Committee’s draft resolution, those studies can be adequately made in connection with the actual process of drafting a convention.” (Ibid. p. 206). He also foresaw the possibility, as mentioned above, that the convention drawn up by the Economic and Social Council might be referred by the Third Session of the General Assembly to the International Law Commission. The opposite point of view was put forward by the representative of the United Kingdom (Mr. Davies), whose delegation had maintained that

E/621

521

genocide was covered by the principles of Nürnberg. He said: “In the viewpoint of the United Kingdom, which was consistently expressed both in the Sub-Committee and in the full Committee, genocide is so closely analogous to the crimes against humanity covered by the Nürnberg judgment that the best thing to do would be to send it to the International Law Commission, who have to codify the Nürnberg principles, and let them deal with genocide at the same time. We think in that way the question of genocide can best be dealt with and disposed of in the long run and it would be more satisfactory to a large number of members of this General Assembly who are not favourable to conventions themselves.” (Ibid. p. 221) and further on: “The majority of the Sixth Committee . . . leaves it open to the Economic and Social Council either to pursue the course of recommending a single convention on genocide or of adopting another course such as that of combining genocide with the formulation of the Nürnberg principles, which is what my delegation desires.” (Ibid. p. 222). It will be noted that certain delegations in favour of a special convention on genocide considered that the problem of genocide should be linked with that of the principles of Nürnberg. The representative of China (Mr. Wellington Koo, Jr.), while accepting the amendment submitted by Egypt, Cuba and Panama, had put forward his own amendment to that amendment, the purpose of which was to instruct the Economic and Social Council to draw up the definite text of the convention on genocide “taking into account the fact that the International Law Commission, which will be set up in due course in accordance with the Assembly resolution of (21) November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal as well as the preparation of a draft code of offences against peace and security.” After having recalled that his delegation had previously thought that the drawing up of the convention should not be entrusted to the Economic and Social Council but to a body of jurists, he made the following statement: “However, now that the majority of the General Assembly has decided to refer it back to the Economic and Social Council, we feel that that body should be instructed to draw up the convention with a careful consideration of the exact terminology and definition of the crime of genocide . . . bearing in mind that another body, the International Law Commission, has been charged with the responsibility of dealing with a cognate subject – namely, the formulation of

522

E/621

the principles of the Nürnberg Tribunal – and also with the preparation of a draft code of offences against peace and security. We wish that the Economic and Social Council, in swiftly completing its task of drawing up a convention on genocide, would not do anything which would prejudice the work of this latter body.” (Ibid. p. 241). The amendment submitted by China was adopted by the Assembly (see below). Question Four – The use to be made by the Economic and Social Council of the draft convention prepared by the Secretariat. In accordance with the draft resolution drawn up by Sub-Committee 2, the Economic and Social Council would have had “to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention, etc.” This text shows that, in the opinion of Sub-Committee 2, the Secretariat’s draft convention should be the basis for the work of the Council. The text of the draft resolution adopted by the Sixth Committee permitted the Economic and Social Council, as we have seen, to discard the idea of a separate convention on genocide. Nevertheless, should the Council decide in favour of such a convention, it should “consider . . . the draft convention on genocide prepared by the Secretariat, after having received comments from most of the Governments of States Members of the United Nations . . .” The amendment submitted by Egypt, Cuba and Panama, which was finally incorporated in the Assembly resolution, read: Requests the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention.

II – Resolution 180(II) adopted by the General Assembly on 23 November 1947 The vote was taken by roll-call.

E/621

523

The Chinese amendment was adopted by 29 votes to 15 with 8 abstentions. The joint amendment moved by Egypt, Cuba and Panama was adopted by 24 votes to 15 with 2 abstentions. The resolution as a whole was adopted by 38 votes to 0 with 14 abstentions. TEXT OF THE RESOLUTION THE GENERAL ASSEMBLY, REALIZING the importance of the problem of combating the international crime of genocide; REAFFIRMING its resolution 96(I) of 11 December 1946 on the crime of genocide; DECLARING that genocide is an international crime entailing national and international responsibility on the part of individuals and States; NOTING that a large majority of the Governments of Members of the United Nations have not yet submitted their observations on the draft Convention on the crime of genocide prepared by the Secretariat and circulated to those Governments by the Secretary-General on 7 July 1947; CONSIDERING that the Economic and Social Council has stated in its resolution of 6 August 1947 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide, subject to any further instructions which it may receive from the General Assembly, REQUESTS the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft Convention prepared by the Secretariat, and to proceed with the completion of a convention, taking into account that the International Law Commission, which will be set up in due course in accordance with General Assembly resolution 174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal, as well as the preparation of a draft code of offences against peace and security; INFORMS the Economic and Social Council that it need not await the receipt of the observations of all Members before commencing its work, and REQUESTS the Economic and Social Council to submit a report and the Convention on this question to the third regular session of the General Assembly.

524

E/621

ANNEX Observations of the Governments of States Members and communications from non-governmental organizations on the Secretariat’s draft Convention PART I – The Observations of Governments 1. Up to 20 January 1948 seven governments had sent their observations in answer to the Secretary-General’s invitation. They were: India – 27 August 1947 Haiti – 12 September 1947 Philippines – 9 September 1947 Venezuela – 12 September 1947 United States of America – 30 September 1947 France – 7 October 1947 Denmark – 4 December 1947

Document A/401 – 27 September 1947 id. Document A/401/Add.1 – 10 October 1947 id. Document A/401/Add.2 – 18 October 1947 Document A/401/Add.3 – 31 October 1947 This last reply has not yet been distributed.

The first six of these replies arrived early enough for submission to the General Assembly during its Second Session. 2. Two of the above-mentioned replies do not contain any observations on the substance: The Government of India confines itself to saying that it has “no comments to offer on the draft Convention.” The Government of the Philippines says that at the next session of the General Assembly its delegation will be “supplied with the materials on the subject” and will present “the views of the Philippine Government on the matter.” 3. The other five Governments (Haiti, Venezuela, United States of America, France, Denmark) agree on the need for or value of a Convention. In addition, they submit appraisals or suggestions relative either to the articles of the draft convention or to its principles. (a) The Government of Haiti proposes, firstly, that not only the State on whose territory acts of genocide have been committed, but also any other State party to the Convention, and the Secretary-General acting “on his own initiative, or in the name of members of the human group victims

E/621

525

of such acts,” may report the authors of such acts to the Economic and Social Council or the Security Council (Comment on Article IX). Secondly, it proposes that “the human groups affected”, as well as the parties to the Convention, may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes (Comment on Article XII). Generally speaking, the Government of Haiti envisages an extension of the scope of the draft Convention’s provisions. (b) The Government of Venezuela, on the contrary, is of opinion that the draft goes beyond the General Assembly’s resolution of 11 December 1946. “It . . . appears that the spirit of this resolution was to ensure that Members should prevent and punish the hateful acts that constitute genocide and establish a principle of international co-operation with this object in view, without demanding from Members a grave sacrifice of their sovereignty and a surrender of the criminal jurisdiction they exercise in their territory. The Secretariat drafts, on the other hand, appear to involve a partial surrender of these traditional principles of national and international law in favour of the establishment of an international repressive jurisdiction which may result in serious danger to Members and wound national feelings that are still over-sensitive.” The Government of Venezuela adds that “the whole system envisaged for the establishment of international justice in relation to genocide . . . seems clearly inconsistent with the principle laid down in paragraph 7 of Article 2 of the United Nations Charter”. Moreover, the Venezuelan Government recalls that its own legislation, like that of numerous other States, does not allow the extradition of its nationals, and subjects that of foreigners to certain conditions. “Such States could not accept the wording of Article VIII under which extradition must be granted in all cases.” (c) The Government of the United States of America examines each of the draft’s various Articles. Moreover, it submits a new text of the draft. In addition to its criticisms of the wording, the United States Government advocates the following solutions on matters affecting the substance:

526

E/621

1. It accepts the ideas of “physical genocide” and “biological genocide”, but generally rejects the idea of “cultural genocide”, retaining only one of the acts under this head, namely the “forced transfer of children to another human group.” 2. It opposes the inclusion among preparatory punishable acts of “studies and research for the purpose of developing the technique of genocide”, being of the opinion that these studies and researches may be too remote from what is generally regarded as commission of the offence. 3. It objects to incriminating “public propaganda”, which does not constitute direct incitement to genocide. Such incrimination would be contrary to the principle of free speech as understood in AngloAmerican law. 4. It proposes to supplement Article IV of the Secretariat draft in such a way as to make groups and organizations punishable as well as individuals. 5. While agreeing that a legal behest or superior orders do not constitute justification, it proposes that they should be considered as extenuating circumstances. (In support of this point of view it invokes Article 8 of Nürnberg Charter.) 6. The United States Government considers that Article [sic] VII and VIII of the Secretariat draft impose too great restrictions on the sovereignty of States. It therefore proposes: (a) that where a punishable act was committed outside the jurisdiction of a High Contracting Party having jurisdiction over the offender, that Party “may, subject to Articles VI, VII, and VIII, and with the express consent of the State where the act was committed, itself try and upon conviction punish such offender”; and (b) that extradition of offenders, though allowed as in the Secretariat draft, shall be granted only in accordance with the laws and treaties of the party which receives the request (on this last point the United States criticism coincides with that of Venezuela). 7. The United States is of opinion that reparations to injured groups should be fixed and allocated by the international criminal court, and not, as proposed in the Secretariat draft, by the United Nations. (d) In its commentary the Government of France regrets “that the question of genocide was not considered in correlation with the principles affirmed in the statute and sentences of the Nürnberg Tribunal, and as a

E/621

527

parallel to the conception of crime against humanity, of which genocide is merely one of the aspects”. It is of opinion that “this draft is too much concerned with introducing anti-genocide clauses into the body of domestic law of each State – clauses which would seem to be of no more than relative value since this crime can be committed only with the complicity of Governments”. It opposes the idea of cultural genocide, since this “invites the risk of political interference in the domestic affairs of States, and in respect of questions which, in fact, are connected with the protection of minorities”. It opposes the application of the idea of genocide to people other than rulers, and excludes agents, civil servants or private individuals. These last may be “prosecuted and punished by international courts (since the courts of their own countries take no action), but on a charge of murder and as common-law criminals”. (e) Declaring that it is not at present in a position to submit detailed comments on each of the articles of the draft, the Government of Denmark confines itself to saying that for its part it would have preferred the enumeration of punishable acts to have been shorter, since no such enumeration can ever be complete and exhaustive. This Government also observes that the adoption of a Convention of the kind represented by the draft would necessitate certain amendments to the present Danish penal code. PART II – Communications from Non-Governmental Organizations Several non-governmental organizations with consultative status have communicated their views to the Secretary-General. They are: Consultative Council of Jewish Organizations (document E/C.2/49, 30 July 1947) World Jewish Congress (document E/C.2/52, 8 August 1947) Commission of the Churches on International Affairs (document E/ C.2/63, 31 October 1947) World Federation of United Nations Associations (document E/C.2/64, 12 November 1947). All these organizations condemn genocide and request that a Convention for its effective prevention and suppression should be concluded as quickly as possible.

528

E/621

The Consultative Council of Jewish Organizations proposes that the draft Convention should be amended as follows: (a) Rulers or servants of a State who fail to employ the lawful means at their disposal to prevent or punish any offence under the convention should be deemed guilty. (b) If an individual is brought before a municipal court on a charge of genocide and is acquitted or sentenced to an insufficient penalty as the result of a manifest miscarriage of justice, the delinquent should be brought before the international criminal tribunal.

E/623

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

529

UNRESTRICTED E/623 30 January 1948 ENGLISH ORIGINAL: FRENCH

PREVENTION AND PUNISHMENT OF GENOCIDE COMMENTS BY GOVERNMENTS ON THE DRAFT CONVENTION PREPARED BY THE SECRETARIAT COMMUNICATIONS FROM NON-GOVERNMENTAL ORGANIZATIONS TABLE OF CONTENTS

Page INTRODUCTION ....................................................................... 531 CHAPTER I – GENERAL COMMENTS .................................. I – Opinions concerning the usefulness of a special convention on genocide and on the draft prepared by the Secretariat. ... II – The Secretariat’s draft goes beyond the General Assembly’s resolution of 11 December 1946 and encroaches, in some respects, on the sovereignty of States .................................... III – The Secretariat’s draft is too much pre-occupied with domestic penal provisions. .................................................. IV – The problem of genocide should be attached to that of the statement of the Nuremberg principles. ...............................

532 532

533 533 534

CHAPTER II – COMMENTS ON VARIOUS PROVISIONS IN THE DRAFT PREPARED BY THE SECRETARIAT ................. 534 ANNEX ......................................................................................... 556 SECTION I – COMMENTS BY GOVERNMENTS ................. 556 1. Denmark (4 December 1947) .............................................. 557 2. United States of America (30 September 1947) ................... 557

530 3. 4. 5. 6. 7.

E/623

France (7 October 1947) ...................................................... Haiti (12 September 1947) .................................................. India (27 April 1947) ........................................................... Philippines (9 September 1947) ........................................... Venezuela (19 September 1947) ...........................................

SECTION II – COMMUNICATIONS FROM NON-GOVERNMENTAL ORGANIZATIONS ......................... 1. Commission of Churches on International Affairs (1 October 1947) ................................................................. 2. World Jewish Congress (30 July 1947) ................................. 3. Consultative Council of Jewish Organizations (24 July 1947) ...................................................................... 4. World Federation of United Nations Associations ................

562 563 564 564 564

567 567 567 568 569

E/623

531

INTRODUCTION

1. In its resolution of 28 March 1947, the Economic and Social Council instructed the Secretary-General to prepare, with the assistance of experts in the field of international and criminal law, a draft convention on the international crime of genocide, and requested him to invite comments on this draft from all Member Governments. By 20 January 1948 seven replies from the following countries had reached the Secretariat: Denmark (4 December 1947) France (7 October 1947) Haiti (12 September 1947) India (27 August 1947) Philippines (9 September 1947) United States of America (30 September 1947) Venezuela (12 September 1947) It should be noted that two of the above-mentioned replies, those of India and the Philippines, contain no comments on the substance of the question. The seven replies are reproduced below in an annex. The present document reproduces the draft convention prepared by the Secretariat, adding the comments of the Governments to the Preamble and each of the Articles to which they refer. It begins by submitting general comments, arranged by subject, not relating specially to any particular article of the draft convention. 2. The replies of organizations having consultative status will also be found in the annex. These communications, of which there are four, were received from the following organizations: Commission of the Churches on International Affairs (1 October 1947). World Jewish Congress (30 July 1947). Consultative Council of Jewish Organizations (24 July 1947). World Federation of United Nations Associations (undated).

532

E/623

CHAPTER I GENERAL COMMENTS I. Opinions concerning the usefulness of a special convention on genocide and on the draft prepared by the Secretariat. 1. Denmark The Danish Ministry of Justice considers the draft convention on the crime of genocide which was prepared by the Secretariat (E/447), as a suitable basis.

2. France (1) A country with traditions as liberal as those of France, whose Constitution and institutions respect the equality of the human races, cannot but support a measure designed to prevent the recurrence of the racial persecutions whereby the Nazi regime covered Europe with blood and to make the commission of all similar crimes impossible. (2) . . . It considers that the draft convention submitted by the Secretariat is not so much a convention as a maximum programme from which future experts may draw the material for a convention: . . . It goes without saying that the French Government is willing to participate without delay in any discussion likely to lead to the drafting of a convention based on the foregoing considerations.

3. Venezuela The central ideas of the main draft follow a most noble and generous international trend, born of the experience of the last war, and deserve unqualified support; ... Venezuela is fully prepared, by its political traditions and by the liberality of its constitutional principles, to co-operate with other countries in the suppression of a hateful crime which should be highly repugnant to civilized nations. ... The Government of Venezuela gives its support in principle to the United Nations draft . . . .

E/623

533

II. The Secretariat’s draft goes beyond the General Assembly’s Resolution of 11 December 1946, and encroaches, in some respects, on the sovereignty of States. Venezuela The jurists’ impression of the United Nations Draft is that it goes beyond the General Assembly’s resolution of 11 December 1946. The Assembly affirmed that genocide is a crime under international law: invited the Member States to enact the necessary legislation for its prevention and punishment, and confined itself to recommending that international co-operation be organized for this purpose. It therefore appears that the spirit of this resolution was to ensure that Members should prevent and punish the hateful acts that constitute genocide and establish a principle of international co-operation with this object in view, without demanding from Members a grave sacrifice of their sovereignty and a surrender of the criminal jurisdiction they exercise in their territory. The Drafts of the Secretariat, on the other hand, appear to involve a partial surrender of these traditional principles of national and international law in favour of the establishment of an international repressive jurisdiction which may result in serious danger to Members and wound national feelings that are still over-sensitive. In the course of time, it is probable that future solutions of this type will be found; but they may be premature in the present phase of international life and politics and liable to cause friction, differences and disputes between States, which might be more dangerous to the cause of common peace and harmony than the very crimes which it is intended to suppress. Provision 3 of the Preamble, and Articles 7 and 12 of the Draft Convention are of this nature. The whole system envisaged for the establishment of international justice in regard to genocide also appears to be imbued with the same spirit, which seems clearly inconsistent with the principle laid down in paragraph 7 of Article 2 of the United Nations Charter. ... The Government of Venezuela gives its support in principle but, rather than the drafts prepared by the United Nations, would prefer a convention by which member States undertook to adopt national criminal legislation ensuring the punishment of genocide and to apply the appropriate penalties themselves. Only when States do not fulfil such obligations would there be cause for claims by other members or by the international organization.

III. The Secretariat’s Draft is too much preoccupied with domestic penal provisions. France “This draft . . .is too much preoccupied with the introduction into the domestic legislative arsenal of each State provisions against the crime of genocide.

534

E/623

The utility of such provisions would appear to be relative since the crime can only take place with the complicity of the government.”

IV. The problem of genocide should be attached to that of the statement of the Nurenberg principles. France . . .the French Government regrets that the study of genocide was not undertaken in correlation with the statement of principles contained in the Nuremberg Statute and the judgment of that Court, and in connection with the concept of crime against humanity, of which genocide is merely one aspect.

CHAPTER II COMMENTS ON VARIOUS PROVISIONS IN THE DRAFT PREPARED BY THE SECRETARIAT Draft Convention – Preamble The High Contracting Parties proclaim that Genocide, which is the international destruction of a group of human beings, defies universal conscience, inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the United Nations. 1. They appeal to the feelings of solidarity of all members of the international community and call upon them to oppose this odious crime. 2. They proclaim that the acts of genocide defined by the present Convention are crimes against the Law of Nations, and that the fundamental exigencies of civilization, international order and peace require their prevention and punishment. 3. They pledge themselves to prevent and to repress such acts wherever they may occur.

COMMENTS BY GOVERNMENTS 1. United States of America The Preamble, as drafted, is objectionable for the reason (a) that it is wordy, and (b) that it contains material of a substantive character which should be treated of in the body of the Convention. Thus, the first sentence purports to define Genocide, while Articles I and II of the Convention are also devoted to the definition of Genocide. Attention

E/623

535

is called to the fact that the important matter of “intent” is injected into the definition contained in the Preamble by the inclusion of the phrase “intentional destruction”, which in any event might better read “deliberate destruction or attempt to destroy.” The latter change would bring the definition contained in the Preamble more in harmony with the definition contained in the body of the Convention. (See Article II, dealing with “attempt to commit genocide”.) It is obviously not intended that groups must be totally destroyed before the crime of genocide exists. Another subject which appears to be inappropriately dealt with in the Preamble is that of “jurisdiction”, which might well be considered to be resolved by the sentence reading: “They pledge themselves to prevent and to repress such acts wherever they may occur.” (Underscoring added). The jurisdictional problems should be dealt with in the body of the instrument. Should the Preamble as drafted by the Secretary-General be insisted upon the United States would also object to the inclusion of the words “by depriving it of the cultural and other contributions of the group so destroyed”, language which tends to weaken the sentence in which it appears. A simply worded Preamble is favoured and the following substitute draft is suggested: “The High Contracting Parties declare that genocide constitutes a crime under international law, which the civilized world condemns, and which the Parties to this Convention agree to prevent and repress as hereinafter provided.” The language of the proposed draft is taken, in part, from the Resolution of the Assembly of December 13, 1946.

2. Venezuela . . . the jurists’ impression of the United Nations Draft is that it goes beyond the General Assembly’s resolution of 11 December 1946. The Assembly affirmed that genocide is a crime under international law: invited the Member States to enact the necessary legislation for its prevention and punishment, and confined itself to recommending that international co-operation be organized for this purpose. It therefore appears that the spirit of this resolution was to ensure that Members should prevent and punish the hateful acts that constitute genocide and establish a principle of international co-operation with this object in view, without demanding from Members a grave sacrifice of their sovereignty and a surrender of the criminal jurisdiction they exercise in their territory. The Drafts of the Secretariat, on the other hand, appear to involve a partial surrender of these traditional principles of national and international law in favour of the establishment of an international repressive jurisdiction which may result in serious danger to Members and wound national feelings that are still over-sensitive. In the course of time, it is probable that future solutions of this type will be found; but they may be premature in the present phase of international life and politics and liable to cause friction, differences and disputes between States, which might be

536

E/623

more dangerous to the cause of common peace and harmony than the very crimes which it is intended to suppress. Provision 3 of the Preamble, and Articles 7 and 12 of the Draft Convention are of this nature. The whole system envisaged for the establishment of international justice in regard to genocide also appears to be imbued with the same spirit, which seems clearly inconsistent with the principle laid down in paragraph 7 of Article 2 of the United Nations Charter.

Draft Convention – Article I Definitions I. The purpose of this Convention is to prevent the destruction of racial, national, linguistic, religious or political groups of human beings. II. In this Convention, the word “genocide” means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or development. Such acts consist of: 1. Causing the death of members of a group or injuring their health or physical integrity by: (a) Group massacres or individual executions; or (b) Subjection to conditions of life which, by lack of proper housing, clothing, food, hygiene and medical care, or excessive work or physical exertion are likely to result in the debilitation or death of the individuals; or (c) Mutilations and biological experiments imposed for other than curative purposes; or (d) Deprivation of all means of livelihood, by confiscation of property, looting, curtailment of work, denial of housing and of supplies otherwise available to the other inhabitants of the territory concerned. 2. Restricting births by: (a) Sterilization and/or compulsory abortion; or (b) Segregation of the sexes; or (c) Obstacles to marriage. 3. Destroying the specific characteristics of the group by: (a) Forced transfer of children to another human group; or (b) Forced and systematic exile of individuals representing the culture of a group; or (c) Prohibition of the use of the national language even in private intercourse; or (d) Systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or (e) Systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.

E/623

537

COMMENTS BY GOVERNMENTS 1. Denmark . . . considers the Draft Convention on the Crime of Genocide (E/447) which was prepared by the Secretariat, as a suitable basis for establishing international rules and organs to combat actions intended to destroy racial, rational, linguistic, religious and political groups. . . . it would prefer a briefer text regarding the punishable conditions, as a more elaborate summing-up, as the one indicated in the draft – although detailed – cannot be complete or exhaustive.

2. United States of America (1) Paragraphs I and II of Article I, as drafted, overlap each other and are objectionable for this reason. Thus, each paragraph deals with both “purpose” and the nature of the “act”. The two paragraphs should be consolidated. A text reading as follows, is suggested: “Genocide means any of the following criminal acts directed against a racial, national, religious, or political group of human beings, for the purpose of totally or partially destroying such group or of preventing its preservation or development.” In addition, the words “Such acts consist of:” should then be deleted as unnecessary, being replaced by the words “any of the following criminal acts” appearing near the beginning of the text just suggested. (2) The inclusion of “linguistic” groups is believed to be unnecessary, since it is not believed that genocide would be practiced upon them because of their linguistic, as distinguished from their racial, national or religious, characteristics. Racial, national and religious groups are covered, and that should be sufficient. (3) Considerable question has been raised as to whether “political” groups should be included in the definition. The United States is able to agree to the inclusion of political groups on the understanding that genocide as to such groups is confined to physical destruction. (4) It is important that the words “for the purpose of totally or partially destroying it or of preventing its preservation or development”, or some similar wording indicating “purpose” or “intent”, be maintained in the draft. (5) The words “physical violence” should be inserted before the words “mutilations and biological experiments” in paragraph (c) of paragraph II(1) of this Article, and the words “imposed for other than curative purposes” should be deleted. The inclusion of the words “physical violence” broadens the definition, to take care of other possible forms of physical violence and the elimination of the words “imposed for other than curative purposes” also broadens the definition. Biological experiments, however imposed, should be made criminal if they are part of a

538

E/623

plan to destroy one of the groups herein referred to, in whole or in part. The article “and” between “mutilations” and “biological experiments” should be changed to “or”. (6) The word “all” in paragraph II(1)(d) should be deleted. The inclusion of the word “all” in the phrase reading “deprivation of all means of livelihood”, would seem unduly to narrow the crime. (7) It is also considered that the word “compulsory”, in paragraph II(2), now modifying the word “abortion” only, should be made to modify all crimes listed under II(2), the initial line of the text thus being made to read: “Compulsory restriction of births by:” (8) The United States is opposed to the inclusion of paragraph 3 of Article I, relating to “Destroying the specific characteristics of the group” by different means, except as to paragraph (a) “forced transfer of children to another human group.” Paragraph (b) might be interpreted as embracing forced transfers of minority groups such as have already been carried out by members of the United Nations. Paragraphs (c), (d) and (e) relate generally to prohibition of the use of language, systematic destruction of books, and destruction or dispersion of documents and objects of historical or artistic value. The act of creating the new international crime of genocide is one of extreme gravity, and the United States feels that it should be confined to those barbarous acts directed against individuals which form the basic concept of public opinion on this subject. The acts provided for in these paragraphs are acts which should appropriately be dealt with in connection with the protection of minorities. Consequently, sub-paragraph (a) of this paragraph should be substituted for the whole of paragraph 3.

3. France . . . The French Government considers that the definition of genocide should be: (a) Limited to physical and biological genocide, for to include cultural genocide invites the risk of political interference in the domestic affairs of States, and in respect of questions which, in fact, are connected with the protection of minorities;

Draft Convention – Article II I. The following are likewise deemed to be crimes of genocide: 1. Any attempt to commit genocide; 2. The following preparatory acts: (a) Studies and research for the purpose of developing the technique of genocide;

E/623

539

(b) Setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; (c) Issuing instructions or orders, and distributing tasks with a view to committing genocide. II. The following shall likewise be punishable: 1. Wilful participation in acts of genocide of whatever description; 2. Direct public incitement to any act of genocide, whether the incitement be successful or not; 3. Conspiracy to commit acts of genocide.

COMMENTS BY GOVERNMENTS United States of America Article 2 as drafted is in two parts, namely (I) other crimes of genocide and (II) other punishable acts. It is considered desirable that the definition of genocide should be treated in Article I and that other unlawful acts related to but distinguishable from genocide proper be treated in Article II. The draft as submitted by the Secretary-General seems to assume that the acts described as genocide are punishable and unlawful. Thus the initial line of paragraph II as submitted reads: “The following shall likewise be punishable”. The Convention should contain a clear statement that the acts denominated as “genocide” are unlawful and punishable, as is done in the suggested draft. The preceding suggestions may be effectuated by causing the first line of Article II to read: “It shall be unlawful and punishable to commit genocide or to wilfully participate in an act of genocide, or to . . .” The above suggested language also places “wilful participation” in the sentence which declares genocide to be unlawful. The other specifications contained in Article II, paragraph I, as drafted should properly remain there. These include “attempts” and “preparatory acts” which appear to have the same relationship to genocide as “incitement” and “conspiracy” (contained in paragraph II) in that they are related to but distinguishable from genocide proper. However, it is suggested that sub-paragraph I(2)(a) as drafted “studies and research for the purpose of developing the technique of genocide”, should be deleted for the reason that it is considered that these acts may be too far removed from what is generally regarded as the commission of the offense. The conjunction “or” should be inserted before the word “manufacturing” in sub-paragraph (b); “or” should also be inserted in place of “and” before the word “distribution” in sub-paragraph (c). (Sub-paragraphs (b) and (c) would become sub-paragraphs (a) and (b) of paragraph 2.) Article II would then read:

540

E/623

“It shall be unlawful and punishable to commit genocide or to wilfully participate in an act of genocide, or to engage in any 1. Attempt to commit an act of genocide; or 2. Any of the following preparatory acts: (a) Setting up of installations, or manufacturing, obtaining, possessing or supplying or articles or [p. 14] substances, with the knowledge that they are intended for genocide; or (b) Issuing instructions or orders, or distributing tasks aimed to promote genocide; or 3. Direct and public incitement of any person or persons to any act of genocide, whether the incitement be successful or not, when such incitement takes place under circumstances which may reasonably result in the commission of acts of genocide; or 4. Conspiracy to commit an act of genocide.”

Draft Convention – Article III All forms of public propaganda tending by their systematic and hateful character to provoke genocide, or tending to make it appear as a necessary, legitimate or excusable act shall be punished.

COMMENTS BY GOVERNMENTS United States of America The United States considers that Article III should be deleted. Under AngloAmerican rules of law the right of free speech is not to be interfered with unless there is a clear and present danger that the utterance might interfere with a right of others. The United States has proposed under the preceding Article that the provision on “incitement” be qualified to this effect. When “propaganda” constitutes a clear and present danger it takes on the character of “incitement” and is covered in the preceding Article.”

Draft Convention – Article IV Those committing genocide shall be punished, be they rulers, public officials or private individuals.

COMMENTS BY GOVERNMENTS 1. United States of America It is unnecessary here to provide that those committing genocide “shall be punished”. Article II, as drafted above, makes it “unlawful and punishable”

E/623

541

to commit genocide. Moreover, the present Article as submitted makes only “genocide” punishable, while Article II above makes certain other acts “unlawful and punishable”. Accordingly, it is suggested that this Article be recast (and renumbered as Article III, [p. 14 ends] since it is recommended that Article III of the draft submitted be incorporated into Article II) to read as follows: “Punishment under this Convention shall be meted out to the guilty be they rulers, public officials, private individuals, groups or organizations”. The text submitted above has the advantage of making it clear that the Convention is applicable to “groups or organizations”.

2. France The French Government considers that the definition of genocide should be: ... b) Conditional on some culpable act or omission by the State. According to the French conception, the punishment of this crime, as such, should therefore be restricted to rulers, the agents themselves to be prosecuted and punished by international courts (since the courts of their own countries take no action) but on a charge of murder and as common law criminals.

Draft Convention – Article V Command of the law or superior orders shall not justify genocide.

COMMENTS BY GOVERNMENTS United States of America This Article, as drafted, is also limited to “genocide” and does not include the other acts specified in Article II as “unlawful and punishable”. Therefore it is suggested that instead of referring to “genocide”, the reference be to “the crimes set out in this Convention.” The Government of the United States also desires to incorporate the rule of the Nuremberg Charter (Article 8) which, while providing that superior orders shall not free a defendant from responsibility, goes on to say that this “may be considered in mitigation of punishment if the Tribunal determines that justice so requires.” The Article (renumbered Article IV) would then read: “Command of the law or superior orders shall be no defense for the crimes set out in this Convention, but may be considered in mitigation of punishment.”

542

E/623

Draft Convention – Article VI The High Contracting Parties shall make provision in their municipal law for acts of genocide as defined by Articles I, II, and III, above, and for their effective punishment.

COMMENTS BY GOVERNMENTS United States of America Here again it is submitted that some such formula as “acts probibited [sic] in this Convention” is broader and therefore more desirable than “genocide as defined by Articles I, II, and III, above”. It is suggested that the Article (renumbered Article V) be rephrased to read: “The High Contracting Parties shall make provision in their laws for the effective punishment, as crimes, of the acts prohibited in this Convention, which laws shall take into account all of the provisions of this Convention and each such High Contracting Party shall, subject to Articles VII and VIII, try and upon conviction punish offenses committed within its jurisdiction.”

Draft Convention – Article VII The High Contracting Parties pledge themselves to punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed.

COMMENTS BY GOVERNMENTS 1. United States of America This Article contains a broad jurisdictional provision. The United States agrees with the principle set forth in the Draft Convention, in Article IX, that where genocide is committed by or with the connivance of the State the accused individuals should be tried by an international court. All other cases would involve acts against the laws of the State where they are perpetrated. A second reason for opposing this provision as submitted is that it is obviously liable to be abused. The broad scope of genocide would make it relatively easy for a State to claim jurisdiction of aliens on this ground when the real purpose is political retribution. A third reason for opposing the provision is that it would apparently seek to establish a rule of law applicable to nationals of States which have not consented to it, namely, such States as may not ratify the Convention.

E/623

543

A suggested text on jurisdiction is contained above under the “Comment” on the preceding Article. It is suggested that the following be added to this suggested article: “Where such acts were committed outside its jurisdiction, the High Contracting Party having an offender within its jurisdiction may, subject to Articles VI, VII and VIII, and with the express consent of the State where the act was committed, itself try and upon conviction punish such offender.”

2. Venezuela . . . the jurists’ impression of the United Nations Draft is that it goes beyond the General Assembly’s resolution of 11 December 1946. The Assembly affirmed that genocide is a crime under international law: invited the Member States to enact the necessary legislation for its prevention and punishment, and confined itself to recommending that international co-operation be organized for this purpose. It therefore appears that the spirit of this resolution was to ensure that Members should prevent and punish the hateful acts that constitute genocide and establish a principle of international co-operation with this object in view, without demanding from Members a grave sacrifice of their sovereignty and a surrender of the criminal jurisdiction they exercise in their territory. The Drafts of the Secretariat, on the other hand, appear to involve a partial surrender of these traditional principles of national and international law in favour of the establishment of an international repressive jurisdiction which may result in serious danger to Members and wound national feelings that are still over-sensitive. In the course of time, it is probable that future solutions of this type will be found; but they may be premature in the present phase of international life and politics and liable to cause friction, differences and disputes between States, which might be more dangerous to the cause of common peace and harmony than the very crimes which it is intended to suppress. Provision 3 of the Preamble, and Articles 7 and 12 of the Draft Convention are of this nature. The whole system envisaged for the establishment of international justice in regard to genocide also appears to be imbued with the same spirit, which seems clearly inconsistent with the principle laid down in paragraph 7 of Article 2 of the United Nations Charter.

Draft Convention – Article VIII The High Contracting Parties declare that genocide shall not be considered as a political crime and therefore shall be grounds for extradition. The High Contracting Parties pledge themselves to grant extradition in cases of genocide.

544

E/623

COMMENTS BY GOVERNMENTS 1. United States of America The United States accepts the principle that the crimes defined in this Convention (not merely “genocide”) shall not be deemed to be political offenses. Because of the fact that extradition is a technical process, involving as it does the safe-guarding of human rights and the promotion of the administration of justice, with respect to which a large network of laws and treaties have been evolved, it is believed that instead of incorporating an entire extradition convention on the subject of the crimes covered by this agreement, it would be preferable to provide that each High Contracting Party pledges itself to grant extradition in these cases in accordance with its laws or treaties. The United States therefore suggests that this Article (renumbered VI) be recast to read: “The High Contracting Parties agree that the crimes defined in this Convention shall not be considered political crimes and shall be grounds for extradition. “Each High Contracting Party pledges itself to grant extradition in such cases, in accordance with its laws or treaties.”

2. Venezuela “The application of such extensive co-operation as that proposed by the instrument in question, is also subject to technical difficulties which appear difficult to overcome. For example, many States, Venezuela among them, maintain as a fundamental principle, the non-extradition of their nationals in any circumstances and in return, undertake to try them in their own territory when the act is punishable under their own law. Such States could not accept the wording of Article 8 under which extradition must be granted in all cases, nor could they surrender their nationals to international jurisdiction without violating the basic principles of their legal system. Even where foreigners are concerned, Venezuela does not grant extradition when the penalty of death or life-imprisonment may be imposed on the accused, in the country applying for it. Consequently, the provision contained in Article 38 of the Annex does not appear to provide sufficient guarantee to a State in such a position for the safeguarding of its cardinal principles in criminal matters.

Draft Convention – Article IX The High Contracting Parties pledge themselves to commit all persons guilty of genocide under this Convention for trial to an international court in the following cases:

E/623

545

1. When they are unwilling to try such offenders themselves under Article VII or to grant their extradition under Article VIII. 2. If the acts of genocide have been committed by individuals acting as organs of the State or with the support or toleration of the State.

COMMENTS BY GOVERNMENTS 1. United States of America It is submitted that the wording of the Article, as drafted, is faulty. The person is apparently to be found “guilty” of the crime before he is delivered up for trial by the international tribunal. It is suggested that a better wording would be a text reading somewhat as follows (renumbered Article VII): “Each High Contracting Party pledges itself to commit to such permanent or ad hoc international penal tribunal as is established pursuant to Article VII, persons charged with offenses under this Convention in the following cases: 1. Where the High Contracting Party is unwilling itself to try such alleged offenders, be they nationals or non-nationals, in conformity with Article V, or to grant their extradition in conformity with Article VI. 2. Where the alleged acts have been committed by individuals acting as organs of the State or with its support or toleration.” “The provisions of the present Convention shall not prejudice such jurisdiction as may be conferred upon the permanent international penal tribunal herein referred to.” The final paragraph of this proposed Article recognizes that it is desirable that the jurisdiction of the contemplated permanent international penal tribunal should not be prejudiced by provisions of the present Convention.

2. Haiti If none but the contracting parties are to report genocide committed by, or in complicity with one of them, the normal development of the Organization may be seriously prejudiced and the final establishment of international peace materially endangered. It is proposed to add the following paragraph to the two at present contained in this Article: In both cases, in addition to the State on whose territory acts of genocide have been committed, any one of the High Contracting Parties or the Secretary-General acting on his own initiative, or in the name of members of the human group victims of such acts, may report the authors of such acts to the Economic and Social Council or the Security Council.

546

E/623

3. Venezuela The whole system envisaged for the establishment of international justice in regard to genocide also appears to be imbued with the same spirit, which seems clearly inconsistent with the principle laid down in paragraph 7 of Article 2 of the United Nations Charter.

Draft Convention – Article X Two drafts are submitted (by the Secretariat) for this section: 1st Draft: The court of criminal jurisdiction under Article IX shall be the International Court having jurisdiction in all matters connected with international crimes.

2nd Draft: An international court shall be set up to try crimes of genocide (vide Annexes).

COMMENTS BY GOVERNMENTS 1. United States of America The provisions contained in the respective Annexes with reference to the subject of conferring on an international tribunal jurisdiction “in all matters connected with international crimes”, or jurisdiction “to try crimes of genocide” are extremely detailed. The task of drafting such a convention at least equals that of drafting a convention on genocide. That task should be undertaken as a task separate and apart from the drafting of a convention on genocide. The Report of the Committee on the Progressive Development of International Law and its Codification draws attention to the possible desirability of an international penal authority. Moreover, the attachment of such a convention to the instant agreement might well provoke such controversy as to cause the failure of adoption of the convention on genocide. For these reasons, the position is taken that it would be preferable to provide for the establishment of ad hoc tribunals to be superseded by a permanent international penal tribunal with appropriate jurisdiction at such time as this may be possible. That this is feasible, is demonstrated by the fact that the Nuremberg Tribunal was an ad hoc tribunal. While it would probably have been preferable for the nations to have had a previously established international penal tribunal to which those cases could have been referred, it is submitted that the problem of the institution of such a tribunal, competent

E/623

547

to try international crimes generally, is of such a magnitude as to necessitate a separate project, having the most careful consideration, and inviting the largest number of states possible to become party thereto. So far as the establishment of a permanent international penal tribunal is concerned, consideration should be given in the first instance to the subject by the proposed International Law Commission. The International Law Commission might well give consideration, in this connection, to the possible desirability of providing for injunctive relief and also of providing for recovery of damages on behalf of the victims or survivors of acts made unlawful by the present Convention. It is therefore suggested that an article be included in the Convention, reading somewhat as follows (Article VII): “The High Contracting Parties agree to take steps, through negotiation or otherwise, looking to the establishment of a permanent international penal tribunal, having jurisdiction to deal with offences under this Convention. Pending the establishment of such tribunal, and whenever a majority of the States party to this Convention agree that the jurisdiction under Article VIII has been or should be invoked, they shall establish by agreement an ad hoc tribunal to deal with any such case or cases. Such an ad hoc tribunal shall be provided with the necessary authority to indict, to try, and to sentence persons or groups who shall be subject to its jurisdiction, and to summon witnesses and demand production of papers and documents, and shall be provided with such other authority as may be needed for the conduct of a fair trial and the punishment of the guilty.”

2. Haiti The Government of Haiti favours the first draft in order to avoid the difficulties inherent in the constitution of provisional tribunals. It also considers that the International Court of Justice should have jurisdiction in all matters connected with international crimes or coming within the scope of international law.

3. Venezuela Nevertheless, the jurists’ impression of the United Nations Draft is that it goes beyond the General Assembly’s resolution of 11 December 1946. The Assembly affirmed that genocide is a crime under international law: invited the Member States to enact the necessary legislation for its prevention and punishment, and confined itself to recommending that international cooperation be organized for this purpose. It therefore appears that the spirit of this resolution was to ensure that Members should prevent and punish the hateful acts that constitute genocide and establish a principle of international co-operation with this object in view, without demanding from Members a grave sacrifice of their sovereignty and a surrender of the criminal

548

E/623

jurisdiction they exercise in their territory. The Drafts of the Secretariat, on the other hand, appear to involve a partial surrender of these traditional principles of national and international law in favour of the establishment of an international repressive jurisdiction which may result in serious danger to Members and wound national feelings that are still over-sensitive. In the course of time, it is probable that future solutions of this type will be found; but they may be premature in the present phase of international life and politics and liable to cause friction, differences and disputes between States, which might be more dangerous to the cause of common peace and harmony than the very crimes which it is intended to suppress . . . The establishment of international criminal jurisdiction to deal with these cases seems to be a step that should be reserved for the future, when the circumstances of international life are more favourable and the spirit of international co-operation in the legal sphere has, as is to be hoped, made further progress.

Draft Convention – Article XI The High Contracting Parties pledge themselves to disband any group or organization which has participated in any act of genocide mentioned in Articles I, II and III.

COMMENTS BY GOVERNMENTS United States of America Because of the possibility that members of organizations may use the organizations as tools in their endeavour to commit genocide, and the organization may thus be used unwittingly in the commission of the crime, it is thought that the draft should read (Article IX): [p. 24] “The High Contracting Parties pledge themselves to cause the disbandment of any group or organization which, by the judgment of any domestic or international tribunal acting pursuant to this Convention, has been found guilty of participating in any act prohibited by this Convention.”

Draft Convention – Article XII Irrespective of any provisions in the foregoing articles, should the crimes as defined in this Convention be committed in any part of the World, or should there be serious reasons for suspecting that such crimes have been committed, the High Contracting Parties may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations.

E/623

549

COMMENTS BY GOVERNMENTS 1. United States of America This Article involves the competence of the United Nations to take measures for the suppression or prevention of crimes falling within the scope of the Convention. It is suggested that a more satisfactory wording of Article XII would be (renumbered Article X): “The High Contracting Parties, who are also members of the United Nations, agree to concert their action as such members to assure that the United Nations takes such action as may be appropriate under the Charter for the prevention and suppression of genocide.”

2. Haiti If none but the contracting parties are to report genocide committed by, or in complicity with one of them, the normal development of the Organization may be seriously prejudiced and the final establishment of international peace materially endangered. There is also reason to believe that by granting greater freedom of action to the Secretary-General, who is directly responsible to the Assembly, the purposes of the United Nations will more easily be achieved and the progress of the Organization better ensured. With particular reference to the reporting of genocide, this [p. 24 ends] Department therefore supports the opinion of Mr. Pella and Mr. Lemkin as stated on page 46 of document E/447. The following wording is proposed: “Irrespective of any provisions in the foregoing articles, should the crimes as defined in this Convention be committed in any part of the world, or should there be serious reasons for suspecting that such crimes have been committed, the High Contracting Parties or the human groups affected may call upon the competent organs of the United Nations to take measures for the suppression or prevention of such crimes. “In such case the said Parties shall do everything in their power to give full effect to the intervention of the United Nations.”

3. Venezuela . . . the jurists’ impression of the United Nations Draft is that it goes beyond the General Assembly’s resolution of 11 December 1946. The Assembly affirmed that genocide is a crime under international law, invited the Member States to enact the necessary legislation for its prevention and punishment, and confined itself to recommending that international co-operation be organized for this purpose. It therefore appears that the spirit of this resolution was to ensure that Members should prevent and punish the hateful acts that constitute genocide and establish a principle of international co-operation

550

E/623

with this object in view, without demanding from Members a grave sacrifice of their sovereignty and a surrender of the criminal jurisdiction they exercise in their territory. The Drafts of the Secretariat, on the other hand, appear to involve a partial surrender of these traditional principles of national and international law in favour of the establishment of an international repressive jurisdiction which may result in serious danger to Members and wound national feelings that are still over-sensitive. In the course of time, it is probable that future solutions of this type will be found; but they may be premature in the present phase of international life and politics and liable to cause friction, differences and disputes between States, which might be more dangerous to the cause of common peace and harmony than the very crime which it is intended to suppress. Provision 3 of the Preamble, and Articles 7 and 12 of the Draft Convention are of this nature.

Draft Convention – Article XIII When genocide is committed in a country by the government in power or by sections of the population, and if the government fails to resist it successfully, the State shall grant to the survivors of the human group that is a victim of genocide redress of a nature and in an amount to be determined by the United Nations.

COMMENTS BY GOVERNMENTS United States of America It is suggested that this article is not sufficiently precise to be of value. The formulation of satisfactory procedures on this point is a matter of difficulty since while the International Court of Justice is normally the proper organ to award damages against a state, any jurisdiction which it might exercise in this case might result in conflict with a decision of the penal tribunal. It is though [sic] that attention should be given to the problem of damages by the International Law Commission in formulating plans for a permanent international penal tribunal. (See comment under Article X). Until such tribunal is formed it is proposed to vest the ad hoc tribunal referred to in the comment under Article X with jurisdiction to award damages. This could be done by adding the following provision to the article already proposed at that point (new Article VII): “In addition, such an ad hoc tribunal shall also be authorized to assess damages on behalf of persons found to have sustained losses or injuries as a result of the violation of this Convention by any High Contracting Party. Prior to the assessment of any such damages any State alleged to have violated the Convention, shall be given an opportunity to be heard and to submit evidence on its behalf. Each High Contracting Party agrees to pay such damages, and costs, as may be assessed against it as a result of

E/623

551

its failure to comply with the terms of the Convention. The ad hoc tribunal shall have authority to determine the method of distribution and payment of any amounts so awarded.”

[p. 27] Draft Convention – Article XIV Disputes relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice.

COMMENTS BY GOVERNMENTS United States of America The words “between any of the High Contracting Parties” should be inserted after the word “Disputes”. Only States may be parties to cases before the Court. Because of the jurisdiction which may be conferred upon an international tribunal, as indicated above, it seems desirable in order to prevent concurrent or conflicting jurisdiction, to add the following proviso to this Article: “provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to, and is pending before or has been passed upon by a tribunal referred to in Article VII.”

Draft Convention – Article XV The present Convention, of which the . . ., . . ., . . ., . . ., and . . ., texts are equally authentic, shall bear the date of . . .

COMMENTS BY GOVERNMENTS United States of America None.

Draft Convention – Article XVI (First Draft) 1. The present Convention shall be open to accession on behalf of any member of the United Nations or any non-member State to which an invitation has been addressed by the Economic and Social Council. 2. The instruments of accession shall be transmitted to the Secretary-General of the United Nations.

552

E/623

(Second Draft) 1. The present Convention shall be open until 31 . . . 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation has been addressed by the Economic and Social Council. The present Convention shall be ratified, and the instruments of ratification shall be transmitted to the Secretary-General of the United Nations. [p. 27 ends] 2. After 1 . . . 1948 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be transmitted to the Secretary-General of the United Nations.

COMMENTS BY GOVERNMENTS 1. United States of America Insert the phrase “to accede” after the word “invitation” in paragraph numbered 1 (First Draft), if it is to be adopted. The “Second Draft” is preferred. However, the phrase “to sign” should be inserted after the word “invitation” in paragraph 1, and the words “deposited with” should be inserted in the place of “transmitted to” in two instances, that is to say in the second and fourth unnumbered paragraphs. Whether the Economic and Social Council is the appropriate body to issue the invitations to sign the Convention will need to be determined at the time of the drafting of the agreement. Possibly the “General Assembly” should be substituted for the “Economic and Social Council.”

2. Haiti The Government of Haiti favours the second draft as being more explicit and providing a shorter time limit for the entry into force of the Convention as provided for by Article XVIII.

Draft Convention – Article XVII (Reservations) No proposition is put forward for the moment.

E/623

553

COMMENTS BY GOVERNMENTS United States of America The article on the subject of “reservations” should be omitted.

Draft Convention – Article XVIII 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of the accession (or . . . ratifications and accession) of not less than . . . Contracting Parties. 2. Accessions received after the Convention has come into force shall become effective as from the ninetieth day following the date of receipt by the Secretary-General of the United Nations.

COMMENTS BY GOVERNMENTS United States of America 1. In paragraph numbered 1, delete the words “the accession or …” and insert instead “instruments of ”. Also change “and” to “or”; and delete “s” in the word “ratifications”. It is believed that the Convention should provide for its coming into force upon the deposit of ratifications by a substantial number of States. It is suggested that 20 might be an appropriate number. 2. In paragraph numbered 2 insert the words “Ratifications or” before the word “Accessions” at the beginning of the paragraph. Also delete the words “receipt by” and insert instead “their deposit with” before the words “the Secretary-General of the United Nations” at the close of the paragraph.

Draft Convention – Article XIX (First Draft) 1. The present Convention shall remain in effect for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.

554

E/623

(Second Draft) The present Convention may be denounced by a written notification addressed to the Secretary-General of the United Nations. Such notification shall take effect one year after the date of its receipt.

COMMENTS BY GOVERNMENTS 1. United States of America The “First Draft” is preferred.

2. Haiti The Government of Haiti agrees to the first draft.

Draft Convention – Article XX Should the number of Members of the United Nations and non-member States bound by this Convention become less than . . . as a result of denunciations, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative.

COMMENTS BY GOVERNMENTS 1. United States of America It is suggested instead of the words “become less than . . .” the words “become fifteen or less” be inserted.

2. Haiti Article XX – The Government of Haiti considers that the Convention on Genocide is essential to the normal development of the world and the defence of mankind. Accordingly it proposes that the following paragraph should be added to Article XX as it now stands: “In that event the Secretary-General of the United Nations shall submit a new Convention to the vote of the General Assembly at its first subsequent session. Such new Convention shall take into account the reasons given for each one of the denunciations of the earlier Convention.”

Draft Convention – Article XXI A request for the revision of the present Convention may be made at any time by any State which is a party to this Convention by means of a written notification addressed to the Secretary-General.

E/623

555

The Economic and Social Council shall decide upon the measures to be taken in respect of such a request.

COMMENTS BY GOVERNMENTS United States of America The following alternative text is submitted: “Upon receipt by the Secretary-General of the United Nations of written communications from one-fourth of the number of High Contracting Parties, requesting consideration of the revision of the present Convention, and the transmission of the respective requests to the General Assembly, the Secretary-General shall transmit such communications to the General Assembly of the United Nations. “The General Assembly shall decide upon the steps, if any, to be taken in respect of such requests.”

Draft Convention – Article XXII The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XVI of all accessions (or signatures, ratifications and accessions) received in accordance with Articles XVI and XVIII, of denunciations received in accordance with Article XIX, of the abrogation of the Convention effected as provided by Article XX and of requests for revision of the Convention made in accordance with Article XXI.

COMMENTS BY GOVERNMENTS United States of America The following text is submitted for insertion in the place of this Article: “The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XIII of all signatures, ratifications and accessions received in accordance with Articles XIII and XIV, of the date upon which the present Convention has come into force, of denunciations received in accordance with Article XV, of the abrogation of the Convention effected as provided by Article XVI, and of requests for revision of the Convention made in accordance with Article XVII.”

Draft Convention – Article XXIII 1. A copy of the Convention signed by the President of the General Assembly and the Secretary-General of the United Nations shall be deposited in the Archives of the Secretariat of the United Nations.

556

E/623

2. A certified copy shall be transmitted to all Members of the United Nations and to non-Member States mentioned under Article XVI.

COMMENTS BY GOVERNMENTS United States of America The United States suggests the following redraft of this Article (renumbered XIX): 1. The original of this Convention shall be deposited in the Archives of the United Nations. 2. A certified copy thereof shall be transmitted to all Members of the United Nations and to non-member States referred to under Article XIII.

Draft Convention – Article XXIV The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

COMMENTS BY GOVERNMENTS United States of America None.

ANNEX Comments by Governments and Communications from Non-Governmental Organizations SECTION I COMMENTS BY GOVERNMENTS Note: Since the comments referring particularly to the Articles of the draft convention prepared by the Secretariat have already been attached to these Articles, it would serve no useful purpose to repeat them. Consequently, only the general comments by Governments or the drafts submitted by them will be found in this Annex.

E/623

557

1. Denmark (4 December 1947) The Permanent Delegation of Denmark presents its compliments to the Secretary-General and, referring to his note 605-8-1-1/EG of 21 August 1947 begs to inform him that the Danish Ministry of Justice considers the Draft Convention on the Crime of Genocide (E/447) which was prepared by the Secretariat, as a suitable basis for establishing international rules and organs to combat actions intended to destroy racial, national, linguistic, religious and political groups. The Ministry of Justice has expressed its desires to see the Danish Government manifest its willingness to continue the above-mentioned work. It does not think it possible, for the time being, to give any detailed comments to each specific rule in the draft. It therefore confines itself to stating that it would prefer a briefer text regarding the punishable conditions, as a more elaborate summing up as the one indicated in the draft – although detailed – cannot be complete and exhaustive. Finally the Ministry of Justice states that the adoption of a convention after the lines suggested in the draft, as far as Denmark is concerned, will necessitate appropriate amendments of the existing Penal Code.

2. United States of America (30 September 1947) Note: Since the comments on the preamble and each of the Articles of the draft prepared by the Secretariat have been reproduced in extenso in the main part of this memorandum, only the text of the draft convention proposed by the United States Government and submitted in an annex to its note is given here.

Preamble The High Contracting Parties declare that genocide constitutes a crime under international law, which the civilized world condemns, and which the Parties to this Convention agree to prevent and repress as hereinafter provided.

Article I Definitions I. Genocide means any of the following criminal acts directed against a racial, national, religious, or political group of human beings, for the purpose of totally or partially destroying such group, or of preventing its preservation or development: 1. Causing the death of members of a group or injuring their health or physical integrity by: (a) Group massacres or individual executions; or (b) Subjection to conditions of life wherein, by lack of proper housing,

558

E/623

clothing, food, hygiene and medical care, or excessive work or physical exertion the individuals are doomed to weaken or die; or (c) Physical violence, mutilations or biological experiments; or (d) Deprivation of means of livelihood, by confiscation of property, looting, curtailment of work, denial of housing and of supplies otherwise available to the other inhabitants of the territory concerned. 2. Compulsory restriction of births by: (a) sterilization and/or abortion; or (b) segregation of the sexes; or (c) obstacles to marriage. 3. Forces [sic] transfer of children to another human group.

Article II It shall be unlawful and punishable to commit genocide or to wilfully participate in an act of genocide, or to engage in any 1. Attempt to commit an act of genocide; or 2. Any of the following preparatory acts; (a) Setting up of installations, or manufacturing, obtaining, possessing or supplying of articles or substances, with the knowledge that they are intended for genocide; or (b) Issuing instructions or orders, or distributing tasks aimed to promote genocide; or 3. Direct and public incitement of any person or persons to any act of genocide, whether the incitement be successful or not, when such incitement takes place under circumstances which may reasonably result in the commission of acts of genocide; or 4. Conspiracy to commit an act of genocide.

Article III Punishment under this Convention shall be meted out to the guilty be they rulers, public officials, private individuals, groups or organizations.

Article IV Command of the law or superior orders shall be no defense for the crimes set out in this Convention, but may be considered in mitigation of punishment.

Article V The High Contracting Parties shall make provision in their laws for the effective punishment, as crimes, of the acts prohibited in this Convention, which

E/623

559

laws shall take into account all of the provisions of this Convention and each such High Contracting Party shall, subject to Articles VII and VIII, try and upon conviction punish offenses committed within its jurisdiction. Where such acts were committed outside its jurisdiction, the High Contracting Party having an offender within its jurisdiction may, subject to Articles VI, VII and VIII, and with the express consent of the State where the act was committed, itself try and upon conviction punish such offender.

Article VI The High Contracting Parties agree that the crimes defined in this Convention shall not be considered political crimes and shall be ground for extradition. Each High Contracting Party pledges itself to grant extradition in such cases, in accordance with its laws or treaties.

Article VII The High Contracting Parties agree to take steps, through negotiation or otherwise, looking to the establishment of a permanent international penal tribunal, having jurisdiction to deal with offenses under this Convention. Pending the establishment of such tribunal, and whenever a majority of the States party to this Convention agree that the jurisdiction under Article VIII has been or should be invoked, they shall establish by agreement an ad hoc tribunal to deal with any such case or cases. Such an ad hoc tribunal shall be provided with the necessary authority to indict, to try, and to sentence persons or groups who shall be subject to its jurisdiction, and to summon witnesses and demand production of papers and documents, and shall be provided with such other authority as may be needed for the conduct of a fair trial and the punishment of the guilty. In addition, such an ad hoc tribunal shall also be authorized to assess damages on behalf of persons found to have sustained losses or injuries as a result of the violation of this Convention by any High Contracting Party. Prior to the assessment of any such damages any State alleged to have violated the Convention, shall be given an opportunity to be heard and to submit evidence on its behalf. Each High Contracting Party agrees to pay such damages, and costs, as may be assessed against it as a result of its failure to comply with the terms of the Convention. The ad hoc tribunal shall have authority to determine the method of distribution and payment of any amounts so awarded.

Article VIII Each High Contracting Party pledges itself to commit to such permanent or ad hoc international penal tribunal as is established pursuant to Article

560

E/623

VII, persons charged with offenses under this Convention in the following cases: 1. Where the High Contracting Party is unwilling itself to try such alleged offenders, be they nationals or non-nationals, in conformity with Article V, or to grant their extradition in conformity with Article VI. 2. Where the alleged acts have been committed by individuals acting as organs of the State or with its support or toleration. The provisions of the present Convention shall not prejudice such jurisdiction as may be conferred upon the permanent international penal tribunal herein referred to.

Article IX The High Contracting Parties pledge themselves to cause the disbandment of any group or organization which, by the judgment of any domestic or international tribunal acting pursuant to this Convention, has been found guilty of participating in any act prohibited by this Convention.

Article X The High Contracting Parties, who are also Members of the United Nations, agree to concert their action as such members to assure that the United Nations takes such action as may be appropriate under the Charter for the prevention and suppression of genocide.

Article XI Disputes between any of the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice, provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to, and is pending before or has been passed upon by a tribunal referred to in Article VII.

Article XII The present Convention, of which the . . ., . . ., . . ., . . ., and . . ., texts are equally authentic, shall bear the date of . . .

Article XIII 1. The present Convention shall be open until 31 . . . 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the Economic and Social Council.

E/623

561

The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. 2. After 1 . . . 1948 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article XIV 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of instruments of ratification or accession of not less than twenty High Contracting Parties. 2. Ratifications or accessions received after the Convention has come into force shall become effective as from the ninetieth day following the date of their deposit with the Secretary-General of the United Nations.

Article XV 1. The present Convention shall remain in effect for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.

Article XVI Should the number of Members of the United Nations and non-member States bound by this Convention become fifteen or less as a result of denunciations, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative.

Article XVII Upon receipt by the Secretary-General of the United Nations of written communications from one-fourth of the number of High Contracting Parties, requesting consideration of the revision of the present Convention and the transmission of the respective requests to the General Assembly, the Secretary-General shall transmit such communications to the General Assembly of the United Nations.

562

E/623

The General Assembly shall decide upon the steps, if any, to be taken in respect of such requests.

Article XVIII The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XIII of all signatures, ratifications and accessions received in accordance with Articles XIII and XIV, of the date upon which the present Convention has come into force, of denunciations received in accordance with Article XV, of the abrogation of the Convention effected as provided by Article XVI, and of requests for revision of the Convention made in accordance with Article XVII.

Article XIX 1. The original of this Convention shall be deposited in the Archives of the United Nations. 2. A certified copy thereof shall be transmitted to all Members of the United Nations and to non-member States referred to under Article XIII.

Article XX The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

3. France (7 October 1947)* The Secretariat of the United Nations, by letter No. 605-S-1-1/EG of 21 August 1947, requested the French Government to submit such observations or comments as it might wish to make on the draft convention on the crime of genocide prepared by the Secretariat. The French Government has the honour to offer the following comments: 1. A country with liberal traditions like France, whose Constitution and institutions respect the equality of the human races, cannot but support a measure designed to prevent the recurrence of the racial persecutions whereby the Nazi regime covered Europe with blood, and to make the commission of all similar crimes impossible. 2. Nevertheless, the French Government, anxious to make the said convention more effective by clarifying it and placing in its proper framework, regrets that the question of genocide was not considered in correlation with the principles affirmed in the statute and sentences of the Nuremberg

* Document A/401/Add.3.

E/623

563

Tribunal, and as a parallel to the conception of crime against humanity, of which genocide is merely one of the aspects. It considers that the draft convention submitted by the Secretariat is not so much a convention as a maximum programme from which future experts may draw the material for a convention; moreover, this draft is too much concerned with introducing antigenocide [sic] clauses into the body of domestic law of each State – clauses which would seem to be of no more than relative value since this crime can be committed only with the complicity of Governments. The French Government considers that the definition of genocide should be: (a) Limited to physical and biological genocide, for to include cultural genocide invites the risk of political interference in the domestic affairs of States, and in respect of questions which, in fact, are connected with the protection of minorities; (b) Conditional on some culpable act or omission by the State. According to the French conception, the punishment of this crime, as such, should therefore be restricted to rulers, the agents themselves to be prosecuted and punished by international courts (since the courts of their own countries take no action), but on a charge of murder and as common-law criminals. It goes without saying that the French Government is willing to participate without delay in any discussion likely to lead to the drafting of a convention based on the foregoing considerations. If it refrains from lengthy comment on a subject which it feels deserves the most careful attention of the United Nations, it is because its representative on the Committee on the Progressive Development of International Law and its Codification has already submitted a memorandum on this subject, published by the Secretariat on 19 May last as document A/AC.10/29.

4. Haiti (12 September 1947)* In reply to your communication No. 605-8-1-1 EG, dated 21 August 1947 last, I have the honour to send you herewith some comments and suggestions regarding the Convention on Genocide which this Department feels called upon to submit to the General Assembly of the United Nations. The idea on which these changes are based is that the principal purpose of the United Nations is to maintain lasting peace in the world and to be a centre for harmonizing the actions of nations in the attainment of the common ends stated in Article 1 of the San Francisco Charter. If none but the contracting parties are to report genocide committed by, or in complicity with one of them, the normal development of the Organization

* Document A/401.

564

E/623

may be seriously prejudiced and the final establishment of international peace materially endangered. There is also reason to believe that by granting greater freedom of action to the Secretary-General, who is directly responsible to the Assembly, the purposes of the United Nations will more easily be achieved and the progress of the Organization better ensured. With particular reference to the reporting of genocide, this Department therefore supports the opinion of Mr. Pella and Mr. Lemkin as stated on page 46 of document E/447. Comment on the different articles of the draft prepared by the Secretariat are given in the main part of this memorandum.

5. India (27 August 1947)* The Minister for External Affairs and Commonwealth Relations presents his compliments to the Secretary-General of the United Nations and has the honour to say that the Government of India have no comments to offer on the draft Convention on the Crime of Genocide received with the Secretary-General’s note No. 605-8-1-1 EG, dated 7 July 1947.

6. Philippines (9 September 1947)* The Secretary of Foreign Affairs of the Philippines presents his compliments to the Secretary-General of the United Nations and has the honour to acknowledge the receipt of the Secretariat’s note (document No. 605-8-11/EG) of 21 August 1947, enclosing copy of the resolution adopted by the Economic and Social Council on 6 August 1947 on the draft Convention on the Crime of Genocide, calling upon Member Governments to submit as soon as possible to the Secretary-General their comments on the draft Convention. The Philippine delegation to the forthcoming General Assembly has been supplied with the materials on the subject and is believed to be in a position to present the views of the Philippine Government on the matter.

7. Venezuela (12 September 1947)* The Acting Minister for Foreign Affairs presents his compliments to the Secretary-General of the United Nations and has the honour to acknowledge receipt of note No. 605-8-1-1/EG, dated 21 August last, to which was attached a copy of the resolution adopted by the Economic and Social Council relating to the Draft Convention on the Crime of Genocide which

* Document A/401. * A/401/Add.1. * A/401/Add.1.

E/623

565

was transmitted to the Government with the Secretariat’s communication number 605-8-1-1/EG dated 7 July 1947. In accordance with the wishes expressed by the United Nations Secretariat, the Acting Minister transmits herewith a report containing the comments of the Venezuelan government regarding the said Draft Convention on the Crime of Genocide. REPORT DRAFT CONVENTION ON THE CRIME OF GENOCIDE With the assistance of experts in the field of international and criminal law and in compliance with the request expressed by the Economic and Social Council, the United Nations Secretariat prepared a Draft Convention on the crime of genocide and two annexes regarding the establishment of an International Court for the punishment of this new form of crime. The Secretariat observes that it is only intended to provide a basis for discussion and asks for the comments of Governments on such conventions. The central ideas of the main draft follow a most noble and generous international trend, born of the experience of the last war, and deserve unqualified support; as far as Venezuela is concerned, such fundamental concepts already constitute a national legal-political heritage, nurtured by those principles of individual equality, security and liberty which are a tradition of the political system of the Republic. Indeed, the most recent National Constitution of 5 July this year (Article 46, paragraph (b)) prohibits racial discrimination and generally extends to all inhabitants of the Republic, whatever their origin, nationality, race or religion, the same fundamental individual guarantees based on the widest equality. Consequently, Venezuela is fully prepared, by its political traditions and by the liberality of its constitutional principles, to co-operate with other countries in the suppression of a hateful crime which should be highly repugnant to civilized nations. Nevertheless, the jurists’ impression of the United Nations Draft is that it goes beyond the General Assembly’s resolution of 11 December 1946. The Assembly affirmed that genocide is a crime under international law: invited the Member States to enact the necessary legislation for its prevention and punishment, and confined itself to recommending that international cooperation be organized for this purpose. It therefore appears that the spirit of this resolution was to ensure that Members should prevent and punish the hateful acts that constitute genocide and establish a principle of international co-operation with this object in view, without demanding from Members a grave sacrifice of their sovereignty and a surrender of the criminal jurisdiction they exercise in their territory. The Drafts of the Secretariat, on the other hand, appear to involve a partial surrender of these traditional principles of national and international law in favour of the establishment of an international repressive jurisdiction which may result in serious danger

566

E/623

to Members and wound national feelings that are still over-sensitive. In the course of time, it is probable that future solutions of this type will be found; but they may be premature in the present phase of international life and politics and liable to cause friction, differences and disputes between States, which might be more dangerous to the cause of common peace and harmony than the very crimes which it is intended to suppress. Provision 3 of the Preamble, and Articles 7 and 12 of the Draft Convention are of this nature. The whole system envisaged for the establishment of international justice in regard to genocide also appears to be imbued with the same spirit, which seems clearly inconsistent with the principle laid down in paragraph 7 of Article 2 of the United Nations Charter. The application of such extensive co-operation as that proposed by the instrument in question, is also subject to technical difficulties which appear difficult to overcome. For example, many States, Venezuela among them, maintain as a fundamental principle, the non-extradition of their nationals in any circumstances and in return, undertake to try them in their own territory when the act is punishable under their own law. Such States could not accept the wording of Article 8 under which extradition must be granted in all cases, nor could they surrender their nationals to international jurisdiction without violating the basic principles of their legal system. Even where foreigners are concerned, Venezuela does not grant extradition when the penalty of death or life-imprisonment may be imposed on the accused, in the country applying for it. Consequently, the provision contained in Article 38 of the Annex does not appear to provide sufficient guarantee to a State in such a position for the safeguarding of its cardinal principles in criminal matters. Without examining the drafts at length, it appears desirable from every point of view that they should first be submitted to a deeper and more extensive study by one of the legal bodies of the United Nations, so that they may be carefully sifted and made acceptable to the greatest possible number of States. The Government of Venezuela gives its support in principle but, rather than the drafts prepared by the United Nations, would prefer a convention by which member States undertook to adopt national criminal legislation ensuring the punishment of genocide and to apply the appropriate penalties themselves. Only when States do not fulfil such obligations would there be cause for claims by other members or by the international organization. The establishment of international criminal jurisdiction to deal with these cases seems to be a step that should be reserved for the future, when the circumstances of international life are more favourable and the spirit of international co-operation in the legal sphere has, as is to be hoped, made further progress. If these views on the method of procedure are not accepted, Venezuela will study her possible final conclusions at greater length in the same spirit of full co-operation and defence of human integrity on which her political institutions are based.

E/623

567

SECTION II COMMUNICATIONS RECEIVED FROM NON-GOVERNMENTAL ORGANIZATIONS 1. Commission of the Churches on International Affairs* (Representing the World Council of Churches and The International Missionary Council) A letter to the Secretary-General dated 1 October 1947 (request for publication dated 29 October 1947) urges the General Assembly to act promptly in seeking acceptance of an effective convention to outlaw all forms of genocide. 2. World Jewish Congress (30 July 1947)** By letter of 30 July 1947, the World Jewish Congress submits a memorandum on the Draft Convention of the Crime of Genocide for the consideration of the present Session of the Economic and Social Council. The World Jewish Congress considers the speedy adoption of this Convention essential due to present dangers and states that final action, if at all possible, should be taken up at the forthcoming Session of the General Assembly. The Congress points out that international law does not, at present, contain any effective safeguards against the crime of genocide as in shown by the fact that the Nuremburg Tribunal stated that this crime was not punishable by it because its jurisdiction was restricted to crimes committee in connection with aggressive warfare. Domestic genocide legislation, while helpful, is insufficient since such crimes can hardly be committed contrary to the wishes of the highest national authorities, leaving no possibility for legal punishment by a domestic tribunal. The Congress further recommends that: (a) The law of genocide be co-ordinated with and not overlap into the field of human rights which is within the special competence of the Commission on Human Rights. (b) The Convention should specifically outlaw the systematic practice of forcibly separating children from their parents and bringing them up in a culture different from that of their parents.

* Document E/C.2/63 ** Document E/C.2/52

568

E/623

(c) That the United Nations make suitable arrangements for the suppression and punishment of genocide even if it occurs in territories which are not parties to the International Convention. (d) The doctrine of immunity of heads of states must be rejected as well as the defence of “superior orders”.

3. Consultative Council of Jewish Organizations (24 July 1947)* Letter 24 July 1947 to the Secretary-General, enclosing proposals for the consideration of the Economic and Social Council regarding the draft convention on the crime of Genocide prepared by the Secretary-General of the United Nations in pursuance of the Resolution of the Economic and Social Council dated 28 March 1947 (document E/447, 26 June 1947). The Consultative Council of Jewish Organizations, keenly interested in the General Assembly Resolution affirming that Genocide is a crime under international law and in the efforts to give immediate effect to this Resolution, submits for consideration of the Members of the Economic and Social Council, its proposals as follows: 1. that the words “political groups” be omitted from Article 1, Section 1, in order that the acceptance of the Convention may not be delayed by differences of opinion as to the definition of political groups; 2. that the Preamble be amended to include political as well as other grounds; 3. modification of Section 2, paragraph 3, since it is difficult to ascertain whether such acts as those listed therein are of a nature as to constitute cultural genocide, and in accordance with this thought, suggesting that in Article 4, Article 8, and Article 9, the term “Genocide” should be replaced by the words “an offense under this Convention” and that the following section should be added: “Rulers and public officials shall also be liable to punishment if they fail to employ every lawful means to prevent and punish offenses under this Convention”; 4. that to Article IX the following paragraphs 3 and 4 be added: “If individuals acting as organs of the State failed to employ all lawful means to prevent any offense under this Convention” and “If an individual was brought before a municipal court for an offense under this Convention but the court failed to convict him or to impose upon him a penalty commensurate with the crime as a result of a manifest miscarriage of justice”; and

* Document E/C.2/49

E/623

569

5. that to Article XI the following section be added: “Failure by the responsible officials to carry out this pledge shall be deemed to constitute an offense under this Convention”.

4. World Federation of United Nations Associations* (The following communication from the Federation is reproduced in full on quest of the delegation of India and the delegation of Panama). In submitting this communication the Federation stated: In bringing this memorandum to the attention of the United Nations, the World Federation does not imply that it urges acceptance of the present draft without amendment – in fact, certain changes would appear necessary in order to secure general agreement. We are, however, anxious that once the United Nations is seized with the question of Genocide it should give full consideration to this matter and if possible adopt a Genocide Convention as provided in the resolution adopted by the 1946 Assembly. A CALL FOR INTERNATIONAL ACTION AGAINST GENOCIDE A year ago, the General Assembly of the United Nations unanimously affirmed that Genocide – which means the deliberate and systematic destruction of racial, religious, national and other human groups – is a crime under the law of nations which all the civilized world condemns. The member States were requested to enact necessary legislation for the prevention and punishment of this crime in the future. The General Assembly also resolved that a draft Convention on the Crime of Genocide be submitted to it at its present Session. By these practical steps, the United Nations went boldly on record with its determination to bring under international protection a basic birthright – the right of existence of national, racial, religious and other human groups. The past has grimly demonstrated how this basic right and the spiritual heritage of human groups can be wiped out by tyrannical governments or by fellow-citizens blinded by racial hatred, religious and nationalistic intolerance. In an atmosphere of false peace, men, women and children have been massacred because they belonged to a different race, creed or nationality. Sources of cultural, national and religious inspiration have been obliterated by mass destruction of houses of worship, of treasures of art, of books, libraries, and by acts of violence inflicted upon spiritual leaders of communities.

* Document E/C.2/64

570

E/623

Throughout history, there has been no generally accepted law of nations which would provide the tools to deal effectively with such barbarism in peace and war alike. The time to act is now. The world must be made safe for a diversity of cultures, races, nationalities and creeds. With the proposed Convention on the Crime of Genocide the tools are provided. This law may not stop immediately all savagery, but it will start an era of progress and tolerance. Such a Convention, now before the General Assembly of the United Nations, might well become an international Magna Charta [sic] for life and culture – something that the world has long yearned for. We therefore urge that the United Nations act now on this great issue, and thereby redeem its solemn pledge to mankind. We call upon all men and women of good will to rally around the cause of the sanctity of human life. LUIS PODESTA COSTA, Professor, University of Buenos Aires, former Legal Adviser to the League of Nations CARLOS SAAVEDRA LAMAS, Professor, University of Buenos Aires, Nobel Prize for International Peace SAMUEL DUARTE, President, Chamber of Deputies, Brazil ARTURO ALESSANDRI, President of Senate, Chile JUAN ANTONIO COLOMA, President, Chamber of Deputies, Chile GABRIELA MISTRAL, Nobel Prize Literature, Chile LIN YUTANG, author, China BALDOMERO SANIS CANO, author, Colombia FRANCISCO FONSECA CHAMIER, President of Congresso Constitucional, Costa Rica MIGUEL A. SUAREZ FERNANDEZ, President of Senate, Cuba JOSE RAFAEL BUSTAMANTE, Vice-President of the Republic, President of Congresso Nacional, Ecuador CARLOS ANDRA DE MARIN, President, Camara Diputados, Ecuador EDOUARD HERRIOT, President, National Assembly, France FRANCOIS MAURIAC, de l’Academie Francaise, France ALDOUS HUXLEY, author, Great Britain DAVID RAMIRO CASTANEDA, President, Chamber of Deputies, Mexico ALFONSO REYES, author, Mexico PAAL BERG, Former President, Supreme Court, Norway SIGRID UNDSET, Nobel Price Literature, Norway HARMODIO AROSEMENA F., President, National Assembly, Panama COUNT FOLDE BERNADOTTE, President, Red Cross, Sweden PEARL BUCK, Nobel Price Literature, United States of America ROBERT G. SPROUL, President, University of California, Berkley, United States of America

E/623

571

QUINCY WRIGHT, Professor of International Law, University of Chicago, former adviser to United States Judge at International Military Tribunal at Nurnberg. ALEXANDER BELIC, President of Serbian Academy of Science, Belgrade – Dr. Belic signed in his own name and in the names of all members of the Academy.

572

E/622

AGENDA ITEM 31 Genocide Document E/622 Terms of reference given to the Council by General Assembly resolution 180(II). Note by the Secretary-General [Original text: French] [3 February 1948] Part I Terms of reference given by the General Assembly The following conclusions emerge from the terms of General Assembly resolution 180(II) of 23 November 1947.1

1

The concluding paragraphs of the General Assembly resolution are as follow: The General Assembly ... Considering that the Economic and Social Council has stated in its resolution of 6 August 1947 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide, subject to any further instructions which it may receive from the General Assembly, Requests the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention, taking into account that the International Law Commission, which will be set up in due course in accordance with General Assembly resolution 174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal, as well as the preparation of a draft code of offences against peace and security; Informs the Economic and Social Council that it need not await the receipt of the observations of all Members before commencing its work, and Requests the Economic and Social Council to submit a report and the convention on this question to the third regular session of the General Assembly.

E/622

573

I. Object of the terms of reference The Economic and Social Council is directed: 1. “To continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat”; 2. “To proceed with the completion of a convention”; 3. “To submit a report to the General Assembly.”

II. Time given for fulfilment of the terms of reference The Council is to submit its report and the completed convention to the third session of the General Assembly (September 1948). The Council must therefore complete its task during its seventh session, which will be held in July 1948. III. Conditions under which the Council must perform its task 1. The Council must take into account “that the International Law Commission, which will be set up in due course in accordance with General Assembly resolution 174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal, as well as the preparation of a draft code of offences against peace and security”. Observation The General Assembly rejected the idea of referring the question of genocide to the International Law Commission. Furthermore, as the Council must complete its task before the third session of the General Assembly, it will be unable to ask the International Law Commission’s advice, as that body will not be appointed until the third session of the General Assembly. In requesting the Council to take into account the task entrusted to the International Law Commission, the General Assembly’s intention was to prevent overlapping and encroachments and thus to ensure that the convention on genocide will be in harmony with the proposed code of offences against peace and security. 2. The Council need not await receipt of “the observations of all Members” before commencing its work.

574

E/622

Observation It is clear from this that the Council is not obliged to wait for a reply from all the Members. If this had to be done, the Council would in all probability be unable to complete its task before the opening of the third session of the Assembly. While making sure, however, that it completes its task in good time, the Council can, if it thinks fit, send a further reminder to governments to send in their observations if they wish them to be taken into account in the preparation of the convention. Part II Determination of the method of work to be adopted by the Council The essential task of the Economic and Social Council is the adoption of the final text of a convention before the third session of the Assembly. It is understood that only the States which wish to do so will become parties to the convention to be adopted by the General Assembly, but the Council should nevertheless endeavour to take into account the positions of all the governments, so that the largest possible number may feel able to accede to the convention. To this end it would seem advisable to ascertain the points upon which a large measure of agreement is possible, and to eliminate those on which such an agreement does not appear possible. Material at present available to the Council This material is as follows: 1. The draft convention prepared by the Secretariat with the assistance of experts (E/447), which has been communicated to governments; 2. The written observations of the governments on the said draft (there are seven of these observations – see document E/621, annex, part I, and document E/623, annex, section I); 3. The opinions expressed in the Sixth Committee and in plenary meeting of the General Assembly during its second session concerning both the above-mentioned draft and the general question of the prevention and punishment of genocide (see document E/621); 4. Communications from non-governmental organizations (see document E/621, annex, part II, and document E/623, annex, section II).

E/622

575

II. Questions to be settled by the Economic and Social Council In order to adopt a definitive draft convention for submission to the General Assembly, it appears that the Council must settle a certain number of questions of principle which are essentially political in nature. It can then determine the text of the convention. 1. Political questions The principal political questions are as follows: 1. What human groups should be protected? should [sic] all human groups, whether racial, national, linguistic, religious or political, be protected or only some of them? 2. Should the notions of “physical genocide”, “political genocide” and “cultural genocide” be accepted, or only some of them? 3. Should the convention aim only at the punishment of acts committed by rulers or also of acts committed by private individuals and officials? 4. Should jurisdiction be given to international tribunals to deal with acts of genocide? The scope of the convention cannot be defined until these questions have been settled. Who is qualified to settle the foregoing questions? These are political questions essentially within the competence of governments, and not requiring reference to specialists. The Economic and Social Council could itself decide these questions which, until they have been settled, will hold up the progress of the work. 2. Legal and drafting questions The drawing up of a convention raises a large number of questions of varying importance. Most of these questions have their political side, others are purely technical, but all have a juridical character and cannot be dealt with without the assistance of persons having a knowledge of general

576

E/622

international law and international penal law, and they will require due discussion with such experts. The Economic and Social Council will perhaps decide that the best method of procedure would be to set up an appropriate committee or working group.

E/623/Add.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

577

UNRESTRICTED E/623/Add.1 5 February 1948 ENGLISH ORIGINAL: FRENCH

GENOCIDE FRANCE: DRAFT CONVENTION ON GENOCIDE Article 1 – The crime against humanity known as genocide is an attack on the life of a human group or of an individual as a member of such group, particularly by reason of his nationality, race, religion or opinions, – which is committed, encouraged or tolerated by the rulers of a State. It may be committed and punished in times of war or peace. Its authors or their accomplices shall be responsible before International Justice. Article 2 – Any attempt, provocation or instigation to commit genocide is also a crime. Article 3 – Genocide shall be punished by the International Criminal Court. Article 4 – The International Criminal Court shall sit at The Hague. Its composition and the status of its judges are the subject of an annex to the present draft.* Article 5 – The International Criminal Court shall include an International Prosecutor’s Office with its seat at The Hague and remaining in permanent contact with the organs of the United Nations: – General Assembly, Security Council, Economic and Social Council, Secretariat. The composition of this International Prosecutor’s Office and the status of its members are defined in an annex to the present draft.* Article 6 – All indictments shall be addressed to the International Prosecutor’s Office. Before the opening of legal proceedings, an inquiry shall be ordered by the

* To be submitted later.

578

E/623/Add.1

International Prosecutor’s Office, which shall be fully empowered to name those conducting the inquiry, to determine its procedure and to ensure, in the absence of a contrary decision, the secrecy of its meetings. According to the findings of the inquiry and in the absence of guarantees or agreement, the International Prosecutor’s Office shall open proceedings before one or more judge-rapporteurs, appointed by the Court from amongst its members, who shall preside over an investigation to be conducted in the presence of the State whose rulers or nationals are implicated. In the absence of a contrary decision by the judge-rapporteur or rapporteurs, the investigation shall be held in secret. Article 7 – According to the conclusions of the investigation, and in the absence of guarantees or agreement, the dossier shall be passed to the Court by the judge-rapporteur or rapporteurs, who may not themselves pronounce judgment. In the absence of a contrary decision by the Court, the proceedings before the Court shall be public. Before passing any sentence, the Court may, particularly in cases where the proceedings have gone by default, make an informal or official recommendation to the State whose rulers or nationals are accused. The Court shall pronounce judgment in public, Judgment may include a penal sentence on the authors and accomplices, and, where appropriate, provision for reparations to the victims, whose safety the Court shall be empowered to secure in advance and at any stage of the proceedings, in cases of necessity and urgency, by means of conservatory measures. Article 8 – Each Member of the United Nations signatory to the present Convention undertakes to comply with the decisions of the International Criminal Court. Article 9 – Cases of non-compliance with the award may be brought before the Security Council by any Member of the United Nations and the Council may make recommendations or decide on the measures to be taken to ensure the execution of the judgment. Article 10 – Any action calculated to impede the execution of the judgment may be considered as an act of aggression under Article 51 of the Charter. Article 11 – The present Convention shall be ratified by the signatory States in conformity with their respective constitutional procedures. Ratifications shall be deposited with the Secretary-General of the United Nations.

E/623/Add.1

579

Article 12 – The present Convention shall come into force on the day following the receipt by the Secretary-General of at least . . . ratifications. Article 13 – Any Member of the United Nations may accede to the present Convention. Article 14 – States ratifying the present Convention after its entry into force shall be bound by its provisions as from the date on which they deposit their respective ratifications.

580

E/C.2/78

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/C.2/78 6 February 1948 ORIGINAL: ENGLISH

COMMITTEE ON ARRANGEMENTS FOR CONSULTATION WITH NON-GOVERNMENTAL ORGANIZATIONS LIST OF COMMUNICATIONS RECEIVED FROM NON-GOVERNMENTAL ORGANIZATIONS GRANTED CONSULTATIVE STATUS, IN CATEGORIES (b) or (c) (Note: This list is submitted in accordance with the provisions of Chapter IV, paragraph 4 of the Report of the Committee on Arrangements for Consultation with Non-Governmental Organizations, adopted by the Council on 21 June 1946 (E/43/Rev.2, 1 July 1946).)

World Jewish Congress (Congrès Juif Mondial) A memorandum on Genocide, dated 5 February 1948, submitted with a letter to the President of the Council, begins by reviewing the status of the Convention on Genocide, pointing out that the General Assembly adopted, on 11 December 1946, a Resolution on Genocide affirming that it is a crime under international law, and that the General Assembly has invited the Member States to enact legislation necessary for its prevention and punishment, and has requested the Economic and Social Council to undertake studies with a view to drawing up a Draft Convention to be submitted to the General Assembly. The Council instructed the Secretary-General to undertake these studies and to submit a Draft Convention. This Draft was distributed on 7 July 1947. The Council on 6 August called upon the Member States to submit their comments. Comments have been received from only a few governments The General Assembly, on 21 November 1947, adopted a Resolution re-affirming its previous Resolution, calling on the Council to continue its work and to proceed with completion of a Convention without waiting for the receipt of observations of Member States and to submit a report and Convention to the Third Regular Session of the General Assembly.

E/C.2/78

581

The Memorandum continues with suggestions for furthering the enactment of a Convention. It states that Genocide is being committed at present as shown by anti-Jewish outbreaks in Pakistan and other Moslem countries and that Jews are being subjected to a policy of extermination. The World Jewish Congress contends that the immediate conclusion of the Genocide Convention is imperative and that it is most important to deal with preparatory acts leading to the commission of genocide. The Congress makes certain observations on the Draft Convention and states that the only stipulation directly concerned with prevention is Article XII. All other provisions of a substantive nature deal with punishment and reparation after the acts of genocide have occurred. These provisions have a limited effect since it is obvious that if the Government of a country is directing or tolerating these acts, domestic courts will hardly punish the offenders. Means should be taken to strengthen the preventive effect of the Convention. The Memorandum concludes with suggestions to improve the effectiveness of the Convention and states that the only real means of prevention when genocide is the direct act of a Government or its connivance, is direct international action. It suggests that a supervisory body should be established for cases which might not come under the general competence of the organs of the United Nations. Such a body would supervise the activities of domestic courts, check on organizations aiming at or advocating genocide, disseminate information on means of preventing genocide, advise the Member States on such means, and consider petitions. Such a body would be of great preventive importance as it would focus international attention on preparatory acts leading to genocide and expose them to public criticism. The Congress proposes the following additional safeguards: (a) Contracting parties should obligate themselves to disband organizations which conduct propaganda activities intending to incite genocide; (b) Dismissal of any public official, member of an organization referred to in (a); (c) Obligations (a) and (b) as well as those in Articles I, II, and III of the Convention should be explicity [sic] recognized as of an international nature so that they could be invoked by the suggested supervisory body as well as by the signatories.

582

E/C.2/78

The Congress also makes certain observations and suggestions on various articles of the Draft as follows: (a) The exclusion of “political” groups. (Article I(I)) raises various difficulties. It should be made clear that such groups come under the Convention only to the extent to which they are identical with racial, religious, or linguistic groups. (b) Article I(III), point 1(b) needs implementation since a group of human beings may be destroyed not only by depriving them of all means but also by depriving them of some means of livelihood or they may be destroyed by more subtle means than those enumerated in point 1. Point 1(d) should be reworded as follows: (d) deprivation of means of livelihood, confiscation of property, discriminatory taxes, looting, boycott, curtailment of work or denial of housing or other supplies otherwise available to the other inhabitants of the territory concerned.

(c) Regarding Article IX(2) it is stated that if acts of genocide are committed with the support or tolerance of the State, that State will not commit the guilty persons for trial to an International Court unless forced to do so. If the question is referred to the International Court of Justice, it remains to determine how the decision of this Court may be implemented. It is therefore, suggested that the following Article be added to the Convention: In cases of a refusal of a state to comply with Article XIV, the International Court of Justice is authorized to pass judgment also in the absence of representatives of the respondent state. The contracting parties pledge themselves to do everything in their power to give full effect to the decisions of the Court.

(d) The Article as suggested in paragraph (c) above, should also apply to a refusal by the State to comply with the stipulation of Article XIII in order that reparations may be considered, even in cases when only nationals of the State are involved, as redress of an international wrong.

E/662

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

583

UNRESTRICTED E/662 12 February 1984 ORIGINAL: ENGLISH

GENOCIDE UNITED STATES OF AMERICA: PROPOSAL The representative of the United States proposes: 1. That the Economic and Social Council urge the member states which have not yet done so to transmit their comments on the earlier Secretariat draft of the Convention at the earliest possible moment. 2. That this Council should request the Secretary-General of the United Nations to produce, in the light of comments received from Governments, a new draft of a Convention, and 3. That the Council furthermore set up an ad hoc committee of the four countries, members of this Council, which to date have made substantive comments (France, Venezuela, Denmark and the United States) to collaborate with the Secretariat in producing this re-draft. 4. That this draft be completed in time for transmission to the next session of the Commission on Human Rights and that the Commission on Human Rights be asked to comment upon this new draft and to recommend any revisions which it deems desirable. 5. That this new draft of the Secretariat, as revised by the Commission on Human Rights, be transmitted for further action to the Seventh Session of the Economic and Social Council. It is hoped that this procedure will permit the Economic and Social Council to transmit to the Third Session of the General Assembly a draft Convention in such form as to permit the General Assembly to take final action on it.

584

E/662/Add.1

Document E/662/Add.1 United States of America: draft resolution [Original text: English] [13 February 1948] The Economic and Social Council Requests the Members of the United Nations which have not yet done so to transmit at the earliest possible date their comments on the draft convention prepared by the Secretariat (E/447); Requests the Secretary-General to prepare, in the light of comments received from governments, a second draft convention; Decides to set up an ad hoc committee consisting of the representatives of France, Venezuela, Denmark and the United States of America on the Council, to collaborate with the Secretary-General in preparing this draft, and Requests the Secretary-General to transmit the second draft to the third session of the Commission on Human Rights for any comment or revisions which the Commission may deem desirable, and to transmit it, together with the recommendations of the Commission on Human Rights, to the seventh session of the Council.

E/663

585

Document E/663 Venezuela: draft resolution [Original text: English] [13 February 1948] The Economic and Social Council, Taking cognizance of General Assembly resolution 180(II) of 23 November 1947, Establishes a Sub-Commission composed of the following members of the Economic and Social Council ............................................................. ; Instructs the Sub-Commission: (a) To meet at the Headquarters of the United Nations in order to prepare a draft convention on the crime of genocide, in accordance with the above-mentioned resolution of the General Assembly, and to submit to the next session of the Economic and Social Council this draft convention, after consultation with the Commission on Human Rights, and (b) To take into consideration, in the preparation of the draft convention, the draft convention prepared by the Secretary-General, the comments of the Member States on this draft convention, and other drafts on the matter submitted by any Member State; Requests the Secretary-General: (a) To take appropriate measures to enable the [l. 2] Sub-Commission effectively to carry out the tasks entrusted to it, mainly through the collaboration of the experts of the Secretariat who participated in the work of the draft convention submitted by him to the fifth session of the Economic and Social Council; (b) To express to the member States of the Sub-Commission the hope that their appointed representatives will be jurists of recognized competence in the field of international criminal law, and (c) To urge all Member States to present their comments on the draft convention prepared by him as soon as possible, having in mind the forthcoming meeting of the Sub-Commission, and to transmit to the Sub-Commission the comments received.

586

E/SR.139

ONE HUNDRED AND THIRTY-NINTH MEETING Held at Lake Success, New York, on Thursday, 12 February 1948, at 3.15 p.m. President: Mr. Charles Malik (Lebanon) 34. Genocide (E/447, E/621, E/622, E/623 and E/623/Add.1) General debate Mr. Pérez Perozo (Venezuela) outlined briefly the work accomplished by the United Nations with respect to the crime of genocide. As the Economic and Social Council had not received comments from various governments on the draft convention prepared by the Secretariat, it had been unable to consider the political questions involved, and had submitted the unaltered draft to the General Assembly at its second session. That draft had not been considered by either the Committee on the Progressive Development of International Law and its Codification or the Commission on Human Rights. After a lengthy discussion in the Sixth Committee, the General Assembly, in the light of the Council’s resolution 77(V), had once more referred the preparation of a draft convention on genocide to the Council. The Council should do its utmost to accomplish that task. No doubt existed that genocide was a crime and should be punished as such. Not only had it been condemned by two resolutions of the General Assembly, but a formal accusation of genocide had been made before the United Nations by a Member State. In its resolution 180(II) of 21 November 1947, the General Assembly requested the Council to prepare a draft convention without waiting for comments from Member States. It was clear that the Council’s task was an urgent one. It was necessary for the Council to decide upon its method of work. The Venezuelan delegation did not feel that the Council itself, or the Social Committee, could devote the necessary time, during the current session, to the drafting of a convention on genocide. That convention was the first of the projects initiated by the General Assembly under Article 13 of the Charter of the United Nations. It concerned a very delicate matter, which required careful, unhurried and profound study. The question of the sovereignty of States was involved. It was to be regretted that the study could not be undertaken by the Council with the assistance of the

E/SR.139

587

Committee on the Progressive Development of International Law and its Codification, or by the Sixth Committee of the General Assembly. As the Council had so submit to the General Assembly at its next session a draft convention that could be not only adopted by the Assembly, but also ratified by the greatest possible number of States, and as the problem was a serious and urgent one, Mr. Pérez Perozo suggested that the Council should set up a committee, composed of some of its members, who should be represented by legal experts, to draft a convention between sessions of the Council. The Commission on Human Rights should also be asked to consider the matter. The Council could approve, during its seventh session, the draft convention prepared by the committee. As working documents, the committee could use the draft convention prepared by the Secretariat (E/447), the drafts submitted by France (E/623/Add.1) and the United States [E/623, annex, section I(2)], and any others that might be presented to it ; the Secretariat draft might, in view of its legal value, be taken as a basis for discussion. It would be premature for the Council to discuss the substance of those documents just then. Mr. Laugier (Assistant Secretary-General in charge of the Department of Social Affairs) stated that the Secretariat draft convention had been prepared in accordance with the instructions of the General Assembly, which were couched in rather vague and general terms. As the Secretariat was not empowered to take political decisions, in the preparation of the draft convention it had left all such decisions to the Member States. Mr. Kotschnig (United States of America) stated that his Government was greatly interested in having genocide recognized as a crime punishable by international law, and had from the first supported the convention. It had also sent its comments on the Secretariat draft to the Secretary-General. He regretted that the Sixth Committee of the General Assembly had been unable to undertake the drafting of a convention on genocide, and that the International Law Commission, which would be equally competent to handle the task, was not yet in existence. He agreed that the Council would be unable to draft a convention during the current session, for reasons of time as well as technical competence. Moreover, while the resolution of the General Assembly made it unnecessary for the Council to await comments from governments, its task was made more difficult by the fact that comments on substance had been

588

E/SR.139

received from only five of the fifty-seven Member States of the United Nations. The United States delegation wished to make a proposal (E/662) similar to that of the Venezuelan representative: the Council should urge Member States to send in their comments on the draft convention prepared by the Secretariat; the Secretariat in the light of those comments, should prepare a second, and perhaps a shorter, draft, in collaboration with an ad hoc committee composed of the four States members of the Council which had already sent in their comments; that draft should be referred for comments and revision to the Commission on Human Rights, in time for its next session; it could then be considered by the Council at its seventh session, and submitted, as planned, to the General Assembly at its third session. Mr. Makin (Australia) recalled that the General Assembly, during the second part of its first session, had unanimously affirmed that genocide was a crime, and had requested the Council to undertake studies for a draft convention on the subject. He regretted that the task had not been entrusted to the International Law Commission; the General Assembly might yet call on that body for assistance. The Council should make use of all the draft conventions which had been presented to it. Mr. Makin reserved the right to make comments on specific points at a later time. He stressed that, while speed was essential, it was even more important to ensure that the convention adopted by the Council should be based on solid legal and moral principles which would command universal respect and would be enforced by all the Members of the United Nations. Mr. Ordonneau (France) stated that his Government supported the idea of a convention on genocide. He agreed that the drafting of such a convention could not be accomplished by the Council itself during its current session, and that a committee might be necessary for the preparation of a text. Before that committee could begin its task, however, the Council must first settle the various political questions which would inevitably arise. It was for the Council to decide, for example, what human groups were to be protected from genocide, whether all or only certain forms of genocide were to be considered, and what agency was to punish it. Such questions

E/SR.139

589

should be answered by the Council at its sixth session, for the guidance of the legal experts who would draft the actual text of a convention. He hoped that the draft convention submitted by his delegation (E/623/ Add.1) would be used in the preparation of that text. He agreed that the drafting committee should be composed of representatives of countries which had shown the greatest interest in the subject, and should sit between sessions of the Council. Mr. Katz-Suchy (Poland) stated that his country, as a recent victim of genocide, fully realized the gravity of that crime. It was because the Polish delegation was anxious to see quick action taken on the subject of genocide by the United Nations, that it had, in the past, accepted compromises in order to avoid disagreement which might prevent certain States from ratifying the convention. It wished that convention to be generally accepted and effectively applied. The draft convention prepared by the Secretariat was being studied by the Polish Government, whose comments would be forthcoming soon; certain points in that convention would call for political decisions. Mr. Katz-Suchy agreed that the Council should urge governments to submit their comments as soon as possible, and should set up a committee which, with the assistance of the Secretariat, and in the light of the comments received, should draft a convention which the Council could approve at its seventh session. Mr. Azkoul (Lebanon) observed that his country represented a harmonious amalgam of many racial groups, whose rights were respected; groups of Lebanese nationals, living abroad, adapted themselves to new conditions, while preserving their cultural traditions. Lebanon welcomed international action with respect to genocide. Resolution 96(I) of the General Assembly gave a very broad definition of the crime of genocide. The Lebanese delegation felt that, in order to qualify as genocide, an act of destruction of a group of human beings had to be inspired by fanaticism, whether of a racial, cultural, religious, political or other nature. Thus, the destruction of a group which had attacked a State from within was not genocide. The Lebanese representative stressed the importance of cultural genocide, which impoverished the whole world, and expressed the hope that a prominent place would be given to it in the draft convention.

590

E/SR.139

As regards the authority which was to punish genocide, he observed that private individuals should be brought before national justice, and statesmen before international justice. Mr. Sutch (New Zealand) congratulated the Venezuelan representative on the clarity and wisdom of his statement. He supported the proposal of a small committee, not necessarily composed of the four States members of the Council which had already sent in their comments, as had been suggested by the United States representative. It was desirable that the committee should represent a wider cross-section of the United Nations, and should have on it persons with considerable legal experience, who should collaborate with the Secretariat in drafting a convention on genocide. He stated that his Government would soon send its comments on the draft convention prepared by the Secretariat; he hoped that other governments would make their opinions known before the second draft was prepared. In conclusion, he expressed the hope that the new draft convention could be submitted to governments some time before the seventh session of the Council, in order to enable them to issue instructions to their representatives. Mr. Muniz (Brazil) observed that the crime of genocide had been condemned by the United Nations in principle. The concrete task of the Council was to prepare a report and a draft convention to be submitted to the General Assembly. Although comments from most States had not yet been received, the General Assembly had instructed the Council to proceed with its task without delay, rather than refer it to the International Law Commission for action in 1949, as had been done with other projects. The Council was concerned with genocide in times of peace, not of war. The convention had to be considered in two aspects, the political and the legal. Although the aid of some legal body appeared desirable, the General Assembly had considered the Economic and Social Council competent to draft a convention on genocide. Mr. Muniz agreed with the Venezuelan representative that the Council should set up a committee which would sit between sessions of the Council and, in collaboration with the Secretariat, would produce a draft convention on the basis of the Secretariat draft and of the comments made by

E/SR.139

591

governments on that draft. Those governments should be requested to send their comments to the committee without delay. While it could not be expected that such a convention would prevent genocide, any more than the criminal laws of various countries prevented crime, such considerations should not discourage the United Nations from taking action in the matter. The meeting rose at 6.15 p.m.

592

E/SR.140

ONE HUNDRED AND FORTIETH MEETING Held at Lake Success, New York, on Friday, 13 February 1948, at 10.30 a.m. President: Mr. Charles Malik (Lebanon) 35. Genocide (E/447, E/621, E/622, E/623 and E/623/Add.1) [continued] General debate (concluded) Mr. Davidson (Canada) pointed out that the question of drafting a convention on genocide had been submitted to the Economic and Social Council more than a year previously. He agreed with the Polish representative that the convention ought to be drafted in such a form as to receive unanimous support. It would be disastrous if so important a convention were to suffer the fate of preceding ones which had not been ratified by all governments. Thanking the Assistant Secretary-General for the clarifications he had given at the previous meeting, Mr. Davidson said that the Council had before it a very detailed and comprehensive draft upon which to take a decision. In his opinion, however, a more limited interpretation of the term “genocide” would be preferable. Referring to the question raised at the 139th meeting by the representative of France, he said he too thought that certain decisions of a political nature ought to be taken at a plenary meeting before a drafting committee could prepare the draft convention. Pointing out that only a few governments had forwarded comments on the draft convention, he suggested that the Council ought to urge governments to send in their recommendations as soon as possible. Their communications would be placed at the disposal of the drafting committee, which would study them and take them into account as far as possible in drafting the text. Concerning the nature of the proposed committee, Mr. Davidson favoured the suggestions already made by other representatives to the effect that such a committee should be composed of members of the Council and should be able to meet between the sessions of the Council. He thought

E/SR.140

593

the committee should be small, but not necessarily limited to the four representatives of the governments which had sent in their observations first. A committee of four would not represent all the opinions expressed in the Council. Moreover, as the question of genocide raised a problem of international law, he felt that the co-operation of legal experts would be necessary. Regretting that the International Law Commission, already mentioned by other representatives, was not yet in existence, he thought that the Legal and Social Affairs Departments of the Secretariat, and certain groups of experts who had already co-operated with the Secretariat, could be of great assistance to the committee in its task. He considered that the study of the nature and terms of reference of the drafting committee should be left to the Council’s Social Committee. In fact, the setting up of the drafting committee seemed to the Canadian delegation to be the only matter before the Council at that juncture. Mr. Chang (China), recalling the tragic history of the Chinese people’s long years of oppression under Japanese imperialism, and pointing out that final victory had not been accompanied by any reprisals on the part of the Chinese, drew attention to the fact that, in addition to wholesale massacres – pure and simple acts of genocide – the Japanese Government had made use of narcotics in its attempts to exterminate the Chinese people. He therefore thought that narcotics ought to be clearly mentioned in the draft convention as a means of genocide. He regretted having to point out the tendency in the Press in recent months to recreate an idyllic picture of Japan and the Japanese people. He did not wish to investigate the purposes of such a manœuvre, but thought it necessary to beware of so dangerous a tendency if all possibility of repetition of the tragic past was to be avoided. The Chinese delegation supported the draft resolutions submitted by the United States (E/662/Add.1) and Venezuela (E/663). Mr. Mayhew (United Kingdom) recalled that the views of the United Kingdom delegation, which had already at the second session of the General Assembly expressed its doubts as to the value of such a convention, had not changed. However, he did not think that the members of the Council would interpret that attitude as one of indifference to the crime

594

E/SR.140

of genocide: the history and liberal tradition of the United Kingdom would suffice to prove the contrary. If the opinion of his delegation differed, the sole reason was that, though anxious to eliminate once and for all the crime of genocide, it doubted the value of the draft convention proposed for that purpose. He recalled that in General Assembly resolution 96(I) of 11 December 1946, genocide was qualified as a crime under international law. He wondered what further sanctions the proposed convention could provide. He feared that, on the contrary, it might have the reverse effect and only serve to weaken the force of international law. Not only would the convention be a difficult document to draft, but it would also lend itself to diverse interpretations and would run the risk of not being ratified by all governments. He thought that it would not achieve the purpose intended by the members of the Council. In his view, the problem before the Council was one of procedure. The task of drafting the convention raised many difficulties: obtaining the ratification of all the governments, completing the work in time, avoiding overlapping with the work of the future International Law Commission. For these reasons, Mr. Mayhew considered that the Secretariat’s draft, which was so wide in its range, went too far and lacked realism: it attempted to create a whole new set of international laws. He thought it essential to make some division in the definition of the term “genocide”. Whereas genocide in its absolute – or “biological” – sense was more correctly the province of the International Law Commission, to be set up by the General Assembly at its next session, he thought that the other crimes which could not be separated from genocide were more properly the concern of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, a sub-commission for the Human Rights Commission. In his view it was essential to differentiate between those two categories and distribute the preparatory work accordingly. He realized that such a method would take time, but though it preferable that the Council should base its studies upon existing international law rather than on a vast and vague draft convention which might not receive the approval of all governments. Moreover, the method proposed by the United Kingdom delegation would eliminate the danger of overlapping with the work of existing bodies.

E/SR.140

595

Mr. van der Mandele (Netherlands) supported the proposal submitted by the representative of the United Kingdom. The two bodies mentioned therein would in fact be in a better position than the Council to engage in the work of preparing the draft convention, which required the assistance of legal experts. Moreover, the question was not as urgent as some representatives appeared to believe, since both General Assembly resolution 96(I) and the Charter of the Nürnberg Tribunal had already declared genocide to be a crime under international law. At any rate, if the Council decided to adopt the French proposal, the Netherlands delegation declared itself ready to take part in a debate at a plenary meeting. Mr. Borberg (Denmark) wished only to state that Denmark, suggested in the United States draft resolution (E/662/Add.1) as a member of the ad hoc committee to collaborate in re-drafting the convention, would be glad to give up its place on the committee to a country more experienced in the matter. He did not think that membership of the committee should be limited to the governments which had already made substantive comments. Mr. Borberg suggested that either Poland or Canada, or even both those countries, might be appointed to the committee. Mr. Arutiunian (Union of Soviet Socialist Republics) thought that the Council was in no position to discuss the matter thoroughly during the current session, and he expressed his satisfaction at finding that the majority of the Council was in agreement on that point. There was not, at that stage, any document which could serve as a basis for discussion. Furthermore, the fact that many governments had not yet made their comments on the draft convention proved that they were not ready to discuss the question in the way the nature of the problem required. Only seven countries had made comments, some of which were practically limited to amendments to the text. Furthermore, he thought that the definition of genocide given by the Secretariat was much too wide; it was wider in that draft convention than in the General Assembly resolution, which had to be used by the Council as a guide in its work. In his opinion, the widening of the conception might in the end cause the exact notion of the crime of genocide to become lost in definitions of too wide a nature behind which perpetrators of the crime

596

E/SR.140

could take refuge. He thought that the draft was lacking in realism and that the widening of the definition of genocide was dangerous in that it might hinder the fight against real genocide and divert the members of the Council from the aim to be pursued. He wished to emphasize the importance of the need to prevent the crime of genocide by fighting against discrimination and not tolerating the stirring up of hatred against certain groups, which finally led to genocide. He thought that governments should take measures to develop friendly relations, not only between nations but between racial, national, religious and other groups living within the State. Pointing out that the Constitution of the Union of Soviet Socialist Republics not only ensured equality between all groups within the nation, but protected them by law against any discrimination, direct or indirect, he gave it as his opinion that any discriminatory measure, of any kind whatsoever, should be abolished. Such a struggle against the stirring up of hatred was a fundamental task of the Member Governments desirous of preventing the crime of genocide. He pointed out that there was a very close relationship between the modern notion of genocide and the fascist ideology, and he considered that no effective struggle could be carried on against the crime of genocide without at the same time combating the fascist organizations which existed in many countries. The link between the fascist ideology and genocide was undeniable and he emphasized the necessity of combating fascist ideology and organizations. He hoped that the Council would find occasion to mention that fact when defining the crime of genocide. He noted that two points of view had hitherto been expressed as regards the method of preparing the draft. The first, which prevailed in the Council, was that it was necessary to prepare the draft very carefully in order that the largest possible number of States might feel able to subscribe to it. Those who held that point of view had revealed the fact that their main objective was to prepare a document acceptable to the majority, if not to all, of the States. It would indeed be foolish to speed up work on preparing the draft without taking into account the fact that the majority of Member States had not yet submitted comments. Another point of view was expressed in the idea, set forth in the third paragraph of the United States draft resolution (E/662/Add.1); that an ad hoc committee should be set up consisting of the four countries,

E/SR.140

597

members of the Council, which to date had made substantive comments. He thought that a question as important as the setting up of a committee to collaborate with the Secretariat in producing a re-draft of the convention should not be treated lightly. The draft would be submitted for ratification by fifty-seven Member States and not by four. In his opinion, the preparation of the documents on which the convention was to be based should be entrusted to certain organs of the Economic and Social Council. He thought that the Commission on Human Rights seemed to be the organ best qualified to undertake that task. The Soviet Union delegation therefore formally proposed that the task should be delegated to the Commission on Human Rights, which would work with the assistance of the Secretariat. The Soviet Union delegation reserved its observations on the substance of the question for a later occasion. Mr. González (Chile) stated that, if the proposal to set up a committee was adopted, as he hoped it would be, that committee should obtain the assistance of the most eminent jurists in international and penal law. The Council might make a recommendation to that effect. Mr. Boris (France) said that France associated itself with the United States draft resolution, which met the general wish for rapid action. Public opinion would interpret delays due to procedural questions as unwillingness, if not refusal, to apply the principles of the Charter of the United Nations. The Council could take no other measures without disobeying the wish expressed by the General Assemby [sic]. On the other hand, the ad hoc committee envisaged in the United States proposal was undoubtedly too small and would gain in authority if it included a larger number of representatives of the countries concerned. It would be desirable, for instance, for the representatives of one country of the East and one country of the Middle East to participate in that committee. In order that the committee and the Secretariat might fulfil their task within the prescribed time limit, it was essential that certain points should be clarified. The Canadian representative had pointed out that certain members of the Council could not state their views on questions of principle without instructions from their governments.

598

E/SR.140

It would however be imprudent to impose responsibilities on the committee and the Secretariat without seeing to it that they were able to assume them. Unless the Council expressed its views clearly, the document which was to be drafted would not be sufficiently close to the final text which the Council had been instructed to submit to the General Assembly. The President stated that the Council had before it draft resolutions submitted by the United States of America (E/662/Add.1), Venezuela (E/663) and a U.S.S.R. proposal, and proposed that the question should be referred to the Social Committee, which might ask the authors of the various proposals to meet in order to draft a joint resolution. The Council would wait for the Social Committee to communicate its observations. It was so agreed.

E/622/Add.1

599

Document E/622/Add.1 Draft convention: statement of financial implications submitted by the Secretary-General [Original text: English] [20 February 1948] The work contemplated in connexion with the draft convention on genocide can be executed within the existing budgetary provisions.

600

E/AC.7/65

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.7/65 21 February 1948 ORIGINAL: ENGLISH

GENOCIDE (Item 31) UNITED KINGDOM AMENDMENT TO VENEZUELAN DRAFT RESOLUTION (E/663) The United Kingdom Delegation proposes the addition of the following sub-paragraph (c) to the paragraph of the Venezuelan resolution (document E/663) beginning “Instructs the Sub-Commission”. To take into consideration the possible desirability of referring genocide stricto sensu to the International Law Commission, and other aspects of genocide under the draft prepared by the Secretariat to the Sub-Commission on Discrimination of the Human Rights Commission.

E/AC.7/SR.37

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

601

UNRESTRICTED E/AC.7/SR.37 26 February 1948 ORIGINAL: ENGLISH

Sixth Session SOCIAL COMMITTEE SUMMARY RECORD OF THE THIRTY-SEVENTH MEETING Lake Success, New York Saturday, 21 February 1948, at 2.45 p.m. Chairman: Mr. KAMINSKY

(Byelorussian Soviet Socialist Republic) Present: Australia Mr. HARRY Brazil Mr. GUERREIRO Byelorussian Soviet Socialist Republic Mr. KAMINSKY Canada Mr. ROY Chile Mr. MAQUIEIRA later Mr. SANTA CRUZ China Mr. CHA Denmark Mr. FRIIS France Mr. BORIS Lebanon Mr. AZKOUL Netherlands Mr. van der MANDELE New Zealand Mr. SUTCH Peru Mr. LABARTHE Poland Mr. RUDZINSKI Turkey Mr. KURAL United Kingdom Mr. MAYHEW United States of America Mr. KOTSCHNIG later Mr. STINEBOWER Union of Soviet Socialist Republics Mr. BORISOV Venezuela Mr. PEREZ PEROZO Consultants of Non-Governmental Organizations: World Federation of Trade Mr. FISCHER and Union Miss SPEIGEL

602

E/AC.7/SR.37

Secretariat:

Mr. HUMPHREY

Director, Division of Human Rights Mr. STANCZYK Director, Department of Social Affairs Mr. MESSING-MIERZEJEWSKI Secretary of the Committee

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing within the prescribed period to Mr. Delavanay [sic], Director, Editorial Division, Room CC-87, Lake Success, Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

E/AC.7/SR.37

603

CONSIDERATION OF DRAFT RESOLUTIONS SUBMITTED BY UNITED STATES (E/662) AND VENEZUELA (E/663) ON A CONVENTION ON GENOCIDE Mr. PEREZ PEROZO (Venezuela) wished to clarify certain points in the Venezuelan draft resolution. The document made it clear that the number and the countries which should be represented in the proposed Sub-Commission were left entirely to the decision of the Social Committee. In the opinion of the Venezuelan delegation, the Sub-Commission would be best constituted by including the Five Great Powers as well as other countries, so as to represent as far as possible the different legal systems of the world. He was convinced of the necessity of having the Great Powers represented in the Sub-Commission, inasmuch as the convention on genocide would have an essentially political content. In view however of the world-wide importance of the problem of genocide, other countries too should participate in the Sub-Commission’s discussions in order to ensure not only representation of various legal systems but also adherence to the principle of geographical distribution. The fact that certain countries had not yet commented on the draft convention of the Secretary-General did not necessarily signify a lack of interest on their part. The Venezuelan delegation had carefully studied the question as to how many countries should be represented on the Sub-Commission. If there were too many, the discussions might become protracted and if there were too few all the opinions and trends of thought of the fifty-seven members of the United Nations might not be adequately covered. The Venezuelan delegation therefore proposed that the Sub-Commission should be composed of nine members, as follows: the five Permanent Members of the Security Council; Lebanon, representing the Arab countries, Brazil, representing Latin America; Denmark, representing the Scandinavian countries; and New Zealand representing the South Pacific. His delegation was particularly concerned to see that representatives of countries which had shown less inclination to support the idea of the convention should be included on the Sub-Commission. He referred especially to the United Kingdom and the USSR, both of which, while showing their keen interest in the prevention and punishment of the crime of genocide, seemed sceptical as to the results to be obtained by a convention.

604

E/AC.7/SR.37

As stated in the Venezuelan resolution, it seemed advisable that the Sub-Commission should meet at Lake Success, where it would have the advice and collaboration of the experts who had helped the SecretaryGeneral in the preparation of the original draft convention. No date had been mentioned for the setting up of the proposed Sub-Commission, as its establishment was closely related to the work of the Commission on Human Rights, with which it should have close relations. The object in mentioning that Member Governments should appoint as representatives jurists of recognized competence in the field of international criminal law was due to the fact that Governments might be tempted, for reasons of economy or convenience, to appoint as representatives on the proposed Sub-Commission members of their permanent delegations in Lake Success, who might not be experts in that particular field. The Venezuelan delegation was not in favour of asking the SecretaryGeneral, for a second time, to prepare a new draft convention, though the work he had done had undeniably been extremely useful. The Secretary-General’s draft should be used as basis for the new document but the experts of the Secretariat could not take into account the political considerations which would arise in the practical implementation of the genocide convention. Mr. Perez Perozo hoped that the Social Committee would not undertake discussion of the substance of the genocide problem; it should be entrusted to a legal body. If such a discussion took place in the Social Committee the Venezuelan delegation would be obliged to abstain from participating. He thanked the United States delegation for proposing Venezuela as one of the Member States to serve on the proposed ad hoc committee. Mr. KOTSCHNIG (United States of America) expressed preference for the United States proposal not only because it was shorter but also because it advocated that the new draft convention should be prepared by the Secretariat rather than by the ad hoc committee. The work on the new draft could proceed immediately if carried out by the Secretariat with the help of the Sub-Commission, and not the other way round, as the Venezuelan resolution suggested. The Secretariat would be able to undertake the work in the light of comments already received from Governments and those it hoped to receive, but it was not for the Secretariat to take decisions on political issues.

E/AC.7/SR.37

605

Mr. Kotschnig was reluctant to support the establishment of a new subcommission. He felt that an ad hoc committee would be adequate, and that procedure would also involve less expenditure. Such a committee should not exceed seven members. He did not, however, see any particular need to have the Five Permanent Members of the Security Council included in the Committee, nor would the United States delegation claim to be represented. He felt that the United States and the Venezuelan resolutions were in full agreement as to the objectives of the genocide convention. Mr. SUTCH (New Zealand) was inclined to favour the Venezuelan resolution, principally because it advocated study of the problem of genocide by legal experts. It was hardly fair to ask the Secretary-General to do the major part of the work, and he agreed with the representative of Venezuela that the convention should be drafted in such a manner that it may be endorsed by a substantial number of powers. Mr. BORIS (France) felt there was no great difference between the United States and Venezuelan resolutions, as both were anxious to reach an agreement quickly on the same objective. The number of representatives on the Committee suggested by the United States delegation was however too small, and a compromise should be found between the Venezuelan and United States figures. Member States would undoubtedly send qualified representatives to serve on the Committee, and it was unnecessary to raise that point in the resolution. In his view, both resolutions could be merged into one. Mr. Boris reminded that the French delegation had suggested that the Council should itself settle in the present session a certain number of purely political questions in order to facilitate the work of the drafting body. Mr. MAQUIERIRA [sic] (Chile) thought that the main point of difference between the Venezuelan and United States resolutions was that the latter proposed that the Secretariat – taking into consideration the comments already made by various Member States – should prepare a new draft convention, while the Venezuelan resolution proposed a Sub-Commission to draw up the new draft, which would take into consideration the first draft prepared by the Secretariat and any comments from Member States. The Venezuelan resolution raised two important points: that the Legal Department of the United Nations should advise the proposed Sub-Commission, and that the Member States should send as their representatives jurists of recognized competence in the field of international

606

E/AC.7/SR.37

law. While agreeing that both resolutions had a common objective, the Chilean delegation would support the Venezuelan resolution because it placed more direct responsibility on Governments. Mr. Maquierira [sic] suggested that the proposed Sub-Commission should be composed of nine members, five of which should be the Great Powers and the remainder might be selected among Venezuela, Lebanon, Denmark, Brazil and New Zealand. Mr. GUERREIRO (Brazil) agreed in general with the Venezuelan draft but supported the suggestion made in the United States draft resolution that renewed requests should be sent to Governments to submit their comments. That proposal might be added to the text of the Venezuelan draft resolution. An ad hoc committee would serve the purpose under consideration; in regard to the composition of such a committee, he agreed to the countries proposed by the Venezuelan delegation with one exception: Benezuela [sic], and not Brazil, should be the country representing Latin America, as the former had taken not only a keen interest but a leading part in dealing with the problem of genocide. The preparation of a new draft convention should rest mainly with an ad hoc committee, which should work with the help of the Secretariat. He agreed it would be advisable to ask Member States to appoint special legal experts to serve on the proposed committee. Mr. HARRY (Australia) stated that while agreeing with both the Venezuelan and United States resolutions, he preferred the latter, mainly because it was shorter. If the ad hoc committee was faced with points of principle where it had no guidance as to the opinions of the majority of Governments, it should present alternative texts which could be studied at the next session of the Council. In regard to the United Kingdom amendment (document E/AC 7/65) [sic], the Australian Government felt it would be desirable to consult with the International Law Commission before finally adopting a convention on genocide. It was difficult to decide whether there would be any overlapping in the work of the Social Committee and the International Law Commission, until the latter had been established and had made some progress. Even if the convention on genocide was established as rapidly as possible, the General Assembly might defer final recommendation until the International Law Commission had presented its report. The Australian delegation considered that the United Kingdom amendment went too far. It specified not that the International Law Commission

E/AC.7/SR.37

607

should be consulted but that the question of genocide should be referred to that body. He therefore could not support the amendment in its present form, but might support it if it were worded differently. Mr. MAYHEW (United Kingdom) pointed out that the Government of the United Kingdom, as it had stated on different occasions, doubted whether the United Nations was making an effective contribution to stopping the crime of genocide by dealing with the problem on the lines proposed. The United Kingdom delegation did not desire to place any obstacles in the way of the Commission, and was not opposed to the setting up of an ad hoc committee, or sub-commission, as proposed by the United States and Venezuelan resolutions. However, in order to make its views clear, the United Kingdom delegation would move an amendment in the terms set out in document E/AC.7/65. The Committee should not lose sight of the importance of the future work of the International Law Commission on the question of genocide; sooner or later, measures taken by the Social Committee were bound to overlap with the work of the International Law Commission. Mr. CHA (China) pointed out that the United States delegate had called the Committee’s attention to the need to save money. While China was a devastated country and had to watch her expenditure carefully, she did not feel that the question of expenditure should be taken into account when dealing with an important question such as a convention on genocide. He was of the opinion that the Secretary-General should not be asked again to undertake the work of preparing a new draft convention, and he would support the setting up of an ad hoc committee or sub-commission. China, as an old country, had many cases of genocide in its history including cultural genocide; the latter type of genocide, however, was a difficult matter and the Committee should not perhaps deal with it. The composition of the proposed committee suggested by the United States was too limited, and Mr. Cha would therefore support the Venezuelan proposal. In regard to the United Kingdom amendment, the International Law Commission would not be set up before the third session of the General Assembly, and the Social Committee should bear in mind that the Economic and Social Council had been asked to present a draft convention on genocide to the General Assembly at its third session. Mr. RUDZINSKI (Poland) felt that no progress had been made in the discussion on the problem of genocide. The draft convention prepared

608

E/AC.7/SR.37

by the Secretary-General at the request of the General Assembly had not been discussed on its merits. The only question raised was that of the Committee to which the work should be delegated; discussion had been going on for months without any visible results, although the problem required immediate action. Mr. Rudzinski proposed that the document prepared by the Secretary-General should be discussed in detail and that the Venezuelan resolution, which he supported, should be put to the vote. The Secretary-General should not be asked to submit a further draft; that work should be entrusted to a sub-committee. As the question of saving money had been raised, he wanted to make it clear that the purpose of the convention on genocide was not to save money but to save lives. The United Kingdom amendment, which proposed that the question be referred to the International Law Commission, would only entail interminable delay in solving the problem. The present attitude of the United Kingdom delegation seemed inconsistent with the views expressed at the General Assembly on 22 November 1946 by Sir Hartley Shawcross, who had urged that effective and immediate measures should be taken to deal with genocide and international conventions should be concluded. There were two different questions involved in the present discussions: the extermination of groups of people, and the protection of minorities; and the latter was a political question which should not be included in a convention dealing with the extermination of groups of people. The text of the convention should therefore be revised and the two questions should be dealt with separately. Mr. BORISOV (Union of Soviet Socialist Republics) stated that his delegation would not enter into a discussion on the substance of the crime of genocide, but would support the establishment of a body to study the question. He did not agree that there was any similarity between the Venezuelan and the United States resolutions, and considered it impossible to combine the two texts, as had been suggested. The Venezuelan resolution quite rightly attached importance to the representation of Governments on the principle of geographical distribution and legal systems. The new convention should be drafted by qualified representatives of Member States and not by the Secretariat. There was really no need to set up a new organ; the document originally prepared by the Secretariat should be referred to the Commission on Human Rights. As that Commission

E/AC.7/SR.37

609

would meet in any case, the question of extra expenditure would not arise. In regard to the competence of the representatives, the members of the Commission on Human Rights were highly qualified experts and jurists, who were accustomed to dealing with legal questions. Mr. Borisov proposed the following resolution: That the draft convention on genocide prepared by the Secretariat should be referred to the Human Rights Commission, bearing in mind that after its careful study, the Commission will report to the next session of the Economic and Social Council.

Mr. ROY (Canada) stated that as his delegation had already declared in plenary session, he would prefer to limit the discussion to the consideration of the definition of genocide in the strict sense of the word. There appeared to be considerable similarity between the Venezuelan and United States resolutions, and he felt that the draft convention should be drawn up by an ad hoc committee rather than by a sub-commission, since the work of the new organ would not be permanent. Mr. Roy agreed with the Venezuelan proposal as to the number of members of the proposed committee. The Canadian delegation could not support the United Kingdom amendment, as it seemed inadvisable to refer the question to the International Law Commission, which is not yet in existence. To refer other aspects of genocide to the Sub-Commission on Discrimination of the Human Rights Commission would mean delay. Full use should be made of the expert advice that the Secretariat could provide, not only in its Social but also in its Legal Department. The number of Member States which should be represented on the proposed committee should be large enough to embrace not only different legal systems but also different political and geographical areas. Mr. STINEBOWER (United States of America) felt that the question of urgency raised by Poland required clarification. He recalled that in July and again in August 1947 the Secretary-General had circulated a request to the Governments for comments on the draft convention. The reply of the United States Government commenting extensively on the convention had been submitted on 30 September. The United States was therefore more entitled to speak on the question of urgency than Governments which had not even submitted a reply.

610

E/AC.7/SR.37

The question was not one of urgency but rather how to proceed in an orderly way. Replies from Governments were the only source of guidance for the new draft convention. The Secretariat would not be asked to go over the same material again; it would be asked to take into consideration the comments submitted by the various governments. The representative of Poland had mentioned two drafts. Mr. Stinebower knew of only one: the draft which had been submitted to the Governments for comment. He expressed agreement with Canada that the same members of the Secretariat should not be asked to work on the second draft convention: the Legal Department should take an active part. The convention to be drafted would constitute not a general condemnation of genocide but a document defining the crime and providing for its punishment; hence more precise drafting was required. Referring to the remarks of the representative of the Soviet Union, Mr. Stinebower felt that the United States and the USSR were actually in fairly close agreement. Both favoured submission of the draft convention to the Commission on Human Rights, but the United States felt that preliminary work by the Secretariat would greatly expedite the matter. The United States was willing to agree to an increase in the number of members on the proposed committee, but felt that a drafting committee, must to be effective be small, – nine members at the most. Mr. Stinebower repeated that the United States would not insist on membership in the Committee. Mr. FRIIS (Denmark) stated that although Denmark was proposed as a candidate for membership, the Danish delegation felt that it should be replaced by Poland or Canada. He agreed with the position of China on the United Kingdom amendment. Mr. GUERREIRO (Brazil) proposed two amendments to the Venezuelan draft resolution (document E/663). After 23 November 1947 in the third line, he proposed the addition of the following paragraph from the United States draft resolution: (E/662/Add.1) REQUESTS the Members of the United Nations which have not yet done so to transmit at the earliest possible date their comments on the draft of the Convention prepared by the Secretariat (document E/447).

E/AC.7/SR.37

611

The second amendment was to change “sub-commission” to “ad hoc committee”. Mr. Guerreiro suggested that Venezuela rather than Brazil should represent Latin America on the proposed committee. He indicated that whether or not his two amendments were adopted, Brazil would vote in favour of the Venezuelan proposal. Mr. AZKOUL (Lebanon) preferred the Venezuelan proposal. The principal argument presented by the United States in favour of its proposal was economy of time and money. Lebanon felt, however, that it was more important to ensure efficiency. While both proposals called for the collaboration of the Secretariat, there was an essential difference: the United States placed major responsibility for the draft convention on the Secretariat, while Venezuela made the committee chiefly responsible. He also favoured the Venezuelan proposal because membership on a legal and geographical basis provided a more exact and correct criterion. Lebanon did not object in principle to the United Kingdom amendment, but the International Law Commission had not yet been set up, and the draft convention was scheduled to be submitted at the next General Assembly. Mr. Azkoul thought that sub-paragraph (b) in the second part of the Venezuelan draft resolution calling on member Governments to appoint jurists of recognized competence as their representatives on the committee was unnecessary, since Governments would naturally send qualified representatives. Lebanon would vote in favour of the Venezuelan proposal. Mr. PEREZ PEROZO (Venezuela) requested a statement from the Secretariat on the budgetary implications of an ad hoc committee composed of the representatives of Governments. Mr. HUMPHREY (Secretariat) replied that the travel costs involved would be eight hundred dollars for each member. There were no funds available for such a committee in the existing budget. Mr. MAQUIERIRA [sic] (Chile) pointed out that the same situation in regard to submission of comments by Governments would arise in connection with the second draft convention.

612

E/AC.7/SR.37

The Fifth Committee of the General Assembly had considered the budgetary problem and had eliminated the possibility of setting up a subcommission. Although the economic factor was important, it could not overshadow other considerations. It would be unwise to delay suitable action on a vital question like genocide in order to save a few thousand dollars. Mr. Maquierira [sic] expressed the opinion that the United Kingdom amendment was not really an amendment but an additional and unrelated proposal which constituted a step backward because it involved delay. The Soviet Union resolution, while not so obviously dilatory, would also delay action. Mr. MAYHEW (United Kingdom) explained that the United Kingdom did not disagree with Poland on the importance or the urgency of the question of genocide. The point of disagreement lay in the United Kingdom position that a convention would not constitute an effective means of preventing genocide. Rather than prepare a hastily written convention it would be better to use as a basis the Nuremberg decisions that genocide was an international crime. The question might then be referred to the International Law Commission which the General Assembly had charged the Council to take into account. In view of the opposition, the United Kingdom would not press its amendment. Mr. HUMPHREY (Secretariat) indicated that his statement that the present budget did not have provision for a committee should not deter the Council from acting. If necessary, the Advisory Committee on Budgetary Matters could be requested to authorize expenditures. Mr. PEREZ PEROZO (Venezuela) pointed out that the travel expenses of nine members would involve a total of only $7,200. The CHAIRMAN stated that there were three proposals before the Committee, and proposed the following procedure: First, a vote on the Soviet proposal which was the most far-reaching. If the proposal was rejected, the Committee would then vote on the United States and Venezuelan proposals.

E/AC.7/SR.37

613

The Soviet proposal was rejected by ten votes to two with five abstentions. After an exchange of views on the question of whether to use the Venezuelan or the United States draft resolution as the basic document, it was agreed to adopt the Venezuelan document and to incorporate in it any amendments submitted by the United States or other members of the Committee. The Committee adopted by sixteen votes to none, with one abstention a Brazilian amendment aiming to insert the first paragraph of the United States text (E/662/Add.1) after the first paragraph of the Venezuelan draft resolution. Mr. STINEBOWER (United States of America) proposed that the following paragraph from the United States draft resolution (E/662/ Add.1) should be added immediately after the text which had just been adopted: REQUESTS the Secretary-General to prepare, in the light of comments received from Governments, a second draft of a Convention.

In reply to a question from Mr. Azkoul (Lebanon), Mr. Stinebower stated that the United States amendment would involve preliminary work by the Secretariat in advance of the Committee’s meeting. Mr. BORISOV (Union of Soviet Socialist Republics) felt that the United States amendment clashed with the Venezuelan proposal, since it meant that the Secretariat would not assist the Committee but would work alone. Mr. PEREZ PEROZO (Venezuela) felt that the United States amendment would entirely change the principle embodied in the Venezuelan proposal. Mr. MAQUIERIRA [sic] (Chile) agreed with the position of the Soviet Union and Venezuela. Inasmuch as the United States amendment was in contradiction with the Venezuelan proposal and with the spirit of the General Assembly’s resolution, Chile would have to vote against the United States proposal. Mr. HARRY (Australia) indicated that the ad hoc committee might meet in March, and that comment from other Governments might be received before that time. The United States proposal might therefore mean that the Secretariat would prepare a working document for use by the Committee.

614

E/AC.7/SR.37

Mr. GUERREIRO (Brazil) felt that the Secretariat would automatically prepare such a working document and that therefore such a directive was unnecessary. Mr. STINEBOWER (United States of America) indicated that there was an essential difference between the United States position and the Venezuelan resolution. Venezuela did not want the Secretariat to make a second draft convention; the United States favoured a second draft prepared by the Secretariat on the basis of new comments from Governments. The Committee would have to choose between the two views. The United States amendment was rejected by nine votes to five, with three abstentions. The Brazilian amendment to change “sub-commission” to “ad hoc committee” throughout the Venezuelan text was adopted by twelve votes to none, with five abstentions. Mr. STINEBOWER (United States of America) proposed the following amendment in the third line of sub-paragraph (a) in the first part of the Venezuelan draft resolution. After the words “General Assembly” read “and to submit this draft convention together with the recommendations of the Commission on Human Rights thereon to the next session of the Economic and Social Council”. The United States amendment was adopted by ten votes to three, with three abstentions. After an exchange of views in connection with sub-paragraph (a) of the second portion of the Venezuelan draft resolution, the Chilean proposal to delete the words following “it” (line 2) was adopted by a majority of eleven votes. The Committee adopted by nine votes to three, with five abstentions, the French amendment to delete “sub-paragraph (b)” in the second part of the Venezuelan document. It was noted that sub-paragraph (c) asking for comments from member Governments was no longer necessary. The CHAIRMAN observed that Venezuela had originally proposed nine members for the ad hoc committee: United States, United Kingdom, Soviet Union, China, France, Lebanon, Brazil, Denmark and New Zealand.

E/AC.7/SR.37

615

Later, Brazil had asked to be replaced by Venezuela and Denmark had declined in favour of Poland. Mr. HARRY (Australia) recalled that the United Kingdom had asked not to be included in the Committee. He therefore proposed the following seven members: France, United States, USSR, China, Poland, Venezuela and Lebanon. In reply to appeals from the representatives of Chile and Venezuela requesting the United Kingdom to reconsider its position and join the Committee, Mr. MAYHEW (United Kingdom [sic] stated that it would not be consistent with the policy of the United Kingdom to serve on the Committee in view of its doubt as to the effectiveness of a draft convention on genocide. He stressed the fact that the United Kingdom took as great interest as any delegation in the subject but that it felt obliged to decline membership. Mr. SUTCH (New Zealand) explained that New Zealand always tried to co-operate fully and serve on Committees of United Nations but since it had no competent legal experts available at Lake Success, New Zealand would have to decline the honour of membership in the Committee. Mr. SANTA CRUZ (Chile) suggested that membership on the Committee should be offered to countries which were not members of the Economic and Social Council. Since the original proposal on genocide had come from Panama, he suggested that Panama should be invited to join the ad hoc committee. Mr. STINEBOWER (United States of America) felt that the Chilean proposal involved a fundamental question which would require a change in the text already adopted by the Committee since provision was made for representation of members of the Economic and Social Council only. Mr. SANTA CRUZ (Chile) withdrew his amendment. The Committee agreed that the ad hoc committee should be composed of the following seven members: France, United States, China, USSR, Lebanon, Poland and Venezuela. The Committee adopted the Venezuelan draft resolution as amended by thirteen votes to none, with four abstentions. The meeting rose at 6.50 p.m.

616

E/690

Document E/690 Report of the Social Committee [Original text: English] [23 February 1948] The Social Committee, to which the Economic and Social Council, at its 140th meeting, had referred item 31 of its agenda – “Genocide” – agreed at its 37th meeting, on 21 February 1948, to recommend the following draft resolution for adoption by the Council: (For the text of this draft resolution, adopted without change at the 160th meeting of the Council, see resolution 117(VI).)

E/690/Add.1

617

Document E/690/Add.1 Draft resolution submitted by the Social Committee (E/690): statement of financial implications submitted by the Secretary-General [Original text: English] [26 February 1948] The draft resolution adopted by the Social Committee of the Economic and Social Council on 21 February 1948, at its 37th meeting, recommends the establishment of an Ad Hoc Committee to prepare a draft convention on the crime of genocide. No provisions have been made in the budget for the holding of these meetings. In submitting the following estimate, the Secretary-General has made the following assumptions: 1. That the Ad Hoc Committee would not be required to meet for a period exceeding two weeks; 2. That a second session of the Ad Hoc Committee would not prove necessary and that the Chairman of the committee would submit the draft convention and the recommendations of the Commission of Human Rights thereon to the next session of the Economic and Social Council. On these assumptions, it is estimated that the costs of this conference would be: U.S. $ (a) Travelling expenses of representatives ........................................ 6,478 (b) Travelling expenses and per diem of experts (also of Chairman when reporting to the Council) ................................................ 1,300 (c) Local transportation ................................................................. 200 Total ................................. 7,978

The Secretary-General draws the attention of the Council to document E/642/Add.1 and wishes to point out that the maximum amount available within part I, section 3, of the budget (the Economic and Social Council, the commissions, committees and sub-committees thereof ) is in the order of $2,700.

618

E/690/Add.1

Should the Council approve the creation of an ad hoc committee, as proposed by the Social Committee, the Secretary-General will request the Advisory Committee on Administrative and Financial Questions to permit the withdrawal of the necessary funds from the working capital fund.

E/734

619

117(VI). Genocide Resolution of 3 March 1948 (document E/734) The Economic and Social Council, Taking cognizance of General Assembly resolution 180(II) of 23 November 1947, Requests the Members of the United Nations which have not yet done so to transmit at the earliest possible date their comments on the draft Convention prepared by the Secretary-General (document E/477); Establishes an ad hoc Committee composed of the following members of the Economic and Social Council: China, France, Lebanon, Poland, the United States of America, the Union of Soviet Socialist Republics and Venezuela; Instructs the Committee: (a) To meet at the Headquarters of the United Nations, in order to prepare the draft Convention on the crime of genocide in accordance with the above-mentioned resolution of the General Assembly, and to submit this draft Convention, together with the recommendation of the Commission on Human Rights thereon to the next session of the Economic and Social Council; and, (b) To take into consideration in the preparation of the draft Convention, the draft Convention prepared by the Secretary-General, the comments of the Member Governments on this draft Convention, and other drafts on the matter submitted by any Member Government; Requests the Secretary-General to take appropriate measures to enable the Committee to carry out effectively the tasks entrusted to it.

620

E/621/Add.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/621/Add.1 25 March 1948 ENGLISH ORIGINAL: FRENCH

ECONOMIC AND SOCIAL COUNCIL PREVENTION AND PUNISHMENT OF GENOCIDE HISTORICAL SUMMARY (21 January to 24 March 1948) Note The present document constitutes a continuation of Document E/621 of 26 January 1948, which gave an account of the evolution of the question of genocide during the period 2 November 1946 to 20 January 1948, i.e. from the second part of the first session of the General Assembly to the end of its second session. In the present document will be found an account of the work of the sixth session of the Economic and Social Council in connection with the prevention and punishment of genocide.

E/621/Add.1

621

CHAPTER VII Sixth Session of the Economic and Social Council (2 February – 11 March 1948) During its sixth session, the Economic and Social Council had before it Resolution 180(II) on the crime of genocide, adopted by the General Assembly on 21 November 1948.* After a general discussion of the question in plenary session, the Council referred it to its Social Committee which recommended a draft resolution to the Council. This draft was adopted by the Council without any alterations on 3 March 1948. SECTION I – General Discussion in plenary meeting of the Council The general discussion on genocide took up part of the Council’s 139th and 140th plenary meetings held on 12 and 13 February 1948 (see Summary Records, documents E/SR.139 and E/SR.140). The Economic and Social Council had before it two draft resolutions, one submitted by the delegation of Venezuela and the other by the United States delegation. A formal motion was also submitted by the delegation of the Union of Soviet Socialist Republics during the debate. The texts of the draft resolutions were as follows: 1. Venezuelan Draft (document E/663) THE ECONOMIC AND SOCIAL COUNCIL, TAKING COGNIZANCE of the General Assembly Resolution No. 180(II) of 23 November 1947, ESTABLISHES a Sub-Commission composed of the following members of the Economic and Social Council: ............................................................ INSTRUCTS the Sub-Commission: (a) To meet at the Headquarters of the United Nations in order to prepare a draft convention on the crime of genocide, in accordance with the above-mentioned resolution of the General Assembly, and to submit to

* For text of this resolution see document E/621, 26 January 1948, page 45.

622

E/621/Add.1

(b)

(a)

(b) (c)

the next session of the Economic and Social Council this draft convention, after consultation with the Commission on Human Rights; and To take into consideration, in the preparation of the draft convention, the draft convention prepared by the Secretary-General, the comments of the Member Governments on this draft convention, and other drafts on the matter submitted by any Member Government; REQUESTS the Secretary-General: To take appropriate measures to enable the Sub-Commission effectively to carry out the tasks entrusted to it, mainly through the collaboration of the experts of the Secretariat who participated in the work of the draft convention submitted by him to the fifth session of the Economic and Social Council; To express to the Member Governments of the Sub-Commission the hope that their appointed representatives will be jurists of recognized competence in the field of international criminal law; and To urge all Member Governments to present their comments on the draft convention prepared by him as soon as possible, having in mind the forthcoming meeting of the Sub-Commission, and to transmit to the Sub-Commission the comments received.

2. United States Draft (document E/662/Add.1) THE ECONOMIC AND SOCIAL COUNCIL, REQUESTS the Members of the United Nations which have not yet one so to transmit at the earliest possible date their comments on the draft of the Convention prepared by the Secretariat (document E/447); REQUESTS the Secretary-General to prepare, in the light of comments received from Governments, a second draft of a Convention; DECIDES to set up an ad hoc committee consisting of the members for France, Venezuela, Denmark and the United States, to collaborate with the Secretary-General in preparing this draft, and REQUESTS the Secretary-General to transmit the second draft to the third session of the Commission on Human Rights for any comment or revisions which the Commission may deem desirable, and to transmit it, together with the recommendations of the Commission on Human Rights, to the seventh session of the Council.

The representative of Venezuela (Mr. Perez Perozo), who opened the debate, reminded the Council that the matter was an urgent one in view of the wording of the General Assembly Resolution 180(II). The Council had to prepare a convention for submitting to the General Assembly at its next session. The convention had to be worded in such a way that it could be not only adopted by the General Assembly but also ratified by the greatest possible number of States. He proposed that the Council set up a Sub-Committee composed of some of its members, who should

E/621/Add.1

623

be represented by lawyers, to draft a convention between sessions of the Council. The Commission on Human Rights should also be asked to consider the matter. The Council could approve the draft convention prepared by the Sub-Committee during its seventh session. As working documents the Sub-Committee could use the draft convention prepared by the Secretariat, the drafts submitted by France and the United States and any others that might be presented to it. The Secretariat draft might be taken as a basis for discussion. The representative of the United States (Mr. Winslow) suggested the following method of work: The Council should urge Member States to send in their comments on the draft convention prepared by the Secretariat. The Secretariat in the light of those comments should prepare a second and perhaps shorter draft in collaboration with the ad hoc committee composed of the four member States* which had already sent their comments; that new draft should be referred for comment and revision to the Commission on Human Rights at its next session; it would then be considered by the Council at its seventh session and submitted as provided for in the General Assembly’s resolution to the latter’s next session. The representative of Australia (Mr. Makin), after expressing his regret that the task of drafting the convention had not been entrusted to the International Law Commission, although the General Assembly might yet call on that body for assistance, stressed that, while speed was essential, it was even more important to ensure that the convention should be based on solid legal and moral principles which would command universal respect and would be enforced by all the Members of the United Nations. The representative of France (Mr. Ordonneau) also thought that the Economic and Social Council could not draft a convention itself and that a committee might be necessary for the preparation of a text. The committee should be composed of representatives of the countries which had shown the greatest interest in the subject. He emphasized, however, that before the committee could begin its work the Council should first settle various political questions at its present session. It was for the Council to decide, for example, what human groups were to be protected from genocide,

* Denmark, the United States, France and Venezuela.

624

E/621/Add.1

and whether all or only certain forms of genocide were to be considered. Finally, he recalled that his delegation had submitted a draft convention (document E/622/Add.1). The representative of Poland (Mr. Katz-Suchy) stated that the draft convention prepared by the Secretariat was being studied by his Government whose comments would be forthcoming soon. Certain points in that convention would call for political decisions. He considered that Governments should be urged to submit their comments as soon as possible and that the Council should set up a Committee which with the assistance of the Secretariat and in the light of the comments received should draft a convention which the Council could approve at its seventh session. The representative of Lebanon (Mr. Azkoul) stressed the importance of cultural genocide which should be given a prominent place in the draft convention. As regards the authority which was to punish genocide, he thought that private individuals should be brought before national tribunals, and statesmen before international tribunals. The representative of New Zealand (Mr. Sutch) supported the Venezuelan proposal. He thought that the Drafting Committee should represent a wider cross-section of the United Nations than was provided for in the United States proposal, and should consist of persons with considerable experience of legal questions, who would co-operate with the Secretariat in drafting the convention. This new draft should, in his opinion, be submitted to Governments some time before the seventh session of the Council in order to enable them to issue instructions to their representatives. The representative of Brazil (Mr. Muniz) agreed in principle with the Venezuelan proposal. While it could not be expected that the conclusion of a convention would be sufficient in itself to prevent genocide, in his opinion a convention was needed as was recognized in the General Assembly Resolution 180(II) of 21 November 1947. The general debate was continued by the Council on the following day, 13 February. The representative of Canada (Mr. Davidson) declared himself in favour of a more limited definition of genocide than that found in the draft prepared by the Secretariat. Like the representative of France, he thought that the Council should settle immediately a certain number of preliminary questions of a political nature. The drafting could be entrusted to a

E/621/Add.1

625

small committee which, however, should comprise other members besides the four proposed by the United States. Moreover, he thought that the Legal and Social Affairs Departments of the Secretariat should collaborate with such a committee and that it would be desirable to ensure also the co-operation of the experts who had already assisted in the preparation of the Secretariat draft. The representative of China (Mr. Chang), after recalling the experience of his country which had suffered every form of genocide, supported in principle the proposals of the United States and Venezuela. The representative of the United Kingdom (Mr. Mayhew) expressed his Government’s doubts as to the value of a convention on genocide which had already been qualified as a crime under international law in Resolution 96(I) of the General Assembly of 11 December 1946. He declared, moreover, that he thought that it was necessary to make some division in the definition of the term “genocide”. Genocide stricto sensu would be the province of the future International Law Commission; the other crimes dealt with in the Secretariat draft would be the concern of the Sub-Commission on prevention of discrimination and protection of minorities. He therefore proposed that the preparatory work be distributed in accordance with the distinction he had drawn. While recognizing that such a method would spell delay, he thought that it would have the advantage of avoiding the conclusion of a convention that would not receive the approval of all Governments. The representative of the Netherlands (Mr. Van de Mendele) [sic] while supporting the point of view of the United Kingdom representative, declared himself ready to take part in a discussion of the questions of political principle which had been mentioned by the representative of France. The representative of Denmark (Mr. Borberg) said that his Government would prefer to be replaced on the Drafting Committee by either Poland or Canada. The representative of the Union of Soviet Socialist Republics (Mr. Arutiunian) thought that the definition of genocide given in the Secretariat’s draft went beyond the terms of the General Assembly resolution. Such a definition could, by its very broadness, hinder the fight against true genocide. He emphasized the importance of preventing genocide by fighting against discrimination and by forbidding the stirring-up of hatred against certain groups.

626

E/621/Add.1

From the point of view of the procedure that should be followed, he formally moved that the elaboration of the documents which should serve as a basis for the convention should be entrusted to the Commission on Human Rights, which in his opinion, was best qualified to undertake this task. The representative of Chile (Mr. Gonzales) stated that the most eminent jurists, specializing in international and penal law, should take part in the drafting. The representative of France (Mr. Boris), while associating his delegation with the United States draft resolution, asked that the proposed ad hoc committee be enlarged by the inclusion of representatives of a large country of the East and the Middle East. He again stressed the necessity that the Council should settle beforehand some questions of a political nature for which neither the Committee nor the Secretariat could assume responsibility. The President (Mr. Malik, Lebanon) said that the Council had before it draft resolutions submitted by the United States, Venezuela and the Union of Soviet Socialist Republics. He proposed that the question be referred to the Social Committee which might ask the authors of the various proposals to meet in order to draft a joint resolution. Since there were no objections, it was decided to follow this procedure. SECTION II – Consideration of the question by the Social Committee The Social Committee devoted to the question of genocide the whole of its thirty-seventh meeting on 21 February 1948 (see document E/AC.7/ SR.37, 26 February 1948). The representative of Venezuela (Mr. Perez Perozo) gave certain additional explanations about the draft resolution submitted by his delegation (see pages 2 and 3). He held that the Drafting Sub-Commission should include the five Great Powers as well as other countries so as to represent as far as possible the different legal systems of the world. The presence of representatives of the Great Powers was essential in view of the political character of the proposed Convention on Genocide. Other countries should participate in the Sub-Commission and not necessarily those that had already commented on the draft. He proposed, therefore, that the

E/621/Add.1

627

Sub-Commission should be composed of nine members as follows: the five permanent members of the Security Council, Lebanon, Brazil, Denmark and New Zealand. He emphasized particularly the necessity of including in the Sub-Commission, representatives of the United Kingdom and Union of Soviet Socialist Republics, which, showing their keen interest in the prevention and punishment of the crime of genocide, appeared sceptical as regards the results that might be achieved by means of a convention. He also stressed the need for establishing co-operation between the Sub-Commission and the Secretariat and the experts who had helped to elaborate the first draft convention, and the importance of consulting the Commission on Human Rights. Lastly, he pointed out that according to his draft resolution it was not the Secretary-General who would prepare the new draft convention but the Sub-Commission which would base itself on the draft prepared by the Secretariat. The representative of the United States (Mr. Kotschnig) emphasized that unlike the method proposed by Venezuela, that advocated by his delegation (see page 3) provided that a new draft convention would be prepared by the Secretariat in the light of comments received from governments and not by an ad hoc committee. This method was preferable because the Secretariat would be able to undertake the work immediately. Otherwise, he did not see any great difference between the two draft resolutions except for the presence in the committee of the five permanent members of the Security Council which did not seem to him essential. The representatives of New Zealand (Mr. Sutch), France (Mr. Boris), Chile (Mr. Maqueira) [sic], Brazil (Mr. Guerreiro), China (Mr. Chu) and Lebanon (Mr. Azkoul) expressed their preference for the Venezuelan draft; the representative of France thought, however, that a compromise on the number of representatives, ought to be found between the two proposals, and the representative of Brazil insisted on the necessity of inviting Governments that had not yet done so to expedite the submission of their comments. The representative of Australia (Mr. Harry), while agreeing with both the resolutions, stated that he preferred that of the United States because it was shorter. If the ad hoc committee was faced with points of principle where it had no guidance as to the opinions of the majority of the Governments, it should, he thought, present alternative texts which could be studied at the Council’s next session. Lastly, he expressed himself against

628

E/621/Add.1

the amendment submitted by the United Kingdom delegation (for text of this amendment see below), at least in its present form. The representative of the United Kingdom (Mr. Mayhew) had submitted an amendment to the Venezuelan draft resolution which read as follows (document E/AC.7/65): (c) “to take into consideration the possible desirability of referring genocide stricto sensu to the International Law Commission, and other aspects of genocide under the draft prepared by the Secretariat to the Sub-Commission on discrimination of the Human Rights Commission.”

He re-affirmed his Government’s view that a convention would not make an effective contribution to the fight against genocide. He did not desire, however, to place any obstacles in the way of setting up an ad hoc committee of a Sub-Commission as proposed by the representatives of the United States and Venezuela respectively. The proposed organ should not, however, lose sight of the importance of the future work of the International Law Commission on the question of genocide. On behalf of his country, he declined the invitation to participate in a drafting body. The representative of Poland (Mr. Rudzinski) thought that the Social Committee should proceed immediately to a full discussion of the draft convention drawn up by the Secretariat. Furthermore, the Secretary-General should not be asked to undertake the task of working out a new draft; that task should be entrusted to a Sub-Committee. He thought that the Secretariat draft should be revised because the question of the protection of minorities should not be included in a convention dealing with the extermination of groups of people. The representative of the Union of Soviet Socialist Republics (Mr. Borisov) said that he did not wish to enter into a discussion on the substance of the crime of genocide. He emphasized the differences between the United States proposal and that of Venezuela which he thought were such as to render them irreconcilable. On behalf of his delegation, he proposed the following draft resolution: That the draft convention on genocide prepared by the Secretariat should be referred to the Human Rights Commission, bearing in mind that after its careful study, the Commission will report to the next session of the Economic and Social Council.

E/621/Add.1

629

The representative of Canada (Mr. Roy) stated that he would prefer to have an immediate discussion on the definition of genocide in the strict sense of the term. He was in favour of setting up an ad hoc committee, while supporting the Venezuelan proposal as to the number of members of such a committee. He declared himself opposed to the United Kingdom amendment. The representative of the United States (Mr. Stinebower), after replying to several previous speakers, said that the United States were prepared to accept an increase in the number of members of the proposed committee but that the number should not exceed nine. The representative of Denmark (Mr. Friis) repeated his country’s desire to be replaced on the proposed committee by either Poland or Canada. The representative of Brazil (Mr. Guerreiro) proposed two amendments to the Venezuelan draft resolution, namely: 1. to add after the words “21 November 1947” in the third line the following paragraph from the United States draft resolution: REQUESTS the Members of the United Nations which have not yet done so to transmit at the earliest possible date their comments on the draft Convention prepared by the Secretariat (document E/447)

2. to change “sub-commission” to “ad hoc committee”. After an exchange of views relating mainly to the question of the expense which would be entailed by the creation of an ad hoc committee, in which a number of representatives took part, as well as the representative of the Secretariat (Mr. Humphrey), the Chairman (Mr. Kaminsky, Byelorussian Soviet Socialist Republic) noted that there were three proposals before the Social Committee which he proposed to put to the vote in the following order: the proposal of the Union of Soviet Socialist Republics, the proposal of the United States, and the Venezuelan proposal. The Soviet proposal was rejected by ten votes to two with five abstentions. The Committee then decided to adopt the Venezuelan proposal as a basic document and to incorporate in it any amendments submitted by the United States or other members of the Committee.

630

E/621/Add.1

The Committee adopted by sixteen votes to none, with one abstention, a Brazilian amendment aiming to insert the first paragraph of the United States text after the first paragraph of the Venezuelan draft resolution. (See page 9 above). The representative of the United States (Mr. Stinebower) proposed that the following paragraph from the United States resolution be added immediately after the text which had just been adopted: REQUESTS the Secretary-General to prepare, in the light of comments received from Governments, a second draft of a Convention.

The representative of the Union of Soviet Socialist Republics (Mr. Borisov) remarked that such an amendment clashed with the Venezuelan proposal; it would imply that the Secretariat would not assist the Committee but would work independently. This view of the American amendment was supported by the representatives of Venezuela (Mr. Perez Perozo), Chile (Mr. Maqueira) [sic], Australia (Mr. Harry) and Brazil (Mr. Guerreiro). The United States amendment was rejected by nine votes to five, with three abstentions. The Brazilian amendment to change “sub-commission” to “ad hoc committee” throughout the Venezuelan text was adopted by twelve votes to none with five abstentions. The representative of the United States (Mr. Stinebower) then proposed the amendment of sub-paragraph (a) in the first part of the Venezuelan draft resolution by changing the part of the sentence which followed the words “the above-mentioned resolution of the General Assembly” to read: and to submit this draft convention, together with the recommendations of the Commission on Human Rights thereon, to the next session of the Economic and Social Council.

This United States amendment was adopted by ten votes to three with three abstentions. The representative of Chile (Mr. Maqueira) [sic] then proposed the deletion in sub-paragraph (a) of the second part of the Venezuelan draft resolution of the part which followed the words “entrusted to it”. This proposal was followed by an exchange of views.

E/621/Add.1

631

The Chilean proposal was adopted by eleven votes. The Committee adopted by nine votes to three, with five abstentions, the French amendment to delete sub-paragraph (b) in the second part of the Venezuelan draft. The Committee noted that sub-paragraph (c) asking for comments from Member Governments was no longer necessary in view of the adoption of the Brazilian amendment (see above). It remained for the Social Committee to appoint the members of the ad hoc committee. Venezuela proposed the following nine countries: Brazil, China, Denmark, United States of America, France, Lebanon, New Zealand, United Kingdom and the Union of Soviet Socialist Republics. Brazil asked to be replaced by Venezuela and Denmark declined in favour of Poland. The United Kingdom had also stated that it did not wish to be represented in the ad hoc committee. After an exchange of views in the course of which the New Zealand representative also stated that he did not wish to be represented, it was decided that the ad hoc committee should consist of the following members: China, United States of America, France, Lebanon, Poland, Union of Soviet Socialist Republics and Venezuela. The Committee finally adopted the Venezuelan draft resolution, as amended by thirteen votes to none, with four abstentions. SECTION III – Adoption of a resolution by the Economic and Social Council At its 160th meeting on 3 March 1948, the Economic and Social Council, by seventeen votes with one abstention, adopted the draft resolution on genocide proposed by the Social Committee. The text of this Resolution 117(VI) is as follows: THE ECONOMIC AND SOCIAL COUNCIL, TAKING COGNIZANCE of the General Assembly Resolution No. 180(II) of 23 November 1947, REQUESTS the Members of the United Nations which have not yet done so to transmit at the earliest possible date their comments on the draft Convention prepared by the Secretary Council-General (document E/447),

632

E/621/Add.1

ESTABLISHES an Ad Hoc Committee composed of the following members of the Economic and Social Council: China, France, Lebanon, Poland, United States of America, Union of Soviet Socialist Republics and Venezuela. INSTRUCTS the Committee: (a) to meet at the Headquarters of the United Nations in order to prepare the draft Convention on the Crime of Genocide in accordance with the above-mentioned resolution of the General Assembly, and to submit this draft convention, together with the recommendation of the Commission on Human Rights thereon, to the next session of the Economic and Social Council; and, (b) to take into consideration in the preparation of the draft convention, the draft convention prepared by the Secretary-General, the comments of the Members Governments on this draft convention, and other drafts on the matter submitted by any Member Government; REQUESTS the Secretary-General to take appropriate measures to enable the Committee effectively to carry out the tasks entrusted to it.

E/623/Add.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

633

UNRESTRICTED E/623/Add.2 19 April 1948 ORIGINAL: ENGLISH

ECONOMIC AND SOCIAL COUNCIL PREVENTION AND PUNISHMENT OF GENOCIDE COMMENTS BY GOVERNMENTS ON THE DRAFT CONVENTION PREPARED BY THE SECRETARIAT Note: The comments received before 30 January 1948 have been reproduced in the Annex to Document E/623.

8. United Kingdom (6 April 1948) I have the honour to thank Your Excellency for your letter SOA 17/2/01/EG of 18th March, 1948 requesting His Majesty’s Government’s comments on the draft Convention on Genocide. I am instructed by His Majesty’s Principal Secretary of State for Foreign Affairs to say that His Majesty’s Government feels that its attitude to the question of the Convention has been adequately and clearly presented in the various statements made by the United Kingdom delegation both at the Second Session of the General Assembly and at the Sixth Session of the Economic and Social Council. In view of this, therefore, His Majesty’s Government does not propose to furnish any detailed comments on the Convention concerned.

9. Norway (9 April 1948) In reply to your letter, reference SOA 17/2/01/EG, of 18 March 1948, I have the honour to inform you that the Draft Convention on Genocide has been submitted to the Norwegian Ministry of Justice and that their views were expressed by the Norwegian representative, Professor Castberg, at the 41st meeting of the Sixth Committee of the General Assembly on 3 October 1947. Professor Castberg, after having expressed his support of the proposal to adopt a convention as soon as possible, made one principal objection against the draft of the Secretariat, concerning the legal provisions under which those prosecuted for genocide should be sentenced. Under the draft convention the law to be applied shall be either the provisions of

634

E/623/Add.2

the criminal law of the country where the crimes are committed, or the provisions of the law of the country which has initiated the prosecution. In either case the crimes are to be prosecuted under the provisions of the national criminal law of one of the two countries. This might be reasonable when it is a question of prosecuting private individuals for crimes of this order. But it is the aim of the draft convention that also the organs of a state – the rulers and the public officials – shall be punishable for acts of genocide, committed in an official capacity. Some of the acts referred to in the draft convention are such as can only be committed by the organs of a state. This is the case, for instance, in the establishment of obstacles to marriage as referred to in Article 2, II, 2°c), and in the prohibition of the use of the national language as referred to in Article 1, II, 3°c). The Norwegian Ministry of Justice does not find it advisable to introduce in the national legislation provisions which are specifically directed against state authorities, of their own state or of foreign state, for acts of genocide. The Norwegian Ministry of Justice therefore recommends that crimes of genocide committed by persons acting in an official capacity be punished under penal provisions of international law to be laid down in the convention or in the statute of the proposed international criminal court. As pointed out by Professor Castberg, the Norwegian Ministry of Justice thought Articles 7 and 8 of the draft convention should be formulated in such a way as not to exclude the application of restrictions laid down in the general legislation of the individual countries. Thus, should be reserved rights, as the one contained in Article 85 of the Norwegian law on criminal process of 1 July 1887, not to prosecute when prosecution is not in the public interest, particularly when considerable time has elapsed since the crime was committed or when highly extenuating circumstances exist. Further, the duty of governments to grant extradition should be subject to the general conditions laid down in their national extradition laws – excluding of course the provisions relating to non-extradition of political criminals.

E/623/Add.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

635

UNRESTRICTED E/623/Add.3 22 April 1948 ORIGINAL: ENGLISH

PREVENTION AND PUNISHMENT OF GENOCIDE COMMENTS OF GOVERNMENTS ON THE DRAFT CONVENTION PREPARED BY THE SECRETARIAT (Document E/447)* The Secretary-General has received the following additional comments from the Member named: 10. Netherlands (15 April 1948) I. GENERAL OBSERVATIONS 1. The Netherlands Government in general welcome the attempt to conclude a treaty for the prevention and punishment of the crime of genocide. 2. The Netherlands Government deem it important carefully to consider which stipulations could be accepted by a large number of States, in order that the treaty to be created should have some practical significance. The Government would regret if, in order to obtain a speedy result, a document were created which could not really enter into force. A treaty against terrorism, drafted with the utmost care in 1937, but which never entered into force, may serve as a warning. 3. The fight against genocide should not be considered as an independent problem, but as part of the general problem of international penal law. The Netherlands Government would therefore have preferred if this problem had been referred to the International Law Commission to whom the task has been entrusted of dealing with the principles which are contained in the agreement of 1945 concerning war criminals and which have been applied by the international military tribunal of Nurnberg. 4. The text of the draft treaty does not in all respects seem quite satisfactory. It might be desirable for the commission, created for this purpose, to take the American draft as basis for its discussions instead of the draft of the Secretariat. 5. The Netherlands Government prefer to refrain from making observations about the articles (XIV–XXIV) dealing with questions of protocol; in this respect it will be desirable to follow the text of articles which are * The comments received previously have been reproduced in documents E/623 and E/623/Add.2

636

E/623/Add.3

nowadays usually contained in similar agreements. Their precise texts can better be determined when the contents of the treaty and the measure of agreement it is likely to find can be judged better than at present.

II. OBSERVATIONS CONCERNING THE ARTICLES Preamble It seems undesirable that the preamble contains several elements which are more or less at variance with the subsequent articles. It might therefore be desirable to follow the proposal of the United States Government and shorten considerably the preamble. On the other hand, it seems preferable to transfer the definition of the purpose of the treaty from article I under (1) to the preamble if it is desired to retain such definition. Article I Article I, which contains the definition of the crime of genocide, is of the utmost importance for the whole treaty. Several questions arise in this respect: 1. An important element in the definition is, that the crime must have been perpetrated “with the purpose of destroying” a specific group of persons. There is no objection against this principle. It will have to be established beyond doubt, however, that so-called camouflaged genocide will equally be punishable; this covers cases in which the defendant might plead that the incriminated action, although it did in fact lead to the destruction or frustration of a group, was not aimed against that group. Only the coincidence, the defendant might contend, that the group contained many who infringed certain legal provisions not aimed against them led to the unintended result that the group was destroyed or hampered in its existence or development. To this end it might be useful to add at the end of article I: Such action will equally be considered as having been aimed against one of the groups mentioned, if the action, although alleged to have a different purpose, has in fact unreasonably hit that group.” The word “unreasonably” should be understood as: in disproportion to what the group or its members deserve. This limitation of the effect of the incriminated action prevents that a group of bandits should shield themselves with a political or national name in order to be able to present themselves as victims of genocide. 2. An important question is whether, in addition to the killing and biological extermination of groups, the cultural destruction of groups should also be included. In view of the fact that this touches upon the question of the rights of man, which question is being discussed separately under the auspices of the United Nations, the Netherlands Government prefer not to have cultural genocide included in the treaty. 3. As has been suggested by the United States Government, attention will have to be paid to the connexion between article I and article II,

E/623/Add.3

637

containing a definition of the crime of genocide and an enumeration of acts constituting genocide respectively. The solution given in articles I and II of the American draft seems commendable. 4. Attention will have to be paid that the definition of genocide is not made so large as to include every act of war against a large group of persons, notably an attack by atom bombs. Article II The terminology of the draft treaty is not quite uniform. Sometimes acts are called “unlawful”, at other times “punishable”, at other times again they are “deemed to be crimes of genocide”. It should be established beyond doubt that the “instructions or orders” mentioned in articles II, I, 2, under c include laws. It will equally be necessary to indicate who will be liable to punishment in such cases: the Government, or the members of Parliament as well. Article IV The Netherlands Government agree to the statement in article IV that government officials, civil servants and private persons can all commit the crime of genocide. The question arises whether article IV should be amplified so as to include specifically those who have taken the initiative for the genocide, and especially those who can be considered as the intellectual authors, since it seems doubtful whether these persons could be punished under articles II, II, section 2. The Netherlands Government equally agree to the clause “commands of the law or superior orders shall not justify genocide”. It seems desirable to add a further clause in order to prevent that this general rule might rise to injustice, in which respect a better solution should be aimed at than the one given in the Nurnberg Treaty of 1945. Article VI Article VI stipulates that the High Contracting Parties enact national legislation embodying the contents of articles I, II and III. It is not clear why this obligation is limited to these three articles. If it is desired to lay down such obligation, article VI should be given a wider scope. Article VII It will have to be certain that the jurisdiction equally applies to citizens of non-signatory Powers. Furthermore it should be prevented – as has been justly pointed out by the United States Government – that a State might, for purposes of political retaliation, usurp jurisdiction over aliens. Hence a limitation of the jurisdiction as proposed by the United States of America seems desirable. Article VIII As proposed by the United States Government, the clause about extradition will have to be slightly limited; addition of the words “in accordance with

638

E/623/Add.3

its laws or treaties” would be recommendable. Notably the liberty not to extradite own subjects will have to be retained. Articles IX and X With regard to the trial of persons guilty of genocide the Netherlands Government, although accepting national jurisdiction as primary principle, agrees with the idea of international penal jurisdiction, especially for those cases where the authorities themselves have perpetrated the crime, national jurisdiction therefore being excluded. The Netherlands Government would prefer to confer jurisdiction in this field upon the International Court of Justice, which will, however, only be possible after amendment of the Court’s Statute. The Netherlands Government would prefer this solution to the creation of a special judicial administration for genocide or to the creation of a tribunal for each separate case. If it should prove possible for the convention on the crime of genocide to materialize before the power of international jurisdiction could be conferred upon the International Court of Justice, then a temporary ad hoc jurisdiction might be created as proposed by the United States Government. If this supposition should come true, the decision about the character and the amount of the indemnity to be awarded to victims of genocide and the surviving members of their group could be entrusted to the International Court. Article XII This article, conferring upon contracting parties a right of appeal to the competent authorities of the United Nations “to take measures for the suppression or prevention of such crimes”, needs closer scrutiny. The second paragraph of the draft, stipulating that parties “shall do everything in their power to give full effect to the intervention of the United Nations”, has so little real meaning that it could be eliminated. Similarly article X of the American draft, stipulating that the Members of the United Nations agree “to concert their action as such Members to assure that the United Nations take such action as may be appropriate under the Charter for the prevention and suppression of genocide” has little positive content. Perhaps it might be as well to eliminate this clause and either to consider as self-evident that the new treaty does not infringe upon the rights and duties under the Charter, or to insert a general article to this effect, so that all action of the United Nations which is now desirable and permissible shall remain so in future. Article XIII The United States Government has justly remarked that the stipulation concerning the obligatory indemnity to survivors of the group is not sufficiently clear. At any rate, it seems strange to stipulate that this indemnity should be fixed by the United Nations without specifying by which organ of the United Nations. It will not be possible, however, to make arrangements on the subject until a decision will have been taken upon further jurisdiction in this matter. The principle of awarding an indemnity in cases where this can be done, seems recommendable.

E/623/Add. 4

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

639

Unrestricted E/623/Add. 4 20 July 1948 ORIGINAL: ENGLISH

PREVENTION AND PUNISHMENT OF GENOCIDE COMMENTS OF GOVERNMENTS ON THE DRAFT CONVENTION PREPARED BY THE SECRETARIAT (Document E/447)* The Secretary-General has received the following additional comments from the Members named: 11. Luxembourg (28 April 1948) The Minister of Foreign Affairs of Luxembourg presents his compliments to His Excellency the Secretary General of the United Nations and has the honour to state Him, in reply to His note SOA 17/2/01/EG, dated 18 March 1948, concerning the draft Convention on genocide that the Government of Luxembourg has no comments to present at this stage.

12. Siam (25 May 1948) Article 1. I. It is suggested that the word “ideological” be asserted between “linguistic” and “religious” in order to extend the protection under the Convention not only to religion but to other philosophical belief or principles which may be professed by some group of human beings as well. Article 1. II. 2(c). It is proposed to add the words “including racial prohibition” to this sub-section. At the present time, there exist certain racial groups with less female in number than male and the prohibition of their marriage with persons belonging to other racial group may result in their gradual extinction. In fact “obstacles to marriage” has a wide enough meaning to cover the case mentioned, but the addition would have the advantage to make the implication clearer. Article 1. II. 3.(b). The provisions of the draft are considered too narrow and the following wording is proposed: “systematic deprivation of intercourse with the individuals representing the culture of the group by acts of violence or infringement of personal liberty”.

* The comments received previously have been reproduced in documents E/623, E/623/ Add.2 and E/623/Add.3.

640

E/623/Add. 4

Article 1. II. 3(c). It is considered that prohibition under this sub-section should be construed to mean general prohibition and should refer to the language of a group and not to national language. It is therefore submitted to add the word “general” before the word “prohibition” and to use the words “language of the group” instead of “national language”. Article 5. The Siamese Government feels that this draft article should be more carefully considered since it affects the general principle in criminal law that a person should not be punished for any act committed in carrying out a lawful command. Article 6, 7, 8, 9 and 10. The Siamese Government is of the following opinion with regard to these draft articles which concern the jurisdiction over the crime of genocide. If it is to be held that genocide is an international crime, it should be the “duty” of every state to punish the offender and the principle expressed in Article 7 should be adhered to empowering the Court of the High Contracting Parties to punish the offender irrespective of his nationality or the place where the offence has been committed. If the power to punish the crime of genocide is considered merely a “right” of the state, then provisions of Article 8 may be useful in preventing the offender from escaping punishment. It is understood, however, that no person shall be punished twice for the same offence. In the case of the offenders being what the draft Convention called “rulers” (Article 4) or “individuals acting as organs of the state or with the support or toleration of the state” (Article 9), it may be necessary to have recourse to an International Court for trial, and in that case the International Court of Justice should be the appropriate Tribunal. It is not deemed necessary to set up a special Court for the purpose. Article 12. The right accorded by this draft article to the High Contracting Parties should also be extended to the Secretary-General of the United Nations. Article 13. It is proposed to amend the beginning of the draft article into “When genocide is committed in a country by the Government in Power, or by sections of the population with the tolerance of the Government, the State shall . . .” Article 18. The number of States as referred to in the draft article should be not less than half of the total number of members of the United Nations. Article 20. The number should be the same as that in draft article 18.

From the Ad Hoc Committee Draft to the Sixth Committee

E/AC.25/2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

643

UNRESTRICTED E/AC.25/2 1 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE AD HOC COMMITTEE’S TERMS OF REFERENCE Note by the Secretary-General The Ad Hoc Committee set up in pursuance of the Economic and Social Council resolution of 3 March 1948 is composed of representatives of the following seven Member States: China France Lebanon Poland Union of Soviet Socialist Republics United States of America Venezuela The Ad Hoc Committee’s task is to prepare a draft Convention on the Crime of Genocide, to be submitted to the Economic and Social Council at its next session, which will open on 19 July 1948. The Secretariat estimated that the Ad Hoc Committee’s proceedings would last at least a week, at most two weeks. Accordingly, the Economic and Social Council has made arrangement for the Committee to meet from 5 to 17 April 1948. SECTION I – THE TEXTS WHICH DEFINE THE AD HOC COMMITTEE’S TASK These texts are the General Assembly Resolution No. 180(II) of 21 November 1947 and the Economic and Social Council Resolution of 3 March 1948. The texts of those Resolutions are as follows: 1. General Assembly Resolution No. 180(II) of 21 November 1947 THE GENERAL ASSEMBLY, REALIZING the importance of the problem of combating the international crime of genocide;

644

E/AC.25/2

REAFFIRMING its resolution 96(I) of 11 December 1946 on the crime of genocide; DECLARING that genocide is an international crime entailing national and international responsibility on the part of individuals and States; NOTING that a large majority of the Governments of Members of the United Nations have not yet submitted their observations on the draft convention on the crime of genocide prepared by the Secretariat and circulated to those Governments by the Secretary-General on 7 July 1947; CONSIDERING that the Economic and Social Council has stated in its resolution of 6 August 1947 that it proposes to proceed as rapidly as possible with the consideration of the question of genocide, subject to any further instructions which it may receive from the General Assembly, REQUESTS the Economic and Social Council to continue the work it has begun concerning the suppression of the crime of genocide, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention, taking into account that the International Law Commission, which will be set up in due course in accordance with General Assembly resolution 174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nurnberg Tribunal, as well as the preparation of a draft code of offences against peace and security; INFORMS the Economic and Social Council that it need not await the receipt of the observations of all Members before commencing its work, and REQUESTS the Economic and Social Council to submit a report and the convention on this question to the third regular session of the General Assembly.

2. Economic and Social Council Resolution No. 117(VI) of 3 March 1948 THE ECONOMIC AND SOCIAL COUNCIL, TAKING COGNIZANCE of the General Assembly Resolution No. 180(II) of 23 November 1947, REQUESTS the Members of the United Nations which have not yet done so to transmit at the earliest possible date their comments on the draft Convention prepared by the Secretary-General (document E/477), ESTABLISHES an Ad Hoc Committee composed of the following Members of the Economic and Social Council: China, France, Lebanon, Poland, United States of America, Union of Soviet Socialist Republics, and Venezuela. INSTRUCTS the Committee: (a) to meet at the Headquarters of the United Nations in order to prepare the draft Convention on the Crime of Genocide, in accordance with the above-mentioned resolution of the General Assembly, and to submit this draft convention, together with the recommendation of the Commission on Human Rights thereon to the next session of the Economic and Social Council; and,

E/AC.25/2

645

(b) to take into consideration in the preparation of the draft convention, the draft convention prepared by the Secretary-General, the comments of the Member Governments on this draft convention, and other drafts on the matter submitted by any Member Government; REQUESTS the Secretary-General to take appropriate measures to enable the Committee effectively to carry out the tasks entrusted to it.

It follows from the above texts that the Committee’s task is to prepare the definitive text of a draft Convention for the Prevention and Punishment of Genocide. The Committee is entirely free to decide on the contents of the draft which it will submit to the Economic and Social Council. In accordance with the General Assembly’s instructions, however, the Economic and Social Council requested the Ad Hoc Committee “to take into consideration”: (1) “the draft Convention prepared by the SecretaryGeneral”; (2) “the comments of the Member Governments on this draft convention”; (3) all other drafts on the matter which may be submitted by Member Governments. The draft Convention prepared by the Secretary-General will be found in document E/447, 26 June 1947. The only comments from Governments received by March 1948 will be found in document E/623, 30 January 1948. The only Governments which have submitted any major comments are those of the following five countries: Denmark, France, Haiti, United States of America and Venezuela. In addition to commenting on the Secretariat draft, two Governments have submitted draft Conventions, namely the Government of the United States of America (document E/623, 30 January 1948) and the French Government (document E/623/Add.1). The draft Convention prepared by the Ad Hoc Committee in conformity with the Council resolution of 3 March 1948 will be submitted to the Commission on Human Rights, which will begin its third session on 20 May 1948. The Secretary-General will submit to the Economic and Social Council any comments which the Commission on Human Rights may make together with the draft prepared by the Ad Hoc Committee.

646

E/AC.25/2

SECTION II – PROCEDURE TO BE FOLLOWED BY THE AD HOC COMMITTEE I. General Discussion The Committee will probably want to begin its work by a general discussion. This general discussion could include the study of a certain number of questions of principle concerning the actual basis of the Convention for the Prevention and Punishment of Genocide. Differing opinions on the scope of application and the mechanism of the proposed Convention have been expressed in the debates in the Assembly’s Sixth Committee, the Economic and Social Council and in the comments received from Governments. The principal questions of a general nature which have been raised are as follows: 1. What human groups should be protected? Should all racial, national, linguistic, religious, political or other human groups be protected, or only some of them? 2. Forms of genocide For the sake of clarity a distinction has been drawn between three kinds of acts which might be included in the notion of genocide according to whether that notion is broadly or narrowly interpreted. “Physical” genocide involves acts intended to cause the death of members of a human group. “Biological” genocide consists in placing restrictions upon births. “Cultural” genocide consists in the destruction by brutal means of the specific characteristics of a human group, that is to say, its moral and sociological characteristics. Several Governments propose that the idea of cultural genocide should be excluded and consideration given only to physical and biological genocide.

E/AC.25/2

647

3. Should the Convention on genocide apply only to rulers or should it apply to rulers, officials and private persons without distinction? Opinions differed on this point. 4. Should an international court be asked to help in the punishment of genocide? Certain governments favour action by an international court, while others think that the punishment of genocide should be a matter solely for the national court. If it is decided to give an international court power of punishment, what sort of court will it be? Will it be an international criminal court with general jurisdiction set up to punish international crimes? Will it be a permanent court specially established for the punishment of acts of genocide, or an ad hoc tribunal, for which provision would be made in the Convention and which would be convened when there were cases to be heard? Lastly, there is the further question of the respective powers of the international court and national courts, but this question would not appear to be a general one warranting examination in a preliminary discussion. It will probably be easier to deal with it when drawing up the articles which will define the conditions governing prosecution; for example, a certain individual accused of the crime of genocide has committed a certain act in a certain country and has been arrested in a certain other country. The question cannot be profitably discussed except in connection with the details governing its application. The various points of principle mentioned above could be examined in the general discussion, but they could also be considered during the discussion of the articles with which each of the points is linked. 5. The relations between the Convention on Genocide and the formulation of the Nurnberg principles and the preparation of a draft code of offences against peace and security. The Ad Hoc Committee should not overlook the recommendation contained in the General Assembly’s resolution of 21 November 1947, according to which it must draw up the definitive text of a Convention, taking into account that the International Law Commission, which will be set up in due course in accordance with General Assembly resolution

648

E/AC.25/2

174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nurnberg Tribunal, as well as the preparation of a draft code of offences against peace and security. The Ad Hoc Committee may wish to examine the relations between the Convention on Genocide and the formulation of the Nurnberg principles, in particular those which deal with crimes against humanity. The Secretariat has for purposes of information prepared a study of this question. II. Discussion of the articles of the draft Convention In order to adopt a draft Convention in the form of articles the Committee must, in practice, take as the basis of discussion a preliminary draft which contains precise texts. The Ad Hoc Committee can either instruct a sub-committee to prepare a new preliminary draft, or take as the basis of discussion one of the existing preliminary drafts. The first method might delay the Committee’s work without offering any appreciable advantages, since in practice the Drafting Sub-Committee itself could only take as its starting point one of the texts which have already been drafted. The most practical solution would seem to be for the Ad Hoc Committee to take as the basis of discussion one of the drafts already existing, either that prepared by the Secretariat or one of the governmental drafts (American or French). It should be pointed out that the Secretariat draft has been communicated to all the Governments and that the comments made by Governments refer to the articles of that draft. FINAL OBSERVATION Since relatively few Governments have presented their comments on the question of genocide, and the Ad Hoc Committee consists only of seven members, the Committee may, in certain cases, think it advisable to follow the suggestion made in the Economic and Social Council to submit alternative texts and leave the final choice to the Economic and Social Council and the General Assembly.

E/AC.25/1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

649

UNRESTRICTED E/AC.25/1 1 April 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE DOCUMENTS CONCERNING THE “NÜRNBERG PRINCIPLES” MEMORANDUM SUBMITTED BY THE SECRETARY-GENERAL In its resolution 180(II), the General Assembly requested the Economic and Social Council, inter alia, to take into account that the International Law Commission, which will be set up in due course in accordance with General Assembly Resolution 174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal as well as the preparation of a draft code of offences against peace and security. For this reason the relevant parts of the Four Power Agreement signed at London 8 August 1945 of the Charter of the International Military Tribunal annexed to it and of related documents are herewith reproduced, namely: I. II. III. IV.

The Four Power Agreement of 8 August 1945. The Charter of the International Military Tribunal of 8 August 1945. The Berlin Protocol of 6 October 1945. The Charter of the International Military Tribunal for the Far East of 19 January 1946. V. The Control Council Law No. 10 of 20 December 1945. VI. The Peace Treaty with Italy, signed 10 February 1947. VII. The Resolution of the General Assembly on the Extradition and Punishment of War Criminals, of 13 February 1946. VIII. The Resolution of the General Assembly 95(I), of 11 December 1946. IX. The Resolution of the General Assembly 177(II), of 21 November 1947.

650

E/AC.25/1

I Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis. (Signed 8 August 1943) . . . Now therefore the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics (hereinafter called “the Signatories”) acting in the interests of all the United Nations and by their representatives duly authorized thereto have concluded this Agreement. Article 1. There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities. Article 2. The Constitution, jurisdiction and functions of the International Military Tribunal shall be those set out in the Charter annexed to this Agreement, which Charter shall form an integral part of this Agreement. ... Article 5. Any Government of the United Nations may adhere to this Agreement by notice given through the diplomatic channel to the Government of the United Kingdom, who shall inform the other signatory and adhering Governments of each such adherence.* Article 6. Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trial of war criminals. ... Done in quadruplicate in London this 8th day of August 1945 each in English, French and Russian, and each text to have equal authenticity. Signatures of the representatives of the Four Governments.

* The following Governments have expressed their adherence to the Agreement: Greece, Denmark, Yugoslavia, the Netherlands, Czechoslovakia, Poland, Belgium, Ethiopia, Australia, Honduras, Norway, Panama, Luxembourg, Haiti, New Zealand, India, Venezuela, Uruguay, and Paraguay.

E/AC.25/1

651

II Charter of the International Military Tribunal I. . . . II. Jurisdiction and General principles. Article 6. The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major was criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE; namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement deportation, and other inhumane acts committed against any civilian population, before or during the war;* or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

* (The contracting Governments signed a protocol at Berlin on 6 October 1945 which provides that this semi-colon in the English text should be changed to a comma, see below under III).

652

E/AC.25/1

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. Article 9. At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization. After receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard. Article 10. In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned. Article 11. Any person convicted by the Tribunal may be charged before a national, military or occupation court, referred to in Article 10 of this Charter, with a crime other than of membership in a criminal group or organization and such court may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activities of such group or organization. Article 12. The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence. ...

III Protocol dated Berlin 6 October 1945 PROTOCOL Whereas an Agreement and Charter regarding the Prosecution of War Criminals was signed in London on the 8th August, 1945, in the English, French and Russian languages.

E/AC.25/1

653

And whereas a discrepancy has been found to exist between the originals of Article 6, paragraph (c), of the Charter in the Russian language, on the one hand, and the originals in the English and French languages, on the other, to wit, the semi-colon in Article 6, paragraph (c), of the Charter between the words “war” and “or”, as carried in the English and French texts, is a comma in the Russian text. And whereas it is desired to rectify this discrepancy: NOW, THEREFORE, the undersigned, signatories of the said Agreement on behalf of their respective Governments, have agreed that Article 6, paragraph (c), of the Charter in the Russian text is correct, and that the meaning and intention of the Agreement and Charter require that the said semi-colon in the English text should be changed to a comma, and that the French text should be amended to read as follows: (c) LES CRIMES CONTRE L’HUMANITE: c’est à dire l’assassinat, l’extermination, la réduction en esclavage, la déportation, et tout autre acte inhumain commis contre toutes populations civiles, avant ou pendant la guerre, ou bien les persécutions pour des motifs politiques, raciaux ou religieux, lorsque ces actes ou persécutions, qu’ils aient constitué ou non une violation du droit interne du pays où ils ont été perpétrés, ont été commis à la suite de tout crime rentrant dans la compétence du Tribunal, ou en liaison avec ce crime. Done in quadruplicate in Berlin this 6th day of October, 1945, each in English, French and Russian, and each text to have equal authenticity. Signatures of the representatives of the four Governments. (United States of America, United Kingdom, France, Union of Soviet Socialist Republics)

IV Charter of the International Military Tribunal for the Far East (Annex to Special Proclamation of the Supreme Commander for the Allied Powers of 19 January 1946, General Orders No. 1, as amended by General Orders No. 20, of 26 April 1946) ... JURISDICTION AND GENERAL PROVISIONS Article 5. Jurisdiction Over Persons and Offences The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offences which include Crimes against Peace. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against Peace: . . . (b) Conventional War Crimes: Namely, violations of the laws or customs of war; (c) Crimes against Humanity: Namely, murder, extermination, enslavement,

654

E/AC.25/1

deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated . . .

V Control Council Law No. 10 of 20 December 1945 (Official Gazette of the Control Council for Germany, No. 3, p. 22) Article I – The Moscow Declaration of 30 October 1943 “Concerning Responsibility of Hitlerites for Committee [sic] Atrocities” and the London Agreement of 8 August 1945 “Concerning Prosecution and Punishment of Major War Criminals of the European Axis” are made integral parts of this Law. Adherence to the provisions of the London Agreement by any of the United Nations, as provided for in Article V of that Agreement, shall not entitle such Nation to participate or interfere in the operation of this Law within the Control Council area of authority in Germany. Article II – (1) Each of the following acts is recognized as a crime: (a) Crimes against Peace . . . (b) War Crimes . . . (c) Crimes against Humanity – Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. (d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal.

VI Peace Treaty with Italy (Signed in Paris 10 February 1947) Article 45 1. Italy shall take all necessary steps to ensure the apprehension and surrender for trial of: (a) Persons accused of having committed, ordered or abetted war crimes and crimes against peace and humanity; (b) Nationals of any Allied or Associated Power accused of having violated their national law by treason or collaboration with the enemy during the war. 2. . . . 3. . . .* * Similar provisions are contained in the Peace Treaty: with Roumania [sic]: Art. 6

E/AC.25/1

655

VII Resolution of the General Assembly (First Part of the First Session) adopted on 13 February 1946. (Document A/64, p. 9) Extradition and Punishment of War Criminals The General Assembly: ... taking note of the definition of war crimes and crimes against peace and against humanity contained in the Charter of the International Military Tribunal dated 8 August 1945 ...

VIII Resolution 95(I) of the General Assembly (Second Part of its First Session) adopted 11 December 1946. Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunal The General Assembly ... Takes note of the Agreement for the establishment of an International Military Tribunal for the prosecution and punishment of the major war criminals of the European Axis signed in London on 8 August 1945, and of the Charter annexed thereto, and of the fact that similar principles have been adopted in the Charter of the International Military Tribunal for the trial of the major war criminals in the Far East, proclaimed at Tokyo on 19 January 1946; Therefore, Affirms the principles of international law recognized by the Charter of the Nurnberg Tribunal and the judgment of the Tribunal; Directs the Committee of the codification of international law established by the resolution of the General Assembly of 11 December 1946, to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal.

with Bulgaria: Art. 5 with Hungary: Art. 6 with Finland: Art. 9

656

E/AC.25/1

IX Resolution 177(II) of the General Assembly (Second Session) adopted 21 November 1947. Plans for the formulation of the principles recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal The General Assembly Decides to entrust the formulation of the principles of international law recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal to the International Law Commission, the members of which will, in accordance with resolution 174(II) be elected at the next session of the General Assembly, and Directs the Commission to (a) Formulate the principles of international law recognized in the Charter of the Nurnberg Tribunal and in the judgment of the Tribunal, and (b) Prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above.

E/AC.25/3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

657

UNRESTRICTED E/AC.25/3 2 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE RELATIONS BETWEEN THE CONVENTION ON GENOCIDE ON THE ONE HAND AND THE FORMULATION OF THE NURNBERG PRINCIPLES AND THE PREPARATION OF A DRAFT CODE OF OFFENCES AGAINST PEACE AND SECURITY ON THE OTHER

Note by the Secretariat INTRODUCTION .................................................................... CHAPTER I – DOES GENOCIDE COME WITHIN THE CATEGORY OF CRIMES AGAINST HUMANITY AS DEFINED BY THE CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL? ........................... I – The acts constituting genocide have been provided for in the Charter of the International Military Tribunal ................... II – The Charter of the International Military Tribunal is only concerned with crimes against humanity if they are related to crimes against peace or war crimes ..................................... III – The General Assembly wished genocide to be indictable as a separate offence ..................... IV – Definition of the crime of genocide in relation to other crimes against humanity.................... CHAPTER II – CONDITIONS FOR THE PUNISHMENT OF THE CRIME OF GENOCIDE AND OF CRIMES AGAINST HUMANITY ........................... I – In the convention the notion of genocide will be independent of the notions of crimes against peace and war crimes ...................................

Page 659

660

660

661 662 663

663

663

658

E/AC.25/3

II – The convention will not confine itself to recognizing the right of States to punish genocide, it will make it obligatory for them to do so ..................................................... III – The convention will be concerned not only with the punishment of genocide but also with its prevention ..................................... CHAPTER III – THE GENERAL ASSEMBLY’S RECOMMENDATION CONCERNING THE FUTURE WORK OF THE INTERNATIONAL LAW COMMISSION ......................................

664

665

665

E/AC.25/3

659

THE RELATIONS BETWEEN THE CONVENTION ON GENOCIDE ON THE ONE HAND AND THE FORMULATION OF THE NURNBERG PRINCIPLES AND THE PREPARATION OF A DRAFT CODE OF OFFENCES AGAINST PEACE AND SECURITY ON THE OTHER

Note by the Secretariat In its Resolution 180(II) of 21 November 1947 “reaffirming its Resolution 96(I) of 11 December 1946”, the General Assembly decided to pursue the conclusion of a special convention on genocide. By that decision it rejected the idea of simply considering genocide as one of the crimes against humanity mentioned by the Charter of the International Military Tribunal of 8 August 1945.* Nevertheless, the General Assembly resolution mentioned above requested the Economic and Social Council to take into account the terms of reference given to the International Law Commission concerning the formulation of the Nurnberg principles. The resolution states: The General Assembly . . . requests the Economic and Social Council . . . to proceed with the completion of a convention, taking into account that the International Law Commission, which will be set up in due course in accordance with General Assembly Resolution 174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nurnberg Tribunal, as well as the preparation of a draft code of offences against peace and security.

What did the Assembly mean when it said that the Council should take into account the terms of reference given to the International Law Commission?

* That Charter is an annex to the Agreement by the Government of the United States, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the prosecution and punishment of the major war criminals of the European Axis, signed in London the same day.

660

E/AC.25/3

That allusion to the formulation of the principles recognized in the Charter of the International Military Tribunal is due to the Chinese delegation’s initiative in presenting to a plenary session of the General Assembly on 21 November 1947 an amendment (document A/514) the text of which was embodied as it stood in the above-quoted paragraph of the General Assembly resolution. Mr. Wellington Koo, Jr, commented on his amendment in the following terms to the General Assembly (123rd plenary meeting): We feel that that body (Economic and Social Council) should be instructed to draw up the convention with a careful consideration of the exact terminology and definition of the crime of genocide. We feel that the Economic and Social Council should draw up the text of this convention bearing in mind that another body, the International Law Commission, has been charged with the responsibility of dealing with a cognate subject – namely, the formulation of the principles of the Nurnberg Tribunal – and also with the preparation of a draft code of offences against peace and security. We wish that the Economic and Social Council, in swiftly completing its task in drawing up a convention on genocide, would not do anything which would prejudice the work of this latter body.” (Document A/P.V.123, page 241)

CHAPTER I – DOES GENOCIDE COME WITHIN THE CATEGORY OF CRIMES AGAINST HUMANITY AS DEFINED BY THE CHAPTER OF THE INTERNATIONAL MILITARY TRIBUNAL? I. The acts constituting genocide have been provided for in the Charter of the International Military Tribunal. In Resolution 96(I) of 11 December 1946, the General Assembly described genocide as “a denial of the right of existence of entire human groups” and compared it to homicide which “is the denial of the right to live of individual human beings.” The crime of genocide, considered from the point of view of the actual facts which constitute it, is certainly included in the list contained in Article 6, paragraph (c) of the Charter of the International Military Tribunal: (c) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian

E/AC.25/3

661

population, before or during the war, or persecutions of political, racial or religious crimes in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.*

Genocide in the most restricted sense consists in the physical destruction of the members of a human group with the purpose of destroying the whole or part of that human group. Thus defined, genocide is mass murder. It constitutes an act of extermination. It is therefore covered by the terms of Article 6, paragraph (c) of the Charter of the International Military Tribunal. If the crime of genocide is understood in the widest sense to include the destruction by brutal means of the specific characteristics of a human group, it is still covered by the terms of Article 6, paragraph (c) of the Charter of the International Military Tribunal which is concerned with “persecutions on political or racial or religious grounds.” II. The Charter of the International Military Tribunal is only concerned with crimes against humanity if they are related to crimes against peace or war crimes.* In interpreting Article 6, paragraph (c) mentioned above, the International Military Tribunal ruled, in its verdict of 30 September 1946, that crimes against humanity were not liable to punishment by an international court unless they were in some way connected with crimes against peace or war crimes. In reaching that conclusion the Tribunal considered the final part of paragraph (c) mentioned above. “Acts . . . or persecutions . . . in * Text corrected by the Berlin Protocol of 6 October 1945. * The following are crimes against peace and war crimes according to Article 6 of the Charter of the International Military Tribunal: (a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing: (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

662

E/AC.25/3

execution of or in connection with any crime within the jurisdiction of the Tribunal”.** Consequently, if acts of genocide have been committed without any connection with crimes against peace or war crimes, they are punishable by an international court. On the contrary, the condemnation of genocide contained in General Assembly Resolution 96(I) of 11 November 1946 is not accompanied by any conditions, and consequently genocide is considered as a crime under international law even if it has been committed in time of peace, and even if the country where it has been committed has not subsequently been involved in any war. III. The General Assembly wished genocide to be indictable as a separate offence In adopting Resolutions 96(I) and 180(II) the General Assembly had in mind a convention which would enable genocide to be punished in whatever circumstances it was committed. Without going into the general question of crimes against humanity, the Assembly wished to organize the prevention and punishment of a particular category of such crimes, namely those described as genocide. The General Assembly wished to give special treatment to the crime of genocide because of the particular gravity of that crime, which aims at the systematic extermination of human groups. It should be noted that the treatment of certain criminal acts falling within the same category as distinct offences is no innovation. Examples exist in state penal systems. Thus homicide which is the denial of an individual human being’s right to live is divided into several different categories: manslaughter, homicide, murder, and even parricide or regicide.

** Here is the relevant part of the verdict: To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of or in connection with any crimes within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proven that they were done in execution of or in connection with any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter.

E/AC.25/3

663

IV. Definition of the crime of genocide in relation to other crimes against humanity The General Assembly considered that it could make genocide indictable separately from other crimes against humanity because it had itself noted certain specific characteristics of that crime which made it possible to differentiate it from other crimes against humanity. “Genocide”, said the General Assembly, “is a denial of the right of existence of entire human groups . . .” It follows that: 1. The victim of the crime of genocide is a human group. It is not a greater or smaller number of individuals who are affected for a particular reason (execution of hostages) but a group as such; 2. It refers to the actual destruction of a human group and not to restrictions, ill-treatment or oppression of that group; 3. The destruction of the human group is the actual aim in view. In the case of foreign or civil war, one side may inflict extremely heavy losses on the other but its purpose is to impose its will on the other side and not to destroy it. CHAPTER II – CONDITIONS FOR THE PUNISHMENT OF THE CRIME OF GENOCIDE AND OF CRIMES AGAINST HUMANITY I. In the convention the notion of genocide will be independent of the notions of crimes against peace and war crimes One of the essential features which distinguishes the international punishment of the crime of genocide from the punishment of crimes against humanity has been mentioned in the preceding chapter. Under the Nurnberg Charter, crimes against humanity cannot be punished unless they have been committed in execution of, or in preparation for, an aggressive war. On the contrary, General Assembly Resolution No. 96(I) of 11 November 1946 which “affirms that genocide is a crime under international law which the civilized world condemns” does not attach any conditions or reservations to that statement. Consequently the convention on genocide envisaged in the said resolution and confirmed in the further Assembly Resolution 180(II) of 21 November 1947 obviously does not contain any restriction similar to that in the Nurnberg Charter with regard to crimes against humanity.

664

E/AC.25/3

It may be said that a convention on genocide, without weakening the condemnation of crimes against humanity under international common law, which is valid for all the members of the international community, will organize a practical system for the punishment of the crime of genocide which will be implemented by the States that have ratified the convention. It will not be the first time that a convention has been concluded on a matter on which rules of common law already exist. Common law retains its full force for the States which have not signed the convention, but the States parties to the convention define and develop the rules of common law in order to secure certain practical results. The committee will not doubt consider it expedient to insert a clause, either in the preamble or the body of the convention, implying that genocide is already a crime under general international law. II. The convention will not confine itself to recognizing the right of States to punish genocide; it will make it obligatory for them to do so. That is another considerable difference between the Nurnberg Charter and the convention envisaged by the General Assembly. After noting the criminal nature of certain acts and recognizing the right of States to punish their authors, the Charter of the International Military Tribunal organized the punishment of those crimes in given circumstances but did not impose on States a formal and general obligation to punish such crimes in the future, no matter what the circumstances. The very purpose of the convention on genocide, however, is to make it obligatory for States which have signed the convention to punish the crime of genocide. It is desired to make what was simply optional for States into an imperative international obligation. The General Assembly Resolution of 11 December 1946 mentioned above, which provided for the conclusion of a convention on genocide states: THE GENERAL ASSEMBLY AFFIRMS that genocide is a crime under international law . . . for the commission of which principals and accomplices . . . are punishable; INVITES the Member States to enact the necessary legislation for the provision and punishment of this crime; ...

E/AC.25/3

665

REQUESTS the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide . . .

III. The convention will be concerned not only with the punishment of genocide but also with its prevention. The Charter of the International Military Tribunal provides only for penal action taken a posteriori against the authors of crimes which have already been committed. In order to comply with General Assembly Resolution 96(I), on the other hand, the authors of the convention on genocide must provide for both the punishment and the prevention of the crime. By the terms of the resolution in question, the General Assembly . . . recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide . . .

This prevention may involve making certain acts punishable which do not themselves constitute genocide, for example, certain material acts preparatory to genocide, agreements or plots with a view to committing genocide, or systematic propaganda inciting to hatred and thus likely to lead to genocide. Prevention may take other forms than penal measures. There may be international prevention of a political nature. That would be the case if it was provided that the States parties to the convention should inform the organs of the United Nations in order that they might prevent the Commission of genocide. CHAPTER III – THE GENERAL ASSEMBLY’S RECOMMENDATION CONCERNING THE FUTURE WORK OF THE INTERNATIONAL LAW COMMISSION 1. The convention on genocide will organize the prevention and punishment of genocide as a separate crime within the category of crimes against humanity.

666

E/AC.25/3

To comply with the invitation contained in General Assembly Resolution 180(II) of 21 November 1947 to “take into account that the International Law Commission, which will be set up . . . has been charged with the formulation of the principles recognized in the Charter of the Nurnberg Tribunal, as well as the preparation of a draft code of offences against peace and security”, the Committee will have to give a sufficiently precise definition of genocide for it to be clearly distinguishable from other crimes against humanity. The International Law Commission, which cannot in any case begin to function until after the third session of the General Assembly, will have to take into account what the General Assembly has already decided on the question of genocide. 2. Nevertheless, the Ad Hoc Committee, should perhaps consider the case in which the same individuals have committed the crime of genocide and other crimes against humanity or other crimes mentioned in the Charter of the International Military Tribunal (crimes against peace, war crimes). In such a case – if the International Law Commission not only defines offences but organizes their punishment – there would be some advantage in punishing those crimes as a whole according to the same principles. It might also be advantageous if an individual accused of a number of offences could be brought before the same Tribunal and tried at a single hearing. That is perhaps a reason for not providing for a special ad hoc jurisdiction for crimes of genocide, or only envisaging such jurisdiction as a subsidiary measure should there be no other international penal jurisdiction having more general powers.

E/AC.25/3/Rev.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

667

UNRESTRICTED E/AC.25/3/Rev. 1 12 April 1948 ENGLISH ORIGINAL: FRENCH

AD-HOC COMMITTEE ON GENOCIDE RELATIONS BETWEEN THE CONVENTION ON GENOCIDE ON THE ONE HAND AND THE FORMULATION OF THE NURNBERG PRINCIPLES AND THE PREPARATION OF A DRAFT CODE OF OFFENCES AGAINST PEACE AND SECURITY ON THE OTHER

Note by the Secretariat INTRODUCTION ................................................................... CHAPTER I – DOES GENOCIDE COME WITHIN THE CATEGORY OF CRIMES AGAINST HUMANITY AS DEFINED BY THE CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL? ............................................ I – The acts constituting genocide have been provided for in the Charter of the International Military Tribunal .................. II – The Charter of the International Military Tribunal is only concerned with crimes against humanity if they are related to crimes against peace or war crimes .............. III – The General Assembly wished genocide to be indictable as a separate offence .................... IV – Definition of the crime of genocide in relation to other crimes against humanity ................ CHAPTER II – CONDITIONS FOR THE FURNISHMENT OF THE CRIME OF GENOCIDE AND OF CRIMES AGAINST HUMANITY ......................... I – In the convention the notion of genocide will be independent of the notions of crimes against peace and war crimes .....................

Page 669

670

670

671 672 673

673

673

668

E/AC.25/3/Rev.1

II – The convention will not confine itself to recognizing the right of States to punish genocide, it will make it obligatory for them to do so ...................................................... III – The convention will be concerned not only with the punishment of genocide but also with its prevention ..................................... CHAPTER III – THE GENERAL ASSEMBLY’S RECOMMENDATION CONCERNING THE FUTURE WORK OF THE INTERNATIONAL LAW COMMISSION .......................................

674

675

676

E/AC.25/3/Rev.1

669

THE RELATIONS BETWEEN THE CONVENTION ON GENOCIDE ON THE ONE HAND AND THE FORMULATION OF THE NURNBERG PRINCIPLES AND THE PREPARATION OF A DRAFT CODE OF OFFENCES AGAINST PEACE AND SECURITY ON THE OTHER

Note by the Secretariat In its Resolution 180(II) of 21 November 1947 “reaffirming its Resolution 96(I) of 11 December 1946”, the General Assembly decided to pursue the conclusion of a special convention on genocide. By that decision it rejected the idea of simply considering genocide as one of the crimes against humanity mentioned by the Charter of the International Military Tribunal of 8 August 1945.* Nevertheless, the General Assembly resolution mentioned above requested the Economic and Social Council to take into account the terms of reference given to the International Law Commission concerning the formulation of the Nurnberg principles. The resolution states: The General Assembly . . . requests the Economic and Social Council . . . to proceed with the completion of a convention, taking into account that the International Law Commission, which will be set up in due course in accordance with General Assembly Resolution 174(II) of 21 November 1947, has been charged with the formulation of the principles recognized in the Charter of the Nurnberg Tribunal, as well as the preparation of a draft code of offences against peace and security.

What did the Assembly mean when it said that the Council should take into account the terms of reference given to the International Law Commission? That allusion to the formulation of the principles recognized in the Charter of the International Military Tribunal is due to the Chinese delegation’s * That Charter is an annex to the Agreement by the Government of the United States, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the prosecution and punishment of the major war criminals of the European Axis, signed in London the same day.

670

E/AC.25/3/Rev.1

initiative in presenting to a plenary session of the General Assembly on 21 November 1947 an amendment (document A/514) the text of which was embodied as it stood in the above-quoted paragraph of the General Assembly resolution. Mr. Wellington Koo, Jr. commented on his amendment in the following terms to the General Assembly (123rd plenary meeting): We feel that that body (Economic and Social Council) should be instructed to draw up the convention with a careful consideration of the exact terminology and definition of the crime of genocide. We feel that the Economic and Social Council should draw up the text of this convention bearing in mind that another body, the International Law Commission, has been charged with the responsibility of dealing with a cognate subject – namely, the formulation of the principles of the Nurnberg Tribunal – and also with the preparation of a draft code of offences against peace and security. We wish that the Economic and Social Council, in swiftly completing its task in drawing up a convention on genocide, would not do anything which would prejudice the work of this latter body. (Document A/P.V.123, page 241)

CHAPTER I – DOES GENOCIDE COME WITHIN THE CATEGORY OF CRIMES AGAINST HUMANITY AS DEFINED BY THE CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL? I. The acts constituting genocide have been provided for in the Charter of the International Military Tribunal. In Resolution 96(I) of 11 December 1946, the General Assembly described genocide as “a denial of the right of existence of entire human groups” and compared it to homicide which “is the denial of the right to live of individual human beings”. The crime of genocide, considered from the point of view of the concrete acts which constitute it, is certainly included in the list contained in Article 6, paragraph (c) of the Charter of the International Military Tribunal: (c) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions of political, racial or religious crimes in execution of or in connection with any crime within the

E/AC.25/3/Rev.1

671

jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.*

Genocide in the most restricted sense consists in the physical destruction of the members of a human group with the purpose of destroying the whole or part of that human group. Thus defined, genocide is mass murder. It constitutes an act of extermination. It is therefore covered by the terms of Article 6, paragraph (c) of the Charter of the International Military Tribunal. If the crime of genocide is understood in the widest sense to include the destruction by brutal means of the specific characteristics of a human group, it is still covered by the terms of Article 6, paragraph (c) of the Charter of the International Military Tribunal which is concerned with “persecutions on political or racial or religious grounds.” II. The Charter of the International Military Tribunal is only concerned with crimes against humanity if they are related to crimes against peace or war crimes.** In interpreting Article 6, paragraph (c) mentioned above, the International Military Tribunal held, in its judgment of 30 September 1946, that crimes against humanity were not liable to punishment by an international court unless they were in some way connected with crimes against peace or war crimes. In reaching that conclusion the Tribunal considered the final part of paragraph (c) mentioned above. “Acts . . . or persecutions . . . in

* Text corrected by the Berlin Protocol of 6 October 1945. ** The following are crimes against peace and war crimes according to Article 6 of the Charter of the International Military Tribunal: (a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing: (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

672

E/AC.25/3/Rev.1

execution of or in connection with any crime within the jurisdiction of the Tribunal”.** Consequently, if acts of genocide have been committed without any connection with crimes against peace or war crimes, they are not liable to international repression. On the contrary, the condemnation of genocide contained in General Assembly Resolution 96(I) of 11 November 1946 is not accompanied by any conditions, and consequently genocide is considered as a crime under international law even if it has been committed in time of peace, and even if the country where it has been committed has not subsequently been involved in any war. III. The General Assembly wished genocide to be indictable as a separate offence In adopting Resolutions 96(I) and 180(II) the General Assembly had in mind a convention which would enable genocide to be punished in whatever circumstances it was committed. Without going into the general question of crimes against humanity, the Assembly wished to organize the prevention and punishment of a particular category of such crimes, namely those described as genocide. The General Assembly wished to give special treatment to the crime of genocide because of the particular gravity of that crime, which aims at the systematic extermination of human groups. It should be noted that the treatment of certain criminal acts falling within the same category as distinct offences is no innovation. Examples exist in state penal systems. Thus homicide which is the denial of an individual human being’s right to live is divided into several different offences: manslaughter, homicide, murder, and even parricide or regicide.

** Here is the relevant part of the judgment: To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of or in connection with any crimes within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proven that they were done in execution of or in connection with any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter.

E/AC.25/3/Rev.1

673

IV. Definition of the crime of genocide in relation to other crimes against humanity The General Assembly considered that it could make genocide indictable separately from other crimes against humanity because it had itself noted certain specific characteristics of that crime which made it possible to differentiate it from other crimes against humanity. “Genocide”, said the General Assembly, “is a denial of the right of existence of entire human groups . . .” It follows that: 1. The victim of the crime of genocide is a human group. It is not a greater or smaller number of individuals who are affected for a particular reason (execution of hostages) but a group as such; 2. It refers to the actual destruction of a human group and not to a policy of vexations, ill-treatment or oppression of that group; 3. The destruction of the human group is the actual aim in view. In the case of foreign or civil war, one side may inflict extremely heavy losses on the other but its purpose is to impose its will on the other side and not to destroy it. CHAPTER II – CONDITIONS FOR THE PUNISHMENT OF THE CRIME OF GENOCIDE AND OF CRIMES AGAINST HUMANITY I. In the convention the notion of genocide will be independent of the notions of crimes against peace and war crimes One of the essential features which distinguishes the international punishment of the crime of genocide from the punishment of crimes against humanity has been mentioned in the preceding chapter. Under the system of Nurnberg, crimes against humanity cannot be punished unless they have been committed either in the course of a war of aggression, or in connection with its preparation. On the contrary, General Assembly Resolution No. 96(I) of 11 November 1946 which “affirms that genocide is a crime under international law which the civilized world condemns” does not attach any conditions or reservations to that statement. Consequently the convention on genocide envisaged in the said resolution and confirmed in the further Assembly Resolution 180(II) of 21 November 1947 obviously

674

E/AC.25/3/Rev.1

shall not contain any restriction similar to that in the system of Nurnberg with regard to crimes against humanity. It may be said that a convention on genocide, without weakening the condemnation of crimes against humanity under international customary law, which is valid for all the members of the international community, will organize a practical system for the punishment of the crime of genocide which will be implemented by the States that have ratified the convention. It will not be the first time that a convention has been concluded on a matter on which rules of customary law already exist. Customary law retains its full force for the States which have not signed the convention, but the States parties to the convention define and develop the rules of customary law in order to secure certain practical results. The committee will notdoubt [sic] consider it expedient to insert a clause, either in the preamble or the body of the convention, implying that genocide is already a crime under general international law. II. The convention will not confine itself to recognizing the right of States to punish genocide; it will make it obligatory for them to do so. That is another considerable difference between the System of Nurnberg and the System of the convention envisaged by the General Assembly. After noting the criminal nature of certain acts and recognizing the right of States to punish their authors, the Charter of the International Military Tribunal organized the punishment of those crimes in given circumstances but did not impose on States a formal and general obligation to punish such crimes in the future, no matter what the circumstances. The very purpose of the convention on genocide, however, is to make it obligatory for States which have signed the convention to punish the crime of genocide. It is desired to make what was simply optional for States into an imperative international obligation. The General Assembly Resolution of 11 December 1946 mentioned above, which provided for the conclusion of a convention on genocide states: THE GENERAL ASSEMBLY AFFIRMS that genocide is a crime under international law . . .for the commission of which principals and accomplices . . . are punishable;

E/AC.25/3/Rev.1

675

INVITES the Member States to enact the necessary legislation for the provision and punishment of this crime; ... REQUESTS the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide . . .

III. The convention will be concerned not only with the punishment of genocide but also with its prevention. The Charter of the International Military Tribunal provides only for penal action taken a posteriori against the authors of crimes which have already been committed. In order to comply with General Assembly Resolution 96(I), on the other hand, the authors of the convention on genocide must provide for both the punishment and the prevention of the crime. By the terms of the resolution in question, “the General Assembly . . . recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end. Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide . . .” This prevention may involve making certain acts punishable which do not themselves constitute genocide, for example, certain material acts preparatory to genocide, an agreement or a conspiracy with a view to committing genocide, or systematic propaganda inciting to hatred and thus likely to lead to genocide. Prevention may take other forms than penal measures. There may be international prevention of a political nature. That would be the case if it was provided that the States parties to the convention should call upon the organs of the United Nations in order that they might prevent the Commission of genocide.

676

E/AC.25/3/Rev.1

CHAPTER III – THE GENERAL ASSEMBLY’S RECOMMENDATION CONCERNING THE FUTURE WORK OF THE INTERNATIONAL LAW COMMISSION 1. The convention on genocide will organize the prevention and punishment of this crime against humanity by making it a separate offence. To comply with the invitation contained in General Assembly Resolution 180(II) of 21 November 1947 to “take into account that the International Law Commission, which will be set up . . . has been charged with the formulation of the principles recognized in the Charter of the Nurnberg Tribunal, as well as the preparation of a draft code of offences against peace and security”, the Committee will have to give a sufficiently precise definition of genocide for it to be clearly distinguishable from other crimes against humanity. The International Law Commission, which cannot in any case begin to function until after the third session of the General Assembly, will have to take into account what the General Assembly has already decided on the question of genocide. 2. Nevertheless, the Ad Hoc Committee, should perhaps consider the case in which the same individuals have committed the crime of genocide and other crimes against humanity or other crimes mentioned in the Charter of the International Military Tribunal (crimes against peace, war crimes). In such a case – if the International Law Commission not only defines offences but organizes their punishment – there would be some advantage in punishing those various crimes according to the same principles. It might also be advantageous if an individual accused of a number of offences could be brought before the same Court and tried at a single trial. That is perhaps a reason for not providing for a special ad hoc Court for crimes of genocide, or only envisaging such Court as a subsidiary measure should there be no other international criminal Court having more general jurisdiction.

E/AC.25/4

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

677

UNRESTRICTED E/AC.25/4 2 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE OPENING OF THE SESSION Monday, 5 April 1948, at 11.00 a.m. PROVISIONAL AGENDA 1. 2. 3. 4. 5. 6.

Election of Chairman. Election of Vice-Chairman. Election of Rapporteur. Determination of the method and order of the Committee’s work. Preparation of a draft convention. Adoption of a report on the Committee’s work.

678

E/AC.25/5

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/5 5 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CONCORDANCE TABLE DRAFT CONVENTION ON GENOCIDE

CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL 8 AUGUST 1945

SECRETARY-GENERAL UNITED STATES FRANCE OF AMERICA (DOC. E/447) (DOC. E/623 (DOC. E/623/ – ANNEX) Add.1) PREAMBLE

PREAMBLE

CLAUSES OF SUBSTANCE

CLAUSES OF SUBSTANCE

CLAUSES OF SUBSTANCE

Article I – Protected Groups Acts qualified as Genocide

Articles I

Article 1 – (1st para.) (3rd para.)

Article 6 – (2nd para. C)

Article II – Punishable Acts

Article II

Article 1 – (4th para.)

Article 6 – (3rd para.)

Article 2 Article III – Punishment Article III of Propaganda leading to Genocide

Article 1 – (2nd para.)

Article 7

Article IV – Persons liable Article V – Command of the Law and Superior Orders

Article IV

Article VI – Provisions concerning Genocide in Municipal Criminal Law

Article V – (1st para.)

Article VII – Universal Idem – (2nd para.) Enforcement of Municipal Criminal Law

Article 6 – (2nd para. C) Article 8 –

E/AC.25/5

679

Table (cont.) DRAFT CONVENTION ON GENOCIDE

CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL 8 AUGUST 1945

SECRETARY-GENERAL UNITED STATES FRANCE OF AMERICA (DOC. E/447) (DOC. E/623 (DOC. E/623/ – ANNEX) Add.1) PREAMBLE

PREAMBLE

Article VIII – Extradition Article VI Article IX – Trial of Genocide by an International Court

Article VIII

Article 3

Article X – International Court

Article VII – Articles 4 to 10 (1st & 2nd para.)

Article XI – Disbanding of Groups having participated in Genocide

Article IX

Article XII – Action by the United Nations against Genocide

Article X

Article 9

Article XIII – Reparations Article VII – to victims of Genocide (3rd para.) Article XIV – Settlement Article XI of Disputes on interpretation of the Convention PROTOCOLAR CLAUSES

PROTOCOLAR CLAUSES

PROTOCOLAR CLAUSES

Article XV – Languages Article XII – Date of the Convention Article XVI – To whom the Convention shall be open? Ways to become party to it. Article XVII – Reservations

Article XIII

Articles 11 and 13

680

E/AC.25/5

Table (cont.) DRAFT CONVENTION ON GENOCIDE

SECRETARY-GENERAL UNITED STATES FRANCE OF AMERICA (DOC. E/447) (DOC. E/623 (DOC. E/623/ – ANNEX) Add.1) PROTOCOLAR CLAUSES

PROTOCOLAR CLAUSES

Article XVIII – Coming into force of the Convention

Article XIV

Article XIX – Duration of the Convention – Denunciation

Article XV

Article XX – Abrogation of the Convention

Article XVI

Article XXI – Revision

Article XVII

Article XXII – Notifications by the Secretary-General

Article XVIII

Article XXIII – Deposit of the Convention – Transmission of copies to Governments

Article XIX

Article XXIV – Registration of the Convention

Article XX

PROTOCOLAR CLAUSES Articles 12 and 14

CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL 8 AUGUST 1945

E/AC.25/6

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

681

UNRESTRICTED E/AC.25/6 6 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE LIST OF DOCUMENTS PLACED AT THE COMMITTEE’S DISPOSAL 1. Documents of the Ad Hoc Committee (a) Provisional Agenda – E/AC.25/4 – 2 April 1948; (b) List of the members of the Committee; (c) Terms of reference of the Ad Hoc Committee – E/AC.25/2 – 1 April 1948; (d) Concordance Table – Draft Conventions on Genocide – E/AC.25/5 – 5 April 1948; (e) The relation between the Convention on Genocide on the one hand, and the formulation of the principles of Nurnberg and the preparation of a draft code of offences against peace and security on the other hand – E/AC.25/3 – 5 April 1948; (f ) Documents on the principles of Nürnberg – E/AC.25/1 – 1 April 1948. 2. Economic and Social Council Documents on Genocide* (a) The Draft Convention on the Crime of Genocide prepared by the Secretary-General – E/447 – 26 June 1947; (b) Comments by Governments on the Draft Conventions prepared by the Secretariat and Communications from Non-Governmental Organizations – E/623 – 30 January 1948; (c) France – Draft Convention on Genocide – E/623/Add.1 – 5 February 1948; (d) The Prevention and Punishment of Genocide – Historical Summary (2 November 1946 – 2 January 1948) E/621 – 26 January 1948; (e) Continuation of the above (21 January – 24 March 1948) – E/621/ Add.1 – 25 March 1948.

* Only a few documents of specific interest to the Committee are listed here.

682

E/AC.25/SR.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.1 7 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE FIRST MEETING Lake Success, New York Monday, 5 April 1948, at 11.15 a.m. Acting Chairman:

Chairman: Present :

Secretariat:

Mr. LAUGIER

(Assistant SecretaryGeneral in charge of the Department of Social Affairs) Mr. MARTOS [sic] (United States of America) Mr. LIN (China) Mr. ORDONNEAU (France) Mr. AZKOUL (Lebanon) Mr. RUDZINSKI (Poland) Mr. MOROZOV (Union of Soviet Socialist Republics) Mr. PEREZ-PEROZO (Venezuela) Mr. SCHWELB (Assistant Director of the Human Rights Division) Dr. LIANG (Director of the Division on the Progressive Development of International Law and its Codification) Dr. KLIAVA (Division on the Progressive Development of International Law and its Codification) Mr. GIRAUD (Secretary of the Committee)

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing within the prescribed period to Mr. Delavenay, Director, Editorial Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an enveloped [sic] marked “Urgent” and bearing the appropriate symbol number.

E/AC.25/SR.1

683

OPENING OF THE MEETING Mr. LAUGIER (Secretariat) in declaring the meeting open, welcomed the members of the Ad Hoc Committee on Genocide on behalf of the Secretary-General, and conveyed the latter’s wishes that the Committee might achieve well-defined and concrete results, such as would facilitate the work of the United Nations bodies, which would have to take the final decision on the important problem of genocide. He would not venture to make a legal statement to the distinguished jurists who formed the Committee; he wanted to stress, however, the deep interest he had taken in that question even [sic] since it had first come before the United Nations, as the problem of genocide a [sic] appealed to him at once as a biologist, as a former president of the Ligue des Droits de l’Homme, as an Assistant Secretary-General, and as a man and citizen of the world. The Committee’s task was made easier, in certain respects, by the fact that its terms of reference were based on a unanimous resolution of the General Assembly. The General Assembly had indicated, by its unanimous vote, its desire to introduce into international law provisions for the prevention and punishment of this crime against humanity, which was genocide. The Committee’s work would be an important step towards the preparation of a draft convention to which all the members of the General Assembly could accede. Among the various documents prepared by the Human Rights Division, the draft convention (document E/447) comprised all the elements which might be included in a convention on genocide; the Committee would have to make the necessary choice in order to create an instrument which would be both complete and acceptable to all. He regretted the absence of Mr. Humphrey, Director of the Human Rights Division, who was detained at Geneva by the Conference on Freedom of Information, but he felt sure that with the able assistance of Mr. Schwelb, Assistant Director, of Mr. Giraud and of the Division’s staff, the Committee would achieve concrete, brilliant and rapid results. He then called upon the Committee to proceed with the election of its officers.

684

E/AC.25/SR.1

ELECTION OF THE CHAIRMAN Mr. ORDONNEAU (France) proposed Mr. Perez-Perozo (Venezuela) as Chairman of the Committee. Mr. PEREZ-PEROZO (Venezuela) although very conscious of the honour, nevertheless felt obliged to decline the offer owing to his many other responsibilities. Mr. MARTOS [sic] (United States of America) proposed that Mr. LIN (China) be nominated. Mr. LIN (China) suggested that Mr. Martos [sic] (United States of America) be nominated as Chairman. Mr. MARTOS [sic] (United States of America) said that he would prefer not to be Chairman, but that he would accept if the next nomination was refused by the person concerned. Mr. MOROZOV (Union of Soviet Socialist Republics) proposed the nomination of Mr. Rudzinski (Poland). Mr. RUDZINSKI (Poland) asked for an adjournment of the meeting so as to enable the members of the Committee to exchange views unofficially. The meeting adjourned from 11.40 a.m. to 11.55 a.m. Mr. RUDZINSKI (Poland) said that he would withdraw in favour of Mr. Morozov (Union of Soviet Socialist Republics). Mr. MOROZOV (Union of Soviet Socialist Republics) withdrew his nomination in order to avoid the need of a vote. Mr. MARTOS [sic] (United States of America) was elected Chairman, and took the chair. ELECTION OF THE VICE-CHAIRMAN Mr. RUDZIRSKI (Poland) nominated Mr. Morozov (Union of Soviet Socialist Republics) as the Committee’s Vice-Chairman. The CHAIRMAN particularly welcomed this proposal, in view of the public spirit which Mr. Morozov had just shown.

E/AC.25/SR.1

685

Mr. MOROZOV (Union of Soviet Socialist Republics) was elected ViceChairman of the Committee. ELECTION OF THE RAPPORTEUR Mr. ORDONNEAU (France) supported by Mr. LIN (China) and Mr. PEREZ-PEROZO (Venezuela), nominated Mr. AZKOUL (Lebanon) as Rapporteur. Mr. AZKOUL (Lebanon) was elected Rapporteur of the Committee. PLAN OF WORK OF THE COMMITTEE: GENERAL DISCUSSION Mr. PEREZ-PEROZO (Venezuela) said that he did not, for the moment, intend to deal with the substance of the question, but would confine himself to examining certain aspects of the terms of reference given to the Ad Hoc Committee on Genocide by the Economic and Social Council. He began by drawing the Committee’s attention to the vicissitudes undergone by the problem of genocide since it had been submitted to the United Nations. It had come before the United Nations for the first time during the second part of the General Assembly’s first session. In December 1946 the General Assembly had adopted its memorable resolution No. 96(I), which marked the first stage of a salutary progress towards the protection of mankind from the horrors of genocide. The very promising unanimity which was shown on that occasion had not been followed by the results hoped for. The General Assembly had entrusted the Economic and Social Council with the preparation of a draft convention on genocide. At its fourth session the Council, in turn, had entrusted the matter to the Secretary-General. The draft prepared by the Secretariat had been submitted to the Commission on the Progressive Development of International Law and its Codification, and to the various Governments concerned. The above Commission had not examined the substance of the draft and most of the Governments had failed to submit their observations as they had been asked. At its fifth session, the Economic and Social Council had decided to refer the question to the second session of the General Assembly. In November 1947, the latter had again referred the matter to the Economic and Social Council which, at its sixth session, had set up the Ad Hoc Committee on Genocide. In the circumstances, he felt justified in speaking of “vicissitudes”, and he

686

E/AC.25/SR.1

deplored the delay in implementing the General Assembly resolution, to the great disappointment of those who believed that that resolution in itself would be sufficient to outlaw genocide. The moment had come to act. The Committee’s first duty was to draw up a draft convention, cautiously and with an eye to facts, so as to ensure that the draft should be approved by all the members of the United Nations. In the compromise solution to be achieved, the measures designed for the suppression of this crime should not infringe the principle of national sovereignty, as any draft in which that principle was not duly observed would be doomed to failure. In that respect the most delicate problem was the establishment of an international penal jurisdication [sic], and the inclusion of political groups from among the categories of victims of genocide. It was necessary to advance carefully over ground so strewn with difficulties; a large measure of the success of the international understanding achieved would depend, to a great extent, on the spirit in which the treaties were signed; for that reason it was better to go slowly but surely. The convention on genocide would create a new crime and new jurisdiction of a mandatory nature for its prevention and punishment. The present draft involved the risk of serious conflict between national and international jurisdiction. The Committee should strive to avoid such cases of friction by making the national jurisdiction mainly responsible for the punishment of genocide. To achieve this, the Committee should restrict itself to a less comprehensive draft which respected the national sovereignty of the States. When an international community had been established on firmer foundations, and the conception of national sovereignty had become less rigid, a system of international jurisdiction might be adopted. As to the inclusion of political groups amongst the categories of victims of genocide, that was the only aspect of the crime which directly concerned the Latin-American countries, where racial and religious persecution was unknown. This might, however, discourage certain countries from acceding to the convention, as such a prevention might be interpreted as hampering the action of Governments with regard to subversive activities directed against them. Furthermore, it should be noted that that type of genocide would elude justice more easily than other types: if it were brought before the national courts, the Governments would be at once judge and party to the crime, and if it came before an international court, States would probably be reluctant to deliver up their own governing authorities. As

E/AC.25/SR.1

687

Sir Hartley Shawcross had said at the General Assembly’s sixth session the most effective sanction would be war. In drawing up a draft convention on genocide, the Committee should try to prepare a text which could be adopted by the General Assembly at its third session. By virtue of a recent resolution of the Economic and Social Council, that text would be submitted to the Commission on Human Rights, which would probably confine its examination to the humanitarian aspect of the question, leaving aside its legal and political aspects. It might also be assumed that the Economic and Social Council, which has so far refrained from considering the substance of the question, as it did not consider itself to be a competent legal organ, would maintain that attitude, and would refer the draft to the General Assembly without making any major modifications. It was, therefore, incumbent, on the Ad Hoc Committee on Genocide to prepare with all possible care the draft upon which the General Assembly would be required to decide. If the consideration of the draft seemed likely to evoke too long a discussion, the General Assembly, whose agenda was already very heavy, might not find it possible to deal with the matter in the present year. It was therefore the duty of the Ad Hoc Committee, a body composed of the accredited representatives of Governments, to draw up a short and precise draft convention which it had carefully studied from a political point of view, and which should be as flexible as possible. The Committee should refrain from submitting either a maximum programme, which would necessitate the General Assembly choosing between alternate texts for certain parts of the draft, or a minimum programme which would leave other bodies to fill in the gaps. In a matter as new as genocide, for which no legal precedent existed, any enumeration would be particularly dangerous, as enumeration always involved the risk of omissions, and therefore, in certain cases, the risk of admitting impunity. In conclusion, he expressed the hope that the Ad Hoc Committee on Genocide would achieve rapid and complete success in the task it had been set. After a brief discussion, the Committee decided that it would henceforth hold one meeting per day, from 2 p.m. to 6 p.m., and would use simultaneous interpretation until the technical phase of the work was reached. The meeting rose at 1.25 p.m.

688

E/AC.25/SR.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.2 6 April 1948 ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE Second Meeting Lake Success, New York, Monday, 5 April 1948, at 3 p.m. Chairman: Vice-Chairman: Rapporteur: China France Poland Venezuela

Mr. MAKTOS (United States of America) Mr. MOROZOV (Union of Soviet Socialist Republics) Mr. AZKOUL (Lebanon) Mr. Mousheng LIN [sic] Mr. ORDONNEAU Mr. RUDZINSKI Mr. PEREZ-POROZO [sic]

E/AC.25/SR.2

689

Continuation of the general discussion on the establishment of the working method and order to be followed by the Committee. The CHAIRMAN asked the Committee if it desired to hear a statement from the World Jewish Congress. Mr. AZKOUL (Lebanon) wished to know the object of the statement. The CHAIRMAN, referring to the conclusion of the request submitted by the Jewish Congress, stated that, in his opinion, it was a question of a statement on genocide in general, based on information which the Jewish Congress claimed to possess on the subject. The Chairman then pointed out that no representative of the Jewish Congress was present in the room. Mr. ORDONNEAU (France) stated that the Committee was composed of experts brought together to draw up a draft convention, and that there was no question of reopening the general debate which had taken place in the General Assembly and in the Economic and Social Council, when the Jewish Congress had had an opportunity of stating its views. The CHAIRMAN agreed with Mr. Ordonneau’s remarks, adding that the Committee had only two weeks in which to complete its work. Mr. AZKOUL (Lebanon) said that he was in agreement with the sentiments expressed by the representative of France and by the Chairman. The CHAIRMAN then pointed out that the Jewish Congress could, if it wished, submit a written declaration to the Committee. Mr. MOROZOV (Union of Soviet Socialist Republics) felt, on the contrary, that the Jewish Congress should be asked to submit its declaration to the Committee, as it would be a useful factor in the drafting of the convention on genocide. The Committee was entirely free to choose the method to be followed in completing its work and the time factor was of secondary importance. Mr. SCHWELB (Assistant Director of the Human Rights Division) pointed out that certain statements by the Jewish Congress on the subject of genocide had already been reproduced in documents E/623 and E/C.2/78.

690

E/AC.25/SR.2

The CHAIRMAN stated that he would ask the members to decide by vote whether or not the Jewish Congress was to be called to appear before the Committee, adding that it was also necessary to decide whether the representative of the Congress would be restricted to submitting a statement, or whether he might take part in the discussion in an advisory capacity. Mr. ORDONNEAU (France) thought that, even if the Committee decided, for purposes of information, to hear the representative of the Jewish Congress, there could be no question of allowing that representative [p. 3-line 3] to take part in the debate, as the Congress was not one of the organs of the United Nations. Mr. RUDZINSKI (Poland) also felt that the representative of the Jewish Congress could not, under any circumstances, take part in the debates of the Committee, and that, therefore, it was merely a question of authorizing him to submit a declaration, oral or written, which might perhaps be useful to the Committee. The Committee decided by 3 votes to 1, with 3 abstentions, to hear a declaration by the World Jewish Congress. Mr. AZKOUL (Lebanon) considered that, before preparing a draft convention, it was of primary importance for the Committee to establish a definition of the term “genocide”, which would be free from all ambiguity and would constitute a criterion of the specific nature of that crime. Existing definitions stressed only certain characteristic features of the crime of genocide, the existence of which was based on the actual and intentional destruction of a human group as such. If that argument were taken as a basis, it would entail giving any group an absolute entity which it would be criminal to attack. It was not certain that the conscience of mankind was prepared to consider such a group from that angle and to react spontaneously against any attempt to cut short its existence or development. World conscience seemed to take offence only at physical destruction which eliminated, either suddenly or gradually, a certain number of individuals. Therefore, it was the destruction of individuals which had an effect, rather than the destruction of a group. Nevertheless, certain higher considerations led world conscience also to revolt at the thought of the destruction of a group,

E/AC.25/SR.2

691

even though the individual members survived. One of those considerations was the loss likely to be suffered by humanity if it were deprived of the possible or actual cultural contribution of the group destroyed. In the General Assembly resolution on the subject, that argument was used to condemn genocide. Such considerations might, however, succumb either to more urgent issues, such as national or international security, which might be endangered by the activities of a group, or to more positive interests, as, for example, the interest of the human group in question. The case might also arise of a group which itself habitually committed the crime of genocide, or which endangered the fundamental rights and essential liberties of its own members; such a group should not be permitted to exist, whatever the cultural benefit that might be expected from it. The delegation of Lebanon considered it was essential to establish a criterion which would enable mankind to define the reprehensible destruction of a human group. It believed that that criterion was to be found in the motive provoking such destruction. Included in the crime of genocide, therefore, would be all acts tending towards the destruction of a group on the grounds of hatred of something different or alien, be it race, religion, language, or political conception, and acts inspired by fanaticism in whatever form. Only fanaticism constituted, in a positive manner, an evil revolting to the conscience of mankind. In fact, fanaticism as such was never openly admitted, but it was not impossible to detect its presence in the declarations, acts and measures which it inspired, and in the circumstances which attended it. It was possible that such a criterion would reduce the number of cases having the character of genocide, but it would enable absolutely certain cases to be defined. A convention based on this criterion would perhaps have a more limited scope, but it would be all the more equitable and efficacious on that account. The adoption of this criterion would allow mankind to solve all the problems raised by the definition of genocide; it would permit the punishment of all those who committed that crime – rulers, officials, private persons or political organizations – and the repression of all acts threatening the physical, religious or cultural existence of a human group. This criterion would, moreover, enable protection to be given to any threatened group,

692

E/AC.25/SR.2

whether of a racial, religious or cultural character, and to any social class or political organization. The definition of this concept of fanaticism had an advantage which the delegation of Lebanon considered essential. It would permit the prevention or punishment of any attempt to destroy or break up a human group; to compel it to change its religion or nationality, or even to modify its political conceptions. Again, this definition would make it possible to prevent a group from retaining its own members within its ranks by violence. The convention should safeguard the right of the group to exist and to develop without let or hindrance, while it should also protect the freedom of its members both as individuals and as parts of the group. If the convention failed to guarantee such freedom, it would become an instrument of reaction, an obstacle to the progress of humanity towards the complete freedom of groups and, more especially, of the individual. The CHAIRMAN, after having noted that no representative of the World Jewish Congress was present in the conference room, pointed out that the Committee would hear his statement at a subsequent meeting. Speaking as the representative of the United States, Mr. MAKTOS stated that his country had always attached the utmost importance to the question of genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) said he understood that the Chairman was about to close the general discussion. He requested the adjournment of the debate until the following day, so that he might put the finishing touches to a statement which he had been prevented from completing for technical reasons. Mr. ORDONNEAU (France) was of the opinion that the Committee could not take up item 5 of the agenda regarding the drawing up of a draft convention before it had heard the statement of the representative of the USSR, which should be included in the general debate. The CHAIRMAN thought that the representative of the USSR could present his statement in the course of the debate without it being necessary to modify the order on that account. Mr. ORDONNEAU (France) pointed out that if the Committee agreed to the Chairman’s suggestion, the discussion of individual items would be

E/AC.25/SR.2

693

interrupted by the USSR representative’s general statement. This would result in a waste of time and not in a gain. Mr. MOROZOV (Union of Soviet Socialist Republics) endorsed the remarks of the previous speaker and again pointed out that the continuation of the general debate should be deferred to the following day. He expressed his regret to the Committee for the technical difficulty which forced him to ask for an extension of time. Mr. RUDZINSKI (Poland) said that he also would like to make a general statement in the course of the discussion which should be postponed to the following day. Moreover, he thought that, after hearing the statements to be made by the representative of the USSR and himself, the Committee would not be able to take up immediately the consideration of item 5 of the agenda, because the question of the method to be used in drawing up the draft convention had not yet been settled. He considered that the best procedure would be to draw an initial distinction between certain principles on which agreement would be easily established and questions which would be liable to controversy. The CHAIRMAN, on the contrary, thought that it would be advisable to choose a basic document and to carry on the discussion article by article. In fact, his experience had shown him that discussions of a general nature ran the risk of being long-drawn-out and that it was, moreover, impossible to determine beforehand which points would be liable to controversy. Mr. MOROZOV (Union of Soviet Socialist Republics) insisted on the postponement of the discussion to the following day for the reasons he had already outlined. The CHAIRMAN stated that as a result of the various observations that had been made it was clearly understood that the general discussion was not closed and that members could make whatever statements they thought advisable, in particular with regard to the methods to be used in drawing up the draft convention. Mr. AZKOUL (Lebanon) thought the best procedure would be to take a document as a basis for discussion on the draft convention, and that the various delegations could raise as they pleased any questions of a general nature during the discussion.

694

E/AC.25/SR.2

The CHAIRMAN shared the opinion of the representative of Lebanon. Mr. Mousheng LIN [sic] (China) pointed out that the Note by the Secretary-General on the Committee’s terms of reference (document E/AC.25/2) could be taken as the basic document because it raised a series of general questions, especially in section II, paragraphs 1 to 5. Mr. MOROZOV (Union of Soviet Socialist Republics) reiterated that the statement he intended to submit to the Committee as soon as the translation was ready should provide a useful factor in the debate and facilitate a solution on certain essential points. Mr. ORDONNEAU (France) supported the point of view of the representative of the USSR. The CHAIRMAN decided to postpone the continuation of the debate to the following day, so as to enable the representative of the USSR to submit his proposals. The meeting rose at 4:15 p.m.

E/AC.25/SR.2/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

695

UNRESTRICTED E/AC.25/SR.2/Corr.2 4 May 1948 ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SECOND MEETING Lake Success, New York Monday, 5 April 1948, at 3 p.m. On page 3, third line, delete “as the Congress was not one of the organs of the United Nations.”

696

E/AC.25/7

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/7 7 April 1948 ENGLISH ORIGINAL: RUSSIAN

AD HOC COMMITTEE ON GENOCIDE BASIC PRINCIPLES OF A CONVENTION ON GENOCIDE (Submitted by the Delegation of the Union of Soviet Socialist Republics on 5 April 1948) I. Genocide, which aims at the extermination of particular groups of the population on racial, national (religious) grounds is one of the gravest crimes against humanity. The crime of genocide is organically bound up with Fascism-Nazism and other similar race “theories” which preach racial and national hatred, the domination of the so-called “higher” races and the extermination of the so-called “lower” races. The crime of genocide degrades and besmirches the countries where such crimes are still committed and where their commission is advocated or instigated. Such crimes are a gross breach of and an insult to the purposes and principles of the United Nations, and are in themselves a most grievous crime against humanity. The campaign against genocide requires all civilized peoples to take decisive measures to prevent such crimes and also to suppress and prohibit the stimulation of racial, national (and religious) hatred and to ensure that persons guilty of inciting, committing or encouraging the commission of such crimes shall be severely punished. The Soviet Government, recognizing the extreme gravity of the crime of genocide and attributing great importance to action for combating this crime, proposes the conclusion of a convention to this effect which will embody the following basic principles. II. In the convention the definition of the crime of genocide should be based on the concept that this crime essentially connotes the physical destruction of groups of the population on racial and national (religious) grounds. The concept of physical destruction must embrace not only cases of direct murder of particular groups of the population for the above-mentioned reasons, but also the premeditated infliction on such groups of conditions of life aimed at the destruction of the group in question.

E/AC.25/7

697

III. The concept of genocide must also cover measures and actions aimed against the use of the national language or against national culture (so-called “national-cultural genocide”), e.g.: (a) the prohibition or restriction of the use of the national tongue in both public and private life; the prohibition of teaching in schools given in the national tongue; (b) the destruction or prohibition of the printing and circulation of books and other printed matter in the national tongues; (c) the destruction of historical or religious monuments, museums, documents, libraries and other monuments and objects of national culture (or of religious worship); IV. The following actions should also be included in the convention as crimes of genocide: 1. Attempts to commit genocide; 2. The following acts of preparation for genocide: (a) study and research aimed at the elaboration of techniques of genocide; (b) the production of equipment and the manufacture, use, storage or supply of materials or products known to be intended for the commission of genocide; (c) instructions, commands, orders, and the allocation of tasks having as their object the commission of genocide. V. The convention should establish the penal character, on equal terms with genocide, of: 1. Deliberate participation in genocide in all its forms; 2. Direct public incitement to commit genocide, regardless of whether such incitement had criminal consequences; 3. Complicity or other forms of conspiracy for the commission of genocide. VI. The convention should make it a punishable offence to engage in any form of propaganda for genocide (the press, radio, cinema, etc.) aimed at inciting racial, national or religious enmity or hatred and also designed to provoke the commission of acts of genocide. VII. The convention should include as instances of genocide such crimes as group massacres or individual executions on the grounds of race, nationality (or religion); the creation of conditions aimed at the extinction of the groups of people subjected to those conditions, mutilations and biological experiments, the restriction of births by sterilization or compulsory abortion. VIII. The convention should contain provisions to the following effect: (a) states shall be obliged to disband and ban henceforth the existence of organizations, the purpose of which is to incite racial, national or religious hatred and the crime of genocide; (b) states shall be obliged to make provision in their legislation for the

698

E/AC.25/7

prevention and punishment of genocide and also for the prevention and punishment of incitement to racial, national and religious hatred and provide criminal penalties for the offences mentioned above if such penalties are not enacted in the legal codes now in force in those States. IX. The convention should state that cases of genocide shall be heard by the national courts in accordance with the domestic legislation of the country. X. The convention should provide that the signatories to the convention must report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the convention, so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter.

E/AC.25/SR.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

699

UNRESTRICTED E/AC.25/SR.3 13 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE THIRD MEETING Lake Success, New York Tuesday, 6 April 1948, at 2 p.m. Chairman: Mr. MAKTOS Vice-Chairman: Mr. MOROZOV Mr. AZKOUL Members: China France Poland Venezuela Secretariat:

Also present:

(United States of America [sic] (Union of Soviet Socialist Republics) (Lebanon)

Mr. Mr. Mr. Mr. Mr.

Mousheng LIN [sic] ORDONNEAU RUDZINSKI PEREZ-PEROSO [sic] SCHWELL [sic] (Assistant Director of the Division of Human Rights) Mr. GIRAUD (Secretary of the Committee) Mr. MARCUS (Acting Director of the Political Department of the World Jewish Congress)

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing within the prescribed period to Mr. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

700

E/AC.25/SR.3

CONTINUATION OF THE GENERAL DISCUSSION REGARDING THE CONVENTION ON GENOCIDE The PRESIDENT opened the meeting and announced that he had received a memorandum from the Consultative Council of Jewish Organizations on a draft convention on genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) made a statement on the fundamental principles which, in the opinion of his delegation, should form the basis of the future Convention on Genocide. This statement based on the memorandum he had submitted (document E/AC.25/7, of 7 April) consisted of several points, the essence of which is as follows: The crime which had to be repressed was defined as that aimed at the destruction of certain human groups on account of race, nationality (or religion). Crimes of this kind were by their nature organically connected with fascism, nazism or other racial “theories” which preached hatred of races and nationalities and as well as the ascendancy of so-called “superior” races and the extermination of so-called “inferior” races. Like the draft Convention prepared by the Secretariat (document E/447), the Soviet delegation’s memorandum considered as factors constituting genocide various acts and measures aimed at the physical extermination of populations and acts and measures aimed at the destruction of the national and cultural heritage of these populations. It proposed the repression of attempts to commit acts of genocide, and a number of preparatory acts (studies and research for the purpose of developing the technique of genocide; setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; issuing instructions or orders, etc. . . .). The Soviet delegation was of the opinion that the Convention should aim at suppressing any kind of propaganda (press, radio, film, etc. . . .) which was intended to arouse racial, national or religious hatred or to provoke acts of genocide. By way of example – and there were many others – the USSR delegation’s memorandum cited certain forms of genocide and, like the Secretariat’s

E/AC.25/SR.3

701

text, laid down the obligation of the contracting Parties to make provision in their penal law, if necessary, for its suppression or prevention. The two distinctive characteristics of the Soviet proposal lay in its two last provisions. Point IX of the memorandum proposed that the Convention should provide that national tribunals would be competent to judge genocide in accordance with the internal legislation of the country concerned. Point X proposed that the Convention should contain a provision stipulating that the contracting Parties must seize the Security Council of all cases of genocide, as well as all violations of the obligations of the Convention, so as to enable it to take the necessary measures in accordance with Chapter VI of the United Nations Charter. Mr. RUDZINSKI (Poland) said that although genocide was a new term, the act it referred to was an ancient one. The fact that international repression of this crime had not been provided for sooner made it possible even today for some people to contest the legality of the Nurnberg judgment. He considered that acts constituting genocide were acts aimed at the physical extermination of a human group or acts leading to its progressive extermination, called biological genocide, whatever the motives might have been that had inspired them. He said that cultural genocide was closely related to the problem of the protection of minorities. His country would willingly sign and ratify any convention aimed at the protection of minority groups, but this idea should not be enclosed in a proper convention on genocide. That was essentially a political question which would give rise to great difficulties and as its practical result, it could decrease considerably the number of adherences to the proposed Convention. The idea of cultural genocide would therefore be more suitably placed either in a convention on minorities or human rights or even in a separate convention. He then dealt with the question of the category of persons committing genocide who would be covered by the Convention. The idea that only rulers should be made internationally responsible for acts of genocide would have disastrous consequences and, contrary to the principles of criminal law requiring that accomplices should be punished on the same

702

E/AC.25/SR.3

grounds as the principal offenders, would result in most cases in protecting accomplices from any kind of punishment. He favoured universal repression of genocide, that is to say, the punishment of guilty persons wherever they might be or to whatever nationality they might belong. Nevertheless, the idea of setting up an international tribunal was, in his opinion, a premature one. In this connexion, he referred to the fate of the Convention of 16 November 1937 on the institution of an International Criminal Court; that Convention had been signed by 13 States, but none of them had ratified it. It would therefore be better to be satisfied, for the time being, with leaving the punishment of guilty persons to the various national jurisdictions. In support of this view, he pointed out the various categories of crimes against international law, namely, piracy, traffic in women and children, traffic in narcotic drugs, the repression of which was the responsibility of national jurisdictions. The Polish Criminal Code of 1932, which was still in force, stipulated, inter alia, in article 9 that “ . . . any other crime recognized as such by international treaties to which the Republic of Poland is a Party” would be punishable. This provision of the Polish Criminal Code would, if the occasion arose, be applicable to the crime of genocide. [p. 5] In conclusion, Mr. Rudzinski stated that he would submit concrete proposals during the discussions and pointed out that the essential problem was to introduce into the various national legislations provisions for the prevention and punishment of crimes of genocide. Mr. Mousheng LIN [sic] (China) said that he would not take up time by going into the past history of genocide or repeating the views of the Chinese delegation. The first question was to determine what groups were to be protected. Were we to retain political groups? The Chinese representative had doubts about that. A political group had neither the stability nor the homogeneity of an ethnical group. Moreover, the same political group might be connected [l. 12] with different theorists of the doctrine. Thus a Liberal might be connected [l. 13] either with Malthus or with Ricardo or with others. That applied to every [l. 14] doctrine. Moreover, the individuals themselves changed their ideas.

E/AC.25/SR.3

703

[para. 4] In the second place, there was a risk of bringing about a confusion between the idea of political crime and that of genocide. It was known [l. 17] that the various political parties of a country were liable to commit acts that might display certain characteristics of genocide but were nevertheless political crimes. If the protection of political groups were included in the Convention, the number of charges would be multiplied ad infinitum. [para. 5] As regards the categories of guilty persons to be covered by the Convention, he agreed with the Secretariat’s version of article 4 of the draft as it had been amended by the United States. (American draft, article 3). [last para.] Moreover, he was in favour of the idea of universal repression, which would give to national jurisdictions the right to punish guilty persons wherever the crime might have taken place and to whatever nationality they [last l.] might belong. [p. 6] The representative of China thought it would perhaps be desirable to provide for an international jurisdiction. It did not belong to the Committee to constitute a permanent International Criminal Court. It could at the most provide for the establishment of an ad hoc international tribunal. As regards the relations between the Convention on Genocide and the Nurnberg principles, he said that the latter related solely to acts committed either during a war of aggression or in connexion with the preparation of such a war. It was the purpose of the Committee, however, to define and provide for the means for the punishment of genocide at all times and at all places. After a short pause, the CHAIRMAN called upon Mr. Marcus, Acting Director of the Political Department of the World Jewish Congress. Mr. MARCUS (Acting Director of the Political Department of the World Jewish Congress) thanked the Committee, on behalf of his organization, for having given it an opportunity to submit a general statement on genocide. The Jewish Congress considered itself especially competent to make appropriate proposals on “this very important matter”, because many of the communities it represented had been subjected to the most cruel and

704

E/AC.25/SR.3

inhuman forms of wholesale extermination and persecution every [sic] recorded in the history of mankind. Mr. Marcus pointed out that six million Jews from different European countries had lost their lives, that others had been uprooted from their homes and that, even today, unless something were done, numbers of Jews might well become the victims of fresh persecution and new massacres. When certain acts perpetrated during the war were recalled, it had to be recognized that there could be no security in the world if it were generally accepted that the notion of sovereignty included the right of any Government to destroy groups of human beings within its borders or in areas coming under its control, without being subject to international supervision and punishment for such acts. The representative of the World Jewish Congress denounced the unjustified attacks made on the Statute of the International Military Tribunal, and, more specifically, against the contention that it had established an ex-post factum ruling which was contrary to the principles of criminal law and of equity. Mr. Marcus believed that the safety of ethnical groups and communities could not be guaranteed otherwise than by action by the United Nations. For that reason, one of the most important tasks before that Organization was to set up the machinery which would safeguard the existence of such groups against possible attacks by stronger groups. For that idea to become a reality, it was essential in the first place to prevent genocide. In conclusion, Mr. Marcus put forward the following ideas: 1) No effective prevention of acts within the definition of genocide could be guaranteed through the medium of purely domestic legislation or action. It was indeed improbable that the local courts or authorities of a given country would be able to act with the requisite independence, especially where the indictable acts would have been committed by representatives of the Government, as had been the case on the eve of and during the last war in countries dominated by the Axis. It was essential, therefore, that in taking measures against genocide, the United Nations should, above all, provide for international action. 2) The Convention should embody a definition of genocide which would clearly specify the groups of persons to be protected. There was not, and could not be, any possible justification for the contention that

E/AC.25/SR.3

705

the destruction of a given group was necessary for reasons of national defence. 3) The measures for the prevention of genocide should make it sufficiently explicit that no ethnical group or government was entitled to commit acts of genocide on other groups on the ground, real or imaginery [sic], that the latter had themselves perpetrated that crime. The state of unrest in which many European countries live at present led Mr. Marcus to fear the possibility in the near future of serious out-breaks of violence based on racial, religious or other grounds. The need for measures against genocide, therefore, appeared to him to be extremely urgent. In the World Jewish Congress representative’s opinion: (a) Preventive measures should not be confined solely to Parties to the Convention, but should be of universal application; (b) The Convention should include the obligation, for all Member States, to take measures to prevent the occurrence of genocide before the actual destruction of human groups began; (c) The Convention should make provision for effective measures compelling States to deliver to the international authority all persons guilty of acts of genocide, regardless of the personal status of such persons; (d) The Convention should make provision for the reparation of material damage caused by acts of genocide, and for the establishment of an international authority to adjudicate claims in such connexion; (e) In view of the possibility of weakening or destroying human groups by economic and other measures short of the actual destruction of life, the Convention should prohibit any action likely to lend ultimately to the partial or total destruction of a human group; (f ) The Convention should make provision for the establishment of a supervisory body authorized to call the attention of the signatories to any non-compliance with its provisions, to advise Member States on the action necessary to prevent genocide, and to consider petitions from groups or individuals who felt themselves threatened. The CHAIRMAN proposed that the debate should be closed and that the Secretariat document be taken as a basis of discussion, on the understanding that the various delegations would remain free to submit their views as the discussion of the articles proceeded.

706

E/AC.25/SR.3

Mr. MOROZOV (Union of Soviet Socialist Republics) felt that it would be impossible to draw up a convention without prior agreement as to general principles. He saw no good reason why the Committee should not arrive at an unanimous decision on the principles set out in the USSR proposals. He therefore suggested that those proposals should be taken as a basis of discussion. Mr. ORDONNEAU (France) accepted the proposal of the representative of the Union of Soviet Socialist Republics, reserving his right, however, to read and study the text which had not yet been distributed. Mr. PEREZ-POROSO [sic] (Venezuela) thought that, according to the terms of reference conferred upon the Committee by the General Assembly and by the Economic and Social Council, the Committee had to take as a basis of discussion the draft proposals already communicated to all the Governments concerned. That procedure would have the advantage of allowing the various representatives on the Committee to consult their Governments more easily. He, therefore, formally proposed that the Secretariat proposals (document E/447) should be taken as a basis of discussion. Mr. MOROZOV (Union of Soviet Socialist Republics) insisted that the short document submitted by his delegation should be distributed to the Committee prior to a vote being taken. Mr. AZKOUL (Lebanon) felt that it was of primary importance to reach agreement first on basic principles of the question. He therefore proposed to examine first of all the Soviet memorandum, not to discuss the text itself but to take note of the principles it contained and then to study the draft submitted by the Secretariat in the light of the principles that would be made clear in the consideration of the Soviet memorandum. In reply to a question by the Chairman, Mr. MOROZOV (Union of Soviet Socialist Republics) agreed that the fact of accepting the main principles of his proposal in no wise meant that the members of the Committee undertook to accept the actual text. After a short debate, the Committee decided to adopt the USSR proposal, as it had been amended by the delegation of Lebanon.

E/AC.25/SR.3

707

DISCUSSION OF THE PRINCIPLES SET FORTH IN THE MEMORANDUM OF THE USSR: POINT I The CHAIRMAN invited the Committee to proceed with the consideration point by point, of the principles set forth in the proposals of the USSR delegation, and requested the Committee, inter alia, to take a decision on the question of the groups to be protected by the Convention. Mr. AZKOUL (Lebanon) stated that the Convention had not only a political but also an educational aim. On that account, it was essential to establish an accurate definition of genocide, of which the various provisions of the Convention would be a logical sequence. The CHAIRMAN, speaking as the representative of the United States, supported the general idea of the definition contained in the USSR text. He defined this definition in the following terms: “Genocide is the extermination or attempted extermination of racial, national and religious groups of human beings.” Mr. AZKOUL (Lebanon) asked if “extermination” was to be taken to mean the physical destruction of individuals composing a group or the elimination of the group as such. The CHAIRMAN said that for the time being, he was referring only to physical extermination. To lay down a very precise distinction between the extermination of individuals comprised in a group and that of a group as such would raise very delicate questions of law and would involve the Committee too deeply. Moreover, the definition just proposed was of a purely provisional nature and was subject to revision. Mr. ORDONNEAU (France) pointed out that, from a legal viewpoint, it was difficult to dissociate principles and the drafting of the text. It was juridically dangerous to use such a general term as “extermination”. At the same time, he was prepared to accept the definition proposed by the Chairman. Mr. AZKOUL (Lebanon) also agreed to accept that definition, provided it covered the physical destruction of groups of individuals. Following a question put by the CHAIRMAN, a general debate took place on whether or not genocide should apply to political groups.

708

E/AC.25/SR.3

Mr. ORDONNEAU (France) replied that, in his opinion, it was necessary to protect freedom of opinion not only in political matters but also in all other fields. Mr. MOROZOV (Union of Soviet Socialist Republics) did not share the opinion of his French colleague. He thought, in fact, that the notion of opinion was not precise enough to enable courts, which might be called upon to deal with such questions, to arrive at a decision. Moreover, it appeared to him deprived of scientific basis and practically unapplicable [sic]. Mr. ORDONNEAU (France), in reply, said that the difficulties stressed by Mr. Morozov might be of a philosophical or political nature but certainly could not be of a legal character. In a Frenchman’s mind, the notion in question was clear enough to allow of its being included in the Convention. The United Nations could be considered as a legislative body the essential role of which was to provide the legal authority with the means of giving effect to its designs. Therefore, the representative of France requested that the Convention on Genocide should provide for the protection of groups formed on the basis of the opinions of their members. Mr. PEREZ-PEROSO [sic] (Venezuela) approved, in principle, the arguments of Mr. Ordonneau. The dictatorial governments of some countries in Latin America, for example, did not hesitate to make use of persecution, torture and executions to crush political groups which attempted to oppose their domination. Nevertheless, according to the representative of Venezuela, there were reasons which made it difficult to include in the Convention, political motives among those which, in the mind of the Committee, might provoke the crime of genocide. A decision taken in that sense might, in his opinion, prevent the adherence of countries which had to struggle against subversive movements. On the proposal of the Chairman, the Committee, for the time being, decided to keep to the definition of genocide which he had proposed. The meeting rose at 6.15 p.m.

E/AC.25/SR.3/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

709

UNRESTRICTED E/AC.25/SR.3/Corr.1 20 May 1948 ENGLISH ONLY

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE THIRD MEETING Lake Success, New York Tuesday, 6 April 1948, at 2 p.m. The following amendments should be made on pages 5 and 6: Page 5: delete the second paragraph, and replace the following: Mr. LIN MOUSHENG (China) said that he would not take up time by going into the past history of genocide but would only express briefly some views of the Chinese delegation.

line 12: delete the words “theorists of the doctrine.” and replace by the words “political doctrines.” delete also “connected”; line 13: delete the words “either with Malthus or with Ricardo or with others.” and replace by the words “a Rousseauxian, a Ricardian, or a Jeffersonian.” delete “the” in line 14; line 17: the words “the various” should be substituted by “opposition”, and in the same line replace the word “of ” by “in”; delete the last sentence in paragraph four, and the whole of the fifth paragraph; in the last paragraph, delete the word “Moreover” thereby commencing the sentence with the word “He”. Delete the word “idea” and replace the word “principle”; add a comma after the word “belong” in the last line, and the words “subject of course to extradition.” Page 6: Delete the first paragraph, and replace the following: The representative of China thought it would perhaps be desirable to provide for an international jurisdiction. But it was not within the competence of the Committee to draft a statute for a permanent International Criminal Court. It could at the most mention the possible establishment of an ad hoc international tribunal.

710

E/AC.25/SR.4

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.4 15 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE FOURTH MEETING Lake Success, New York Wednesday, 7 April 1948 at 2 p.m. Chairman: Vice-Chairman: Rapporteur: Members:

Mr. J. MAKTOS Mr. MOROZOV Mr. AZKOUL China France Poland Venezuela

(United States of America) (Union of Soviet Socialist Republics) (Lebanon) Mr. LIN Mr. ORDONNEAU Mr. RUDZINSKI Mr. PEREZ-PEROZO

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing within the prescribed period to Mr. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

E/AC.25/SR.4

711

The CHAIRMAN first of all recalled that the Committee had recognized in the course of its previous meeting that genocide was the extermination of racial, national and religious groups. Later, of course, the members of the Committee might propose the inclusion of other categories. The Chairman then read a memorandum submitted by the Secretariat, dealing with the Committee’s methods of work. This document emphasized that discussion of a convention on genocide fell into two distinct stages: (1) the discussion of principles; (2) the drafting of a suitably worded text. The USSR proposal presented certain disadvantages in that it did not differentiate clearly enough between fundamental principles and the detailed provisions of a convention. The Chairman did not support these comments unreservedly; moreover he pointed out that they in no wise constituted a criticism of the USSR proposal, which in his opinion could be helpful to the Committee in the accomplishment of its task. Mr. MOROZOV (Union of Soviet Socialist Republics) felt that even if the proposal presented by his delegation did not exhaust the subject – and it did not attempt to do so – it still set forth all the essential questions and would make it possible to define the general nature of the convention. In his view, the Committee should begin by studying the most important questions; namely, definition and nature of genocide, inclusion of cultural genocide, questions of jurisdiction, and finally the additional points raised in the proposal of the USSR as well as in other documents. In conclusion, Mr. Morozov pointed out that even if the members of the Committee were unanimous with regard to certain principles, they were not agreed on the drafting of the corresponding articles or on the question of whether political groups should be included in the convention. Mr. AZKOUL (Lebanon) thought it would be well to determine the method of procedure, and he suggested that the proposal of the USSR should be adopted as a basis for discussion. He proposed that the different points of that document should be discussed one by one. If it was agreed to list various groups, that would mean both a long and necessarily incomplete list. In his view, it would be better to begin by specifying the definition, and in that connexion he submitted two questions. (1) Should the crime of genocide be defined as the physical

712

E/AC.25/SR.4

extermination of individuals, or as the extermination of a group as such, without regard to the massacre of individuals? (2) Should the question of the motivation of the act be introduced? Those were important questions which would have to be decided, as their solution would ipso facto settle the question of cultural and political genocide. The CHAIRMAN, speaking as the United States representative, proposed adding to the definition of genocide, which had been agreed upon at the previous meeting, the words, “with the complicity of the Government”. The United States delegation felt in fact that genocide could not be an international crime unless a Government participated in its perpetration. In introducing this amendment, Mr. Maktos in no way wished to exempt from responsibility or excuse from punishment individuals not directly connected with a Government. But the common law of every country covered crimes not committed with the complicity of the Government. Here was a condition sine qua non of genocide which should be inserted in the definition. Mr. AZKOUL (Lebanon), while admitting that the complicity of the Government was an element of genocide, thought it need not necessarily be a condition of its existence sine qua non. It was possible to imagine the case of a group of individuals seeking to exterminate another group, and of a Government which, through weakness or impotence, was powerless to prevent the massacre. Nevertheless, would not that be genocide? The principal idea underlying the convention was that it would be the starting point for an international penal system. The concept of genocide ought to enter into national penal codes and be part of the system of education. Replying to Mr. Azkoul, the CHAIRMAN explained that it would be genocide for a member of a Government to call for the extermination of a group of individuals and to enlist the help of an individual or another group to accomplish that crime. The Government’s complicity would have to be assumed if, for example, it did not intervene to restore order. Mr. ORDONNEAU (France) stated that he was in favour of the definition proposed by the United States. In his opinion, difficulties arose from the fact that physical genocide was made up of a series of individual crimes which were envisaged as such in national laws. The idea of genocide was bound to overstep national boundaries and take on an international character; it thus became necessary to distinguish genocide from simple homicide.

E/AC.25/SR.4

713

Another difficulty would be the case of a group which carried on a private war on another group within the same State and committed a series of individual murders. This form of conspiracy was usually taken account of in national laws and could even constitute an aggravating circumstance (entente de malfaiteurs), as it did in France. In that case there was no genocide, precisely because there was no participation by the Government. Thus it was necessary to retain in the definition of genocide the concept of governmental complicity, providing always that the word “complicity” be understood in its widest sense: for example, the mere act of granting impunity to the group committing genocide would constitute complicity. Mr. MOROZOV (Union of Soviet Socialist Republics) reserved the right to offer observations on that point when he received the text of the United States proposal. He had no objection in principle and only wished to say that in his opinion Governments, officials and individuals accessory to a crime were all equally guilty when the crime was genocide. That was a principle on which everyone agreed, but which he would like to see expressed elsewhere than in the definition of genocide, for fear of weighing the definition down or restricting its scope. He thought that in the text, the elements of the crime should be separated from the criminals. In his view, the participation of the Government was a necessary but sometimes an indirect element. Genocide was fundamentally the deliberate annihilation of a racial, religious or national group, and the participation of a Government did not change the nature of the crime. The extermination was not necessary physical, but could be produced by the creation of living conditions which obliterated the group, and there again, the nature of the crime did not depend on the criminal agency. Mr. Morozov therefore felt that the first thing to be done was to define the crime of genocide, that is, to decide whether it should include biological and cultural destruction as well as physical, and having arrived at this definition, to consider who should be held responsible. Mr. LIN (China) found it difficult to accept the limitation proposed by the Chairman. In his view, a crime need not be committed with the complicity of a Government in order to fall within the province of international law. Obviously there could be no crime of genocide without a

714

E/AC.25/SR.4

certain amount of government participation, but this participation need not be obvious. Mr. Lin thought that to describe the inertia of a Government as complicity would be to exaggerate the meaning of an ambiguous term. Genocide could be committed by officials acting as individuals and [p. 6-line 4] then a Government could not effectively intervene. In conclusion, Mr. Lin considered that the complicity of the Government was an element in the crime but not an essential element. Mr. RUDZINSKI (Poland) spoke against the United States amendment which, in his opinion, unduly restricted the concept of genocide. Behind this amendment lay the false conception that governmental authority was always effective. It was unrealistic to think that a Government could always prevent genocide. It could not do so, for example, either during periods of unrest, in time of war, or in certain Non-Self-Governing Territories where ruling circles practised the well-known policy of divide and conquer; “divide” often meant, in this case, to destroy. Such a limitation, according to Mr. Rudzinski, would change the whole nature of the convention, which would thuse [sic] be directed against Governments, contrary to the original intent. Therefore he could not accept the amendment proposed by the United States. Mr. ORDONNEAU (France) acknowledged the force of Mr. Rudzinski’s argument in cases where the authority of a Government was so weakened that it could neither prevent nor suppress the crime. He thought it might be better to abandon this limitation, which was likely to create practical difficulties. The CHAIRMAN, in reply to Mr. Lin, said that even if international law did not make governmental complicity a prerequisite to declaring a crime international, there could be practical cases where its participation was obvious and if the definition proposed by his delegation was accepted, there was nothing which would prevent an international court from deciding that a Government’s inertia amounted to complicity. Answering Mr. Rudzinski, the Chairman pointed out that national courts could suppress individual crimes. The United States proposal was not designed to hamper the suppression of genocide, but to clarify its definition. Finally, in the great majority of cases, the Government would be able

E/AC.25/SR.4

715

to impose its authority, and plainly the convention could not anticipate every kind of case. It was necessary to have confidence in the wisdom of the judges who would have to interpret the convention. Mr. PEREZ-PEROZO (Venezuela) did not think the complicity of Governments should be considered as an indispensable element of genocide. He still believed that this approach would dangerously narrow the concept of genocide. Moreover, it would prevent the punishment of numerous crimes committed by one group against another and having all the other characteristics of genocide. The idea of genocide was very clear in his mind: from the etymological standpoint, its roots were “group” and “kill”. When these two ideas were combined, the crime of genocide appeared. It would be a mistake to think that genocide was bound up with the physical disappearance of members of the group. The life of individuals could continue after the group as such had been killed off. Besides, the United States proposal did not anticipate the case of a weak Government unable to prevent the extermination of a group occupying a distant region. The proposal was a dangerous idea which could best be expressed outside the definition proper. Mr. AZKOUL (Lebanon) said it was implied in the first paragraph of the General Assembly’s resolution on genocide that the Assembly envisaged the possibility of genocide being committed without governmental participation or culpability. The proposed United States amendment, because it required the complicity of a Government, seemed to exclude the possibility that a crime of genocide might be committed by individuals. Besides, a Government could hardly be expected to declare itself an accomplice in massacres. Thus the United States proposal seemed to be in conflict with the first paragraph of the resolution of the General Assembly. The CHAIRMAN, in answer to Mr. Azkoul, expressed the opinion that it had been the wish of the General Assembly to define genocide as an international crime. It would be neither desirable nor useful to bring in questions of national jurisdiction. Once the convention on genocide had been drafted, it would be up to every country to bring its penal code into line. The General Assembly had not attempted to define the crime of genocide and it was clear that, in the last analysis, it was individuals who were responsible. Finally, the Chairman did not think it would be wise to limit the discussion to the points mentioned explicitly by the General Assembly resolution.

716

E/AC.25/SR.4

Mr. ORDONNEAU (France) suggested postponing further discussion of the question until later. The meeting then adjourned and reconvened at 4.25 p.m. The CHAIRMAN asked the members of the Committee to consider his proposal and to take a decision on it later. Genocide would be defined as the extermination or attempted extermination of racial, national or religious groups of the population, committed with the complicity of responsible State officials. [p. 8-last para.] Mr. LIN (China) proposed to define genocide as the extermination, or attempted extermination of racial, national or religious groups of the population carried out with the complicity of Governments, of responsible Government officials, of Government organs or of persons employed as Government officials. He stressed, however, that the word [p. 9-line 2] “complicity” should be defined. Mr. AZKOUL (Lebanon) stated that it was necessary first of all to define the word “extermination”, making it clear whether it applied solely to the physical extermination of individuals belonging to a group, or also to cases where the group was destroyed but some of the individuals who had been its members survived, and secondly to include in the definition a reference to the motive for action. The CHAIRMAN asked whether members of the Committee wished to add further groups of human beings to those listed in the definition already accepted. Speaking as the representative of his Government, he proposed the addition of “political groups”. Mr. ORDONNEAU (France) remarked that the French delegation had, in the course of the previous meeting, proposed to include the extermination of a group on account of its opinions. The word “opinion” was proposed because it laid stress on the fanaticism which was the basis for such action. It also emphasized the fact that intellectual opinion, including political and other opinion, was that borne in mind. Mr. AZKOUL (Lebanon) agreed to the inclusion of political groups in the definition, providing that their extermination was the result of political fanaticism. The CHAIRMAN stressed the fact that he did not agree that the extermination of a political group did not constitute a crime of genocide if it was not carried out solely on account of the opinions

E/AC.25/SR.4

717

held by that group. He did not find “the extermination of a group on account of its opinion” a sufficiently precise expression and thought that it might even prove dangerous, since many of the groups against which a State might proceed held certain opinions, and it was a mistake to shelter them by allowing them to appear as groups persecuted on account of their opinion. Mr. ORDONNEAU (France) drew attention to the manner in which the word “opinion” was used in the Declaration of Human Rights of 1789. The Declaration guaranteed, among other things, freedom of opinion, and the point at issue was to transpose the idea of freedom of opinion from an individual to a collective plane. Mr. AZKOUL (Lebanon) emphasized the difference between the freedom of opinion of an individual and that of a group. Freedom of opinion included freedom of political opinion, but the latter should not serve as a protection of opinion expressed in terms of a doctrine or a plan of action endangering the very existence of the State. The representative of Lebanon further called attention to the essential difference between racial, national and religious groups, all of which bore an inalienable character, on one hand and political groups, far less stable in character, on the other. It was possible to dissolve a political party, and such a dissolution might be accompanied by reprisals. It was also necessary to explain whether the extermination of a group, or such a dissolution, were meant in the definition. Mr. RUDZINSKI (Poland) also stressed the fact that the three firstnamed groups which the Committee had already decided to protect had a fully established historical background, while political groups had no such stable form. There had been a period in history, half a century ago, when political parties set up by generals in South America vanished immediately after the defeat of the latter. A racial, national or religious group did not disappear simply because its head was eliminated or as a result of reprisals against its leaders. Further, the representative of Poland drew attention to the moral reasons underlying the idea of drawing up a convention on the crime of genocide. The aim of the convention was to prevent a repetition of the atrocities perpetrated during the last war. The significance of the convention would have a moral rather than a political character. It was necessary to limit

718

E/AC.25/SR.4

protection to the three groups already mentioned in the definition accepted by the Committee, as otherwise there would be no reason for not having an endless list protecting every conceivable kind of group. Mr. ORDONNEAU (France) stated that freedom of political opinion of groups, no less than freedom of individual opinion, should not be allowed to go as far as to endanger the State. As far as the latter part of the Lebanese representative’s remarks was concerned, it would be more convenient to reply to it once the constituent elements of the crime of cultural genocide had been examined. In any case the definition submitted by the French delegation aimed at describing as genocide only attempts on the lives of members of a group made solely on account of the opinions expressed by them. The CHAIRMAN, speaking as the representative of the United States of America, stated that a political group was more easily recognizable than a group holding a certain opinion, bearing as it does distinguishing marks which leave less room for confusion. Thus for instance, in the United States of America the only parties in question could be the Democratic or the Republic party, or a “third party”. Mr. ORDONNEAU (France) observed that in some countries the number of political parties was far greater and that in some cases they corresponded to philosophical and religious lines of thought which determined their nature. [p. 11-last three lines] Mr. LIN (China) suggested the inclusion of both political groups and groups of opinion in the definition, but warned against making the definition needlessly lengthy. There was, in fact, no good reason why [p. 12-first three lines] social, economic and other groups should not be included, or even why no mention of sex distinction should be made, because there again it was possible to envisage separate groups. [p. 12 first three lines end] The CHAIRMAN observed that resolution 96(I) of the General Assembly on the crime of genocide mentioned political groups. Mr. ORDONNEAU (France) thought that the character of the convention would suffer no change if it undertook to protect political groups. Persecution of persons belonging to a political group on account of their political opinion was quite as reprehensible as that of the other groups.

E/AC.25/SR.4

719

Since the representative of Poland had referred to the original causes underlying the idea of a convention, it should be stated that in Hitler Germany it had been equally dangerous for a member of a political group, such as the social democrats or the communists to declare his membership as it was to announce that he was a Jew. Historical reasons therefore were on the side of the inclusion of political groups in the definition of the crime of genocide. Mr. PEREZ-PEROZO (Venezuela) opposed the inclusion of political groups. He drew attention to the difficulties which would be met in ensuring the signing of the convention if such groups were contained in the definition. Many political groups would claim such a definition as a reason for inundating the competent organs with complaints, especially if an international criminal jurisdiction were created, but failing that, they would appeal to the Economic and Social Council or the Security Council. Any impression that the definition of the crime of genocide offered some kind of protection to those in revolt against internal authority should be avoided. If the idea of political groups must be included, it should be specified that it would be left to the individual States to determine whether, according to their national jurisdiction, acts of such a nature taking place on their territory constituted the crime of genocide. Mr. AZKOUL (Lebanon) strongly supported the inclusion of political groups, stressing the fact that the period in history when racial and national hatred had been the thing to be most greatly feared had been succeeded by a period in which political opinion had become the greatest cause of hatred. Political groups should be mentioned all the more since every racial, political and religious group possessed certain political opinions and in many cases could not be dissociated from them. If they were to be protected effectively, they should also be protected as political groups. DISCUSSION OF SECTION II OF THE MEMORANDUM SUBMITTED BY THE DELEGATION OF THE USSR (document E/AC.25/7) Mr. MOROZOV (Union of Soviet Socialist Republics) stated that Section II was designed to explain the concept of genocide. It was clear that in order to constitute genocide, extermination must be motivated by

720

E/AC.25/SR.4

considerations of a racial, national, or religious character. If the crime had not been committed on the basis of those considerations, it belonged to a different type. The USSR representative called attention to Section VII of the memorandum, containing instances of genocide, and asked the Commission whether it wished to have some instances cited and whether it agreed to the choice of instances. Mr. ORDONNEAU (France) pointed out that it was the rule in criminal law to present an exact definition of an offence bearing in mind the inadvisability of any broad interpretation being given. All enunciative enumeration should therefore be excluded. The French delegation fully agreed that the examples given in Section VII certainly represented cases of genocide, but did not think it was advisable to introduce such enumeration in defining the crime. He went on to ask the USSR representative what, in his opinion, were the limits of physical genocide; certain instances mentioned in Section VII dealt with biological genocide; would the USSR representative go so far as to include acts of violence which make procreation impossible, such as for instance the separation of the sexes? Or would his conception of physical genocide extend only to cases of physical violence. Mr. MOROZOV (Union of Soviet Socialist Republics) agreed to change the last sentence of Section VII to read as follows: “Restriction of birth by means including among others, sterilization and compulsory abortion”. Mr. AZKOUL (Lebanon) remarked that paragraph 2 of Section II provided a reply to the French representative’s question by stating that the idea of physical extermination must extend over the premeditated infliction on groups of the population of conditions of life leading to their extermination. Mr. ORDONNEAU (France) explained that it was that last phrase which appeared to him to be insufficiently clear. He wished to know whether conditions such as economic destitution leading to the disappearance of a group would be considered as coming under the same head. The USSR representative stated that in submitting the formula as it stood in the document he had wished to include all premeditated actions leading to the extermination of one of the groups mentioned. To quote an historical example, the ghetto, where the Jews were confined in conditions

E/AC.25/SR.4

721

which, either by starvation or by illness accompanied by the absence of medical care, led to their extinction, must certainly be regarded as an instrument of genocide. If any group were placed on rations so short as to make its extinction inevitable, merely because it belonged to a certain nationality, race or religion, the fact would also come under the category of genocidal crime. The USSR representative added that in proposing his wording he had wished to submit a development of the definition that would make all crimes of genocide impossible. It seemed to him that his formula was sufficiently broad to include all possible cases. They would be judged by the competent authorities according to their individual character. Mr. ORDONNEAU (France) thought that Section II was divided into two distinct elements: (1) The first paragraph dealt with attempts on the physical safety of a group. His delegation was prepared to accept that formula. (2) The second paragraph, on the other hand, contained a broader formula which he recognized as important, but which should be studied further and formulated more clearly before it could be included in a text of criminal law. The CHAIRMAN, speaking as the representative of the United States of America, expressed his agreement with the first paragraph of the USSR proposal. As for the second paragraph, which was to be considered in relation to Section VII, he thought that the enumeration which it contained tended to restrict rather than to clarify the concept of genocide. Its danger lay in permitting the authors of genocide to escape punishment in future simply because the nature of the crime committed by them was slightly different from that listed in the convention. It would therefore be better to adhere to a general definition without examples. [p. 15-last para.] Mr. RUDZINSKI (Poland) emphasized that in considering the crime of genocide, the Committee naturally did not wish to leave aside the concept of murder. The two things were, however, not exactly the same, and the difference was that of intention. Not only murder but also the extinction of a group not involving the death of all its members might constitute a case of genocide. Genocide must include all forms of action designed towards the physical extermination of a group.

722

E/AC.25/SR.4

The CHAIRMAN thought that the definition, in the light of the explanations given, would enable any Court of Justice to recognize the crime, for instance, in the case of sterilization. Mr. AZKOUL (Lebanon) believed that the members of the Committee were fundamentally in agreement. He asked whether, in the first paragraph of Section II stating that “the crime essentially connotes the physical destruction of groups”, the word “connotes” made it quite clear that other cases could equally be included in that concept. The CHAIRMAN replied that the Lebanese representative had interpreted the text correctly. Summing up the discussion, he said that the Committee agreed on the first paragraph of Section II, although it doubted the desirability of listing examples of genocide in the Convention. Each delegation could, if it wished, indicate the manner in which it understood Section II by citing examples in the report. As regards the second paragraph of Section II, the Committee wished to have time for thought before announcing its views. The meeting rose at 6 p.m.

E/AC.25/SR.4/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

723

UNRESTRICTED E/AC.25/SR.4/Corr.1 23 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE FOURTH MEETING Lake Success, New York Wednesday, 7 April 1948 at 2 p.m. The last paragraph on page 15 should be deleted, and the following substituted: Mr. RUDZINSKI (Poland) emphasized that in considering the crime of genocide, the Committee naturally did not wish to leave aside the concept of murder. The two things were not exactly the same, however, and the difference was that of intention. Not only murder but also measures not involving the immediate death of all the members of a group might result in the physical extinction of members of that group after a certain lapse of time.

724

E/AC.25/SR.4/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.4/Corr.2 20 May 1948 ENGLISH ONLY

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE FOURTH MEETING Lake Success, New York Wednesday, 7 April 1948 at 2 p.m. On page 6 in line 4 delete the words from “then” to “intervene”, and replace by the following: “the Government as such was not involved”. On page 8, last paragraph, after “Mr. LIN (China)” insert “suggested that the Chairman’s definition was not comprehensive enough and . . .” On page 9, second line, after the word “defined” add the following sentence: “He said genocide could also be committed by private organizations”. The last three lines on page 11 should be deleted, and the first three lines on page 12, and the following replaced: Mr. LIN (China) expressed doubts about the inclusion of both political groups and groups of opinion in the definition. If such groups were included, there was, in fact, no good reason why social, economic and other groups should not be included.

E/AC.25/SR.5

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

725

UNRESTRICTED E/AC.25/SR.5 16 April 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE FIFTH MEETING Held at Lake Success, New York Tuesday, 8 April 1948, at 2 p.m. Present: Chairman: Mr. MAKTOS (United States of America) Vice-Chairman: Mr. MOROZOV (Union of Soviet Sovialist [sic] Republics) Rapporteur: Mr. AZKOUL (Lebanon) China Mr. LIN MOUSHENG France Mr. ORDONNEAU Poland Mr. RUDZINSKI Venezuela Mr. PEREZ-PEROZo [sic]

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing to Mr. Delavenay, Director, Official Records Division, Room CC119, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

726

E/AC.25/SR.5

CONTINUATION OF THE DISCUSSION ON THE DRAFT BASIC PRINCIPLES OF A CONVENTION ON GENOCIDE SUBMITTED BY THE DELEGATION OF THE UNION OF SOVIET SOCIALIST REPUBLICS (document E/AC.25/7) CONSIDERATION OF SECTION III Mr. MOROZOV (Union of Soviet Socialist Republics), referring to section III of the USSR draft basic principles, stressed the importance of qualifying the form of genocide under discussion by the term “national-cultural” and not merely by “cultural”, as that crime had to be considered only from a national standpoint. Such a distinction was essential, for here the motive of the crime was the persecution of a national group as such; otherwise, the act listed in section III, namely, the prohibition or restriction of the use of the national tongue, especially in education, the destruction of books and publications, the destruction of historical or religious monuments, might concern the individual members of a national minority, and in that case, they should be condemned not by the convention but by the International Bill of Rights which was in process of preparation. Mr. Morozov quoted passages from Professor Lemkine’s [sic] book, “Axis Rule in Occupied Europe”, which showed that Hitlerite Germany, in the action which it took with a view to the annihilation of certain national groups – an action entirely independent of the conduct of military operations – had committed, in occupied territories, a series of acts directed against the kind of national culture as had been described in section III, paragraphs (a), (b) and (c) of the proposals of the USSR delegation. Among the countries victims of those Hitlerian measures, Mr. Morozov mentioned Luxembourg, Lorraine, Poland and the part of the USSR territory that had been under enemy occupation. Mr. PEREZ-PEROZO (Venezuela) recalled that in its resolution of 11 December 1946, the General Assembly had stressed the fact that genocide deprived humanity of the cultural contributions of certain human groups. It was, therefore, important that the convention which the Committee was called upon to draw up should protect the cultural heritage of national groups against systematic destruction of the kind committed by the Hitler regime.

E/AC.25/SR.5

727

The cultural bond was one of the most important factors among those which united a national group, and that was so true that it was possible to wipe out a human group, as such, by destroying its cultural heritage, while allowing the individual members of the group to survive. The physical destruction of individuals was not the only possible form of genocide; It was not the indispensable condition of that crime. The CHAIRMAN warned the Committee against an excessively wide extension of the concept of genocide, which might possibly exceed the framework traced by the General Assembly. The fact which initiated the General Assembly resolution had been the systematic massacre of Jews by the nazi authorities during the course of the last war. Were the Committee to attempt to cover too wide a field in the preparation of a draft convention for example, in attempting to define cultural genocide – however reprehensible that crime might be – it might well run the risk to find that some States would refuse to ratify the convention or would give their signature only after a long period devoted to the study of the question. Speaking as the representative of the United States of America, Mr. MAKTOS felt that it was the repression of barbarous acts against individuals forming a group which above all shocked the conscience of mankind, and it was, therefore, on the condemnation of physical genocide that agreement would be most easily reached between Member States. Section III of the USSR memorandum really referred the defense of national minorities, especially in times of war, and on that account it should be included in the conventions regarding war. Mr. AZKOUL (Lebanon) drew the Committee’s attention to the difficulty of defining genocide and to certain points that that question raised. The physical destruction of a human group was certainly not the only form which genocide could take, but immediately the question of cultural genocide was mooted, confusion with certain measures of national or international interest might arise. For example, it had been necessary, in the interests of world peace, to introduce compulsory re-education of Japan’s youth, in order to destroy the idea of the Emperor’s divinity. Furthermore, within one and the same nation, minority groups might hold ideas tending to destroy national unity.

728

E/AC.25/SR.5

The complexity of the concept of cultural genocide clearly explained the attitude of the United States representative, who would rather base the convention on the simpler concept of physical genocide. Mr. RUDZINSKI (Poland) attached great importance to the notion of cultural genocide, as his country had suffered more especially from that particular crime. He felt, however, that a distinction had to be drawn between that form of genocide and the physical extermination of a group. The destruction of the cultural heritage of a group should be suppressed as a preparatory act to physical extermination. Mr. ORDONNEAU (France) said that his country was specially interested in the suppression of cultural genocide in so much as such measures were connected with the protection of culture in general, to which France had always been devoted. A cultural group as such was not necessarily a national group, but might equally well be a racial or religious community. In paragraphs (a), (b) and (c) of section III of the USSR memorandum there was, indeed, listed a series of acts coming within the concept of cultural genocide, but the list was incomplete, while the Secretariat’s proposals mentioned other acts of a like nature, such as the dispersal of teachers and intellectuals belonging to a cultural group and the forced displacement of youth so as it might be prevented from receiving education in accordance with the ideas of the group. That all went to show the difficulty of defining cultural genocide and of including such a definition in an international convention. Moreover, the repression of most acts of genocide should be provided for in the covenant on human rights, at present in preparation. During the drafting of that covenant, which was of a more general scope, it would be possible to arrive at a definition of much greater value than any which might be adopted when a more limited conception of genocide was under discussion. There was also the risk of some overlapping in advance between the points covered by the two instruments. In spite of the importance that it attached to cultural genocide which is a crime against the conscience of mankind, the French delegation would now adopt a waiting attitude, for, above all, it was necessary to succeed in drafting a convention condemning physical genocide. Mr. LIN MOUSHENG (China) said that he had already expressed the Chinese delegation’s opinion during the second meeting of the Committee.

E/AC.25/SR.5

729

Referring to the various views expressed by the representatives of France and the Union of Soviet Socialist Republics, he felt that the representative of France was right in stating that the listing of the various aspects of genocide would result in the limitation of the convention’s scope. Finally, he agreed with the representative of Lebanon that the cultural destruction of a group was tantamount in effect to the destruction of the group. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that the members of the Committee were in agreement on the relation existing between cultural genocide and the acts defined in section III of the USSR memorandum. In reply to the remarks of the United States representative, he said that the task of the Committee was to draw up a draft convention which could be used to condemn the crime of genocide, but that that draft was not a final document, since the Economic and Social Council would have to consider it at its forthcoming session in Geneva and that it was for the General Assembly in Paris to decide on the final form of the convention. He felt, therefore, that in the initial drafting of that document, the Committee might allow expression to be given to the voice of the peoples and its own humanitarian conceptions. The future would show if the Committee had been right and to what extent the conceptions expressed in the draft convention were acceptable to the Governments which would be called upon to ratify it. He agrued [sic] with the representative of France in recognizing that certain aspects of the problem before the Committee were similar to those dealt with by the Commission on Human Rights. In the case in point, however, the Committee was asked to deal with a specific problem. Now it had been shown, and recognition of the fact was world wide, that cultural genocide was a matter which had to be included in international legislation. Section III of the USSR memorandum aimed at showing that the acts enumerated therein came under the crime listed as genocide. It was obvious that the definition of genocide was not an easy task. That difficulty, however, should not lead the Committee to shirk its duty, but rather to redouble its efforts to find a formula embodying a unanimous solution of the question.

730

E/AC.25/SR.5

Mr. AZKOUL (Lebanon), in reply to the remarks of the representative of the United States, read the preamble of the General Assembly resolution calling attention to the losses genocide inflicted upon humanity which, by the destruction of a human group, found itself deprived of the cultural contribution of that group. Contrary to the opinion voiced by the United States delegation, that resolution made it a duty for the Committee to mention cultural genocide and not to restrict the convention to the physical protection of human groups. Mr. MAKTOS (United States of America) maintained that the convention should, reflect the main points of public opinion on the matter. The members of the Committee showed a tendency to go beyond the aims specified by Members of the General Assembly in the resolution they had adopted. He felt that the General Assembly had had in view only the physical aspect of genocide and that if, as stated by the representative of Lebanon, its Members had meant to include in the resolution other forms of that crime, such as cultural genocide, then the resolution would not have received so many votes. They had to deal with two clearly different cases and it was essential to deal with them separately. In the attempt to cover all forms of genocide, the Committee ran the risk of failing to realize its object. Kt [sic] would be child’s play for any clever lawyer to find a large number of new definitions of genocide: it was precisely that profusion which had to be avoided. Mr. ORDONNEAU (France) said that the draft convention submitted by his delegation (document E/623/Add.1) contained a minimum number of articles and might be taken as a basis of a convention likely to be ratified with but little delay. In that way, a realistic step forward would be taken which could be completed later. The French plan in the first place, studied physical genocide, which was the most important form of that crime. It stipulated that genocide should be suppressed by an international court, for, in the national field, it was Governments which perpetuated the crime or at least were its accomplices. As regards cultural genocide, the French delegation adopted the same attitude of reserve as the United States representative, though it wholeheartedly condemned that crime against the conscience of mankind.

E/AC.25/SR.5

731

Mr. Ordonneau stressed that the nature of a now international crime could not be defined by an enumeration of facts, which by its very nature would be limitative, but only by a general definition. The work of drafting the convention, together with the study and research entailed, would perhaps enable a satisfactory definition of cultural genocide to be found. Mr. MOROZOV (Union of Soviet Socialist Republics) urged the Committee not to postpone defining such an important concept as that of cultural genocide and to include that concept, at least in principle, in the draft convention. For the time being, it would be enough to mention the concept of cultural genocide, without prejudice, however, to the actual wording of any definition which might later be established. Mr. ORDONNEAU (France) thought that a definition of genocide should cover all violent measures used to destroy the cultural elements of a group, whether such group were of a national, racial or religious character. He asked the representative of the USSR if he really agrees on that point. Mr. MOROZOV (Union of Soviet Socialist Republics) expressed his agreement with the opinion put forward by Mr. Ordonneau. The Committee decided by six votes to one that the principle of the suppression of cultural genocide should be inscribed in the draft convention. Mr. ORDONNEAU (France) made it clear that he had voted in favour of the above decision in the hope that a fully comprehensive definition of genocide would be found later. The CHAIRMAN, as representative of the United States of America, said that his country was greatly attached to freedom of the Press and information and could agree to limitation only in well-defined and exceptional cases. That exception only concerned actions involving a violation of the rights of others and of which American courts were the judges. Subject to this explicit reservation he agreed to the principle of suppressing propaganda for genocide. Mr. LIN MOUSHENG (China) requested that the systematic distribution of narcotic drugs for the purpose of bringing about the physical debilitation of a human group be included in the list [p. 9-line 10] of measures or acts aimed against a national culture.

732

E/AC.25/SR.5

Mr. RUDZINSKI (Poland) pointed out that the United States representative had not accepted section VI of the draft convention submitted by the USSR regarding punishment of propaganda for genocide, because he considered that a provision of that kind might endanger freedom of the Press and freedom of expression in general. Furthermore, Mr. Rudzinski thought that section V, paragraph 2, covering direct public incitement to commit acts of genocide, was in fact connected with the suppression of propaganda for that crime. It seemed to him that there existed there a contradiction. The CHAIRMAN agreed that action should be taken against the Press and other media of information when they were guilty of direct incitement to commit acts of genocide, just as it was necessary to repress association and any form of collusion for the purpose of committing genocide. Mr. RUDZINSKI (Poland) thought that incitement to commit genocide should be punishable, whether it was oral or used large-scale media of diffusion such as the Press, radio and films. The CHAIRMAN remarked that propaganda did not always constitute culpable incitement. In his opinion, it assumed that [p. 10-line 1] character only when the courts determined its existence. As representative of the United States, he would be obliged to withdraw the agreement in principle which he had just given, if the terms of the Convention proved to be in contradiction with the Constitution of his country insofar as the freedom of the Press was concerned. Mr. ORDONNEAU (France) referred to article 2 of the draft submitted by the French delegation (document E/623/Add.1) and was of the opinion that under the circumstances, an attempt, provocation or incitement to commit genocide were only valid if they were linked with the crime referred to. He was against too explicit an enumeration of the means of provocation and incitement used by offenders, and preferred to keep to very general definitions, which could be applied more easily. With these reservations he thought that his Soviet colleague might agree to the provisions of the French draft. Mr. AZKOUL (Lebanon) urged the necessity of mentioning in the Convention acts of propaganda constituting in some way a psychological preparation for the crime of genocide. However, he wanted to point

E/AC.25/SR.5

733

out one difficulty: in war time it was not uncommon for a State to have recourse to press and radio campaigns aimed at arousing hatred against the enemy. It was clear that such campaigns which helped to raise the morals of its citizens should not be considered as propaganda for the incitement of genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that he had not the least desire to make an attack on the freedom of the Press. He was merely anxious that culpable acts of this nature should be prevented and repressed, in exactly the same way as some of the articles of the penal code of the State of New York provided for limitations of the freedom of the Press. This being so, he was of the opinion that the Committee could propose the condemnation of propaganda for genocide carried on through the various media of information. Mr. ORDONNEAU (France) replied to the remark made by Mr. Azkoul. In his opinion, the point was to repress propaganda aimed, for instance, at the total destruction of an enemy country as such. Incitements of this nature went beyond the limits of war itself, which was not without certain laws. Indeed, war should only be a means to force an adversary to submit on a whole number of conditions. The point at issue was to establish principles and not to judge concrete cases. Mr. AZKOUL (Lebanon) gave further illustration of his point and took the case of a State at war seeking solely to sustain the morale of its people. Its Government and Press might possibly stir up hatred of the enemy country without wishing to bring about its complete destruction. In that case how was a distinction to be made between the will to win the war and the will to destroy the enemy country as such? Mr. MOROZOV (Union of Soviet Socialist Republics) replied that while not contesting the right to wage war, he was opposed to the violation of the laws of war. He had in mind particularly the crimes committed by Hitler, who sought to exterminate millions of human beings because he wished to bring about the destruction of the national or racial group to which they belonged. The criterion should therefore be the motives by which the propaganda was inspired. Hence, proceedings should be taken against propaganda when it preached the domination of the so-called “inferior” races by the so-called “superior” races.

734

E/AC.25/SR.5

Mr. AZKOUL (Lebanon) thought that campaigns of hatred should be prohibited before acts of genocide were committed, but that they should be distinguished from defence measures necessitated by the circumstances of war. Mr. ORDONNEAU (France) thought that it was merely a question of application which would be decided by the competent courts when they were in possession of texts such as article II of the French draft. Mr. MOROZOV (Union of Soviet Socialist Republics) shared the view of the representative of France. At the present stage of its work, the Committee should confine itself to stating the general ideas that should guide the future Convention. No law could be applied without an interpretation by the judge, because justice could not be rendered automatically. The CHAIRMAN asked Mr. Ordonneau which of the French terms “provocation” or “instigation” was the equivalent of the English term “conspiracy”. Mr. ORDONNEAU (France) made it clear that “provocation” was a stronger term than “instigation”, because the former presupposed an urging towards the accomplishment of an act. “Conspiracy” indicated the association of several individuals grouped together for the accomplishment of a harmful act. The CHAIRMAN said that in his opinion it was a matter of repressing attempts and conspiracy. Mr. MOROZOV (Union of Soviet Socialist Republics) thought that a particular severity was required with regard to Press, radio and films. Those media of information were aimed at the masses, whose moral sense they were sometimes likely to distort. The recent war had revealed in a disturbing manner the very pernicious nature of the influence of the hitlerite Press on people’s minds. That Press could be held responsible for the death of several million human beings. Hitler had stated very clearly that the task of the German nation was not only to conquer its enemies but to exterminate them. In view of the connection between paragraph 2 of section V and section VI, he suggested they should be merged so that direct public incitement

E/AC.25/SR.5

735

to commit genocide would also apply propaganda in any form. He considered that on this point the Convention should be drafted in clear terms and that it should provide for the repression of the acts referred to by national tribunals. Mr. ORDONNEAU (France) pointed out that the French draft had, on that point, the same object as the Soviet draft. But unlike the latter, it did not enumerate the means of propaganda that were to be condemned. Such an enumeration would present serious difficulties. Because of its restrictive nature, it would run the risk of allowing new and unforeseen forms of propaganda to go unpunished, such as aircraft tracing watchwords in the sky. He thought that it would be preferable to use a general term such as “provocation” which moreover was full of meaning for jurists. Mr. AZKOUL (Lebanon) said that the question of whether propaganda was the equivalent of provocation could be solved when the work of the Committee reached the drafting stage. For the time being, it was sufficient to know that the term “provocation” was applicable to propaganda when the latter was connected with the crime of genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) agreed with this proposal. At the request of the CHAIRMAN, Mr. MOROZOV (Union of Soviet Socialist Republics) formulated the principle concerned in the following terms: The Committee notes that the Convention should make it a punishable offence to engage in any form of propaganda for genocide (the Press, radio, cinema, etc.) aimed at inciting racial, national or religious enmity or hatred and designed to provoke the commission of acts of genocide.

Mr. ORDONNEAU (France) said he had difficulty in accepting that definition which, in his opinion, did not cover all forms of propaganda; the latter might indeed be of an insidious nature. The French delegation supported the Soviet formula only in so far as direct propaganda was concerned. Mr. RUDZINSKI (Poland) thought that in order to be covered by the proposed international convention, propaganda of genocide ought to be

736

E/AC.25/SR.5

of a twofold nature: (1) when it was aimed at inciting national enmities; (2) when it was characterized by the incitement to commit genocide. When the latter element was lacking, Polish domestic legislation, for instance, provided for the repression of this propaganda by the competent national tribunals. Mr. AZKOUL (Lebanon) concluded, in the light of the explanation given by Mr. Rudzinski, that there was no essential difference between the Soviet and the French drafts. He supported the latter in so far as the principle was concerned. Mr. ORDONNEAU (France) said that he too agreed with the principle of condemning propaganda but without accepting any text. In reply to a question by Mr. PEREZ-PEROZO (Venezuela), Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that the words “techniques of genocide” in section IV, paragraph 2 of the Soviet memorandum meant gas chambers, cremation ovens, pseudo-biological research and any other means of extermination used, for instance, by the Nazis during the recent war. Mr. ORDONNEAU (France) thought it would be advisable to mention the “techniques” in question in the Convention. Nevertheless, he considered that a too precise enumeration should be avoided and that it whould [sic] not be forgotten that the means referred to belonged to the category of attempts to commit the crime of genocide. Mr. LIN MOUSHENG (China) expressed the view that genocide consisted in acts aimed against a national, racial, religious (or political) group for the purpose of destroying that group and hindering its development. In his opinion, the acts referred to involved the total or partial physical destruction of a group of that kind; the fact of imposing upon the latter living conditions likely to bring about its total or partial physical destruction; the destruction of its culture or the suppression of its language, etc . . .; conspiracies of individuals, attempts or provocative acts aimed at committing the acts that had just been enumerated. The CHAIRMAN, speaking as the representative of the United States of America, said he was unable to commit his Government beyond conspiracy and incitement to commit genocide. Those questions came under the

E/AC.25/SR.5

737

fundamental legislative provisions of the United States Constitution. He reserved the right to withdraw, if necessary, the agreement in principle which he had given. Mr. ORDONNEAU (France) agreed that only the signature of the Convention could bind the Governments concerned. The meeting rose at 6 p.m.

738

E/AC.25/SR.5/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.5/Corr.1 14 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE FIFTH MEETING Held at Lake Success, New York Tuesday, 8 April 1948, at 2 p.m. Page 10, line 1: Delete the words “its existence” and substitute “that it constituted an attempt or part of a conspiracy.”

E/AC.25/SR.5/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

739

UNRESTRICTED E/AC.25/SR.5/Corr.2 24 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE FIFTH MEETING Held at Lake Success, New York Tuesday, 8 April 1948, at 2:00 p.m. On page 9, line 10, delete the word “culture” and replace by “or racial group.”

740

E/AC.25/SR.6

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.6 18 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE SIXTH MEETING Lake Success, New York, Friday, 9 April 1948 at 2 p.m. Present: President :

Mr. MAKTOS

Vice-President :

Mr. MOROZOV

Rapporteur : China France Poland Venezuela

Mr. Mr. Mr. Mr. Mr.

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO

(United States of America) (Union of Soviet Socialist Republics) (Lebanon)

NOTE. Corrections of this summary record provided for in the rules of procedure should be submitted in writing at the latest within 24 hours to Mr. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

E/AC.25/SR.6

741

CONTINUATION OF THE DISCUSSION OF THE DRAFT SUBMITTED BY THE DELEGATION OF THE UNION OF SOVIET SOCIALIST REPUBLICS ON BASIC PRINCIPLES OF THE CONVENTION ON GENOCIDE (document E/AC.25/7 [sic] At the request of Mr. Morozov, the CHAIRMAN summarized the previous discussion on Sections IV, V and VI of the USSR memorandum. As regards Section IV, the Committee had agreed to recognize attempts and preparatory acts to commit genocide as crimes, but had preferred to limit itself to a statement of principle and avoid all restrictive listing; especially those relating to preparatory acts. It had been decided in connection with Section V, to consider deliberate participation, as well as direct provocation and incitement to genocide, as punishable offences in accordance with the proposal of the French delegation. In view of the differences of opinion expressed, no decision had been reached on the provisions of Section VI on propaganda for genocide. The Committee had taken the view that a compromise agreement might possibly be reached during the final drafting of the text of the convention. The Chairman drew attention to the position of the United States of America on the matter. In reply to Mr. PEREZ-PEROZO (Venezuela) who reserved his position on the final drafting of the various articles dealing with the questions under discussion, the CHAIRMAN stated that the Committee was engaged in a discussion of principle and that each member would be at liberty to submit amendments in due course. Mr. MOROZOV (Union of Soviet Socialist Republics) indicated that on the previous day he had cited historical examples to illustrate the disastrous consequences which might result from propaganda in favour of genocide. The Committee should forthwith reach a decision of principle as to whether the Convention should list propaganda as one of the preparatory acts. He therefore formally proposed that all forms of propaganda – Press, radio, cinema, etc. – aimed at incitement to genocide should be considered as crimes.

742

E/AC.25/SR.6

Although he agreed in principle with Mr. Morozov, Mr. ORDONNEAU (France) thought that it was premature to express the opinion of the Committee in a juridical formula. In view of the importance of finding a formula unanimously acceptable to the Committee, action should be limited for the time being to recording the general agreement which had been reached, with the understanding that it could later be clarified. Mr. MOROZOV (Union of Soviet Socialist Republics) accepted Mr. Ordonneau’s solution and suggested inserting a statement in the record that, subject to final drafting, the Committee decided in principle to recognize propaganda aimed at incitement to the crime of genocide as a punishable offence. The CHAIRMAN, speaking as the representative of the United States, proposed that action on propaganda should be deferred since a decision at the present stage might tend to intensify rather than reconcile the existing differences of opinion. Mr. LIN MOUSHENG (China) also favoured deferring decision. In his opinion conspiracy, attempt, incitement and provocation to commit genocide should be considered as punishable offences. He fully reserved his position on the question of propaganda. Mr. AZKOUL (Lebanon) proposed that, as a compromise, the Committee should agree on the principle of recognizing instigation to genocide, through the use of propaganda, as a punishable offence, while bearing in mind a formula which would be acceptable to the entire committee. The CHAIRMAN indicated that the question of compromise was not involved since the Committee was called upon to decide whether the convention should include the concept of propaganda. As representative of the United States he was not in favour of taking a decision immediately on a fundamental principle. Mr. RUDZINSKI (Poland) asked the representative of China whether, in his opinion, “attempt” and “preparatory act” were identical. The listing given by Mr. Lin Mousheng did not refer to “preparatory act”. There was however a juridical distinction between a “preparatory act” and an “attempt”. “Attempt” implied commencement of execution while “prepara-

E/AC.25/SR.6

743

tory act” merely indicated securing the means of executing a plan which would be revealed only after the “attempt” had been made. Mr. Rudzinski then asked the Chairman whether he considered incitement to genocide as a punishable offence. If so, the question of propaganda which was a form of incitement, would automatically be settled. The CHAIRMAN agreed that the word “incitement” implied a form of attempt, or even conspiracy. He could not, however, agree to extend the interpretation of “incitement” to include propaganda as a third element. Mr. LIN MOUSHENG (China) felt that “conspiracy” included “preparation”. He was however willing to redraft his proposal as follows: Conspiracy, preparation, attempt, direct incitement and public provocation shall be punished.

Mr. ORDONNEAU (France) agreed to accept the general formula, slightly modified in order to make the word “public” refer both to direct incitement and provocation. Mr. PEREZ-PEROZO (Venezuela) felt that the difficulties which the Committee was encountering could be traced to differences of language and of judicial systems. Under the penal system of Venezuela, for example, reference to propaganda would be superfluous because the word “incitement” included that connotation. A Venezuelan jurist would therefore find it very difficult to interpret the two terms. Moreover, as conspiracy denoted an understanding between at least two persons its meaning closely resembled the idea of association (complicity). Mr. AZKOUL (Lebanon) believed that it was adequate for the time being to state that the Committee condemned any form of action leading directly to genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that it would be better to defer to the drafting stage discussion of the elements in the Chinese proposal which consisted of a very precise formula. The question before the Committee was whether to consider as a punishable offence the illegitimate use of powerful media such as the Press, radio and cinema for criminal purposes.

744

E/AC.25/SR.6

Referring to the reservations expressed by the United States delegation, Mr. Morozov indicated that the United States did not recognize the principle of freedom of speech without reservations. Page 14 of document E/623 stated that: “Under Anglo-American rules of law the right of free speech is not to be interfered with unless there is a clear and present danger that the utterance might interfere with the rights of others.” The text quoted proved that absolute freedom of speech did not exist in the United States. Mr. Morozov asked for a formal vote on the following proposal: The Committee finds that the convention should provide for the suppression of all forms of propaganda in favour of genocide by means of the Press, cinema or radio.

The CHAIRMAN stated that his proposal, as a motion to defer, should be voted first. He repeated that an immediate vote on the USSR proposal would not achieve unanimity while a compromise might possibly be reached at the drafting stage. Mr. MOROZOV (Union of Soviet Socialist Republics) drew attention to the fact that he had submitted his proposal at the end of the previous meeting. After the Committee’s decision that motions to defer had priority, the proposal to postpone consideration of the question was put to the vote. The Committee decided by four votes to three to defer discussion of propaganda aimed at genocide. DISCUSSION OF SECTION VII OF THE MEMORANDUM SUBMITTED BY THE USSR DELEGATION (document E/AC.25/7) Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that the questions raised in Section VII had been discussed in connexion with Section II and that agreement in principle had been reached. He therefore proposed that the Committee should proceed to discuss the paragraph immediately following.

E/AC.25/SR.6

745

Mr. ORDONNEAU (France) supported the proposal. DISCUSSION OF SECTION VIII Mr. MOROZOV (Union of Soviet Socialist Republics) indicated that the provisions were already included in the draft convention prepared by the Secretary-General (document E/447) and proposed that the Committee should study sub-paragraphs (a) and (b) separately. The provisions were necessary because individuals as well as organizations operating openly had inspired, prepared and even directly committed acts of genocide. Moreover it was obvious that the signatories of the convention should undertake the obligation provided in sub-paragraph (a). Mr. PEREZ-PEROZO (Venezuela) stressed the similarity between paragraph 3 of Section V relating to conspiracy and paragraph (a) of Section VIII. In his opinion the latter was superfluous. He requested the representative of the USSR to explain the difference between the two passages. Mr. MOROZOV (Union of Soviet Socialist Republics) believed it indispensable to mention the duty of disbanding and blaming organizations which prepared acts of genocide by veiled methods. Obviously the entire convention could be condensed into one single article but if such organizations were not mentioned specifically and directly there would be legal difficulties in applying the convention. The existence of such organizations was incompatible with the idea of a civilized State and the Committee should decide to ban them in accordance with the procedures set by the various national legislations. Action should not be limited to disbanding existing organizations; for reasons of public safety the formation of further organizations of that type must be prohibited. Mr. RUDZINSKI (Poland) stated that the organizations in question were specifically mentioned in article XI of the Secretary-General’s draft. He believed that the clause was necessary because the convention dealt in a general way with criminal law. On the other hand, the disbanding of organizations involved administrative law: Governments must therefore be legally obliged to punish the acts of such organization and they must also be required to disband and ban them. Hence such a clause was indispensible [sic] in the convention.

746

E/AC.25/SR.6

[p. 8 line 5] Mr. LIN MOUSHENG agreed with Mr. Perez-Perozo and indicated in addition that under the terms of the convention Governments of signatory States must enact the necessary legislation for the prevention and punishment of the crime of genocide. Paragraph (a) was therefore superfluous. Moreover, defining those organizations was quite as difficult as defining genocide itself. Mr. Lin Mousheng felt that the text proposed by the USSR delegation went too far. The same comment applied to the drafts submitted by the Secretary-General and the United States of America. The convention should be as simple as possible and should represent [p. 8-line 15] the smallest common denominator of all the drafts. Each country could do whatever it considered necessary within the framework of its own [p. 8-line 17] administrative law. The decision on appropriate action should be left to individual governments. Mr. ORDONNEAU (France) approved the points raised by Mr. Lin Mousheng and stated that the French delegation favoured the inclusion in the convention only of provisions on international penal law. He noted that resolution 96(I) of the General Assembly bound Member-States “to enact the necessary legislation for the prevention and punishment” of the crime of genocide. He felt that Member-States were already bound thereby to dissolve such organizations. It would therefore be unnecessary and useless to include such a provision in the convention. In his opinion the new chapter of international law on genocide would contain two elements: the resolution of the General Assembly had tremendous moral weight, and the convention. The two elements complemented one another and since Member-States were morally obliged to honour the resolution adopted by the General Assembly it would be inappropriate for the convention to repeat provisions included in the resolution. Mr. Ordonneau pointed out that since this question was considered as settled, it had not been raised in the French draft resolution. Mr. PEREZ-PEROZO (Venezuela) noted that if the provisions of paragraph (a) of Section VIII were adopted, a special article would have to be inserted in the convention because the paragraph called for definite sanction. That, however, would be contrary to the terms of the resolution of the General Assembly which had left the choice of sanctions to its Members. An article of the convention corresponding to paragraph (a)

E/AC.25/SR.6

747

would therefore be an exception in the convention since it would limit the freedom of States in choosing sanctions. Mr. Perez-Perozo therefore favoured its omission. Mr. AZKOUL (Lebanon) felt that the paragraph contained two separate ideas: (1) the obligation of States to take action to prevent genocide, and (2) condemnation of racial, national or religious enmity which was already contained in Section VI. He believed that the first of the two ideas should be included after paragraph IX. The second idea amounted to a condemnation of propaganda and could be compared with the difference between “dispute” and “situation” in the Charter. Genocide as a criminal act would correspond to the “dispute” while the elements leading up to and giving rise to it would correspond to the “situation”. It was clear that the convention should seek to prevent and punish genocide. If inclusion of the second idea of the paragraph were desired, condemnation of racial, national or religious hate would also be required. Mr. MOROZOV (Union of Soviet Socialist Republics) expressed satisfaction at the fact that only juridical objections had been raised in connexion with the statement that it was inadmissible to allow organizations preparing for genocide to exist. The USSR felt that international co-operation should be achieved on the basis of the sovereign rights of Members of United Nations. The statements made regarding those rights deserved careful attention because co-operation was impossible without respect for those rights. Mr. Morosov [sic] felt that each State should decide in what measure to adopt the provisions suggested in the convention. The provisions of Section VIII paragraph (a) were intended to prevent such organizations from being recognized as corporate bodies. There was no question of impeding the punishment of guilty parties. Mr. Morozov believed that the Committee had the power to adopt the principle and that it should do so. The problem would be raised specifically by the organs which examine the draft convention because the Committee was only a preparatory organ and could assume some degree of liberty in expressing its views.

748

E/AC.25/SR.6

Speaking as representative of the United States of America, the CHAIRMAN pointed out that one of the objections of the USSR delegation to the Secretary-General’s draft was that it contained too many details. Since his opinion was that the draft convention to be prepared by the Committee should be suitable for direct adoption, he formally proposed deletion of paragraph (a) of Section VIII. Mr. RUDZINSKI (Poland) indicated that the juridical effect of a convention on genocide would be to declare that States were bound to punish certain crimes. Naturally, it was true that they could punish those crimes without a convention, but if they ratified the convention they assumed an obligation to do so. The same comment applied in the matter of disbanding organizations. Insertion of such a provision in the convention was entirely compatible with the General Assembly resolution. Mr. AZKOUL (Lebanon) stated that if genocide were considered as a crime, any incitement to genocide would also be a crime. Consequently organizations provoking genocide must be disbanded. He would go even further than the USSR delegation and proposed the following amendment to Section VIII(a) “ . . . organizations which incite racial, national or religious hatred . . .”. Actually some organizations acquired such tendencies in the course of their development without being created for the purpose of committing genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) admitted that the expression “the purpose of which” was neither clear nor precise. He accepted Mr. Azkoul’s amendment and suggested that the beginning of the sentence should be modified to read: “States undertake to disband and henceforth not to permit the existence . . .” Mr. ORDONNEAU (France) accepted without question the principle set forth in Section VIII, but wished to keep it within the framework of the General Assembly resolution in order to give maximum recognition to it. He pointed out that at that time a new system of international law was being built up on the basis of a contract which was the Charter. Since United Nations Members had signed the Charter, they were bound by the General Assembly resolution; it would therefore be useless to repeat the resolution in a convention which was intended to clarify what constituted an international crime and was therefore restricted to basic provisions.

E/AC.25/SR.6

749

Mr. MOROZOV (Union of Soviet Socialist Republics) agreed with the views expressed by Mr. Ordonneau but felt that the arguments presented by the French representative served rather to favour the inclusion of those provisions in the conventions. It was his view that the convention must refer to certain provisions of the General Assembly resolution. The Committee decided by 4 votes to 3 not to include paragraph (a) of Section VIII in the convention. After Mr. MOROZOV (Union of Soviet Socialist Republics) had presented paragraph (b) of section VIII, Mr. AZKOUL (Lebanon) stressed the fact that the convention would be useless if the various States did not undertake the obligations provided in that paragraph. Mr. RUDZINDKI [sic] (Poland) read passages from polish legislation giving practical application to the principles contained in paragraph (b). He noted that resolution 96(I) of the General Assembly invites the Member States to “enact the necessary legislation for the prevention and punishment of this crime”. The General Assembly resolution alone was not adequate to establish a legal obligation; its scope was limited to that of a recommendation with great moral weight. He drew attention to the fact that there were cases in which States had not taken steps advocated in certain Assembly resolutions; in view of the gravity of the matter, he therefore urged that signatories of the convention should undertake to include the necessary provisions in their penal codes. Mr. LIN MOUSHENG (China) agreed with the principle on which paragraph (b) was based but could not accept the drafting of the paragraph. [p. 12-seventh line from the bottom] He accepted the section “States shall be obliged to make provision in their legislation for the prevention and punishment of genocide”, but reserved his position on the rest of the text. The Chinese representative indicated that his delegation faced a dilemma because it had so far been impossible to find in the Chinese penal code any concept related to the idea of genocide. [p. 12-last para. 2nd sentence] Since the crime of genocide could not be committed without involving criminal acts which [p. 13] had already been defined, it seemed clear that signatories to the convention would not be required to pass new

750

E/AC.25/SR.6

laws in case existing legislation already provided for the punishment of acts constituting the crime of genocide. The Chinese Government would enact legislation only if certain aspects of the crime of genocide were not punishable under Chinese legislation then in effect. The CHAIRMAN, speaking as representative of the United States of America, felt that the adoption of paragraph (b) might involve serious risks. The function of the Committee was to define the crime of genocide in order to bring it under international jurisdiction. Questions relating to domestic legislation of a country were not really part of the Committee’s terms of reference. Crimes which could be described as genocide were already punished by domestic law because they were violations of common law. Consequently the nature of the convention should not be complicated. A clause requiring States to enact certain types of legislation might, if included in the convention, give rise to many future controversies as to whether legislation which had been adopted complied with the terms of the convention. The first task was to draft a convention which all States could sign; avoiding as far as possible the inclusion of clauses imposing cumbersome burdens which States might seek to evade. Mr. AZKOUL (Lebanon) emphasised the fact that the purpose of the convention was not to convert confirmed believers but rather to oblige certain States which had not yet enacted the necessary legislation to pass appropriate laws. The Committee could not be influenced by the fear that countries which were not inclined to comply might wish to denounce the convention. Mr. ORDONNEAU (France) presented the same objections to paragraph (b) which he had expressed in connexion with paragraph (a). The CHAIRMAN put paragraph (b) of Section VIII to the vote. The paragraph was rejected by 4 votes to 3. Mr. MOROZOV (Union of Soviet Socialist Republics) regretted that considerations of form had led the members of the Committee to decide against the inclusion of the sentence which had just been discussed. He would not like to think that such a decision had been dictated by any considerations other than those which had been openly stated. Although the vote did not represent a final decision, the refusal to ask the Government of Member States to promulgate laws for the prevention and suppres-

E/AC.25/SR.6

751

sion of the crime of genocide seemed to him to be a refusal to take steps towards the suppression of that type of crime. It was an understood thing in any penal code that there was no crime without punishment, so much so that if no punishment was provided for a certain act, that act could not be called a crime. If, therefore, the convention did not provide punishment at the national level, there would inevitably be doubts concerning the practical effects the convention might have and the motives which led certain Governments to uphold the principles set out in the convention while at the same time refusing to insist upon their application. Mr. Morozov stated that there was a series of laws in the Russian Soviet Federal Socialist Republic, as in the other republics of the USSR, under which any act of incitement to racial and national strife was punishable. The measures laid down in paragraph (b) of Section VIII represented the USSR point of view, to which his Government had given practical application. In conclusion, the USSR representatives appealed to the members of the Committee to weigh carefully the consequences of refusing to include in the convention a clause concerning the need for each country to draw up laws to protect the population against acts of genocide, so that the principles which had been expressed might be put into practice. Mr. Morozov warned the Committee that he would consider it his duty to return to the subject and that he reserved the right to raise the question again for discussion in due course. It was, in the last analysis, the national law courts which should apply preventive and suppressive measures; there could be no effective fight against genocide unless the law courts within each country were given the necessary power. Mr. RUDZINSKI (Poland) thought that if the convention did not contain some such clause as paragraph (b) of Section VIII, what was actually practised would be contradictory to the principles which had been affirmed. The result would be a series of paradoxical consequences. If genocide were committed against a certain group in a State which was a party to convention, national legislation would not allow the authors of [p. 15-para. 3-line 7] the crime to be punished. If the group in question were subjects of another State, there would be no means whereby

752

E/AC.25/SR.6

the criminals could be [p. 15-para. 3-last line] extradited, so that they could appear before an international tribunal. Mr. PEREZ-PEROZO (Venezuela) wondered whether the Committee had voted on the principle or on the text of paragraph (b), Section VIII. He himself had voted against the text submitted by the USSR, but he would be in favour of a clause whereby States agreed to take legislative national measures for the prevention or suppression of genocide. He did not deny that in the absence of any international penal jurisdiction, national legislation would have to be resorted to. So long as no international jurisdiction for suppressing the crime had been created, it would be impossible to do without suppressive national measures. The CHAIRMAN recalled that all the votes that had been taken on the different parts of the document were on the principles upon which the Convention was to be based; he could not therefore admit that the representative of Venezuela had been mistaken upon the nature of the vote. However, it was well understood that members were free to reopen questions concerning the various provisions, once the Committee had decided on the principle of the creation of an international jurisdiction for suppressing the crime. If the principle of such jurisdiction was not admitted, he himself, like the representative of the United States of America, would agree to consider other suppressive methods. [p. 16-line 13] Mr. ORDONNEAU (France) did not think the Committee had in any way decided that States were not obliged to introduce the necessary provisions in their national penal legislation. Member States were already under a moral obligation to do so, in accordance with the resolution of the General Assembly, and the Committee should not detract from the value of that resolution by inserting in the Convention measures which gave the impression that the resolution was not considered adequate. The representative of Poland, when speaking of the impossibility of extradition, had lost sight of the nature of the crime, which consisted of murder, mutilation or other acts, all of which were punishable in national penal codes. It was the task of the Committee to see that the crime of genocide was guarded against and punished at the international [p. 16-line 25] level. Once an international jurisdiction for suppressing the crime was [p. 16-line 26] established, persons taking part in acts of genocide could

E/AC.25/SR.6

753

be summoned to [p. 16-line 27] appear before an international tribunal when they had already been tried [p. 16-line 28] for murder or for the crime committed according to the national laws of [p. 17] their country. The Committee had to establish a distinction between acts [p. 17-line 1 ends] which were already punishable under the penal code at the national level, and the collective action which constituted the crime of genocide, of which only an international tribunal could take cognizance. It was precisely that consideration upon which the United States representative based his insistence that the idea of the complicity of the State should be introduced into the definition of the crime of genocide. It was, in fact, essential to transfer the crime from the realm of national law to that of international law before it could be defined, and it was better, therefore, to limit the convention to the latter domain. The Committee would thus be able to leave to the various States the responsibility of bringing their national legislation into conformity with the terms of the resolution adopted by the General Assembly, and to concentrate its attention upon the definition of the crime of genocide, as an international crime, to ensure its suppression at the international level. The French delegation was not in any opposed to paragraph (b) of Section VIII; in speaking against its inclusion, he was only considering what was the best method of procedure. Mr. MOROZOV (Union of Soviet Socialist Republics) would not accept the view of the French delegation that the question of national legislation was covered by the General Assembly resolution. Unless concrete measures were considered for the fight against genocide, it was doubtful whether national law courts would be able to condemn the crime simply and solely on the basis of the General Assembly resolution. It was not a question of method, but of the practical application of preventive and suppressive measures. It was manifest that the penal code would have to contain special provisions for the suppression of the crime of genocide. That crime had a special character. The point of view which held that the crime of genocide could only be perpetrated by means of acts which were already condemned by the law under different designations was unjustifiable, since there were acts of genocide which were not normally covered by the penal code.

754

E/AC.25/SR.6

Mr. Morozov agreed with the representative of Venezuela that it would be premature to specify certain laws that Governments should introduce. As had been well understood from the very beginning of the debate, the USSR delegation was not asking the Committee to adopt the formula it had submitted; its only aim in presenting that formula had been the adoption of the principle upon which it was based. Mr. Morozov was ready to accept the remarks of the representative of Venezuela as an amendment. He wondered whether it should go on record that the latter had, after the vote, signified his support of the principle contained in paragraph (b), or whether the Committee should decide that it considered that the convention should contain a clause to the effect that Governments were obliged to promulgate the necessary laws. The text of such a clause could be discussed later. Mr. AZKOUL (Lebanon) said that the vote of the representative of Venezuela showed that it would have been better to decide first upon Section IX of the USSR memorandum, since the opinion of every member with regard to paragraph (b) of Section VIII depended upon the decision taken upon Section IX. As to the objections that had been made to the inclusion in the convention of the principles outlined in paragraph (b) of section VIII, the Lebanese representative thought that the argument that provision was already made in national legal doctrines for the punishment of crimes and offences consituting [sic] the crime of genocide should be closely examined. Up to the present, in fact, no national legislation took into account the motive which characterized the crime of genocide; it could not, therefore, be said that national legal doctrines covered the crime. With regard to the argument of certain members that the decision of the General Assembly imposed on Member States the moral obligation to introduce the necessary legislation, it should be pointed out that if the General Assembly had thought that the adoption of a resolution was sufficient, it would not have envisaged the necessity of a convention. It must be admitted that the Assembly wished States be bound by a legal obligation, based, of course, upon that resolution. Moreover, the terms of the General Assembly resolution seemed, in Mr. Morozov’s opinion, to argue in favour of the inclusion of the clause in paragraph (b) of Section VIII and by no means to allow the Committee to delete it as superfluous.

E/AC.25/SR.6

755

Furthermore, the convention would not only lose its whole legal character if it did not contain the clause in question; it would also lose the moral significance normally inherent in a convention which denounced certain acts as illegal and criminal. Since it was obvious that there had been some misunderstanding at the time of the vote, the representative of Lebanon formally moved that a new vote should be taken. Mr. LIN MOUSHENG (China) thought it would be better to invite Members to introduce the necessary legislative measures rather than to oblige them to do so. In countries where the crime of genocide was unknown, the legislature [p. 19-line 23] would not think it necessary to introduce laws against it. Moreover, it [p. 19-line 23 ends] would be unnecessary to introduce new legislation in countries where the [p. 19-line 25] crime was punishable by the penal code or by decisions of the supreme courts of justice. It followed that certain States which might consider any new legislation superfluous would not, in fact, carry out the obligation. The representative of China thought that a clause providing for such cases might be inserted when the text of the convention was discussed, and that mention might be made of the countries which had voted for or against the proposition, since there was some doubt concerning the sense of the vote which had just been taken. Mr. RUDZINSKI (Poland) thought that the practical effects of the deletion of that clause from the convention should be examined. The repercussions in the realm of international criminal law must be taken into consideration. That was a matter for experts. He would therefore propose that the Committee should at that point ask to hear two experts on international criminal law: Mr. Pella and Mr. Lemkin, who had collaborated with the Secretariat in the preparation of the draft convention (document E/447). The CHAIRMAN remarked that the votes which had been taken on all the points of the USSR memorandum had always been upon the question of whether or not the principles underlying them should appear in the convention. He did not think that the vote could be considered invalid, as the sense of the votes had not changed and the end of the document had been reached. The suggestions made by the representative of the Union of Soviet Socialist Republics and the proposal of the representative of China could be considered when the text of the convention was being drafted.

756

E/AC.25/SR.6

Mr. ORDONNEAU (France) wished to state that he, for his part, had been fully aware of what he was voting for. There was no place for national provisions in any such draft convention as the Committee was now considering. The convention was concerned solely with international legislation. It was, however, understood that if the measures taken on the matter proved to be inadequate, and if it was considered advisable to change the character of the convention, the Committee reserved the right to consider a different kind of convention, which might provide for the suppression of genocide by means of national law. Mr. PEREZ-PEROZO (Venezuela) stated that he did not wish to have any doubts cast upon the vote. He had only wanted to explain his vote. In any case, the decision taken was not final. Mr. ORDONNEAU (France) and Mr. PEREZ-PEROZO (Venezuela) thought the Section IX, which raised a question supreme importance, should be discussed without interruption, and that it would therefore be better to leave it until the following meeting. Mr. Ordonneau proposed, however, that the Committee should in the meantime consider whether to include among the persons responsible for genocid [sic] within the meaning of the convention, both the actual perpetrators of the crime, and the governing authorities, if they were accomplices. It was obvious that the Union of Soviet Socialist Republics representative would support that idea, as would the French delegation. Mr. Ordonneau thought, however, that the question raised certain difficulties for other delegations, and he proposed that it should be decided forthwith. On a motion of the representative of Venezuela, the Committee decided to adjourn. The Committee decided to establish a working sub-committee composed of the representatives of Poland, the United States of America and the Union of Soviet Socialist Republics to draft the final articles of the convention. The meeting rose at 5.30 p.m.

E/AC.25/SR.6/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

757

UNRESTRICTED E/AC.25/SR.6/Corr.1 23 April 1948 ENGLISH ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SIXTH MEETING Lake Success, New York Friday, 9 April 1948 at 2 p.m. In line 7 of the third paragraph on page 15, the word “group” should be changed to “criminals”. In the last line of the paragraph the words “an international tribunal” should be changed into “the competent tribunal”.

758

E/AC.25/SR.6/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.6/Corr.2 10 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SIXTH MEETING Lake Success, New York Friday, 9 April 1948, at 2 p.m. Page 16, line 13 Replace: “that the Committee had in any way decided that States were not obliged to introduce . . .” by: “that the Committee’s decision meant that the Members of the United Nations were not obliged to introduce . . .” Page 16, lines 25–28, page 17, line 1 Delete the sentence: “Once an international jurisdiction . . . laws of their country.”

E/AC.25/SR.6/Corr.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

759

UNRESTRICTED E/AC.25/SR.6/Corr.3 24 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SIXTH MEETING Lake Success New York Friday, 9 April 1948 at 2:00 p.m. On page 8, line 5, insert “(China)” after “Mr. LIN MOUSHENG”. In line 15 on page 8, delete the word “smallest” and insert “maximum”. In line 17, of the same page delete the words “administrative law”, and substitute “constitution”. On page 12, seventh line from the bottom of the page, sentence beginning “He accepted . . .” should be changed to read as follows: He accepted in principle that States should make necessary provision in their legislation for the prevention and punishment of genocide, but reserved his position on the rest of the text.

The second sentence in the last paragraph on page 12 and the remainder of that paragraph on page 13 should be deleted, and a new paragraph substituted, as follows: Mr. Lin said that it would seem clear that signatories to the convention would not be required to pass new laws in case existing legislation already provided for the punishment of acts constituting the crime of genocide. They should enact legislation only if certain aspects of the crime of genocide were not punishable under existing laws in effect.

On page 19, line 23, delete the word “would” and replace the word “might”. In line 25 on the same page, delete the word “the” after the word “by” and substitute the word “existing” [sic] In the same line add letter “s” and place a period after the word “code”, and delete the remainder of the sentence.

760

E/AC.25/10

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/10 10 April 1948 ENGLISH ORIGINAL: FRENCH

FINAL PROVISIONS The ad hoc Committee on Genocide appointed a Sub-Committee of three members, namely its Chairman, Mr. Maktos, its Vice-Chairman, Mr. Morozov and Mr. Rudzinski (Poland), to study the final provisions of the Convention on Genocide (Articles XV to XXIV of the Secretariat draft and relevant observations by the Governments). The Sub-Committee, which met on 12 April 1948, submits to the Committee the following proposals and observations: ARTICLE XV Language – Date of the Convention* 1. Language The question was raised as to the languages in which the authentic text of the Convention would be drafted. Mr. Rudzinski said that, in view of the importance and nature of the Convention, it should be drafted in the five official languages of the United Nations, these five texts being equally authentic. The Sub-Committee decided to refer the question to the Committee, the Secretariat being asked to submit a memorandum indicating the practice followed hitherto by the United Nations (See this memorandum in the Annexes).

* Text of the Secretariat draft: The present Convention, of which the . . . texts are equally authentic, shall bear the date of . . .

E/AC.25/10

761

2. Date of the Convention This will be the date on which the General Assembly adopts the text of the Convention. ARTICLE XVI What States may become Parties to Conventions? – Ways to become Party to it* Text Proposed by the Sub-Committee 1. The present Convention shall be open until . . . 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the Economic and Social Council (or the General Assembly). The present Convention shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. 2. After . . . 1948 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Comments 1. Ways to become Party to the Convention The Sub-Committee decided in favour of the second of the two formulae submitted as alternatives in the Secretariat draft, i.e., the traditional formula. States will become Parties to the Convention by means of a signature followed by ratification (within a certain time-limit). * Text of the Secretariat draft: 1 – The present Convention shall be open until 31 . . . 1948 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation has been addressed by the Economic and Social Council. The present Convention shall be ratified, and the instruments of ratification shall be transmitted to the Secretary-General of the United Nations. 2 – After 1 . . . 1948 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be transmitted to the Secretary-General of the United Nations.

762

E/AC.25/10

2. To whom will the Convention be open? It will be open to Members of the United Nations and any non-member States to which an invitation has been addressed. Who would issue the invitation? The delegate of the United States proposed that it should be the General Assembly; the delegate of the Union of Soviet Socialist Republics took the preliminary view that it should be the Economic and Social Council. It was decided: (a) to add the words “to sign” after the word “invitation”; (b) as regards the instruments of ratification, to say “deposited with” instead of “transmitted to”. ARTICLE XVII Reservations* Comments The Sub-Committee saw no need for any reservations. ARTICLE XVIII Coming into force of the Convention Text Proposed by the Sub-Committee* 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of not less than twenty instruments of ratification or accession.

* Text of the Secretariat draft: ARTICLE XVII No proposition is put forward for the moment. * Text of the Secretariat draft: ARTICLE XVIII 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of the accession (or . . . ratifications and accession) of not less than . . . Contracting Parties. 1) 2. Accessions, received after the Convention has come into force shall become effective as from the ninetieth day following the date of receipt by the SecretaryGeneral of the United Nations.

E/AC.25/10

763

2. Ratifications or accessions received after the Convention has come into force shall become effective as from the ninetieth day following the date of deposit with the Secretary-General of the United Nations.

Comments 1. The Sub-Committee agreed to fix twenty as the number of ratifications or accessions necessary for the coming into force of the Convention. 2. A few verbal changes were made in the Secretariat text. ARTICLE XIX Duration of the Convention – Denunciation* Comments The Sub-Committee made no choice between the two drafts submitted in the Secretariat’s text. One member of the Committee preferred the first draft, another the second, and the third member reserved his opinion.

* Text of the Secretariat draft: ARTICLE XIX 1st draft 1. The present Convention shall remain in effect for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. 2nd draft The present Convention may be denounced by a written notification addressed to the Secretary-General of the United Nations. Such notification shall take effect one year after the date of its receipt.

764

E/AC.25/10

ARTICLE XX Abrogation of the Convention* Comments It was proposed to fix the number of parties below which the Convention would cease to have effect at fifteen. The Committed finally decided to leave the question open. ARTICLE XXI Revision of the Convention* Comments In support of the article on revision contained in the United States draft the Chairman pointed out that to have any chance of success revision would have to be jointly proposed by a number of States. The relevant article of the United States draft reads as follows: We propose the following text: Upon receipt by the Secretary-General of the United Nations of written communications from one-fourth of the number of High Contracting Parties, requesting consideration of the revision of the present Convention and the transmission of the respective requests to the General Assembly, the Secretary-General shall transmit such communications to the General Assembly of the United Nations.

* Text of the Secretariat draft: ARTICLE XX Should the number of Members of the United Nations and non-member States bound by this Convention become less than . . . (1) as a result of denunciation, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative. (1) Number required to make the Convention operative. * Text of the Secretariat draft: ARTICLE XXI A request for the revision of the present Convention may be made at any time by any State which is a party to this Convention by means of a written notification addressed to the Secretary-General. The Economic and Social Council shall decide upon the measures to be taken in respect of such a request.

E/AC.25/10

765

The General Assembly shall decide upon the steps, if any, to be taken in respect of such requests.

The Sub-Committee took no decision. ARTICLE XIII Notifications by the Secretary-General* Text Proposed by the Sub-Committee We propose that this Article be replaced by the following text: The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XIII of all signatures, ratifications and accessions received in accordance with Articles XIII and XIV, of the date upon which the present Convention has come into force, of denunciations received in accordance with Article XV, of the abrogation of the Convention effected as provided by Article XVI, and of requests for revision of the Convention made in accordance with Article XVII.

Comments The Sub-Committee adopted the article of the United States draft which corresponds to Article XXII of the Secretariat draft and differs from it only in some details of wording. It should be noted that it will be impossible to settle the final numbering of the Articles referred to until a later date.

* Text of the Secretariat draft: ARTICLE XXII The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XVI of all accessions (or signatures, ratifications and accessions) received in accordance with Articles XVI and XVIII, of denunciations received in accordance with Article XIX, of the abrogation of the Convention effected as provided by Article XX and of requests for revision of the Convention made in accordance with Article XXI.

766

E/AC.25/10

ARTICLE XXIII Deposit of the Original of the Convention – Transmission of copies to Governments* Comments Paragraph 1 – The first paragraph gave rise to some discussion. The Chairman proposed that the text of the Secretariat draft be replaced by the text of the United States Government’s draft, which reads as follows: The original of this Convention shall be deposited in the Archives of the United Nations.

The other two members of the Sub-Committee held that it would be useful to have the original text, which Governments would be required to sign, certified by the President of the General Assembly and the Secretary-General. The Sub-Committee decided to refer the question to the Committee. Paragraph 2 – The Committee proposed the following wording: A certified copy thereof shall be transmitted to all Members of the United Nations and to the non-member States referred to under Article XVI.

ARTICLE XXIV Registration of the Convention* The Sub-Committee proposes no change in the text of the Secretariat draft. * Text of the Secretariat draft ARTICLE XXIII 1. A copy of the Convention signed by the President of the General Assembly and the Secretary-General of the United Nations shall be deposited in the Archives of the Secretariat of the United Nations. 2. A certified copy shall be transmitted to all Members of the United Nations and to non-member States mentioned under Article . . . * Text of the Secretariat draft: ARTICLE XXIV The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

E/AC.25/10

767

ANNEX CONCERNING ARTICLE XV: LANGUAGE

I. The Importance of the Question In addition to these political aspects, which do not concern the Secretariat, the question of language has a legal aspect which is as follows: When a Convention is in several languages this means that each text is considered authentic and authoritative. Consequently, in any case involving the construction of the Convention, and whenever the meaning or scope of a provision is in doubt, the versions in the different languages are consulted with a view to determining the proper construction. The diversity of texts has often been considered a disadvantage because of the difficulty of interpretation it raises when the texts do not exactly tally. However, when before final adoption of the texts the authors of the Convention have themselves been careful to see that they do tally, the existence of several texts may be of help in interpreting the Convention, one text confirming the other, as an idea can occasionally be expressed more clearly and precisely in one language and sometimes in another. This advantage only exists, however, if the various authentic texts have been examined and checked by the authors of the Convention. On the other hand, if the text in one language is simply a subsequent translation by the Secretariat translators or a delegate, the personal interpretation of the translator in translating the text from language A into language B may help to establish the meaning of a provision of the Convention.

II. The circumstances of the preparation of the Draft Convention on Genocide The Secretariat’s initial draft was originally submitted and discussed in French. The United States draft was in English and the French draft in French. The texts on which the ad hoc Committee voted were mainly in English. But the work of the ad hoc Committee represents only one stage in the process. Final adoption of the text of the Convention will be by a resolution of the General Assembly.

768

E/AC.25/10

III. United Nations Practice We will consider first Charters setting up international organizations and secondly Conventions and Agreements. 1. Charters setting up international organizations For the most part, these Charters, and the complementary agreements, are concluded in the five official languages of the United Nations.* There are however a few exceptions.** 2. Conventions and Agreements A certain number of Conventions and Agreements have been concluded in the five official languages of the United Nations.*

* Charter of the United Nations – San Francisco – 26 June 1945 – Article 111 Constitution of the International Health Organization – New York – 22 July 1946 – Article 74 Constitution of the International Refugee Organization – New York – 15 December 1946 – Article 17 Havana Charter for an International Trade Organization – Havana – 24 March 1948 – Article 106 ** Protocol concerning the Office International d’Hygiene Publique – New York – 22 July 1946 – Final Clause: French and English texts, the two texts being equally authentic Convention on the Inter-governmental Maritime Consultative Organization – Geneva – 6 March 1948 – Final Clause: authentic texts in three languages (French, English and Spanish), each text being equally authentic. * Protocol amending the Agreements, Conventions and Protocols on Narcotic Drugs concluded at The Hague on 23 January 1912, at Geneva, on 11 February 1925, 19 February 1925 and 13 July 1931, at Bangkok, on 27 November 1931 and at Geneva on 26 June 1936, Lake Success, State of New York, 11 December 1946, Article IX (the Annex is in French and English, the Chinese, Russian and Spanish texts being only translations). Protocol to amend the Convention for the Suppression of the Traffic in Women and Children, concluded at Geneva on 30 September 1921, and the Convention for the Suppression of the Traffic in Women of Full Age, concluded at Geneva on 11 October 1933 – Lake Success, New York, 12 November 1947, Article VII (the Annex is in French and English, the Chinese, Russian and Spanish texts being only translations). Protocol to amend the Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, concluded at Geneva on 12 September 1923 – Lake Success, New York, 12 November 1947, Article VII (the Annex is in French and English, the Chinese, Russian and Spanish texts being only translations).

E/AC.25/10

769

Others have been concluded in two languages – French and English.** A certain number of Conventions contain no provisions concerning languages.***

** General Agreement on Tariffs and Trade – Geneva, 30 October 1947 – Article XXVI(2) Protocol of Provisional Application of the General Agreement on Tariffs and Trade – Geneva, 30 October 1947 – Final Clause *** Convention on the Privileges and Immunities of the United Nations, adopted by the United Nations General Assembly on 13 February 1946 Convention on the Privileges and Immunities of the Specialized Agencies, adopted by the United Nations General Assembly on 21 November 1947.

770

E/AC.25/10

MEMORANDUM SUBMITTED BY THE LEGAL DEPARTMENT With regard to the question concerning the original language in which such conventions and agreements concluded under the auspices of the United Nations are drafted, I wish to make the following reply: It has been the usual practice up to the present time that a draft of a convention or agreement is originally prepared in one of the working languages. It is then translated into the other working language and presented to the Conference or General Assembly in two working languages. In these two languages, the draft is worked out, and the final text drawn up by the Conference or the General Assembly. When the convention is to be concluded in more than two working languages, each of which is to be equally authentic, the translation into the other languages is prepared before its signature.

E/AC.25/10

771

LIST OF CLAUSES RELATING TO LANGUAGE CONTAINED IN CONVENTION AND AGREEMENTS CONCLUDED UNDER THE AUSPICES OF THE UNITED NATIONS CHARTER OF THE UNITED NATIONS – (San Francisco – 26 June 1945) Five official languages equally authentic. Article 111 The present Charter, of which the Chinese, French, Russian, English and Spanish texts are equally authentic, shall remain deposited in the archives of the Government of the United States of America. Duly certified copies thereof shall be transmitted by that Government to the Governments of the other signatory states.

INTERIM ARRANGEMENTS CONCLUDED BY THE GOVERNMENTS REPRESENTED AT THE UNITED NATIONS CONFERENCE ON INTERNATIONAL ORGANIZATION – (San Francisco – 26 June 1945) Five official languages equally authentic. In Faith Whereof, the undersigned representatives having been duly authorized for that purpose, sign this document in the English, French, Chinese, Russian and Spanish languages, all texts being of equal authenticity.

CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS – (adopted by the General Assembly on 13 February 1946) Does not contain any provision concerning languages. PROTOCOL AMENDING THE AGREEMENTS, CONVENTIONS AND PROTOCOLS ON NARCOTIC DRUGS – (CONCLUDED AT THE HAGUE ON 23 JANUARY 1912, AT GENEVA ON 11 FEBRUARY 1925, 19 FEBRUARY 1925, 13 JULY 1931, AT BANGKOK ON 27 NOVEMBER 1931 AND AT GENEVA ON 26 JUNE 1936) (Lake Success, 11 December 1946) Protocol in five official languages equally authentic. Annex in English and French equally authentic; Chinese, Russian and Spanish texts being only translations.

772

E/AC.25/10

Article IX The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Agreements, Conventions and Protocols to be amended in accordance with the Annex being in English and French languages only, the English and French texts of the Annex shall equally be the authentic texts and the Chinese, Russian and Spanish texts will be translations.

PROTOCOL TO AMEND THE CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN WOMEN AND CHILDREN, CONCLUDED AT GENEVA ON 30 SEPTEMBER 1921, AND THE CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN WOMEN OF FULL AGE, CONCLUDED AT GENEVA ON 11 OCTOBER 1933 – (Lake Success, New York 12 November 1947) Protocol in five official languages equally authentic. Annex in English and French equally authentic; Chinese, Russian and Spanish texts being only translations. Article VII The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Conventions to be amended in accordance with the annex being in the English and French languages only, the English and French texts of the annex shall equally be authentic texts, and the Chinese, Russian and Spanish texts will be translations.

PROTOCOL TO AMEND THE CONVENTION FOR THE SUPPRESSION OF THE CIRCULATION OF AND TRAFFIC IN OBSCENE PUBLICATIONS, CONCLUDED AT GENEVA ON 12 SEPTEMBER 1923 – (Lake Success, New York 12 November 1947) Protocol in five official languages equally authentic. Annex in English and French equally authentic; Chinese, Russian and Spanish being only translations. Article VII The present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations Secretariat. The Convention to be amended in accordance with the annex being in the English and French languages only, the Eng-

E/AC.25/10

773

lish and French texts of the annex shall be equally authentic texts, and the Chinese, Russian and Spanish texts will be translations.

GENERAL AGREEMENT ON TARIFFS AND TRADE 1. Final Act – English and French languages equally authentic. “Done at Geneva, in a single copy, in the English and French languages, both texts authentic.” (30 October 1947) 2. General Clauses of the General Agreement on tariffs and trade. English and French languages equally authentic. (Geneva, 30 October 1947) Article XXVI(2) This Agreement, done in a single English original and in a single French original, both texts authentic, shall be deposited with the Secretary-General of the United Nations, who shall furnish certified copies thereof to all interested governments.

3. Protocol of Provisional Application of the General Agreement on Tariffs and Trade. English and French both equally authentic. “Done at Geneva in a single copy, in the English and French languages, both texts authentic . . .” (30 October 1947) FINAL ACT OF THE UNITED NATIONS CONFERENCE ON TRADE AND EMPLOYMENT – (Havana, 24 March 1948) Five official languages. Done at Havana, this . . . day of March, one thousand nine hundred and forty-eight, in a single copy in the Chinese, English, French, Russian and Spanish languages.

HAVANA CHARTER FOR AN INTERNATIONAL TRADE ORGANIZATION – (24 March 1948) Five official languages. Article 106 The original texts of this Charter in the official languages of the United Nations shall be deposited with the Secretary-General of the United Nations, who will furnish certified copies of the texts to all interested governments. Subject to the provisions of the Statute of the International Court of Justice, such texts shall be equally authoritative for the purposes of the interpretation of the Charter, and any discrepancy between texts shall be settled by the Conference.

774

E/AC.25/10

INTERNATIONAL REFUGEE ORGANIZATION 1. Constitution of the International Refugee Organization – (Flushing Meadow – New York, 15 December 1946) Five official languages equally authentic. Article 17(1) The Chinese, English, French, Russian and Spanish texts of this Constitution shall be regarded as equally authentic. Done at Flushing Meadow, New York, this fifteenth day of December, one thousand nine hundred and forty-six, in a single copy in the Chinese, English, French, Russian and Spanish languages.

2. Agreement on interim measures to be taken in respect of refugees and displaced persons – (Flushing Meadow, New York, 15 December 1946) Five official languages equally authentic. In Faith Whereof, the undersigned representatives, having been duly authorized for that purpose, sign this Agreement in the Chinese, English, French, Russian and Spanish languages, all five texts being equally authentic.

WORLD HEALTH ORGANIZATION Final Acts of the International Health Conference (held in New York from 19 June to 22 July 1946) 1. Final Act of the International Health Conference (New York, 22 July 1946) Five Official languages equally authentic. Done in the City of New York this twenty-second day of July 1946 in a single copy in the Chinese, English, French, Russian and Spanish languages, each text being equally authentic.

2. Constitution of the W.H.O. (New York, 22 July 1946) Five Official languages equally authentic. Article 74 The Chinese, English, French, Russian and Spanish texts of this Constitution shall be regarded as equally authentic. Done in the City of New York this twenty-second day of July 1946, in a single copy in the Chinese, English, French, Russian and Spanish languages, each text being equally authentic.

E/AC.25/10

775

3. Arrangement concluded by the Governments represented at the International Health Conference (New York, 22 July 1946) Five Official languages equally authentic. In Faith Whereof, the undersigned representatives, having been duly authorized for that purpose, sign this Arrangement in the Chinese, English, French, Russian and Spanish languages, all texts being equally authentic.

4. Protocol concerning the Office International d’Hygiene Publique. (New York, 22 July 1946) English and French both equally authentic. In Faith Whereof, the duly authorized representatives of their respective Governments have signed the present protocol which is drawn up in the English and French languages, both texts being equally authentic, in a single original which shall be deposited with the Secretary-General of the United Nations.

AGREEMENTS FOR TRUST TERRITORIES – (as approved by the General Assembly or the Security Council) Do not contain any provisions concerning languages. CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE SPECIALIZED AGENCIES – (approved by the General Assembly on 21 November 1947) Does not contain any provision concerning languages. UNITED NATIONS MARITIME CONFERENCE 1. Final Act of the United Nations Maritime Conference (Geneva, 6 March 1948) English, French and Spanish languages equally authentic. Done in the City of Geneva this sixth day of March 1948 in a single copy in the English, French and Spanish languages each text being equally authentic.

2. Convention on the Inter-governmental Maritime Consultative Organization (Geneva, 6 March 1948) English, French and Spanish languages equally authentic.

776

E/AC.25/10

Article 62 The present Convention, of which, the English, French and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who will transmit certified copies thereof to each of the States invited to the United Nations Maritime Conference and to such other States as may have become Members.

E/AC.25/SR.7

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

777

UNRESTRICTED E/AC.25/SR.7 20 April 1948 English ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE SEVENTH MEETING Lake Success, New York Monday, 12 April 1948, at 2.30 p.m. Chairman: Mr. MAKTOS Vice-Chairman: Mr. MOROZOV Rapporteur : Present:

Mr. Mr. Mr. Mr. Mr.

United States of America Union of Soviet Socialist Republics AZKOUL Lebanon LIN MOUSHENG China ORDONNEAU France RUDZINSKI Poland PEREZ-PEROZO Venezuela

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing at the latest within 24 hours to Mr. Delavenay, Director, Official Records Division, Room CC-87, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

778

E/AC.25/SR.7

The CHAIRMAN announced that the sub-committee which had been set up to draft the final clauses of the Convention on Genocide had met that morning and had completed its work. It had referred back to the Ad Hoc Committee certain questions which it felt the latter was more competent to study. The sub-committee’s report would be circulated to members of the Ad Hoc Committee as soon as it was completed. CONTINUATION OF DISCUSSION ON A DRAFT RELATING TO BASIC PRINCIPLES OF A CONVENTION ON GENOCIDE SUBMITTED BY THE DELEGATION OF THE UNION OF SOVIET SOCIALIST REPUBLICS (DOCUMENT E/AC.25/7) The CHAIRMAN asked the Committee to decide in what order it wished to examine points IX and X of the draft submitted by the USSR delegation. Mr. MOROZOV (Union of Soviet Socialist Republics), after recalling that, besides points IX and X, the Committee had not discussed the argument advanced in point I of his draft as to the organic relationship between genocide and Fascism-Nazism, suggested that the Committee should first examine the question as to which judicial body should be competent to take cognizance of acts of genocide. Mr. ORDONNEAU (France) pointed out that the draft submitted by the USSR representative did not indicate whether governing authorities who had committed acts of genocide should also be included among the authors of such acts. The settlement of the question as to which judicial body was competent was closely linked with that problem. Mr. MOROZOV (Union of Soviet Socialist Republics) agreed that the question raised by the representative of France might be studied before a decision was taken regarding the question of the competent judicial body. He suggested that Articles IV and V of the Secretariat’s draft (document E/447 should be taken as a basis for discussion. Mr. ORDONNEAU (France) said that his delegation considered that not only the perpetrators of acts of genocide but also the governing [p. 3-line 3] authorities who were their accomplices should be punished. In order to avoid any ambiguity, the French delegation wished to amend the last paragraph of article 1 of its draft (document E/623/Add.1) as follows: “Its authors or accomplices shall be responsible before international justice, whether they be governing authorities or perpetrators.”

E/AC.25/SR.7

779

Mr. MOROZOV (Union of Soviet Socialist Republics) felt that the principle of holding responsible those who promoted acts of genocide was an excellent one. History had shown that those who encouraged such acts were more dangerous than those who carried them out. He considered, however, that reference to such a principle could more appropriately be made in the article of the convention referring to attempts to commit genocide, preparatory measures and questions of complicity. Mr. ORDONNEAU (France) pointed out that the amendment he had submitted referred only to the French delegation’s draft, and that it was for the Committee, if it agreed with the principle of that amendment, to decide where it should be inserted in the convention. Following an intervention by Mr. PEREZ-PEROSO [sic] (Venezuela), the Committee decided, after a short exchange of views, that the subject of discussion should include both the definition of those guilty of genocide and the designation of the competent judicial body. Mr. MOROZOV (Union of Soviet Socialist Republics) suggested the following new wording for article IX of the draft submitted by his delegation (document E/AC.25/7): The Convention should provide that persons guilty of genocide shall be prosecuted as being guilty of a criminal offence; that crimes thus committed within the territory coming under the law of a state shall be referred to the national courts for trial in accordance with the internal legislation of that state.

Mr. Morozov pointed out that underlying the new article IX there were three ideas: (1) competence in the question of genocide lay with national courts; (2) national courts were competent to try authors of acts of genocide committed on territory coming under their jurisdiction; (3) States parties to the convention would undertake to introduce provisions into their own penal laws for the punishment of the crime of genocide in accordance with the principles of the Convention. Mr. Morozov stressed that no exception should be made in the case of genocide to the principle of the territorial jurisdiction of states, which alone was compatible with the principle of national sovereignty. Referring to the draft convention prepared by the Secretariat, Mr. Morozov pointed out that the provisions of article IX of that draft would not be applied in practice. Article IX laid down that the High Contracting Parties

780

E/AC.25/SR.7

would refer authors of acts of genocide to an international court, whether they were unwilling to try them themselves or to grant their extradition, or whether the commission of such acts were effected by persons acting as organs of the state or were encouraged or tolerated by the state. But, on the one hand, a State could not refer a case to an international court without injuring its own prestige and that of its national courts; and on the other hand it was inconceivable that representatives of the state who encouraged or tolerated such acts of genocide would consent to submit themselves to international law. The recommendations of the Secretariat regarding the setting up of an international court to try the authors of acts of genocide ignored realities and were in flagrant contradiction with the principles of national sovereignty. Mr. Morozov felt that the principle contained in articles IV and V of the Secretariat’s draft, that governing authorities would be prosecuted in the same manner as the authors of acts of genocide if those authorities had tolerated or supported such acts, did not contradict the principle of the competence of national courts. International tribunals such as the Nurnberg and Tokyo Tribunals could be set up only if the exceptional circumstances which had led to the establishment of those Tribunals arose in the future. But, at the present time, there could be no question of setting up an international criminal court to take cognizance of crimes of genocide. The USSR delegation considered that, in order effectively to combat genocide, States, in acceding to the international convention, should introduce provisions into their national legislation for the punishment of authors of acts of genocide; their national courts should be given power to take cognizance of crimes of that nature committed within their territory. Should one of the contracting parties violate the obligations assumed under that convention, the other parties should inform the Security Council in order that the necessary steps might be taken in accordance with the Charter. Mr. PEREZ-PEROZO (Venezuela) pointed out that his Government had clearly and equivocally [sic] stated its opposition to the setting up of an international criminal judicial body to try the authors of acts of genocide. Venezuela feared that the establishment of such a judicial body might wound national pride, and by so doing prevent a certain number of States from acceding to the convention which it was proposed should

E/AC.25/SR.7

781

be drawn up. Besides, to commit nationals of a State to an international criminal court might constitute a violation of the fundamental principles of the judicial systems of many States. For that reason Venezuela considered that the Committee should confine itself, for the present, to the drafting of a convention by which States would undertake to introduce into their national legislation provisions for the suppression of genocide, and to defer the setting up of an international criminal judicial body until circumstances were more favourable. In supporting such a solution, Venezuela was guided by practical considerations. Mr. Perez-Perozo said that it seemed as if the draft convention drawn up by the Secretariat had gone beyond the General Assembly’s intentions, as expressed in resolution 96(I) of 11 December 1946. Indeed, the summary of the discussions which preceded the adoption of that resolution, contained in the account of the question prepared by the Secretariat (document E/62 [sic]) contained no reference to the setting up of an international criminal court. Hence the Assembly’s intention was undoubtedly that the Economic and Social Council should draft a legal document under which States would agree to suppress genocide. If the idea of establishing an international criminal court had been voiced during the General Assembly’s discussions, some States which had voted in favour of resolution 96(I) would certainly have acted differently. Except for a brief reference to the possibility of setting up an international tribunal, made by the representative of Peru at a plenary meeting of the fourth session of the Economic and Social Council, there was no trace of such an idea. Mr. Perez-Perozo wished to make it clear that he did not blame the Secretariat for having introduced such an idea in its draft. On the contrary, it was the duty of the Secretariat to consider such methods as it might consider appropriate to ensure the success of the fight against genocide. The representative of Venezuela wondered whether the various Governments would be ready to sign a convention entailing the establishment of an international criminal judicial body, since in so doing they would to a certain extent renounce the guarantees accorded them under Article 2, paragraph 7, of the Charter. Mr. Perez-Perozo, in referring to a hypothetical case of genocide, pointed out the many practical difficulties with which an international tribunal

782

E/AC.25/SR.7

remote from the territory where the acts of genocide had been committed would be confronted in examining the matter. He also pointed out the danger of resort to the Security Council: an armed expeditionary force in the territory of a State guilty of genocide would inevitably lead to war; yet the United Nations had been set up for the purpose of avoiding war. Various crimes against international law, in particular the traffic in women and the traffic in dangerous drugs, already existed, and it was generally agreed that their international character was not determined by the organ set up to suppress them, but rather by their very nature itself. Hence there was no reason for not stating that genocide was a crime against international law. Instead of resorting to an international tribunal or to the Security Council, States would formally pledge themselves to suppress genocide and to endeavour to prevent it. Mr. ORDONNEAU (France) pointed out that the present discussion had reached the core of the problem; the time had come for the various delegations to state their general views. The movement in world opinion which had lately laid particular stress on the problem of genocide unquestionably arose out of the last war. That movement had doubtless been preceded by the work of leading jurists who had examined the problem before the war, but it was the excesses committed by the Nazis and Fascists which had awakened the world’s conscience. The foundation-stone of the structure which was to defend the world from crimes committed against humanity had been laid at Nurnburg [sic]; but the Convention of London, which had set up the Nurnberg Tribunal, had referred only to war crimes. The Ad Hoc Committee on Genocide, which now had to lay the second stone, namely to draw up an international convention for the prevention and suppression of genocide, should base its work on a broader idea, by placing it within the general framework of crimes against humanity. Its tasks were allied to those of the Committee for the Codification of International Law. The General Assembly, followed by the Economic and Social Council, had considered it expedient, for reasons of urgency, to separate the question of genocide and to entrust it to an Ad Hoc Committee for study.

E/AC.25/SR.7

783

Behind the physical act which was its outcome (assassination, violence or some other form of crime) there was a deliberate intention, directed not against the victims but against the group to which they belonged. The factor of intention being thus established, the physical factor was characterized by the employment of certain acts designed to bring about assassination. In order to determine the crime it was absolutely imperative to take cognizance not only of the physical act but also of the intention behind the act. One element remained – the status of the author of the crime. Genocide could be committed by an individual or by a group of individuals not connected with the State or without the intervention of the State. It [p. 8-line 19] could also be committed at the instance and with the complicity of the State. [p. 8-line 20] In that case the State itself could be considered guilty of the crime. That finding led to the following distinction: If the guilty party was an individual, the crime would be a national one, punishable by national law. If the guilty party was a State, the crime committed would come under international law. [p. 8-line 25] Mr. Ordonneau pointed out that history could not show a single [p. 8-line 26] example of national crime in the sense indicated. The crimes committed [p. 8-line 27] by the Nazis and Fascists had been committed by the State itself. Genocide, [p. 8-line 27 ends] a crime which was universally condemned, was dangerous precisely because it was a crime committed with the complicity of the State, or made possible as a result of the default of a State. That was a determining factor. The Committee should deal with that aspect if it wished to achieve any useful purpose. [p. 9-line 4] It was inconceivable however that an international crime should be dealt with by national judicial bodies. No State would commit its governing authorities to its own courts. The principle of an international judicial body conflicted, it was said, with the principle of national sovereignty. The Charter itself contained provisions restricting the national sovereignty of Member States. The French delegation felt that if States wished to set up an international community based on solid foundations they should be ready progressively to surrender certain privileges. The French Government, for its part, was ready to do so.

784

E/AC.25/SR.7

Objection had been raised that the setting up of an international judicial body would create many practical difficulties. The most serious objection concerned the necessity for recourse to police operations for the arrest of the culprit, measures which might lead to war. But the Committee was called upon first of all to define the crime, the guilty parties and methods of punishment. There was a second practical objection. In adopting such strong general measures, the Committee might discourage a certain number of States Members of the United Nations and lead them to hesitate to sign the proposed convention. The Committee should, however, do as much as it could consistently with the nature of its task The French Government would not hesitate to undertake new international obligations. It wished to see an effective convention and would not be content with a mere facade, however beautiful. If the crime of genocide was to be suppressed and punished, it should be as an international crime and it could be dealt with only by an international judicial body. The meeting was suspended at 4 p.m. and was resumed at 4.25 p.m. Mr. LIN MOUSHENG (China), reviewing the discussion, emphasized the fact that the Committee was in agreement on one point – that of entrusting to national courts the task of punishing individuals who had committed acts of genocide without the complicity of the State. It was the crimes which were committed by the States themselves, or with their [p. 10-line 7] complicity, which created the greatest difficulties in the setting up [p. 10-line 8] of what were known, in the majority of cases, as international judicial [p. 10-line 9] bodies. But the constitution of an international tribunal, even [p. 10-line 10] an ad hoc tribunal such as that of Nurnberg, was a delicate and exacting [p. 1-line 11] task which was perhaps beyond the Committee’s competence. Mr. Lin Mousheng suggested therefore, as a compromise, that the convention should define the crime of genocide, should state that national [p. 10-line 14] judicial bodies were competent and, in an additional provision, should [p. 10-line 15] emphasize that that fact did not exclude the possibility of an international judicial body being set up at a later date. Mr. AZKOUL (Lebanon), Rapporteur, shared to some extent the views expressed by the USSR delegation. He agreed that the Government of a country might on occasion not be responsible for acts of genocide

E/AC.25/SR.7

785

committed on its territory. A convention which would prevent and suppress crimes of that nature within the framework of national law would therefore be useful. The Lebanese delegation, however, considered that the effectiveness of an instrument of that nature would be limited. In his opinion, some international authority should be empowered to declare whether the State in question, while not actually responsible for the commission of the crimes under consideration was nevertheless implicated to a greater or lesser degree. There was no doubt that the most horrible examples of genocide were those which were prepared by Governments, which were in a position to organize large-scale massacres. The aim, however, was not only to put a stop to criminal acts; they should also be prevented. The fear of legal reprisals would be the most effective means of preventing them. In conclusion, the Lebanese representative stated that while he agreed with the USSR delegation that national legislation might be competent in some cases, he considered it indispensable that an international control should be set up. The Committee could decide later what form that control should take and whether it should be entrusted to the United Nations Security Council, to a permanent international penal court, or to an ad hoc international court. Mr. RUDZINSKI (Poland) would not repeat the arguments which he had already put forward during the general debate; he summed up the present legal position which resulted from General Assembly resolution 96(I). Prior to that resolution and under the Statute of the Nurnberg Tribunal, genocide had been considered as a crime only when it was committed in connexion with crimes against peace or war crimes. The supreme organ of the United Nations had now solemnly declared genocide to be a crime against international law, whether or not it was perpetrated in time of war. The General Assembly resolution called upon Member States to enact national legislation for the suppression and prevention of the crime of genocide. Furthermore, the General Assembly had recommended the organization of international co-operation between States and, to that end, the conclusion of a convention on genocide, a task which the Committee now had in hand.

786

E/AC.25/SR.7

International action would take two forms: (1) the extradition of persons presumed guilty; (2) the conclusion of a convention which would establish an international law binding on the signatory States. The Polish representative thought there was no necessity to set up special organs in normal circumstances. Judiciously employed, the existing organs of the United Nations – for example, the Security Council – would be sufficient. The foundation of the new legal edifice would consist of the obligation for each State signing the future convention to take legislative measures to prevent genocide and to punish those guilty of that crime. The aim of these measures was not only to punish a certain number of criminals, but to instil notions of good and evil into the people as such. It would be premature to establish an international court. It was essential to endeavour to reach such objectives as could be attained in the present circumstances, and not to aim at a purely theoretical goal. The Committee’s duty was to draw up an instrument which would effectively bind States, and not a document of theoretical value. The CHAIRMAN, speaking as representative of the United States of America, emphasized that the establishment of international law would place States under an obligation to accept the judgment of others; that was why the protagonists of an international court evinced such great caution and considered all aspects of the question, whereas those against that idea had no need to be so careful. The United States delegation was in favour of establishing [p. 12-line 25] international jurisdiction. It believed that the fact of pronouncing a State guilty constituted a psychological factor, the importance of which should not be underestimated, even if Governments hesitated to go further. The United States Government considered, however, that the establishment of international jurisdiction might well await the findings of the Committee on the Codification of International Law. It therefore proposed that only a reference should be made in the convention to the principle of setting up an international tribunal competent to suppress genocide. Referring to article IX of the draft submitted by the USSR delegation, Mr. Maktos said that, if the aim of that article was to place genocide under the jurisdiction of national courts, it was useless, for it did not cover cases of flagrant complicity by the State. If, on the other hand, it was to be interpreted as opposing the establishment of any form of international

E/AC.25/SR.7

787

court, the United States delegation would be unable to accept it; the crime of genocide, which implied the complicity of the State, belonged to the domain of international law. Even if, before the war, Nazi Germany had signed a convention outlawing genocide, no one could suppose that she would have brought the perpetrators of the atrocities to trial in her own courts. Only an international court could judge them. The United States delegation hoped that similar atrocities would never again be committed, but the proposed convention should provide for every contingency and, to be really effective, it should provide for the establishment of an international court. The task of the ad hoc Committee on Genocide was to establish the principle that the guilty parties should be tried by a competent international tribunal, namely, the court set up in the future for that purpose. Mr. Maktos suggested that in the event of the international court being unable itself to judge all the cases submitted to it, it should appoint the national courts of some other State to deal with specific acts of genocide. To objections raised in the name of national sovereignty, Mr. Maktos would reply that the free acceptance of the provisions of an international convention, far from striking a blow at the sovereign prerogatives of the State, would on the contrary constitute a manifestation of sovereignty. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that all the members of the Committee were in agreement that any tribunal, whatever it might be called, would encounter considerable difficulties in carrying out its work. The USSR representative raised two points in connexion with Mr. Maktos’ remarks: (1) In the mind of the United States delegation, what procedure should be followed by international jurisdiction in preparing a case and submittting [sic] it to the judicial body whose competence it recognizes? (2) What authority would settle any dispute which arose as to the relative competence of international jurisdiction and national courts? Mr. ORDONNEAU (France) observed that in that connection the French draft before the Committee went as far as possible, since it provided for: (1) the intervention of an international public prosecutor to whom indictments would be addressed and who would decide what action should be taken upon them; (2) the sovereignty of the international court in the

788

E/AC.25/SR.7

matter of its own competence. In the event of a conflict on that issue, it would be impossible to allow the decision to rest with the State concerned or with its courts. The questions asked by Mr. Morozov appeared to be premature; the Committee could not, at the present stage of the debate, go into the details of the question. Nevertheless, in order to ensure that its proposals should be well-founded, the French delegation had made a thorough study of the question, the results of which it was willing to [p. 14-line 25] impart to the Committee, if desired. It would be prepared, however, to [p. 14-line 26] adopt the view of the United States delegation and would be satisfied if the Committee immediately proclaimed that the authors of crimes of genocide must be tried by an international tribunal, leaving the establishment of such a tribunal to a later date. The CHAIRMAN, speaking as representative of the United States of America, and replying to the USSR representative, stated that he agreed with Mr. Ordonneau that it would be premature to take up questions of procedure at the present stage. The aim of the United States Government for the time being was simply to lay the foundation for the future. Mr. MOROZOV (Union of Soviet Socialist Republics) observed that there seemed to be unanimous agreement in the Committee on one point: to be effective, a convention must be backed by an international authority. At the same time, various delegations had expressed different points of view on the nature of such international authority and on its means of action. Referring to the two points of view which had developed in the course of the discussion, Mr. Morozov stated that his delegation envisaged the question as follows: (1) genocide should be declared to be the most serious crime against humanity; (2) States should introduce legislation for the suppression of genocide and the infliction of adequate penalties; (3) genocide should be termed not a political crime but a crime under ordinary law, so that the guilty could not avail themselves of the right of sanctuary and would be extraditable; (4) the Security Council should be informed of all cases of genocide or violations of the obligations laid down in the convention. Those in favour of the second point of view, namely the establishment of international jurisdiction, were those very States which were against

E/AC.25/SR.7

789

including in their national legislation measures to place the crime of genocide in the category of common-law crimes. With regard to crimes committed within a State, Mr. Morozov considered that the national courts could and should judge the criminals in the first instance. Those who favoured an international court proposed no practical methods of combating the crime of genocide; they confined themselves to enunciating principles. Instead of really pursuing the struggle against the crime of genocide, if only on a national scale, they proposed setting up an international tribunal whose functions were ill-defined. Whatever form was given to an international court, it would be nothing but a fiction if no cases were laid before it. To produce nothing but theoretical provisions would be to disappoint the hopes of the peoples. With references to the possible establishment of an ad hoc court, which had been mentioned by the representative of China, Mr. Morozov did not think the Nurnberg and Tokyo Tribunals, which had come into being in response to historic events, could be taken as a precedent. In reply to Mr. Ordonneau, Mr. Morozov stated that a convention the details of which had not been studied could have no practical value. It was not enough to postpone to some future date the application of certain principles. A wiser course would be to recognize the competence of national courts and to establish international control in the form of an appeal to the Security Council in cases of violation of the convention. The USSR delegation considered that respect for national sovereignty was one of the foundation-stones of international co-operation, and that international law could not take precedence over the national legislation of States. Mr. ORDONNEAU (France) emphasized that the French delegation had never refused to include provisions for the punishment of genocide in the national legislation of States. It had been alleged that the French delegation enunciated principles without ensuring their application; in that connexion, Mr. Ordonneau drew attention to articles 3 to 9 of the French draft, which related to the establishment of an international court; if those provisions were adopted the court could be set up at once. The French delegation had thus submitted concrete proposals.

790

E/AC.25/SR.7

Although past experience perhaps justified the pessimism shown by the USSR representative as to the success of international conventions establishing penal jurisdiction, that was not a sufficient reason to deter the Committee from continuing its work. As for the consideration of national prestige, Mr. Ordonneau agreed with the United States representative that national sovereignty was best demonstrated by its renunciation, and that the relinquishment of certain privileges was evidence of strength and self-confidence. With regard to the Committee’s competence, Mr. Ordonneau was of opinion that the General Assembly had stated the problem in the widest possible terms, and he pointed out that the Secretariat draft, which the Economic and Social Council had asked the Committee to study, explicitly provided for the establishment of an international judicial body. Mr. PEREZ-PEROZO (Venezuela) proposed that, in order to shorten the discussion, the Committee should begin the actual drafting of the convention, confining itself to the provisions regarding the suppression of genocide in the framework of national legislation. The Committee could at the same time inform the Economic and Social Council that some delegations considered it advisable to set up an international penal jurisdiction, but that in the Committee’s opinion it was not competent to assume such a responsibility. If the Economic and Social Council considered that it was itself able to do so, it would be easy for it to draft a protocol as an annex to the convention; otherwise, the Council would refer the question back to the General Assembly for transmission to the Committee on the Codification of International Law. Mr. LIN MOUSHENG (China) repeated his compromise proposal, according to which the competence of national judicial bodies would be recognized, but a supplementary clause would stipulate that the provisions of the convention did not preclude the possible future establishment of an international judicial body or an ad hoc tribunal. Mr. AZKOUL (Lebanon), Rapporteur, pointed out that the principal subject of disagreement in the Committee was the definition of international authority. He thought there had been no satisfactory explanation of how the Security Council would act to secure that authority. The topic was thus not exhausted and the discussion should, he thought, continue on that point.

E/AC.25/SR.7

791

The CHAIRMAN agreed with the Lebanese representative. Speaking as representative of the United States, Mr. Maktos said that if article X of the USSR draft merely reaffirmed the functions of the Security Council as recognized under the Charter, it contained no new factor; it could not, moreover, be interpreted as widening those functions, since that could not be done without revising the Charter. Mr. Maktos did not think it was sufficient to declare genocide a crime under ordinary law and to recognize the undeniable right of States to punish crimes committed in their own territories; the Committee should [p. 18-line 21] take action to ensure that States would be subject to the jurisdiction of an international court. [p. 18-last para.] Mr. LIN MOUSHENG (China) observed that article X of the USSR draft provided that all cases of genocide and of violation of the convention should be brought before the Security Council. The Council itself would decide whether or not to accept for consideration the questions of which it was seized. The Committee had no right to define the functions of the Council. Mr. ORDONNEAU (France) said that the provisions of the Charter could not be changed by the adoption of a convention. The chief function of the Security Council was the maintenance of peace; it would be incorrect to entrust it with quasi-juridical functions. Mr. Ordonneau drew attention to article 9 of the French draft, which provided for an appeal to the Security Council only in case of failure to carry out a decision of the international criminal court. Mr. MOROZOV (Union of Soviet Socialist Republics) emphasized that his proposal was intended to ensure that so serious a question as genocide would be dealt with only by the highest organ, i.e. the Security Council. It was to that body that the duty would normally be entrusted of ensuring respect for obligations assumed by States under an international convention. The USSR proposal made it obligatory for a question to be placed before the Security Council, while the Secretariat proposal spoke only of a possible appeal to the Council. The procedure for applying the USSR proposal was clearly defined in Chapter VI of the Charter, whereas the French and United States proposals were vague and their adoption would lead to a confused situation incompatible with any real effort to eliminate the crime of genocide.

792

E/AC.25/SR.7

Mr. ORDONNEAU (France) pointed out that to state a priori that all cases of genocide were within the competence of the Security Council would be tantamount to saying that any act of genocide whatsoever would constitute a threat to peace and security, and thus to prejudging the question. As there was general agreement on the competence of national courts, the members of the Committee should now express their views on the desirability of including in the convention the principle of recourse to an international criminal court in cases in which States were the offenders. If the majority were in favour of that principle, the Committee might adopt a clause stating that the parties to the convention recognized the necessity for establishing an international judicial body, the exact form of which they reserved the right to determine later. The meeting rose at 6.20 p.m.

E/AC.25/SR.7/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

793

UNRESTRICTED E/AC.25/SR.7/Corr.1 4 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SEVENTH MEETING Lake Success, New York Monday, 12 April 1948, at 2.30 p.m. The following corrections should be made on pages 3, 8, 9 and 14: Page 3.

Line 3:

Insert “authors or” between “their” and “accomplices”.

Page 8.

Line 19:

Replace “of the State” by “of the governing authorities”. Replace “In that case the State itself could be considered guilty of the crime” by “In that case the governing authorities themselves could be considered guilty of the crime”. Delete “That finding . . . under international law”.

Line 20:

Line 20:

Linesx [sic] 25, 26 and 27: Replace the sentence “Mr. Ordonneau . . . the State itself ” by “Mr. Ordonneau pointed out that the most horrible genocide crimes recorded in history were committed with the complicity of the governing authorities”. Page 9.

Line 4:

Page 14. Line 25:

Line 26:

Replace “an international crime” by “a crime committed by or with the complicity of the governing authorities of a State”. At the beginning of the sentence, insert: “Since the French delegation seemed to be the only one proposing immediate establishment of a Court”. Replace “of the United States delegation” by “of the majority”.

794

E/AC.25/SR.7/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.7/Corr.2 14 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SEVENTH MEETING Lake Success, New York Monday, 12 April 1948, at 2:30 p.m. Page 12, line 25: Delete the words “a State” and substitute the words “state officials and others”. Page 18, line 21: Delete the word “States” and substitute the words “state officials and others”.

E/AC.25/SR.7/Corr.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

795

UNRESTRICTED E/AC.25/SR.7/Corr.3 24 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SEVENTH MEETING Lake Success, New York Monday, 12 April 1948, at 2:30 p.m. The following corrections should be made on page 10: line 7, delete the words “greatest difficulties in the”, and substitute “necessity of ”. line 8, delete the whole line, and replace by the “international criminal”; line 9, delete the first word, and replace “tribunals”; line 11, delete the word “perhaps”; line 14, delete the word “in”, and replace “as”; line 15, delete the words “that fact” and replace “this”. On page 18, delete the last paragraph, and substitute the following: Mr. LIN MOUSHENG (China) observed that article X of the USSR draft provided that all cases of genocide and of violation of the convention should be brought before the Security Council. He said it was not necessary to have this provision. Cases of genocide might be brought to any competent organ of the United Nations in accordance with the Charter.

796

E/AC.25/SR.8

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.8 17 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE EIGHTH MEETING Lake Success, New York Tuesday, 13 April 1948, at 2:00 p.m. Chairman: Vice Chairman: Rapporteur: Present:

Mr. MAKTOS Mr. MOROZOV Mr. AZKOUL China France Poland Venezuela

(United States of America) (Union of Soviet Socialist Republics) (Lebanon) Mr. LIN MOUSHENG Mr. ORDONNEAU Mr. RUDZINSKI Mr. PEREZ-PEROZO

NOTE: Any corrections of the originals of speeches in this record should be submitted in writing at the latest within twenty-four hours to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate document symbol number and enclosed in an enveloped [sic] marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.8

797

CONTINUATION OF THE DISCUSSION OF SECTION IX OF THE MEMORANDUM SUBMITTED BY THE DELEGATION OF THE UNION OF SOVIET SOCIALIST REPUBLICS (document E/AC.25/7) The CHAIRMAN observed that the members of the Committee seemed to be agreed on the principle that questions of genocide might be referred to the law courts of a State which would give a decision in accordance with the laws of the country. The question to be decided at present was whether the future convention should contain any mention of the principle of universal punishment. Mr. AZKOUL (Lebanon) urged on behalf of his delegation, first, that the convention should declare national courts competent to deal with questions of genocide; secondly, that it should recognise the principle of universal punishment while allowing the courts of a country to pass judgment on acts of genocide perpetrated abroad, and thirdly, that, in case the Committee did not think it should include in the convention a provision for the immediate establishment of an international court, the convention should contain the stipulation that this question would be taken up again later at a more appropriate moment. In reply to Mr. Morozov (Union of Soviet Socialist Republics), the representative of Lebanon made it clear that if the question of the creation of an international penal court came before the General Assembly of the United Nations, his delegation would vote for it. Mr. MOROZOV (Union of Soviet Socialist Republics), stated that he was opposed to the Committee providing for the creation of an international penal court in the future. He still adhered to the terms of Section X of his memorandum, which required the signatories to the convention to report all cases of genocide to the Security Council, so that the Council might take all the necessary measures in accordance with Chapter VI of the United Nations Charter. Mr. PEREZ-PEROZO (Venezuela) agreed that the convention should mention the principle of universal punishment by national courts, but as the idea of the establishment of an international court was being opposed,

798

E/AC.25/SR.8

it seemed difficult to him to include the expression of a mere desire, in the actual convention which would necessarily be of a binding nature. He, therefore, proposed that mention of a desire for the creation of an international penal authority should be made in the report which the Committee would draw up when its work was done. Mr. ORDONNEAU (France) had little faith in the possibility of a basic agreement on the question. The representative of France agreed with his Lebanese colleague that some decision should be taken in connection with the mention of international jurisdiction. [p. 3-lines 17–20] He thought it was important that the Committee should decide to make some reference in the convention to an international court to be established later. This decision would naturally be recorded also in the Committee’s report. [p. 3-lines 17–20 end] Unlike Mr. Morozov, Mr. Ordonneau thought this reference could, without too much trouble, be written into the text of [p. 3-line 23] the convention. It was customary for international conventions to stipulate that the machinery for implementing certain points should be determined later. Mr. MOROZOV (Union of Soviet Socialist Republics) supported the proposal of Mr. Perez-Perozo. In order to open the way for a compromise formula, the CHAIRMAN asked if the Committee would agree to restrict the intervention of an international court to one specific function: that of seeing that a State did not commit a denial of justice. He explained that, in international law, a denial of justice to the detriment of a foreign national constituted a case of international responsibility and in certain circumstances, gave the State, of which the victim of a denial of justice was a national, the right to summon the guilty State to appear before an international tribunal. Mr. MOROZOV (Union of Soviet Socialist Republics) replied that fundamentally the Chairman’s point of view did not seem to have changed, since he still proposed to mention in the convention the question of an international court, without giving any details regarding the procedure to be followed. The USSR representative held to his view that national courts should judge questions of genocide according to the terms of the international commitments assumed by the State concerned.

E/AC.25/SR.8

799

The PRESIDENT expressed his concern that the future convention should attract the greatest possible number of adhesions, and therefore he had proposed to limit the competence of the international court by stating that it should have jurisdiction only in cases of default by the State concerned, that is in case the latter should have failed to punish the crime. The President asked the opinion of the Committee on whether the draft convention should contain a provision that crimes of genocide would come under the jurisdiction of national tribunals or of an international court. Mr. MOROZOV (Union of Soviet Socialist Republics) thought the draft should be broken up and a vote taken separately on each of its two parts; personally, he would restrict himself to an affirmative reply to the first question. Mr. ORDONNEAU (France) approved of the division proposed by the USSR representative. Mr. MOROZOV (Union of Soviet Socialist Republics) maintained his position; he declared that the adoption of his proposal would at least allow national courts to handle efficaciously, as infractions of the law of the land, crimes of genocide perpetrated on the territory of the State concerned. Voting upon the first part of the proposal made by the President, the Committee decided unanimously that crimes of genocide should be punished by national courts. Discussion was then resumed on the second part of the same proposal: “or by a competent international court”. On this point the PRESIDENT explained that “international court” meant either an international court of a special court. Mr. MOROZOV (Union of Soviet Socialist Republics) asked the President to specify whether he thought the phrase on which a vote was being taken should be included in the convention itself or in the Committee’s report. The PRESIDENT was of the opinion that since it was the duty of the United Nations to do constructive work, an appropriate mention concerning the international court should appear in the convention as well as in the Committee report.

800

E/AC.25/SR.8

Mr. AZKOUL (Lebanon) suggested that the Committee should first decide on the question of universal punishment. The Lebanese delegation was also anxious to assure the greatest possible number of adhesions to the convention, and would base its position on the phrasing adopted in that connexion. Mr. Azkoul explained that in his mind, the term “universal punishment: [sic] indicated the right of national courts to punish offences committed abroad such as piracy, traffic in women etc. He pointed out also that in respect of genocide, article VII of the draft convention prepared by the Secretariat (document E/447) bound the signatories to punish criminals under the terms of the convention who were found on territory subject to their control, irrespective of their nationality or of the place where the crimes was committed. Mr. PEREZ PEROZO (Venezuela) agreed with the point of view expressed by the Lebanese representative. The principle of the universal punishment of international crimes was recognised by the penal code of his country, and would, therefore, apply to genocide. But, for that it was essential to include the principle in the convention, as the General Assembly resolution had no binding force for States. Mr. ORDONNEAU (France), in the absence of instructions from his Government on this point, spoke in his personal capacity. He pointed out that it would be a contradiction to recognise [p. 6-line 25] the principle of universal punishment and to reject that of the competence of international jurisdiction, for the first principle [p. 6-line 27] constituted a more serious threat to national sovereignty, than [p. 6-line 28] the second by allowing courts other than national courts to deal with the crimes to be punished. Neither did a system based on universal punishment afford sufficient guarantees of impartiality towards the accused; rather, it invited expressions of hostility on an international scale. [p. 7-lines 8–13] It might easily happen, for example, that a State which arrested, on its own territory, an alien considered guilty of the crime of genocide, might allow itself to be carried away by feelings of hostility which it felt towards the accused alien’s country. It might happen that the criminal, after committing crimes in a foreign country, succeeded in taking refuge in his own country. As States commonly refused the extradition of their nationals, what assurance was there that they would punish them with full severity? Thus the possibilities of dispute, and indeed of political difficulties, seemed to be numerous. [p. 7-lines 8–13 end]

E/AC.25/SR.8

801

The parallel drawn between piracy and genocide was not accurate: piracy was not covered by territorial jurisdiction, [p. 7-lines 16–17] since it was committed on the high seas. The pirate was answerable only to the courts of the captor State. Mr. Ordonneau concluded by saying that universal punishment could not take the place of international justice, a principle to which he remained closely devoted. Mr. AZKOUL (Lebanon) did not share the opinion of Mr. Ordonneau. He thought the establishment of an international court should be postponed until later, and in the meantime it would not be a bad idea to depend upon a system of universal punishment. The scope of that should not be overlooked, since it would, among other things, provide for the trial of statesmen guilty of genocide. Mr. ORDONNEAU (France) acknowledged that an international court could of course co-exist with a system of universal punishment, but he did not like this overlapping of authority. He again stressed the dangers of partiality which would result from the adoption of any system but that of international justice, both for the accused and the State of which he was a national. Mr. PEREZ PEROZO (Venezuela) did not share these fears. The principle of universal punishment of crimes of an international character had long been applied in many countries, notably in Poland and in Venezuela. There were a good many crimes of an international character. They included, in addition to piracy, the counterfeiting of currency, traffic in women and children, in obscene publications, in narcotic drugs, etc. Moreover, all States had surrendered some part of their national sovereignty or [sic] signing the Charter at San Francisco. It was not impossible that the proposed convention might restrict that sovereignty to some extent, in order to ensure that the crime of genocide, so much more heinous than that of piracy, should be punished. With regard to the risk of partiality which might arise when accused persons were haled before non-national courts, it should not be forgotten that the party to be judged would be not a State, but its nationals. Mr. ORDONNEAU (France) pointed out that the crime of piracy, which anyway had almost ceased to exist, had no political character and

802

E/AC.25/SR.8

consequently did not involve the risk of such complications. As for other international crimes, their connexion with the application of the principle of universal punishment was only hypothetical. Moreover, he could not possibly agree to any exception to the principle of territorial jurisdiction, unless it were in connexion with the State’s jurisdiction over crimes committed abroad by one of its nationals. Mr. MOROZOV (Union of Soviet Socialist Republics) was opposed to extending to genocide the provisions which applied to piracy. After discussing the arguments of the protagonists of such an extension, the USSR representative stated that their reasoning sinned by an excess of logic and lacked any practical basis. Mr Morozov felt, moreover, that the establishment of an international court would amount to a violation of the national sovereignty of the various States. In his opinion, the real solution was the inclusion in the convention of a clause stating that genocide should not be considered as a political offence, entitling the culprit to extradition. In reply to the French representative’s objections, Mr. AZKOUL (Lebanon) pointed out that the principle of universal punishment was not incompatible with national sovereignty. The question had, moreover, to be viewed from two angles, that of the nationality of the criminals, and that of the territory on which the crime was committed. Mr. Ordonneau implicitly admitted that the principle of the “laws of domicile” did not apply when a person was tried by a court of his own country for a crime committed abroad. He agreed, moreover, that in the case of piracy, for example, the offender, whatever his nationality, should be punished under the laws of the captor country, as an exception to the principle of the “laws of personality”. Thus Mr. Ordonneau foresaw cases in which national sovereignty would play no part, either from the standpoint of nationality or territory. If universal punishment for international infringements under common law was admitted, why should universal punishment of genocide not be equally admissible. The danger of political exploitation was small, if not entirely inexistent. Genocide was, moreover, so flagrant a crime that it would be impossible to make accusations lightly even if impelled by hostility to the State of which the offender was a national.

E/AC.25/SR.8

803

In answer to the USSR representative, he said the Lebanese delegation’s attitude had not been inspired by any desire to establish an analogy between genocide and other international crimes. The Lebanese delegation’s only wish was to punish a maximum number of guilty persons and to prevent as many crimes of genocide as possible. There would always be cases which would escape national justice. In the absence of an international court, the setting up of which might take a considerable time, effective methods must be provided to punish guilty persons during the interim period. Otherwise the proposed convention would lose all practical usefulness. Mr. ORDONNEAU (France) said that he had never been guided by the principle of absolute national sovereignty in this matter. On the contrary, he had more than once stated that it was often necessary for a State to waive a part of its sovereignty. Such a renunciation should, however, only be made advisedly. The crime of genocide was undoubtedly a crime which could not be concealed and which would be known to all. But that was not the issue; the question was whether the person in custody was in fact the culprit. The principle of universal punishment presupposed that all the courts in the world offered the same guarantees of impartiality. That in his view, was not the case. It was precisely for that reason that the French delegation whole-heartedly supported the establishment of an [p. 11-line 3] international court which alone would provide sufficient guarantees. To admit the principle of universal punishment would be to invite insurmountable political difficulties. Could those present conceive the political consequences which would follow the arrest and trial by a foreign court of the head of a State for the crime of genocide? Mr. PEREZ-PEROZO (Venezuela) was in favour of universal punishment. It was generally accepted that, in international offences against the common law, the offender was tried by the courts of the State in which he was arrested. There was no reason why the same should not apply to genocide. In the absence of an international court, which required excessive sacrifices from each State, what sanctions could be applied to the crime of genocide, if the principle of universal punishment were not admitted? The CHAIRMAN expressed the hope that an international court would be set up. The Committee had, moreover, recognized that genocide would be considered as a crime, punishable in accordance with the domestic

804

E/AC.25/SR.8

legislation of the countries signatory to the convention. By introducing the principle of universal punishment into the convention, the Committee would be binding countries not signatories to the convention by a clause not accepted by them. Just as the idea of universal punishment was alien to French law because of the principle that law runs with the person, so Anglo-Saxon law did not admit it because of the principle that law ran with territory. Anglo-Saxon laws would not admit that a crime committed on the territory of State A could be punished on the territory of State B. That was why the United States delegation was opposed to the principle of universal punishment. The CHAIRMAN put to the vote the Lebanese proposal that a clause for the universal punishment of the crime of genocide should be included in the convention. The proposal was rejected by four votes to two with one abstention. Mr. LIN MOUSHENG (China) explained his abstention on the grounds of lack of instructions from his Government, but reserved the right to present his delegation’s views when the final text of the convention came to be drafted. The CHAIRMAN said that the point at issue was for the Committee to decide whether it wanted to insert a clause in the convention regarding the establishment of an international court. In view of the vote, just taken, it would suffice to add to the passage “crimes of genocide shall be tried by national courts” something like the following: “Or by a competent international court”. Mr. LIN MOUSHENG (China) suggested the following provisional wording: “or by such international courts as may be established.” Mr. PEREZ PEROZO (Venezuela) thought that if the phrase was meant to express a simple wish, it was useless to insert it into the convention. If, however, it implied an obligation to set up an international court, his delegation would vote against it. Mr. AZKOUL (Lebanon) said that the proposal actually implied neither a wish nor a formal obligation, since the signatory States were free to determine the appropriate time for the establishment of the court in question as well as its powers. It was, therefore, a very elastic formula, not binding any of the States as to date of creation or competence of the court.

E/AC.25/SR.8

805

[p. 13] The CHAIRMAN put to the vote the proposal to insert in the convention a clause such as the one proposed by the Chinese representative regarding the principle of the establishment of an international court. The proposal to establish an international court was adopted in principle by four votes to two with one abstention. The CHAIRMAN proposed that in order to secure as many ratifications of the convention as possible, and to allay any fears on the part of prospective signatories lest the international court, with its powers as yet undefined, infringed their sovereign rights, the Committee should decide at once upon its powers, by inserting a clause under which “the jurisdiction of the international court would be exercised in cases where it has found that the State in which the crime was committed, had not taken adequate measures for its punishment.” It was a question at this juncture of applying the principle of “denial of justice.” Mr. MOROZOV (Union of Soviet Socialist Republics asked 1) what body would decide whether there had been denial of justice, 2) who would be authorized to approach the international court on a claim of a denial of justice. The CHAIRMAN answered that in each case it would be for the international penal court, at the request of the parties concerned, to determine, in accordance with the procedure applicable in that court, whether there had been denial of justice. If the International Court of Justice was concerned, the Statute of that court would apply. In the case of an international penal court with general powers, established by the International Law Commission, the statute of the proposed court would surely have provided for methods by which proceedings [p. 13 ends] were to be instituted, and what the court’s powers were in determining the admissibility of applications. Finally, in the case of a special court, its statute would doubtless have been embodied in an agreement which fixed both the powers of the court and the procedure to be followed. Mr. LIN MOUSHENG (China) while agreeing in principle with the Chairman’s proposal was, nevertheless, doubtful about the advisability of curtailing, at that stage, the future court’s jurisdiction. There were, moreover, other cases in which the services of the court might be necessary.

806

E/AC.25/SR.8

Mr. ORDONNEAU (France) supported the Chinese representative. In his opinion, it was inadvisable to define at that stage the court’s powers. He agreed with the contents of the Chairman’s proposal, but not with its omissions. Mr. PEREZ PEROZO (Venezuela) was of the same opinion. It was premature to determine at that stage the powers of a still non-existent court. It was a matter for the States to decide the court’s power when the time came for its establishment. Mr. AZKOUL (Lebanon) said that he would agree to the Chairman’s proposal as representing the minimum powers for the court. The proposed clause presupposed, however, that the States would have already introduced into their domestic legislation the necessary provisions for the punishment of genocide. The Committee had, however, not decided to bind the States in that respect. That being so, the proposed clause would unduly restrict the court’s powers, assuming that there were States in which genocide was not an offence, and which could not be accused of a denial of justice, should the occasion arise. Mr. ORDONNEAU (France) said that he too would accept the proposal provided it meant minimum powers. In that connexion, he informed the Committee of a resolution on crimes against humanity, which had been adopted by the Congress held in Paris, 25 October 1946. That resolution stated that: “in the absence of prevention and punishment (of crimes against humanity) by national courts, the accused shall be brought before an international penal court.” This text, therefore, provided for cases when it was materially impossible to administer punishment independently of whether the State concerned was at fault. The CHAIRMAN confirmed that that was the meaning of his proposal; on the other hand, his text went even further than the one mentioned by the French representative, as it provided that punishment should be in the hands of an international court, not only in cases where States could not, but also had failed to, take appropriate measures to enforce justice. Mr. AZKOUL (Lebanon) asked whether the signatory States would in any case be bound to promulgate the penal legislation against genocide. The CHAIRMAN said that that was implied, as failure to do so would be a violation of the convention, which required them to punish genocide.

E/AC.25/SR.8

807

The CHAIRMAN put to the vote his proposal to limit the international court’s judicial powers to cases where justice was not obtained from the competent national courts, irrespective of whether the State was at fault or not, and to cases in which the State had, for any other reason, failed to fulfil its obligation to dispense justice under the terms of the convention. The principle proposed by the Chairman was adopted by four votes to none, with three abstentions. DISCUSSION OF SECTION X OF THE “BASIC PRINCIPLES OF A CONVENTION ON GENOCIDE” SUBMITTED BY THE DELEGATION OF THE UNION OF SOVIET SOCIALIST REPUBLICS (document E/AC.25/7) Mr. MOROZOV (Union of Soviet Socialist Republics) explained his reasons for proposing the insertion in the convention of a provision based on the principle stated in section X: (1) all cases of genocide, by their very nature, deserved the attention of the Security Council; (2) an act of genocide might necessitate the taking of measures outside the scope of an international court of justice or national courts. It would thus belong to the Security Council to decide whether measures should be taken in accordance with Chapter VI of the Charter; 3) section X provided a control of the obligations undertaken by the signatories to the convention. Mr. Morozov thought that the document submitted by the Secretariat contained useful suggestions that might be studied when the procedure to be followed would be established. If humanity were once again to witness crimes of genocide, the adoption of the principle underlying section X would enable the United Nations to take the measures necessary for the restoration of order and the prevention of further crimes. The signatories to the convention should not only have the right to report all cases of genocide to the Security Council; but it should be their obligation to do so. Mr. RUDZINSKI (Poland) recalled that the Committee had raised doubts as to whether it would be appropriate to refer cases of genocide to the Security Council. He did not think these doubts were founded. He regretted that the idea of an international criminal court had been accepted and did not wish to repeat the arguments he had already brought forward against the establishment of such a court. Nevertheless, it was clear that

808

E/AC.25/SR.8

the principle of international jurisdiction was not at all in contradiction with the role assigned to the Security Council by section X. The function of the two organs would be complementary and not in opposition. It had been stated that the inclusion of such a provision would have no effect on the action of the Security Council; it had been said that the Security Council was empowered to take action in any case provided the questions fell within its jurisdiction; if they were not within its jurisdiction, no convention could empower the Council to act. The arguments put forward showed that section X had not been thoroughly understood. The convention would simply contain a provision that the signatories were obliged to bring to the attention of the Security Council all cases of genocide. The signatory States would express the view that the cases of genocide might lead to friction or give rise to disputes of which the Council could be seized under Article 34 of the Charter. It was necessary to state this simply for this was the simple truth. To be convinced of this, it was sufficient to recall that genocide is basically the extermination of a national, religious or racial group in any part of the world. Therefore, the convention should stipulate that the crime of genocide leads to international friction and endangers the maintenance of peace and security and that that could make the intervention of the Security Council necessary. If disputes arose, the parties to the disputes would abstain from voting on decisions taken under Chapter VI, as provided in Article 27 of the Charter. To make the convention fully effective, provision had to be made for the intervention of the only organ of the United Nations invested with authority to take decisions, that is, the Security Council. Mr. AZKOUL (Lebanon) said that if section X was intended merely to specify the obligation of signatories to bring to the attention of the Security Council all cases likely to endanger international peace and security, according to Article 34; he would have no objection to the insertion of such a provision in the convention. Mr. MOROZOV (Union of Soviet Socialist Republics) emphasized that he considered it indispensable that all signatories should agree first of all that cases of genocide warranted the attention of the Security Council.

E/AC.25/SR.8

809

Mr. LIN MOUSHENG (China) reminded the members of the Committee of the arguments he had put forward at the previous meeting against the inclusion of such a provision. It was quite possible to establish a relationship between the signatories of the convention and the United Nations as a whole; if the Security Council were specifically named, all sorts of difficulties, including political ones, might arise. He cited a hypothetical [p. 18-last seven lines] case in which the British authorities an administration in charge of trusteeship might have forbidden the use of a dialect in a territory governed under such international arrangements. Now that the concept of cultural genocide had been accepted, the case could be reported to the United Nations by the parties concerned, but it was quite obvious that it was the Trusteeship Council which should take cognizance of it. There were other cases where [p. 18-last seven lines end] the Economic and Social Council could be the competent authority. On the other hand, when an act of genocide endangered peace and [p. 19-lines 3–4] security under Chapter VI or Chapter VII of the Charter, it belonged of course to the Security Council to take action. He pointed out that Chapter VI provided for recommendations which would not necessarily be binding on Member States. The representative of China preferred a provision similar to article XII of the draft convention prepared by the Secretariat; [p. 19-lines 9–10] however, he expressed no opinion with regard to the text which should be inscribed in the convention. [p. 19-lines 9–10 end] Mr. ORDONNEAU (France) was ready to adopt section X if it was intended merely to oblige the signatories of the convention to report cases of genocide to the Security Council. It should however be made clear that the Security Council did not necessarily have to be seized of all violations of the convention. That was a matter for the Security Council itself to decide. The CHAIRMAN, speaking as the representative of the United States of America, observed that the members of the Committee appeared to agree that the Security Council was already empowered to exercise jurisdiction in the matter, although its jurisdiction was limited to definite cases and could not be extended. Any member of the United Nations already had the right to bring to the attention of the Security Council cases falling within its jurisdiction; thus if that was the only question, section X would appear to be superfluous. Moreover, it ony [sic] specifically mentioned

810

E/AC.25/SR.8

the Security Council, while article XII of the draft convention prepared by the Secretariat was less restrictive. Mr. Maktos called attention to the draft submitted by the United States which provided that signatories which were also Members of the United Nations would agree to undertake appropriate action to repress genocide in accordance with the Charter. Mr. MOROZOV (Union of Soviet Socialist Republics) said that the obligation to consult with a view to taking action and the obligation to report all cases of genocide to the United Nations organ responsible for taking appropriate measures arose from two different conceptions. The formula advocated by the USSR stressed the gravity of the crime, which, Mr. Morozov was convinced, no member of the Committee under-estimated. However it ought to be stigmatized as one of the gravest crimes that could be committed against humanity so as to prevent, as drastically as possible, any attempt to repeat it. The obligation to report all cases of genocide to the Security Council would underwrite the importance given by the signatories to the repression of genocide. The CHAIRMAN, speaking as the representative of the United States of America, pointed out that all crimes of genocide were not of equal importance. Those which might be brought before the Security Council were so manifest that they could not be refuted and it became superfluous to report them. If, on the other hand, the jurisdiction of the Council were extended to other acts, it would be inadvisable for the Committee to take action toward this end. The representative of the United States favoured a provision allowing cases of genocide to be referred to the various organs of the United Nations competent to deal with them. Mr. MOROZOV (Union of Soviet Socialist Republics) explained that it was clear from the way section X was worded that it was not a matter of defining the competence of the Security Council. Reporting cases of genocide to the Council did not prejudge the action it might take. Mr. Morozov merely wished to ensure that the parties to the convention considered the crime of genocide worthy of the attention of the Security Council. Should the Council decide that acts brought to its attention did not constitute genocide, it would be free to deal with them as it deemed

E/AC.25/SR.8

811

appropriate. The measures it would take would be determined by the kind of information which had been submitted. Section X did not differentiate between cases of genocide merely because a detailed statement would give rise to various interpretations and cause endless discussion. It seemed simpler to request that, owing to the gravity of the crime, all acts of genocide should be reported to the Security Council. In reply to the representative of Lebanon, Mr. Morozov siad [sic] that the concept of cultural genocide was not applicable to the cases cited by the former. To establish cultural genocide, evidence would have to be adduced to prove that there had been destruction of the cultural and religious monuments of the country, motivated by a desire to exterminate the national culture. If that were not the case, it might simply be a matter of a threat to human rights or to minority rights which nobody proposed to include in the scope of international criminal law or of genocide. By deciding to insert in the convention a paragraph along the lines of section X of the USSR memorandum, the Committee would simply ensure that any action taken by the United Nations to repress genocide would be commensurate with the gravity of the case. Mr. AZKOUL (Lebanon) said that it was his understanding that no attempt was being made to extend the jurisdiction of the Security Council since any Member nation could call the attention of the Council to situations likely to lead to international friction. The Council would not discuss the other cases. It would therefore be sufficient to provide, in the convention, that the sugnatories [sic] should inform the Council of all cases likely to lead to international friction. The Council would then determine whether that friction constituted a threat to international peace and security. If the representative of the USSR were willing to accept that interpretation of section X, Mr. Azkoul had no objection to its insertion in the convention; indeed, world conscience should be made aware of the importance given by the United Nations to the crime of genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) thought that the majority of the members of the Committee agreed upon the insertion, in the convention, of a provision specifying that the signatories should report all cases of genocide to the Security Council in accordance with Chapter VI, Article 35, of paragraph 1 of the Charter. A decision could

812

E/AC.25/SR.8

therefore be taken on the principle proposed and the actual drafting of the provision could be discussed later. The CHAIRMAN, speaking as the representative of the United States of America, thought that there was a danger in the wording of section X of the USSR proposal stipulating that the contracting parties should report to the Security Council not merely all cases of genocide but also all cases of breach of the obligations imposed by the convention. If that clause were adopted, and the contracting parties undertook to inform the Security Council of all breaches of the convention, it was to be feared that a court dealing with a case of genocide might interpret it to mean that the Security Council should first establish whether a breach of the convention had taken place. It would be very difficult to foresee all the complications resultion [sic] from the interpretations of that clause. If one of the great powers on the Security Council were accused of a breach of the convention, it would follow from the clause that these members themselves would be called upon to determine whether a breach had taken place. Mr. MOROZOV (Union of Soviet Socialist Republics) emphasized that the members of the Committee seemed to be confusing two entirely different issues; namely the jurisdiction of an international court and the sphere of the Security Council’s competence. These two issues neither conflicted nor interfered with each other. Assuming that an international court were created, the contracting parties which had ratified the convention would undertake to place themselves under its authority. Clearly, cases of violation coming under the jurisdiction of the international court would not be reported to the Security Council. The Security Council would be advised only of cases of genocide which the contracting parties failed to refer to the international court. Similarly, there was no reason to suppose that the adoption of section X would prevent the restoration of order in a signatory state on the contrary, it would contribute towards that end, since it was often the rulers of a state who were the authors of crimes of genocide, and the Committee had agreed that they must be held responsible for them. In other cases, a peaceful settlement was the best solution of disputes. It was essential that the convention should lay down the procedure for the peaceful settlement of disputes. Moreover, the procedure for obtaining a

E/AC.25/SR.8

813

decision of the international court was not defined and the only concrete solution offered at present was that outlined in section X. The principle of international jurisdiction itself still remained to be adopted, but even its supporters knew perfectly well that the competence of an international court would not extend over all cases of genocide and that not all the cases which arose would be brought to the court’s attention. The CHAIRMAN, speaking as the representative of the United States of America, failed to understand why the wording submitted by the Secretariat did not satisfy the delegation of the USSR; the Secretariat text ensured that relevant questions could be brought to the cognizance of all the organs of the United Nations and, consequently, to that of the Security Council. It might be possible to stipulate that the contracting parties should report cases of genocide to the appropriate organs of the United Nations by including a special reference to cases falling within the Security Council’s province. The adoption of section X as it stood would entail very great complications. Mr. MOROSOV [sic] (Union of Soviet Socialist Republics) observed that in appointing the members of the Committee, the Economic and Social Council had selected them not merely as representatives of their governments but also as lawyers, in order that they might draw up a convention which would meet legal conceptions. In its proposals, the delegation of the USSR had placed the problem on a legal basis by defining both the nature of the crime and the manner in which it should be combatted. The USSR delegation could not see any organ of the United Nations better qualified to arbitrate in cases of genocide than the Security Council. It was therefore desirable to designate that organ in the convention; a failure to designate it would amount to a refusal to specify the appropriate methods for adopting the measures to be taken in cases of genocide. Section X was a simple statement of the best methods of combatting the crime of genocide. The USSR representative hoped that the Committee would not reject section X merely because it was the USSR delegation which proposed the reference to the Security Council. Undoubtedly, all the organs of the United Nations could be listed, but what was needed was to specify that particular organ which might be expected to provide a speedy and accurate solution. If the Security

814

E/AC.25/SR.8

Council did not wish to deal with any particular case, the latter would automatically be referred to another organ of the United Nations. Mr. LIN MOUSHENG (China) proposed to adjourn the debate and to proceed to the vote. Mr. AZKOUL (Lebanon) opposed the motion for the adjournment, as he felt sure that a misunderstanding had arisen between some members of the Committee and that the solutions they visualized ran parallel to each other, as it were, without meeting at any point. He thought therefore that the moment for voting on section X had not arrived; on the contrary, a further clarification of members’ ideas was necessary in order to establish whether an agreement might not after all be reached. The motion for adjournment was rejected by three votes to two, with two abstentions. Mr. AZKOUL (Lebanon) thought that section X of the USSR proposal bore no reference to the competence of the international court. All the cases envisaged in section X came within the competence of the Security Council. The procedure contemplated for submitting cases of genocide to the international court could therefore be carried out without impediment. The Lebanese representative felt that if the members of the Committee were assured on that point, the main objections to the adoption of section X would be eliminated. The essential requirement to stipulate that the contracting parties should undertake to draw the Security Council’s attention to all cases of genocide, so as to invest that crime with the importance it deserved. The significance of section X must be primarily a moral one. The CHAIRMAN, speaking as the representative of the United States of America, contemplated the eventuality of a state accused of having tolerated an act of genocide being cited in the international court. If section X were adopted, the state in question might think it advisable to deny that a breach of the convention had taken place. If the opposing party continued to maintain that such a breach had occurred, the state on whose territory the act of genocide had been committed would be able to refer the case to the Security Council. A contracting party which was at the same time a permanent member of the Security Council would

E/AC.25/SR.8

815

always be tempted to appeal to the Council before referring the matter to the international court. Mr. AZKOUL (Lebanon) remarked that a breach of the convention did not constitute a threat to international peace and security. The Security Council could only be seized of cases where those were endangered. The CHAIRMAN, speaking as the representative of the United States of America, observed that by stipulating that “all cases of a breach of the obligations imposed by the convention must be reported to the Security Council”, section X provided an argument in favour of finding devious ways to refer to the Security Council cases which should have been brought before the international court. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that the United States representative’s argument would be perfectly valid if it had suggested investing the Security Council with the right to decide whether any particular case should or should not be referred to the international court. No one, however, had the least intention of proposing such a thing. Moreover, a case such as that visualized by the United States representative could arise only as the result of an exceptionally unfortunate set of circumstances, and only the Security Council had the right to stipulate the competent jurisdiction. All that the USSR delegation proposed was to report to the Security Council cases of genocide against which the appropriate authorities had not proceeded. The USSR representative asked the representative of the United States of America whether he would agree to accept section X on deletion of the word “all”, the text being altered to read “cases of breach of the obligations” instead of “all cases of breach of the obligations”. Mr. LIN MOUSHENG (China) said that, as far as wording was concerned, the text of section X was not acceptable for a number of other reasons. Taking, for instance, the obligation imposed on all contracting parties to report cases of genocide, it was clear that it was sufficient for one contracting party to do so. Further, it was unnecessary to report to the Security Council all cases of genocide, but merely those endangering peace among the nations. The Chinese representative considered the remarks of the representative of the United States of America regarding the clause on breaches of obligations imposed by the convention to be wholly pertinent. He did not

816

E/AC.25/SR.8

understand why section X referred only to Chapter VI of the Charter, when it was possible for the Security Council to be called upon to take measures in pursuance of Chapter VII. He preferred the wording submitted by the Secretariat with the United States representative’s amendment to the effect that cases of genocide should be referred to the appropriate organs of the United Nations after consultation between the contracting parties on the measures to be taken. The CHAIRMAN, speaking as the representative of the United States of America, informed Mr. Morozov that he preferred to reply to his question at a later time. He wished, however, to appeal to him to agree to the formula submitted by the Secretariat and himself, which did not exclude the Security Council and had, moreover, the advantage of being acceptable to all the members of the Committee. Mr. MOROZOV (Union of Soviet Socialist Republics) regretted being unable to comply with the Chairman’s wish the proposal of the USSR delegation having the advantage of being the more precise. He was, therefore, unable to withdraw it. He proposed that a vote should be taken on the following text: “The convention should contain a clause placing the signatories under obligation to report cases of genocide to the Security Council”. Mr. PEREZ-PEROSO (Venezuela) thought that the formula proposed by the USSR delegation tended to restrict international action, and expressed preference for a broader formula. The Lebanese representative remarked that in the course of the discussion he had proposed an amendment to Section X. He had received no answer on that point, and therefore proposed to adjourn the meeting in order to give members due time for reflection. The French delegate seconded the motion for the adjournment. The meeting rose at 6.30 p.m.

E/AC.25/SR.8/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

817

UNRESTRICTED E/AC.25/SR.8/Corr.1 10 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE EIGHTH MEETING Lake Success, New York Tuesday, 13 April 1948, at 2 p.m. The following amendments should be made in pages 3, 6, 7 and 11: Page 3, Lines 17–20: replace “He thought it was important . . . in the Committee’s report” by: “That decision should be expressed by the inclusion of positive provisions in the Convention; it would naturally be recorded also in the Committee’s report.” Line 23, add after “convention”: “ . . . even if it served only to indicate a principle which would be put into practice later.” Page 6, Line 25: Insert after “punishment”: “in the name of national sovereignty . . .” Line 27: Delete comma after “sovereignty”. Line 28: Delete “by allowing courts . . . crimes to be punished”. Page 7, Lines 8–13: Delete “It might happen . . . seemed to be numerous”. Lines 16 and 17, read: “The pirate was thus naturally, in the absence of competent territorial jurisdiction, answerable to the courts of the captor State.” Page 11, Line 3: After “guarantees”, add: “France might be prepared to forego the rights which she derived from the principle of national sovereignty in favour of an international jurisdiction, but she could not do so in favour of a foreign jurisdiction.”

818

E/AC.25/SR.8/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.8/Corr.2 24 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE EIGHTH MEETING Lake Success, New York Tuesday, 13 April 1948, at 2:00 p.m. Delete the last seven lines on page 18, and substitute the following: “case in which the administrating authority of a trust territory might have forbidden the use of a native dialect. Now that the concept of cultural genocide had been accepted, the case could be reported to the United Nations by any party to the convention, but it was quite obvious that it was the Trusteeship Council which should take cognizance of it. There were other cases where . . .” On page 19, delete lines 3 and 4, and read: “security under Chapter VI or Chapter VII of the Charter, the case should be submitted to the Security Council.” On page 19, delete lines 9 and 10, and read: “however, he expressed no opinion with regard to the final text to be included in the convention.”

E/AC.25/SR.9

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

819

UNRESTRICTED E/AC.25/SR.9 21 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE NINTH MEETING Lake Success, New York Wednesday, 14 April 1948, at 2.20 p.m. Chairman: Mr. MAKTOS Vice-Chairman: Mr. MOROZOV Rapporteur: Members:

Secretariat:

Mr. Mr. Mr. Mr. Mr. Mr. Mr.

(United States of America) (Union of Soviet Socialist Republics) AZKOUL (Lebanon) LIN MOUSHENG China ORDONNEAU France RUDZINSKI Poland PEREZ-PEROZO Venezuela SCHWELB Deputy Director of the Division of Human Rights GIRAUD Secretary of the Committee

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing within two working days to Mr. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

820

E/AC.25/SR.9

COMMUNICATION FROM THE DELEGATION OF PAKISTAN The CHAIRMAN informed the Committee that he had received a letter dated 9 April 1948 bringing to the notice of the Committee certain acts of genocide committed against the Muslim population of India. The Pakistan delegation again drew the Committee’s attention to the need to expedite the preparation of a convention for the prevention and suppression of genocide. The Chairman instructed the Secretary of the Committee to acknowledge receipt of the Pakistan delegation’s communication and to assure the latter that the Committee was fully aware of the importance and urgency of the convention which it had been charged to prepare. CONTINUATION OF THE DISCUSSION OF THE PROPOSAL, SUBMITTED BY THE DELEGATION OF THE UNION OF SOVIET SOCIALIST REPUBLICS IN CONNECTION WITH THE BASIC PRINCIPLES OF A CONVENTION ON GENOCIDE (document E/AC.25/7) The CHAIRMAN called on the Committee to resume the discussion of section X of the proposal submitted by the USSR delegation. Mr. AZKOUL (Lebanon), Rapporteur, suggested that section X of the USSR proposal be amended to make quite clear that the signatories to the convention must seize the Security Council of all cases of genocide constituting a danger to peace and international security, but that other cases of genocide should be referred to other organs of the United Nations. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that agreement should first be reached on the principle or recourse to the Security Council, and that the final wording of the corresponding article in the convention should be discussed later. He reserved the right to submit a text when the time arrived to do so. He accepted the amendment proposed by the representative of the Lebanon. The CHAIRMAN, speaking as the representative of the United States of America, suggested that the principle of compulsory recourse to the Security Council proposed by the USSR delegation be replaced by the principle outlined in article XII of the draft Convention as proposed by

E/AC.25/SR.9

821

the delegation of the United States of America (document E/623, page 24 of the English text), according to which: The High Contracting Parties, who are also members of the United Nations, agree to concert their actions as such members to assure that the United Nations takes such action as may be appropriate under the Charter for the prevention and suppression of genocide.

Mr. Maktos pointed out to the Committee that the text quoted had the advantage of offering a wider field of action to the United Nations Organization. Moreover, concerted action by the signatories of the convention certainly bore more weight than individual applications to one of the organs of the United Nations. Mr. AZKOUL (Lebanon), Rapporteur, observed that there was no inconsistency whatsoever between the text proposed by the United States representative and that of the USSR delegation amended in the sense previously indicated. The two texts could perfectly well stand side by side. For its own part, the Lebanese delegation was prepared to accept both texts. Mr. LIN MOUSHENG (China) observed that a sovereign state could not be placed under the obligation of bringing charges against another state. If the signatories of the convention were to be compelled to denounce states guilty of genocide, would it not be still more to the point to oblige the accused states to answer the summons of the Security Council or any other organ of the United Nations? Mr. Lin Mousheng drew the Committee’s attention to the danger of including such a stipulation in the convention, and proposed that states should be given the option, rather than placed under the obligation, of having recourse to the appropriate organ of the United Nations. Mr. RUDZINSKI (Poland) thought on the contrary that such an obligation was necessary. It would eliminate any suspicion that the accusing state acted for any reason other than the desire to ensure the observance of the Convention on Genocide. The argument adduced by the representative of China proved, contrary to what the latter believed, that it was essential to place the contracting states under obligation to refer cases to the Security Council. A state which refused to appear in answer to such a charge would ipso facto prove its own guilt. Failure to appear would not prevent the United Nations Organization from taking the measures considered necessary.

822

E/AC.25/SR.9

Mr. MOROZOV (Union of Soviet Socialist Republics) thought that concerted action as advocated by the United States delegate would not constitute the best or the most effective method of ensuring the intervention of organs of the United Nations in cases of genocide or of breaches of the obligations imposed by the convention. Replying to the Chinese representative, Mr. Morozov stated that it was by no means the intention of the USSR delegation that section X of its proposal should compel states to appear as the accusers of other states: the aim of the section was to ensure that the statutes of the convention should not remain a dead letter. The method proposed by the USSR would thus make the campaign against genocide more effective. Mr. ORDONNEAU (France) remarked that, in practice, acts of genocide either had no effect on international peace, in which case they passed unnoticed, or they constituted a threat to peace, in which case they could not be disregarded. In the first case it was useless to refer the matter to the Security Council, which could not take cognizance of it. In the second, any member of the United Nations Organization would be able to bring the matter to the attention of the Security Council. On the proposal of Mr. AZKOUL (Lebanon), Rapporteur, the CHAIRMAN asked for a vote on the principle of the obligation of states signatories of the convention to seize the Security Council of cases of genocide or of a breach of obligations assumed under the convention. The Committee decided by four votes to three to discard the principle of obligatory notification. The CHAIRMAN then put to the vote the principle of concerted action contained in the proposal submitted by himself as representative of the United States of America. The principle of concerted action was adopted by five votes to one, with one abstention. Mr. RUDZINSKI (Poland) explained that he had abstained from voting because he thought that the text proposed by the United States delegation did not specify to which organs of the United Nations cases of genocide should be referred.

E/AC.25/SR.9

823

DISCUSSION OF ARTICLES IV AND V OF THE DRAFT CONVENTION FOR THE PREVENTION AND PUNISHMENT OF GENOCIDE, PREPARED BY THE SECRETARIAT (document E/447) Article IV Mr. ORDONNEAU (France) stated that in the opinion of his delegation the authors of the crime of genocide and their accomplices should be punished, whether they were private individuals or rulers. He recalled that the Committee had agreed unanimously on that point. Mr. PEREZ-PEROZO (Venezuela) stated that his delegation was not satisfied with the wording of article IV, which appeared to make a distinction between “public officials” and “rulers”. In Venezuela, all rulers, whatever the importance of their functions, were considered to be state officials. All officials, including the head of the State, were liable for their actions under the penal laws of the country. Mr. ORDONNEAU (France) remarked that in France the contrary was the case: a distinction was made between political personalities peoper [sic], such as ministers, and public officials who were members of the civil administration. He proposed that a decision on the wording to be adopted should be postponed until the Committee proceeded to the drafting of the convention. Mr. PEREZ-PEROZO (Venezuela) wished to know whether diplomatic immunity would be respected if a diplomat were guilty of participation in an act of genocide on the territory of the State to which he was accredited. Mr. ORDONNEAU (France) thought that the question of immunity did not come under article IV. In the hypothetical case mentioned by Mr. Perez-Perozo, the guilty diplomat might either be recalled by his government at the request of the authorities to which he was accredited, or might have his immunity revoked. Mr. SCHWELB (Secretariat), on being consulted by members of the Committee, stated that it was difficult to give a considered opinion on so delicate a question at once. For the Committee’s information however, he cited the precedent established during the work of the United Nations War Crimes Commission, of a government’s declaring itself prepared to

824

E/AC.25/SR.9

extradite a foreign diplomat charged with war crimes, who had been accredited to it between the time of committing these crimes and the time of being charged. The only condition stipulated by that government was that the charge should be substantiated. Mr. RUDZINSKI (Poland) pointed out the danger of such a precedent. If followed, it would infringe the principle of immunity enjoyed by diplomats responsible for maintaining relations between States. The inviolability of diplomatic missions was established by a long and universally respected tradition; no international convention could revoke that principle. Mr. MOROZOV (Union of Soviet Socialist Republics) said that there was no provision in article IV under which it could be interpreted as authorizing any change in a principle generally accepted in international affairs. However, to prevent any misunderstanding, he proposed stating in the report that the Committee had no intention of impairing the system of diplomatic immunity. The Committee adopted Mr. Morozov’s proposal. The CHAIRMAN asked that it should be stated in the Summary Record that all members of the committee agreed to recognize that rulers, public officials and private individuals should be held responsible. Article V Mr. ORDONNEAU (France) observed that the national laws of different countries gave different rulings on the question of the responsibility of officials acting on command of the law or superior orders. In principle, anyone who committed a crime should be held guilty of that crime, whether he acted on his own initiative or on orders received. In some cases, however, national legislation recognized that the fact of having received orders might excuse the crime, provided that there was a sufficient degree of constraint. He did not object to a provision that an official acting on orders from his government should be held guilty; this did not exclude the possibility of pleading orders received as extenuation in certain very exceptional cases.

E/AC.25/SR.9

825

Mr. MOROZOV (Union of Soviet Socialist Republics) said that the text of article V of the Secretariat draft was excellent and was in conformity with the legal precedent not only of the Nurnberg Tribunal, but of all the courts established in the occupied zones after the defeat of Germany and Japan. He saw no need to amend the article or add provisions giving the benefit of extenuating circumstances to officials who acted on command of the law or superior orders; this was outside the scope of the convention which the Committee intended to draw up and might diminish the actual effectiveness of the proposed measures for prevention and punishment. It should be clearly understood that an act of genocide would in no case be justified because it had been committed under orders; a guilty official could only plead superior orders to obtain a reduced sentence in certain cases. Mr. AZKOUL (Lebanon) thought that special attention should be given to offenders who committed a crime of genocide on superior orders. For although orders could not justify the crime, they could alter its nature. The concept of genocide was a new concept, implying murder with intent to commit genocide. An offender could participate in an act of genocide although he was not personally prompted by the specific intention of destroying a group of human bodies as such. The Committee agreed that before deciding that a State was guilty of genocide, the motives that had inspired its action must be established. There was all the more reason to grant the guarantees given to States to officials bound to carry out orders. When the intention to commit an act of genocide could not be established, the criminal act was called homicide, and the criminal could be prosecuted for murder, but not for this new category of crimes which it had been agreed to call “genocide”. Mr. RUDZINSKI (Poland) wondered whether, in practice, the intentions and motives of each offender could be assessed; he favoured the text prepared by the Secretariat. Mr. ORDONNEAU (France) fully appreciated the doubt expressed by the representative of Lebanon, but thought that the evaluation of degrees of personal responsibility should be left to the Public Prosecutor in each country. The CHAIRMAN observed that under United States law any person who participated, to any extent whatsoever, in a criminal act, was held

826

E/AC.25/SR.9

responsible for the crime, even though he personally had no intention of committing it. (For instance, if a person intended to take part in a robbery and stood on watch, and another participant committed a murder, the accomplice was held responsible.) Mr. AZKOUL (Lebanon) reserved the right to revert to the matter when the definition of the crime of genocide was drafted. The CHAIRMAN, speaking as representative of the United States, proposed the deletion of all reference to superior orders, as he felt it would weaken the effectiveness of the convention. He agreed with the representative of France that extenuating circumstances could be pleaded in each specific case. Mr. MOROZOV (Union of Soviet Socialist Republics) could not share this view. He recalled that article VIII of the Statute of the Nurnberg Tribunal, while granting the benefit of extenuating circumstances, expressly stated that any subordinate acting on superior orders should be held responsible. The delegation of the USSR emphasized individual responsibility because it was convinced of the great educational value of the proposed convention. The convention should serve not only as an instrument of punishment, but also as an instrument of prevention. If the Convention on Genocide failed to retain the concept of individual responsibility of the accomplice or criminal, it would lose the force of warning that should be given it. Mr. Morozov urged the representative of the United States to withdraw his proposal. Mr. PEREZ-PEROZO (Venezuela) wondered to what extent article V of the Secretariat draft, in its present wording, might be interpreted as an incitement to disobedience and insubordination, since officials might invoke its provisions to question superior orders. He feared that States might hesitate to sign the convention if this provision were retained. In view of the observations of the Venezuelan representative, the Committee decided to postpone decision in principle on the matter until the drafting of the relevant article of the convention. Mr. RUDZINSKI (Poland) asked that the Summary Record should state his delegation’s view that the convention should include an article

E/AC.25/SR.9

827

stipulating that superior orders could not exonerate subordinates guilty of acts of genocide. DRAFTING OF THE CONVENTION: METHOD OF WORK The CHAIRMAN announced that the general discussion on the basic principles of a convention on genocide was closed and that the Committee should proceed to draft the text. For this purpose, he suggested that it constitute itself a drafting committee of the whole. To save time, he proposed that none of the drafts submitted be used as working papers; delegations could submit their proposals for the text of the convention as each article was discussed. Mr. MOROZOV (Union of Soviet Socialist Republics) thought it essential that the general structure of the convention should be determined first. The delegation of the USSR had prepared an outline grouping all the points upon which agreement had been reached during the general discussion and he suggested that the Committee should use it. Mr. PEREZ-PEROZO (Venezuela), supported by Mr. AZKOUL (Lebanon), Rapporteur, recalled that the Committee had decided by a formal vote, at the beginning of its session, to use the draft prepared by the Secretariat as a working basis when drafting the articles of the convention. They urged that this very carefully prepared and comprehensive draft should be used. Mr. LIN MOUSHENG (China) supported the Chairman’s proposal. He thought it preferable not to work from any prepared text, but only to retain the following chapter headings for guidance: Preamble, Definitions, Responsibilities, National and International Jurisdiction, Relation of the Convention to the United Nations. The CHAIRMAN and Mr. Ordonneau (France) approved this classification, which corresponded to the one they had in mind. After an exchange of views, during which Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that his outline differed only in detail from the plan proposed by the Chinese representative, the Chairman put the following proposal to the vote: 1) The Committee would not use any prepared text;

828

E/AC.25/SR.9

2) The Committee would adopt the classification suggested by the representative of China; 3) Each representative would be free to propose additional items.

The Committee adopted the Chairman’s proposal by five votes to two. The meeting rose at 6.20 p.m.

E/AC.25/8

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

829

UNRESTRICTED E/AC.25/8 14 April 1948 ORIGINAL: FRENCHENGLISH

AD HOC COMMITTEE ON GENOCIDE CASES IN WHICH INDIVIDUALS ARE TO BE SUMMONED BEFORE A CRIMINAL COURT UNDER THE CONVENTION ON GENOCIDE The purpose of this memorandum is to explain the question of the determination of the jurisdiction called upon to punish genocide. It is important to know which individuals should, under the Convention, be summoned before a national or international criminal court and in what circumstances they might have been arrested for prosecution purposes. This memorandum describes the various cases which may arise. I. GENOCIDE BY MEMBERS OF GOVERNMENTS 1. How would the offenders be arrested? In practice, offenders could be captured in only three instances: (a) If they fell in enemy hands during war or owing to defeat; (b) If they were arrested in the course of international police action organized by the Security Council; (c) If, having fled from their country on being overthrown (adverse elections or revolution) they were arrested abroad. Remark: There is also the possibility of offenders not having been captured at all (either because still in power or because their place of hiding would be unknown). In this case, it might still seem advisable to judge them in absentia. 2. What court would have jurisdiction? In all cases, signatory States would have the right and even the duty to capture the offenders and turn them over to a court.

830

E/AC.25/8

This court would be either international or national. A. International Court (a) It could be an ad hoc international court set up for the occasion by agreement of the Powers principally interested. Such is the case of the Nuremberg Tribunal (b) It could be an international court, organized under the Convention for the prevention and punishment of genocide. (Special permanent court for genocide – ad hoc court – international criminal court with general jurisdiction) B. National Court (a) The Court could be one of the national courts of the country the police force of which had captured the offending members of governments. In this case, the State would take the initiative of turning them over to its own courts. (b) The Court could be the national court of a State which the Powers concerned had decided to entrust with the task of repression. There might be various reasons for this choice: one instance might be that the principal victims of the acts of genocide were nationals of the country of the jurisdiction or under its protection. II. GENOCIDE BY OTHER THAN MEMBERS OF GOVERNMENTS In this case the offenders would be individuals or government agents, guilty of genocide, attempted genocide, or preparation for or instigation to genocide, etc . . . 1. How would offenders be arrested? There could in fact be three cases: (a) They might be caught by the authorities of the State where the offence was committed; (b) They might be caught on the territory of a State other than the one where the offence was committed. Or they might have fled abroad to escape international justice or for other reasons;

E/AC.25/8

831

(c) Offenders might be captured during a war or at the end of the war by the adverse forces. 2. What courts would have jurisdiction? First case – The offenders have been captured by the agents of the State where the offence has been committed. The State is under the obligation, under the Convention and the general principles of law, to punish genocide acts committed on its territory. If it complies with this duty its national courts have jurisdiction irrespective of the nationality of offenders. Second case – Agents of the State have captured offenders who committed their crime in another country. These individuals are either refugees trying to escape from the State where they committed their crimes, who happen to be abroad. The agents of the State did their duty in capturing the offenders. They must see to it that they are turned over to a court of criminal jurisdiction. For this purpose the State will grant extradition of the offenders to the State where the crime was committed. Should extradition not be requested or granted, the State where they were arrested will turn them over to its own courts. In either case, national courts will be called upon to pass judgment. The authors of several conventions organizing international repression have considered this situation and have determined the rules governing the jurisdiction of the various national courts.* The case may arise where a State, having captured the offenders, while desirous to see them punished, and because it so desires, would be reluctant to grant extradition or to turn them over to its own courts. This is the case dealt with by the authors of the Convention for the creation of * International Convention for the Suppression of the Traffic in Women and Children – Geneva – 30 September 1921 International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications – Geneva, 12 September 1923 Convention concerning Slavery – Geneva, 25 September 1926 Convention for the Suppression of Counterfeiting Currency, Geneva, 20 April 1929 Convention for the Suppression of the Traffic in Women of Full Age, Geneva, 11 October 1933 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, 28 June 1936.

832

E/AC.25/8

an international penal court signed in Geneva on 16 November 1937.** (Article 2) They considered that a State would be unwilling to extradite because the application coming from a State which connived in the offence or from a weak State might be an attempt to save the offenders. They considered that a State might be unwilling to turn them over to its own courts fearing that these (and the jury in particular), being beyond Government action, might give a bad sentence and hold the offenders not guilty. In either case the State would fulfill its obligations to ensure trial of the offenders by turning them over to an international court. It would thus be discharged of its liability. Third case – The offenders have been captured by the adverse Powers during a war or at the end of war. In this case one may consider action either of national or international courts. A. National Courts They may be the courts of the State which captured the offenders, or the courts of the country to which the victims belonged and to which the offenders have been turned over. It might also be the courts of the vanquished State, assuming that it could inflict punishment after a change of regime. B. International Courts (a) If the victims belong to several States, the court might be an ad hoc international State [sic] organized by the several States to which the victims belonged. (b) As in the case of members of governments, the offenders may be turned over to an international court organized especially by the Convention on Genocide or by an international court of general jurisdiction. But conditions of repression would differ from those in the case of members of government because, for instance, the number of offenders may be very large. ** This Convention, signed by thirteen countries, has not been ratified and is therefore not in force. The reasons for non-ratification are immaterial. It may be noted however that the international convention for the repression of terrorism signed the same day met with a similar fate and was ratified by only one country.

E/AC.25/9

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

833

UNRESTRICTED E/AC.25/9 16 April 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE DRAFT ARTICLES FOR THE INCLUSION IN THE CONVENTION ON GENOCIDE PROPOSED BY THE DELEGATION OF CHINA ON 16 APRIL 1948 PREAMBLE The High Contracting Parties declare that genocide constitutes a crime under international law, which the civilized world condemns, and which the Parties to this Convention agree to prevent and punish as hereinafter provided: Article I In this Convention genocide means any of the following acts directed against a national, racial, religious, or political group, for the purpose of destroying its physical existence or preventing its normal development: 1. Destroying totally or partially the physical existence of such group; 2. Subjecting such group to such conditions or measures as will cause the destruction, in whole or in part, of the physical existence of such group; 3. Destroying the cultural institutions and achievements or suppressing the language of such group. It shall be illegal to conspire, attempt, or incite persons, to commit acts enumerated in 1, 2, and 3. Article II For the commission of genocide, principals and accomplices, whether they are public officials or private individuals, shall be punishable. Article III Genocide may be punished by any competent tribunal of the state, in the territory of which the crime is committed or the offender is found, or by such an international tribunal as may be established. Article IV Any Signatory to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide.

834

E/AC.25/SR.10

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.10 16 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TENTH MEETING Held at Lake Success, New York Thursday, 16 April 1948, at 2:00 p.m. Chairman:

Mr. MAKTOS

(United States of America) Vice Chairman: Mr. MOROZOV (Union of Soviet Socialist Republics) Rapporteur [sic]: Mr. RUDZINSKI Poland Members: Mr. LIN China Mr. ORDONNEAU France Mr. AZKOUL Lebanon Mr. PEREZ PEROSO [sic] Venezuela Secretariat: Mr. SCHWELB Assistant Director of Human Rights Division Mr. GIRAUD Committee Secretary

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within two working days, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.10

835

DISCUSSION OF THE DRAFTING OF VARIOUS ARTICLES OF THE CONVENTION ON GENOCIDE (N.B. The discussion concerned draft articles submitted by various delegations, which have not been circulated in the form of documents of the Commission.) The CHAIRMAN mentioned that the members of the Committee had hold [sic] an exchange of views during an informal meeting. They had thus been able to find common ground on various questions. He submitted to the members of the Committee the text he had prepared for the first four articles of a Convention for the prevention and punishment of genocide. The text was based on the general principles elucidated during the general discussion. He opened the discussion of articles 1 and 2 of his draft. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that in order to have a legal basis, the Convention should specify in the definition of the crime attempt, conspiracy, provocation, complicity, and pre-meditation, which contribute to the committing of genocide. If those elements were not included in the definition, the Committee would have to draft a special article to cover them. He called attention to point 2 of his own draft which took into account the element of pre-meditation, and proposed the subdivision of article 2, submitted by the Chairman, into three sub-paragraphs: the first would define genocide as a criminal act aimed at the physical destruction of a group of human beings on racial, national or religious grounds; the second would define “physical destruction” in accordance with the terms of article 2 of the text submitted by the Chairman; and the third would show that measures taken for the elimination of a national culture also constituted an act of genocide known as cultural genocide. A separate article would follow specifying the elements of pre-meditation, provocation, complicity, etc., which contributed to the commission of the crime. Mr. Morozov pointed out that his proposal merely concerned the fundamental question and that the Committee was free to decide on the best method of drafting the sub-paragraphs and the two articles. Mr. ORDONNEAU (France) expressed his preference for a discussion point by point, and said he was in favour of a separate article covering the elements of pre-meditation, provocation, complicity, attempt, and conspiracy.

836

E/AC.25/SR.10

Mr. LIN MOUSHENG (China) submitted a proposal which, he thought, was a compromise between the texts submitted by the Chairman and the USSR. The Chinese draft defined genocide after declaring in [p. 3-line 14] the preamble that genocide was a crime punishable by international law. He enumerated in four sub-paragraphs of article 1, the acts which constituted genocide: first, the physical destruction, in whole or in part, of a human group; second, the subjecting of a human [p. 3-line 18] group to conditions of life, or applying to it measures that were likely to result in the physical destruction, in whole or in part, [p. 3-line 20] of that group; third, the destruction of the institutions or of the [p. 3-line 21] culture of that group, or the suppression of its language; fourth, conspiring to commit the acts enumerated under 1, 2 and 3, or planning them, or attempting to commit them, or inciting or provoking other persons to commit them. Mr. ORDONNEAU (France) pointed out that, legal point of view [sic], it was incorrect to make the attempt to commit a crime identical with the crime itself, as sub-paragraph 4 of the Chinese representative’s draft seemed to do. The attempt was not the crime itself. Mr. PEREZ PEROZO (Venezuela) emphasized the importance of the preamble which made all conventions solemn instruments. He preferred, however, a short preamble, similar to the one submitted by the Chinese representative. With regard to the definition, he thought that in stating that genocide was a crime punishable under international law, the scope of the convention was being limited. It was preferable to widen it so as to include the concept of crime against humanity, or against the law of nations. It was understood that the national courts would have to repress the crime. Hence, every State should be able to take measures for prevention and punishment covered by national legislation. Finally, the definition seemed to allow the extermination of human groups on account of their political opinions, since groups united by a common political opinion were not mentioned. He favoured a definition specifying the acts which constituted genocide, but urged that the list should be merely declaratory and not restrictive.

E/AC.25/SR.10

837

Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that the Committee had agreed not to discuss the preamble until after the principles expressed in the Convention had been drafted. Every member would undoubtedly, at a later stage, have comments to make on the preamble. He also thought that the preamble was necessary in order to mark the solemn nature of the Convention. He pointed out that his proposal defining the crime of genocide in three paragraphs of the same article, agreed to a great extent with the draft submitted by the Chinese representative, as well as with the observations made by the representative of France. Nevertheless, the elements of provocation, conspiracy, complicity and pre-meditation should be covered, as he had already stated, by a separate article and should not be included in the article defining the crime. Mr. ORDONNEAU (France) agreed with the remarks made by the representatives of Venezuela and USSR on the preamble, and requested the members of the Committee to examine the definition point by point. They had to decide first of all whether article 1 should include attempt, provocation, pre-meditation and complicity. With the approval of the representatives of China and USSR, the Committee decided to include in a separate article the elements of provocation, conspiracy, attempt, etc. The CHAIRMAN pointed out that there had been no objections to the wording of draft article 1 submitted by the Chinese representative. He asked the members whether they thought cultural genocide should be covered by a separate article. He pointed out that this would make it easier for the various countries to notify [sic] the Convention. If the crime of cultural genocide was dealt with in a separate article, this would enable Governments to make reservations on a particular point of the Convention. Mr. ORDONNEAU (France) stated that the drafting of the clause concerning cultural genocide presented great difficulties. He agreed with the Chairman that the question should be dealt with in a separate article. The characteristics of cultural genocide would give rise to such a diversity of concepts in the various legislations that would have to deal with it, that the crime should be defined with very great care.

838

E/AC.25/SR.10

Mr. LIN MOUSHENG (China) pointed out that in certain countries the act of conspiring did not constitute a crime, whereas other legislations had a different concept. Although he was not [p. 6-first three lines] opposed to item 4 of his draft being dealt with in a separate article, he preferred that point 3, relating to cultural genocide, should be retained in article 1. However, if making it a separate article would facilitate agreement among the members, he would not be opposed to that procedure. He pointed out, however, that legislative bodies could as easily make reservations on part of an article as on a whole one. He drew attention to a suggestion made by the representative of Venezuela, and expressed himself in favour of a text which would define genocide only for the purpose of the Convention. Hence, the text might read: “In this Convention, genocide means . . .”, which would have the advantage of precision without claiming to give an absolute definition of the crime. Mr. MOROZOV (Union of Soviet Socialist Republics) fully agreed with the desire of the representative of China to retain sub-paragraph 3, relating to cultural genocide, in article 1, which gave the definition of the crime as a whole. That form would contribute to the legal accuracy of the definition. Indeed, it would not be possible to isolate one of the elements constituting the crime in order to specify it in a separate article. In that way, the notion of cultural genocide, instead of being put rather in the background, would only be given greater importance. It was essential to bear in mind that any prohibition of the use of a language, any destruction of cultural monuments, etc., did not necessarily constitute an act of genocide. They could only be so described if the acts were the the [sic] result of a persecution carried out on racial, national or religious grounds. For that reason, he considered that sub-paragraph 3 of the Chinese draft should remain in the article defining the crime, because it was an inseparable part of that definition. With regard to the ratification of the Convention, he remarked that a Convention constituted a whole which could only be ratified or rejected in its entirety. For that reason, he failed to understand the argument of the Chairman. Furthermore, it sufficed for the Convention to be ratified by a specified number of States and it would then come into force. Mr. ORDONNEAU (France) concurred in Mr. Morozov’s view that the Convention should be ratified as a whole. He asked for separation into

E/AC.25/SR.10

839

two articles because the draft Convention would be considered by the Economic and Social Council and the General Assembly, bodies which were hardly able to undertake drafting work. In these circumstances, it would be easier for them to vote on the question of cultural genocide if it formed the subject of a separate article. There was also a reason of principle: cultural genocide and physical genocide were not exactly the same crime, and if they were dealt with in two separate articles this would avoid confusing their characteristics which were quite different. While the factor of intention was present in both cases, the means of action were different. These, in the case of physical genocide, consisted in attacks on life (murder), whereas cultural genocide involved various acts which might be directed against [p. 8-line 15] objects and things, such as the “culture” of a group. He thought therefore that it would be prejudical [sic] to include in one article the factor of intention which was common to both crimes, and the means of execution, which were entirely different. It would be preferable to draw up two separate articles, containing the following ideas: Article 1: Physical genocide . . . can be committed by means of physical attack on individuals or groups. Article 2: Cultural genocide . . . is committed by such and such material means. If that solution were not adopted, it would be necessary to state first the general principle and then specify the material means of execution in separate paragraphs, as, for example, in the draft Convention proposed by China. He thought it would be preferable to specify in separate articles the material means of execution distinguishing the various forms of genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) agreed in principle with Mr. Ordonneau. He pointed out that the text of article I of the draft Convention submitted by the USSR was similar to that of the Chinese draft, inasmuch as it contained three clearly distinct ideas, separated by punctuation marks. He suggested that if the Chinese text were to mention the “premeditated creation of intolerable conditions of life” the resemblance would be still more evident. Physical destruction and cultural destruction were not, in his opinion, on the same level; both were genocide, but in different degrees. Article I of the Convention should thus be divided into three points defining:

840

E/AC.25/SR.10

1. Genocide in the form of physical destruction; 2. The premeditated infliction of conditions of life aimed at the destruction of a group; 3. Cultural genocide. He asked the Committee to accept that division in principle. Mr. ORDONNEAU (France) explained that in proposing separation into two distinct articles, he had not intended to imply that the two aspects of genocide were equally important. From the drafting point of view, article I of the USSR draft lacked balance. He thought that paragraphs 1 and 2 of that article should constitute a new article 1, and paragraph 3 should become article 2. He was strongly of the opinion that a distinction should be made between the means of action. As far as drafting was concerned, he would be more inclined to accept the Chinese draft, but here again he thought there should be an article to define each category of crime (physical genocide and cultural genocide). In the opinion of Mr. AZKOUL (Lebanon), the text of the Convention should be brief. He thought it should be possible to find a single formula to cover all the details, a premise from which all the rest of the Convention would follow. The fundamental point was to decide what elements should be included in the definition of genocide. He perceived three essential ideas: the aim of the act, namely, destruction; the character of that destruction; its motives (national, racial, political, etc.) He considered that such a definition would suffice, whether it was drawn up in one or more parts. Moreover, the enumeration in the Chinese draft was dangerous because it was restrictive. It did not mention forced religious conversion, which might however be considered as a punishable element of the crime of genocide. A very wide definition was thus required; and he would propose a text as soon as the members of the Committee had expressed their opinions. Mr. ORDONNEAU (France) was in entire agreement with Mr. Azkoul’s analysis. He also considered that a distinction must be made between the aim – the physical destruction of a group – and the material means, whatever they might be, used to achieve that aim. The CHAIRMAN remarked that the differences of opinion between the members of the Committee were of a purely formal nature. In reply to

E/AC.25/SR.10

841

the representative of the USSR, he stated that there was no legal [p. 11line 4] objection to inserting in separate articles the definition of cultural genocide, on the one hand, and that of cultural genocide, on the other. He recalled that some time previously the Polish representative had even suggested that a separate document should be drawn up on cultural genocide. Furthermore, he believed that the separation would facilitate the adoption of the Convention by the legislative bodies which would be called upon to ratify it, because it would enable them to make reservations on certain provisions. Mr. RUDZINSKI (Poland) pointed out that the Committee had decided to replace the expression “deny the right of existence of racial, national, religious or political groups of human beings” by “deny the right of existence to groups of human beings on grounds of religion, nationality or political opinion”. In that connection, he considered that a distinction should be made between the motives of genocide and its aims. Both should be defined by the Convention, which should moreover specify those groups which should be protected against genocide. Mr. MOUSHENG LIN [sic] (China) proposed that genocide should be defined as an act directed against racial, national or religious groups for reasons of race, religion, nationality or political opinion. Mr. SCHWELB (Secretariat) pointed out that the new wording of the United States and Chinese drafts differed from the original, texts. He emphasized the difficulty experienced by the prosecution in proving the motives of a crime. The CHAIRMAN agreed with Mr. Schwelb. Mr. ORDONNEAU (France) said that the French text did not present any difficulties, and that it was in harmony with the ideas expressed by the Polish representative. The CHAIRMAN suggested that the Committee should vote on whether cultural genocide and physical genocide should be dealt with in the same article or in different articles. Mr. AZKOUL (Lebanon) raised the objection that his vote would depend on the final text of the article or articles in question.

842

E/AC.25/SR.10

Mr. PEREZ PEROSO [sic] (Venezuela) supported the Chairman’s suggestion. He would make one criticism of the text proposed by China: it mentioned cultural genocide only as part of an enumeration and not in the definition. He proposed that the Committee should vote on whether to include cultural genocide at the beginning of the definition contained in the text proposed by China. The Committee decided by three votes to one with two abstentions to insert the notion of cultural genocide in a separate article. Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that physical genocide should be defined in an article consisting of two distinct paragraphs, as follows: Paragraph 1 – In this convention, the word “genocide” means a criminal act directed at the physical destruction of a group on national, racial or religious grounds. Paragraph 2 – “Physical destruction” also means the deliberate subjection of such groups to conditions of life that are likely to result in their physical destruction. Mr. ORDONNEAU (France) observed that the text submitted by [p. 13line 11] the USSR was almost identical with the French text. He would therefore support the proposed definition. Mr. AZKOUL (Lebanon) observed that Committee were agreed on two points: the definition of genocide should indicate both the aim and the motive of the crime. He requested that the definition should include a third notion, namely, that of the destruction of a group, as such. The CHAIRMAN was ready to accept the first paragraph of the USSR proposal. Mr. PEREZ-PEROZO (Venezuela) wondered whether the proposed definition covered also the destruction of one or more persons as members of a racial, religious or national group. Mr. MOROZOV (Union of Soviet Socialist Republics) replied that his definition obviously applied not only to the destruction of a group, but to that of the individuals composing it whenever murder for racial, national or religious reasons was involved. Naturally, the murder of an individual could not be considered genocide unless it could be proved that it was the first of a series of acts aimed at the destruction of an entire group.

E/AC.25/SR.10

843

Mr. ORDONNEAU (France) thought that that notion should be stated clearly in the definition. To that end, he suggested the following definition: The crime known as genocide is an attack directed against the physical existence of a group of human beings, as such, or of one or more individuals, as members of the group.

He said that this formula met the wish expressed by Mr. Azkoul. Mr. PEREZ-PEROZO (Venezuela), while agreeing with the definition proposed by the representative of France, thought that a more flexible definition should be adopted. It would be sufficient to add the words “in whole or in part” after the word “destruction” in sub-paragraph 1 of the definition proposed by the USSR. Mr. MOROZOV (Union of Soviet Socialist Republics) asked whether the following definition would be satisfactory to the Committee: In this Convention, the word “genocide” means a criminal act aimed at the physical destruction of a group either by mass massacre or by individual murders, for racial, national or religious reasons.

Mr. ORDONNEAU (France) thought that the new definition was too limited in scope since there were other methods of destruction besides “massacre” and “murder.” After a brief discussion, Mr. MOROZOV withdrew his last proposal and agreed to accept the amendment to his first formula suggested by the representative of Venezuela. The CHAIRMAN suggested the addition of the following phrase to the definition proposed by the USSR: “ . . . or the physical destruction of an individual incidental to the physical destruction of a group.” Mr. AZKOUL (Lebanon) pointed out that appropriate measures should be taken for the punishment of individual crimes aimed at the destruction of a group of human beings before that group was totally destroyed. He therefore objected to the words “incidental to”, which he thought were ambiguous. He rather favoured the more flexible wording suggested by the representative of Venezuela. He expressed doubt concerning the full inplication [sic] of the word “national”. He emphasized that the concept of nationality was not

844

E/AC.25/SR.10

identical in all legal systems. Moreover, protection had to be extended not only to the nationals of any country, but to an ethnic group, whatever the nationality of its members. He preferred the wording “through hatred” or “through national fanaticism” to “for national reasons” because, in his view, the word “reasons” might be ambiguous. Mr. MOROZOV (Union of Soviet Socialist Republics) wondered whether the word “nationalistic” might meet Mr. Azkoul’s wishes. An exchange of views took place and it became evident that the majority of the members of the Committee did not appear to favour introducing the concepts of hatred and fanaticism in the definition, since they were not legal concepts. The CHAIRMAN suggested that the concepts of “nationality” and “national origin” be combined to cover the case of persons who, while possessing a particular nationality, belonged to a different ethnic group from that of the majority of the population. The Committee adopted the following definition pending further discussion of the word “national”: “In this Convention, the word “genocide” means a criminal act aimed at the physical destruction, in whole or in part, of a group of human beings, for racial, national or religious reasons.” The meeting rose at 6:20 p.m.

E/AC.25/SR.10/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

845

UNRESTRICTED E/AC.25/SR.10/Corr.1 4 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TENTH MEETING Lake Success, New York Thursday, 16 April 1948, at 2 p.m. The following corrections should be made on pages 8 and 13: Page 8.

Line 15: in fine, delete “such as the ‘culture’ of a group” and end the sentence with a period after “things”.

Page 13. Line 11: Replace the sentence: “He would therefore . . . definition” by “He supported the proposed definition in principle subject to certain changes or additions”.

846

E/AC.25/SR.10/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.10/Corr.2 14 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TENTH MEETING Held at Lake Success, New York Thursday, 16 April 1948, at 2 p.m. Page 11, line 4: Delete the word “cultural” and substitute the word “physical”.

E/AC.25/SR.10/Corr.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

847

UNRESTRICTED E/AC.25/SR.10/Corr.3 24 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TENTH MEETING Held at Lake Success, New York Thursday, 16 April 1948, at 2:00 p.m. The following amendments should be made on page 3: line 14 for “punishable by” read “under”; line 18, for “of life, or applying to it” read “or”; line 20, insert “cultural” between words “the institutions”, and delete “or of the”; line 21, delete the word “culture”. Delete the first three lines on page 6 and substitute: Mr. LIN MOUSHENG (China) said that although he was not . . .

848

E/AC.25/SR.11

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.11 21 April 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE ELEVENTH MEETING Lake Success, New York Friday, 16 April 1948, at 2.00 p.m. Present: Chairman: MR. MAKTOS (United States of America) Vice-Chairman: MR. MOROZOV (Union of Soviet Socialist Republics) Rapporteur: MR. AZKOUL (Lebanon) Members: China (Mr. Lin Mousheng [sic]) France (Mr. Ordonneau) Poland (Mr. Rudzinski) Venezuela (Mr. Perez-Perozo)

E/AC.25/SR.11

849

CONTINUATION OF THE DISCUSSION OF DRAFT ARTICLES TO BE INCLUDED IN THE CONVENTION ON GENOCIDE Article I (Definition of Genocide) The CHAIRMAN opened the meeting by proposing that the first paragraph of Article I of the Soviet draft Articles should be amended to read: “In this Convention genocide means intentional destruction, in whole or in part, of racial, national or religious groups as such”. The General Assembly had intended to protect specific groups. The proposed changes were merely a matter of drafting. Mr. MOROZOV (Union of Soviet Socialist Republics) emphasized that the qualifying fact was not simply the destruction of certain groups but destruction for the reason that the people in them belonged to a given race or nationality, or had specific religious beliefs. The last part of the Chairman’s proposed paragraph should read: “. . . religious groups, for reasons of racial or national origin or religious belief ”. Mr. RUDZINSKI (Poland) had no objection to the inclusion of motives in the definition, but it should be made clear who was to be protected. The CHAIRMAN believed that if the reasons were mentioned, it might be claimed that a crime was committed for motives other than those specified. Political groups, for instance, might be eliminated on economic grounds. Mr. MOROZOV (Union of Soviet Socialist Republics) said that the definition of genocide should include two specific elements: the groups to be protected, and the motives behind the criminal act. Mr. AZKOUL (Lebanon) believed that the Chairman’s objections were only valid in cases of physical destruction. Specific reasons must be included where cultural destruction was specified or governments could take no remedial steps. Mr. PEREZ-PEROZO (Venezuela) said that if the Chairman’s text were rigidly interpreted it might exclude, for instance, biological genocide. It should be more comprehensive and cover such measures as prohibition of a language, etc . . . The CHAIRMAN pointed out that another Article would cover cultural genocide.

850

E/AC.25/SR.11

Mr. ORDONNEAU (France) said that the word “destruction” could be misinterpreted. From the technical point of view, genocide qualified the means of achieving destruction and not the destruction of the group itself, just as murder was the act causing death, not death itself. [p. 2-line 19] The deletion of the words “directed at” would exclude acts not materially leading to destruction. There was confusion between the final result and the means employed to obtain the result. The second paragraph of the draft presented by the Chairman would not meet the point as it referred only to conditions of life and not such measures as castration or forced abortion. The exact meaning should be made clear. If genocide was destruction for any reason whatsoever, this was contrary to the previous decision that “intention” was paramount. Mr. SCHWELB (Representing the Assistant Secretary-General) at the request of the Chairman stated that there was difference in substance and not merely of wording between the three proposed formulas before the Committee. Mr. ORDONNEAU (France) read the formula proposed for an International Penal Code at the Eighth International Conference for the codification of Criminal Law in Europe. It was very similar to the Soviet and French drafts. Mr. PEREZ-PEROZO (Venezuela) shared the views of the representatives of France, the Union of Soviet Socialist Republics and the Lebanon that it was indispensable to refer to intent and motive, but these were implied by the words “as such” in the Chairman’s amendment. Part of the Chinese formula might be included in the Chairman’s draft by adding the words: “. . . as such, and the prevention of their preservation and development”. This would also solve the problem raised by the representative of France. Mr. MOROZOV (Union of Soviet Socialist Republics) said that only if the previous decision to deal with national-cultural genocide in a separate article were reversed could the scope of the definition in Article I be broadened. Otherwise, it would have to be drafted within the framework of the previous decision.

E/AC.25/SR.11

851

To say “. . . a criminal act directed at physical destruction in whole or in part of racial national or religious groups for reasons of racial or national origin or religious belief ” would meet the point of the representative of Venezuela, and would also cover biological genocide. The definition should include motives. National courts could always find ways of handling unique situations which might arise from acts not legally causes under the strict definition of genocide. Reference having been made to the draft prepared by the Secretariat, (document E/447) Mr. GIRAUD (Secretary of the Committee) explained that this draft had purposely left out consideration of motives. The minute the intention arose to destroy a human group, genocide was committed. Mr. LIN MOUSHENG (China) proposed a new draft of the Preamble and Articles I, II, III and IV of the Convention on Genocide. The representative for France having stressed the necessity of adhering to one draft as a basis of discussion so as to speed up the work of the Committee, the Soviet draft of Article I was rejected, and it was decided by a vote of 4 to 2, with 1 abstention, to take the new Chinese draft as a basis for discussion, but to postpone taking any decisions until the next meeting. The representatives of the UNION OF SOVIET SOCIALIST REPUBLICS and FRANCE, under Article 60 of the Rules of Procedure of the Economic and Social Council, reserved their rights to discuss the Chinese proposal after they had had the opportunity to study it further in official translations. The CHAIRMAN said that no further motion to reverse the decisions would be considered. In reply to a question by the Representative of FRANCE, he said that the question of whether or not cultural genocide should be included in a separate article would be decided when paragraph 3 of the Chinese draft was under discussion. Discussion of the new Chinese draft paragraph by paragraph Article I. Introductory Paragraph Mr. RUDZINSKI (Poland) said that (1) if it were intended to refer only to acts which were criminal per se, it would be necessary to add the word “criminal” before “acts” in the first sentence; (2) “political” should be

852

E/AC.25/SR.11

deleted, and “as such” might be added after “group”; (3) “normal development” should be replaced by “preservation”; (4) the last part of the sentence should be amended to read: “of destroying in whole or in part . . .”, and (5) the question of motives should be included in the Chinese draft. Mr. AZKOUL (Lebanon) thought point (3) proposed by Mr. Rudzinski (Poland) would be met if the world “specifically” were inserted before “for the purpose of destroying . . .”. Sometimes it might be permissible to stop normal development. It would only be genocide if the specific purpose were to arrest development. Mr. RUDZINSKI (Poland) said it was another question whether the act were aimed at the prevention of the normal development of a group. The question was one of cause and effect in the outside world, and this must be distinguished from psychological motivation. Normal development should not be a protective object of the Convention. [p. 4-line 17] Mr. LIN MOUSHENG (China) agreed that “normal development” was more of a philosophical than a legal term. “With the intention of . . .” might replace “for the purpose of . . .” to make it clearer. He had no objection to the addition of the words “in whole or in part . . .” Mr. PEREZ-PEROZO (Venezuela) believed the deletion of the word “normal” would avoid misinterpretation. “As such” should be added after “group”. The CHAIRMAN was in favour of the addition of “in whole or in part”. Mr. AZKOUL (Lebanon) suggested that if the word “solely” were inserted before “for the purpose” and “as such” added after “group”, motives would be implicitly implied. Article I. Paragraph 1 Mr. ORDONNEAU (France) said the word “destroying” was difficult to translate into French. As stated previously, “destruction” in French was not the criminal act but the means to achieve it, and a draft which needed explanation was unacceptable. A word would have to be found which meant a series of acts which would bring about destruction as a final result.

E/AC.25/SR.11

853

Article I. Paragraph 2 In answer to a question by Mr. RUDZINSKI (Poland), the representative of LEBANON suggested that the word “will” in paragraph (2) might be changed to “which are likely to cause . . .” Article I. Paragraph 3 Mr. ORDONNEAU (France) said paragraph (3) brought up the whole question of cultural genocide, which was connected with minorities and human rights. The Secretariat wording was not acceptable; it should be drafted in general terms. He would submit a new draft after considering the Chinese paragraph further. Mr. RUDZINSKI (Poland) suggested the sentence should begin “Destroying in whole or in a substantial part . . .”. In reply to Mr. LIN MOUSHENG (China) who preferred the words “Destroying systematically . . .”, Mr. ORDONNEAU (France) pointed out that the destruction would be found to be systematic only after it had been accomplished. Mr. AZKOUL (Lebanon) proposed the following wording: “Destroying the cultural institutions and achievements and other cultural ties which serve to make the group homogeneous”. The CHAIRMAN suggested the words “ . . . which characterize a group . . .”. Mr. PEREZ-PEROZO (Venezuela) asked what was meant by “suppressing the language”. Foreign groups settling in a country might be a danger to the culture of the country itself if their languages were not suppressed in order to defend the national language of the country in which they lived. Mr. ORDONNEAU (France) supported by the Representative of POLAND, said the question would arise of the value of the culture to be preserved. [p. 5-line 21] Speaking theoretically, genocide would only take place when valuable growing culture was destroyed. Mr. LIN MOUSHENG (China) said that when a national Government promoted its national language that was not suppressing other languages.

854

E/AC.25/SR.11

Mr. ORDONNEAU (France) found the words “cultural institutions” to be rather vague. To forbid some actions might mean to obstruct evolution. Mr. AZKOUL (Lebanon) suggested the words “Destroying by violent means . . .”. Article I. Last Paragraph [p. 5-line 30] Mr. ORDONNEAU (France) said the words “conspire” and “incite” were [p. 5-line 31] difficult to translate into French. It was not clear that the acts were punishable. Mr. RUDZINSKI (Poland) thought the word “illegal” was insufficient. The question of preparatory acts was omitted. The CHAIRMAN, commenting on a suggestion by the representative of CHINA, said that if the word “preparing” were used, it would make it difficult for States to ratify the Convention. Articles II and III The CHAIRMAN suggested putting in parenthesis the words “where the offender is found”. Article IV Mr. ORDONNEAU (France) said the question of extradition should be discussed, as it was very important. The meeting rose at 5.55 p.m.

E/AC.25/SR.11/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

855

UNRESTRICTED E/AC.25/SR.11/Corr.1 4 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE ELEVENTH MEETING Lake Success, New York Friday, 16 April 1948, at 2 p.m. The following corrections should be made on pages 2 and 5: Page 2. Line 19: Delete the sentence: “The deletion of the words . . . destruction”. Page 5. Line 21: Delete the sentence: “Speaking theoretically . . . was destroyed”. Line 30: Replace the words: “said the words ‘conspire’ and ‘incite’ were difficult to translate into French” by “said the English word ‘conspiring’ was difficult to translate into French”. Line 31: Delete the sentence: “It was not clear that the acts were punishable”.

856

E/AC.25/SR.11/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.11/Corr.2 24 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE ELEVENTH MEETING Lake Success, New York Friday, 16 April 1948, at 2:00 p.m. On page 4, line 17, after the word “term” add the words “and should be deleted.”

E/AC.25/11

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

857

UNRESTRICTED E/AC.25/11 21 April 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE LIST OF SUBSTANTIVE ITEMS TO BE DISCUSSED IN THE REMAINING STAGES OF THE COMMITTEE’S SESSION Memorandum submitted by the Secretariat The Ad Hoc Committee on Genocide has decided to take the draft articles suggested by the Chinese representative (document E/AC.25/9) as the basis for the work of drafting. The Ad Hoc Committee’s attention is respectfully drawn to the following items which, in addition to the substantive items covered in the Chinese draft and in addition to the final clauses which will be dealt with on the basis of the Drafting Committee’s report, it may wish to consider with a view to inserting the appropriate provisions in the operative part and in the preamble of the draft convention. I. Relations between international law and municipal (domestic) law The Secretariat draft (document E/447) provides in Article V that command of the law shall not justify genocide. The corresponding provision of the Charter of the International Military Tribunal concerning crimes against humanity (Article 6(c)) provides that crimes against humanity are punishable “whether or not in violation of the domestic law of the country where perpetrated”. It is submitted that an express provision solving this problem should be inserted in this convention. II. The legal relevance of superior orders Until 1944, it was controversial in theory and practice whether and to what extent superior orders constituted a defence with regard to crimes of this kind. It may be recalled that, e.g. the United Kingdom and the United States of America’s military manuals contained provisions recognizing this defence. In 1944, the respective parts of both manuals were amended and since 1945 it may be considered an established rule

858

E/AC.25/11

that the fact that the defendant acted pursuant to a superior order does not free him from responsibility (Article 8 of the Charter of the International Military Tribunal). If the convention on genocide left out an express provision, doubt might again be thrown on the question. Article 5 of the Secretariat draft provides that superior orders shall not justify genocide. III. Immunity of Heads of State During the inter-allied discussions which eventually led to the Charter of the International Military Tribunal it was a subject of doubt whether Heads of State could be held responsible for war crimes, crimes against humanity and crimes against peace. The question was decided by the express provision of Article 7 of the Charter of the International Military Tribunal and analogous provisions in other basic documents providing that the official position of defendants, whether as Heads of State or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment. Article 4 of the Secretariat draft provides that those committing genocide should be punished, be they rulers (des gouvernants), public officials or private individuals. The Committee may wish to consider whether the expression “public officials” used in Article 2 of the Chinese draft is sufficiently comprehensive to cover also Heads of State. IV. Punishment The chief legal and constitutional obstacle to the punishment of crimes against peace, war crimes, and crimes against humanity was, in the past, the opinion held by some that the rules against retroactive penal legislation, namely, the rules nullum crimen sine lege and nulla poena sine lege, made the punishment impermissible. It is one of the purposes of the draft convention to dissipate any doubt as far as the crime of genocide is concerned. While the Chinese draft disposes for the future of any allegation that the punishment of genocide is contrary to the rule nullum crimen sine lege it does not provide for a specific punishment and does not therefore

E/AC.25/11

859

fully dispose of the objections which might be based on the second rule, nulla poena sine lege. The Committee may therefore wish to consider the insertion, in the draft convention, of an express provision concerning the kind of punishment to be meted out for genocide. The provision might be of a general nature e.g. a statement that genocide will be punished by death or any lesser punishment which might be provided for by international convention or which the court may find appropriate. V. Relations between the crime of genocide and the Nürnberg principles Resolution 180(II) of the General Assembly has requested the Economic and Social Council to take into account that the International Law Commission has been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal. The relations between the crime of genocide and one of the Nürnberg concepts, the notion of crimes against humanity are also dealt with in Article 1 of the French draft (document E/623/Add.1). The Committee may wish to deal with this problem in the preamble.

860

E/AC.25/SR.12

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.12 23 April 1948 ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWELFTH MEETING Lake Success, New York Monday, 19 April, 1948 at 2:20 p.m. Chairman: Mr. MAKTOS Members: Mr. LIN Mr. ORDONNEAU Mr. AZKOUL Mr. RUDZINSKI Mr. MOROZOV Mr. PEREZ-PEROZO Secretariat: Mr. SCHWELB Mr. GIRAUD

(United States of America) (China) (France) (Lebanon) (Poland) (Union of Soviet Socialist Republics) (Venezuela) (Deputy Director of the Division of Human Rights) (Secretary of the Committee)

NOTE: Any corrections of the originals of speeches in this record should be submitted in writing at the latest within 24 hours to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, in a letter, on headed notepaper, bearing the appropriate document symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.12

861

DRAFTING OF THE PROPOSED CONVENTION ON GENOCIDE (CONTINUATION OF THE DISCUSSION) Article 1: The CHAIRMAN asked the members of the Committee to continue the examination of the draft submitted by the delegation of China for Article 1 of the convention on genocide (document E/AC.25/9). Speaking as representative of the United States of America, Mr. Maktos proposed the following text, which reproduced all the points contained in the Chinese delegation’s draft while taking into account the changes suggested at the previous meeting, particularly by the representatives of Poland and of the Lebanon: In this convention, genocide means any of the following acts directed against a national, racial, religious or political group as such: 1. With the intent to destroy the physical existence of the group, killing members thereof; 2. With the intent to destroy the physical existence of the group, subjecting members of the group to such conditions or measures as will cause their deaths or prevent the propagation of the group; 3. With the intent (cultural genocide).

The CHAIRMAN remarked that the words “or political” had for the time being been put in brackets, because the Committee had not yet taken a decision regarding the inclusion of political groups. Mr. MOROZOV (Union of Soviet Socialist Republics) submitted the following text to replace the draft of Article 1 proposed by the delegation of China: Any of the following inimical acts directed towards physical destruction of racial, national, or religious groups or towards the destruction of national culture, perpetrated on the grounds of racial, national and religious persecution are meant by genocide in this convention: (1) Destroying totally or partially the physical existence of such groups: (2) The premeditated infliction on these groups of such conditions of life as would be aimed at the total or partial destruction of their physical existence; (3) The prohibition or restriction of the use of the national tongue; the prohibition of teaching in schools given in the national tongues; destruction or prohibition of the printing of books and circulation of printed publications in the national tongues; destruction of historical

862

E/AC.25/SR.12

or religious monuments, museums, documents, libraries and other landmarks and objects of national culture or religious worship.

Mr. MOROZOV felt that the wording used by the delegation of China, defining genocide as an act directed “towards the prevention of the normal development of a group”, was too wide and consequently too vague. The text proposed by the USSR had the advantage of being more restrictive and of inserting the notion of cultural genocide into the introductory part of Article 1. Regarding point 1 of his proposal, Mr. Morozov recalled that owing to the difficulty of drawing up a really exhaustive list, the Committee had agreed not to define all the possible cases of genocide directed against the physical existence of a group, and pointed out that he had abided by that decision. As regards point 2, the text of the USSR and that put forward by the delegation of China were almost identical in substance, but the new wording had the advantage of extending the provisions of the convention not only to the acts of genocide known at present but also to any method that might be evolved in the future with a view to destroying the physical existence of a group. Point 3 of the proposal of the USSR drew further away from the text of the delegation of China. Both texts dealt with cultural genocide, but the USSR delegation was of the opinion that the conception of this form of the crime should not be too wide and had consequently tried to word the provision in the most concrete manner possible. Lastly, Mr. Morozov stressed the necessity of keeping and emphasizing the factor of intention which was at the basis of the definition of genocide. His delegation’s text which made it quite clear that the acts denounced in points 1, 2 and 3 would be regarded in the nature of genocide when “perpetrated on the grounds of racial, national and religious persecution” was from that point of view also preferable to the text of the Chinese delegation. The CHAIRMAN asked the members of the Committee to discuss the draft of the Article together with the suggested amendments paragraph by paragraph so as to facilitate drafting.

E/AC.25/SR.12

863

Mr. LIN MOUSHENG (China) observed that the differences still outstanding were not considerable and that the Committee was nearing unanimous agreement. He suggested changing the introductory part of his draft to read as follows: In this Convention, Genocide means any of the following deliberate acts directed against a national, racial, religious, (or political) group as such, whether on national, racial, religious, (Political) or any other grounds.

Mr. Lin Mousheng stated that the purpose of adding the word “deliberate” was to satisfy the wish expressed by the representative of the USSR, to retain the factor of intention. As regards the description of grounds contained in the last phrase of his new text, Mr. Lin pointed out that these very wide terms were identical with those of the resolution on genocide adopted by the General Assembly on 11 December 1946. Mr. ORDONNEAU (France) said that the Committee should accept [p. 5-line 12] the definition of genocide as it stood in the introductory part of the draft article put forward by the delegation of China. The Committee agreed that genocide was an act directed against a group with the intent of destroying that group as such. This implied both action and intent. The definition proposed by Mr. Lin limited the groups which the convention was designed to protect, but it in no way limited the motive of the crime, in so far as it included in the idea of genocide certain [p. 5-lines 20–22] actions which might be taken against any group as such, for reasons other than national, racial or religious persecution; for example, for reasons of national security or economic necessity. Those reasons, in [p. 5-lines 20–22 end] certain cases (war for example) might be perfectly legitimate; in other cases they might have an appearance of legitimacy and nevertheless be [p. 5-line 25] closely related to the crime of genocide. For that reason the idea of persecution should be kept in mind in defining genocide. The difficulty lay in the appraisal of the motives. In most cases, however, the facts [p. 5-lines 28–29] themselves would provide a sure basis for judgment. In his opinion, the best procedure would be to leave to the relevant judicial authority [p. 6-lines 1–4] the responsibility for deciding whether the guilty party was or was not guilty of genocide.

864

E/AC.25/SR.12

If it acted otherwise, the Committee might impair the essential right of self-defence which was the supreme prerogative of every State. [p. 6-lines 1–4 end] Mr. Ordonneau drew attention to the first text proposed by the French delegation at the sixth session of the Economic and Social Council (document E/623/Add.1). It contained a formula which, while suggesting [p. 6-lines 7–11] a comprehensive definition of genocide provided desirable safeguards through the use of the adverb “particularly”, since it gave to the courts wide discretionary powers to distinguish between lawful and unlawful intent. Mr. RUDZINSKI (Poland) pointed out that the Hague Convention contained the necessary guarantees concerning acts of self-defence which might be taken by a State in times of war. The CHAIRMAN emphasized that in times of war, the motive for the act was not to destroy a group as such, but to impair the military strength of the enemy. He suggested that the report should make clear that the Committee had not contemplated the case of war, since the codification of the laws of war was not within its competence. Unlike the representative of France, Mr. AZKOUL (Lebanon), Rapporteur, did not consider that the various texts submitted differed in substance. They all introduced the same subjective approach, by the use of expressions such as “for the purpose of ”, “on grounds of ”, “as such”. They all specified the groups to be protected and recognized the necessity of defining the crime. As regards the act of genocide itself, a distinction had to be drawn between acts which were reprehensible in themselves, such as massacres, and those, the motives of which had to be carefully weighed, such as restrictions on the use of a national languate [sic] etc. In the first case, it was not necessary to appraise the motives; in the second case, on the contrary, that had to be done with great care. Mr. PEREZ-PEROZO (Venezuela) said that the revised text of the Chinese delegation was repetitive; the introductory wording occurred again in points 1, 2 and 3. He proposed the following form of words: “In the present Convention genocide means any of the following acts directed against a national, racial, religious (or political) group as such”.

E/AC.25/SR.12

865

Mr. MOROZOV (Union of Soviet Socialist Republics) thought that the phrase “or any other grounds”, contained in the Chinese delegation’s text, so widened the proposal that the very idea of genocide disappeared. For the first time in history, a convention was called upon to protect national and racial groups as such. It was essential, therefore, to define genocide absolutely clearly so that judges could know exactly what was meant by the term. It was equally important, however, to take note of the French representative’s reservations and not to paralyze the action which a State might consider itself obliged to take against any group on grounds of national security. The inclusion in the report of clarification of that point, as suggested by the Chairman, would not be sufficient. He therefore would vote against the addition of the words “or any other grounds”, to the text put foeward [sic] by the Chinese delegation. Mr. ORDONNEAU (France) repeated that it was not sufficient to be acquainted with the fact that a group had been destroyed, but that the reason for that destruction had to be determined. It was there that the unlawful motive of persecution entered. The French proposal recognized the existence of cases of genocide other than those which had been mentioned, that is, on the grounds of the race, nationality or religion of the group, but preferred to leave to the courts the responsibility for determining them and analyzing the reasons for the crime, without prejudging the criminal character of these reasons. Mr. LIN (China) proposed that the first phrase of the introductory part of his draft, which defined the various groups protected by the convention, should be put to the vote first; the Committee could then take a decision on the second part of the sentence, which dealt with the substance of the crime. Mr. MOROZOV (Union of Soviet Socialist Republics) was opposed to this procedure. He would prefer the vote to be taken on each of the two drafts before the Committee, i.e. the one submitted by the Chinese delegation and that submitted by his own delegation. He pointed out that the text proposed by the USSR was more concrete and nearer to reality, since genocide was committed only on national, racial or religious grounds. On the CHAIRMAN’S suggestion Mr. LIN (China) agreed to delete from his text the words “whether on national, racial, religious (political)

866

E/AC.25/SR.12

or any other grounds”, replacing them by “particularly on grounds of national or racial origin or religious beliefs” suggested by the French delegation’s draft. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that to adopt such a formula would be to admit implicitly that genocide might be constituted by such criminal acts committed for reasons other than national, racial or religious persecution. Mr. ORDONNEAU (France) agreed that acts of genocide were usually inspired by national, racial or religious considerations; he thought, however, that the courts set up to punish genocide might well be given the right to punish any acts which may have been committed for any other reason, if they were satisfied that the intention underlying such acts was, in fact, to commit genocide. But the USSR text, which limited the motives to national, racial or religious persecution, was more limited in scope and would unduly restrict the courts’ freedom of discretion. The meeting adjourned from 4.55 p.m. to 5.20 p.m. Mr. AZKOUL (Lebanon) (Rapporteur) pointed out an inconsistency in the Chinese draft between the words “as such” on the one hand and “particularly” on the other. If it were agreed that genocide was an act directed against a national, racial or religious group as such, it could not be said that, to be classed as genocide, such an act must have been committed particularly by reason of national or racial origin, or religious belief, as that would imply that the act might have been prompted by other considerations. The adoption of the Chinese representative’s text would leave a State defenceless and unable to take measures against a given group, even if the activities of the group concerned endangered the security of the State. He formally proposed the deletion of the word “particularly. [sic] Mr. RUDZINSKI (Poland) said that a definition of genocide founded on the motives for acts which had been committed, would introduce a psychological or subjective factor, whereas a legal text should rather be based on objective criteria. He therefore submitted the following text: “In this convention genocide means any of the following deliberate acts committed as a result of national, racial or religious persecution and directed against a national, racial or religious group as such”.

E/AC.25/SR.12

867

It would be easier to prove persecution – which consisted of a number of material acts – than motives, or the intention of the crime. Furthermore, it should be borne in mind that the convention on genocide was intended to punish not isolated cases but repeated cases which endangered the very existence of a group. That was why he felt the word “persecution” should be used. His text therefore seemed to him to be preferable from both a legal and practical point of view. Mr. ORDONNEAU (France) pointed out that the wording proposed by the Polish representative did not abolish the element of subjectivity, since in order to prove persecution it would be necessary to define the intention underlying the act. He drew the Committee’s attention to the disadvantage of this text. Persecution consisted of a series of acts; it could only be constituted, therefore, after some lapse of time. Should persecution of a group not be proved, or should an act of genocide be committed before the series of events which constituted persecution were completed, that act would go unpunished. [p. 11-line 16] The purpose of the convention was to prevent massacres rather than to punish those responsible for acts of genocide after massacres had been committed. The Polish text, although retaining the factor of intention, destroyed the preventive effect of the convention. Mr. MOROZOV (Union of Soviet Socialist Republics) also thought that the convention should have a preventive effect, and that it should not be limited to punishing large-scale acts of genocide. Mr. RUDZINSKI (Poland) said that in submitting his text, he had not intended to limit the effect of the proposed convention. In order to facilitate the Committee’s work he would withdraw his proposal. The CHAIRMAN put to the vote the introductory part of the draft Article I submitted by the delegations of the USSR. The Committee rejected the text by four votes to three. The CHAIRMAN then put to the vote the Lebanese proposal to delete the word “particularly” from the introductory part of the draft Article I submitted by the Chinese delegation.

868

E/AC.25/SR.12

The Committee decided, by four votes to three, to delete the word “particularly”. On the suggestion of Mr. PEREZ-PEROZO (Venezuela), supported by Mr. ORDONNEAU (France), Mr. LIN (China) suggested the deletion of the words “as such” from his text. The CHAIRMAN put that proposal to the vote. The Committee decided by five votes to none, with two abstentions, to delete the words “as such”. The CHAIRMAN then asked the Members of the Committee to vote on the amended text of the introductory sentence to the draft Article I submitted by the Chinese delegation, which read as follows: In this convention genocide means any of the following deliberate acts directed against a national, racial, religious (or political) group, on grounds of national or racial origin or religious belief.

The text was adopted by the Committee by six votes to none, with one abstention. In answer to a question by Mr. AZKOUL (Lebanon), Rapporteur, the CHAIRMAN confirmed that, should the Committee decide that political groups also should be protected by the convention, additional motives could be added to those enumerated in the adopted text. The meeting rose at 6.30 p.m.

E/AC.25/SR.12/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

869

UNRESTRICTED E/AC.25/SR.12/Corr.1 4 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWELFTH MEETING Lake Success, New York Monday, 19 April 1948, at 2.20 p.m. The following corrections should be made on pages 5, 6 and 11: Page 5. Line 12:

Change the word “introductory” to “preliminary” Lines 20, 21 and 22: Replace the words “for reasons . . . economic necessity” by “not only for reasons of nationality, race or religion but also for other reasons, for example, national security or economic necessity” Line 25: Delete the sentence: “For that reasons the idea of persecution should be kept in mind in defining genocide.” Lines 28 and 29, Delete “In his opinion . . . every State” and and Page 6 lines 1, replace by: “As a matter of fact, according 2, 3 and 4: to the Chinese formula, it would be the responsibility of the Tribunals to determine unlawful intent. That system had the advantage of being very flexible.”

Page 6. Line 7, 8, 9, 10 and 11:

Delete the sentence “It contained . . . unlawful intent” and replace by: “It contained a formula which, through the use of the adverb ‘particularly’ provided a broad basis for defining the possible motives leading to genocide and was similar to the Chinese formula in granting wide discretionary powers in the last

870

E/AC.25/SR.12/Corr.1

analysis to the Tribunals to distinguish between lawful and unlawful intent”. Page 11.

Line 16:

Replace “rather than” by “as well as”

E/AC.25/SR.13

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

871

UNRESTRICTED E/AC.25/SR.13 29 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE THIRTEENTH MEETING Lake Success, New York Tuesday, 20 April 1948, at 2 p.m. Chairman: Mr. MAKTOS Vice-Chairman: Mr. MOROZOV Rapporteur : Members:

Secretariat:

Mr. Mr. Mr. Mr. Mr. Mr.

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO SCHWELB

Mr. GIRAUD

United States of America Union of Soviet Socialist Republics Lebanon China France Poland Venezuela Deputy Director of the Division of Human Rights Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

872

E/AC.25/SR.13

PREPARATION OF A DRAFT CONVENTION ON GENOCIDE: CONTINUATION OF THE DISCUSSION Draft proposed by the delegation of China (document E/AC.25/9) The CHAIRMAN suggested that the text of the first paragraph of Article I of the Chinese draft should be amended to re-introduce a reference to political groups. The amended text would read as follows: In this Convention, genocide means any of the following deliberate acts directed against a national, racial, religious or political group on grounds of national or racial origin or religious or political belief.

Mr. PEREZ-PEROZO (Venezuela) was opposed to any reference to political genocide in the draft convention, not for reasons of principle, but for practical reasons. The Venezuelan delegation had already indicated that it was particularly interested in the question of political genocide, especially from the point of view of justice. On the other hand, it considered that the matter was so controversial that many countries might not sign the proposed convention if it included a reference to political genocide. Mr. AZKOUL (Lebanon) (Rapporteur) pointed out that a political group had certain characteristics which differentiated it from a national, racial or religious group. The political group was not permanent; it was based on a body of theoretical concepts whereas sentiment or tradition bound the members of a national, racial or religious group. There was therefore nothing to correspond to the racial hatred or religious fanaticism which usually motivated acts of genocide directed against the other groups. Within the nation, the activities of a political group were linked to a certain extent with the activities of the State, and it was difficult to draw the line of demarcation between them. Furthermore, he put forward some agreements [sic] in favour of a reference to political genocide in the draft convention. It was the political group that was most often attacked, most exposed to genocide. Finally, it might be dangerous for the convention not to condemn the persecution of a group for political reasons while providing for the punishment of all other forms of genocide. Mr. LIN MOUSHENG (China) proposed a slight alteration in the text suggested by the representative of the United States, whereby the end of the sentence would read as follows: “. . . religious belief or political opinion.”

E/AC.25/SR.13

873

Mr. ORDONNEAU (France) approved the suggestion of the representative of China. The CHAIRMAN, as the representative of the United States, agreed to that amendment. Mr. MOROZOV (Union of Soviet Socialist Republics) reminded the Committee that at previous meetings he had objected to including a reference to political groups in the definition of genocide. From a scientific point of view, and etymologically, “genocide” meant essentially persecution of a racial, national or religious group. The representatives of Venezuela and Lebanon had raised very pertinent objections to the inclusion of a reference to political genocide in the convention. The delegation of the USSR would therefore vote against the text proposed by the United States. Mr. RUDZINSKI (Poland) said that he too would vote against the text proposed by the United States for the reasons he had stated in the course of the discussion. By a vote of 4 to 3, the Committee adopted the first paragraph of Article I of the Chinese draft, amended as follows: In this Convention, genocide means any of the following deliberate acts directed against a national, racial, religious or political group, on grounds of national or racial origin, religious belief or political opinion.

The CHAIRMAN, as the representative of the United States of America, suggested the following alteration of item 1 of Article I of the Chinese draft: Killing of members of the group with the intention of destroying its physical existence.

Mr. LIN MOUSHENG (China) agreed to this alteration. Mr. ORDONNEAU (France) wanted provision made in item 1 for any attack on the lives of members of the group, any positive act of aggression directed against the human person, because acts of violence causing death could not be properly called murder or assassination. To meet Mr. Ordonneau’s point of view, the CHAIRMAN suggested the following wording: “Acts causing the death of members of the group . . .”

874

E/AC.25/SR.13

Mr. MOROZOV (Union of Soviet Socialist Republics) preferred the original wording of item 1 as it appeared in the Chinese draft: Destroying totally or partially the physical existence of such group.

Mr. PEREZ-PEROZO (Venezuela) supported in principle the alteration suggested by the United States, but proposed that it be amended to read: Destroying such group totally or partially by mass massacre or individual executions.

Mr. AZKOUL (Lebanon) suggested an addition to the first paragraph of Article I of the Chinese draft, which had already been adopted, as follows: . . . acts which are intended to: 1. Destroy directly, totally or partially, the physical existence of a group; 2. Destroy the group indirectly, totally or partially: (a) By stopping or preventing its reproduction; (b) By subjecting it to conditions likely to destroy its physical existence.

At a later moment, he would propose a new wording of item 3, which concerned cultural genocide. Mr. ORDONNEAU (France) considered the wording suggested by Lebanon an improvement in the text, although any enumeration was inevitably restrictive. Mr. PEREZ-PEROZO (Venezuela) criticized the use of the expression “physical existence” because it seemed to lead to confusion by introducing a metaphysical concept. He favoured the wording: “killing members of the group”. Moreover, he thought that the final text should be similar to that proposed by the Secretariat, which listed the various forms of violence likely to threaten the existence of members of the group. However, that list was incomplete and other cases could be mentioned, such as pseudobiological experiments performed upon individuals for no real scientific purpose; sterilization; certain attacks on personal liberty which would result in destruction of the group, such as exile, being deprived of means of existence or shelter, being forbidden to work, etc . . . Mr. MOROZOV (Union of Soviet Socialist Republics) again criticized the wording suggested by the representative of the United States and reiterated his preference for the Chinese draft of item 1.

E/AC.25/SR.13

875

[p. 6-Rudzinski remarks] Mr. RUDZINSKI (Poland) thought that the phrase “destroying totally or partially” might be confusing and asked whether the destruction of only half the group would be characterized as genocide. The CHAIRMAN said that the intention was the important factor and that the destruction of a fraction of the group would constitute genocide provided that the intention was to destroy the group totally. Mr. PEREZ-PEROZO (Venezuela) thought that the expression: “group massacres or individual executions” would meet the objections which had just been raised. In reply to a remark by the CHAIRMAN, who pointed out that the representative of China had withdrawn his original text, Mr. MOROZOV (Union of Soviet Socialist Republics) said that he considered himself perfectly justified in requesting that the Committee return to the original Chinese draft of item 1. He thought that that text covered all the specific cases which had been mentioned and its terms were general enough to obviate the disadvantage of what would still be an incomplete list. Mr. RUDZINSKI (Poland) questioned the phrase “with the intention of destroying the physical existence of the group” in the text suggested by the United States, since the introductory paragraph of Article I which had been adopted indicated that the crime of genocide was intentional by enumerating the motives. Mr. ORDONNEAU (France) observed that the whole difficulty at that point in the discussion arose from the wording of the introductory paragraph, since part of its content had to be repeated in the text of the three items which followed. The element of intention should be stated clearly in that first paragraph. He therefore suggested the following alteration of the introductory paragraph of Article I: . . . any of the following deliberate acts committed with the intention of destroying . . .

The CHAIRMAN accepted the wording suggested by the representative of France. Mr. MOROZOV (Union of Soviet Socialist Republics) also favoured the amended text of the introductory paragraph suggested by Mr. Ordonneau,

876

E/AC.25/SR.13

but repeated that he preferred the original draft of item 1, which covered all forms of destruction, to the United States draft, which applied only to murder. Mr. AZKOUL (Lebanon), speaking as the Rapporteur, pointed out that it was difficult to alter the first paragraph so long as no position had been taken on item 3 of the Chinese draft which referred to cultural genocide. Mr. PEREZ-PEROZO (Venezuela) favoured the text of the introductory paragraph with the amendment suggested by the representative of France. By a vote of four to none, with three abstentions, the Committee adopted the introductory paragraph of Article I as amended by the representative of France to read as follows: In this Convention, genocide means any of the following deliberate acts committed with the intention of destroying a national, racial, religious or political group, on grounds of national or racial origin, religious belief or political opinion.

The CHAIRMAN thought that it would be logical, since the destruction of the group was mentioned in the first paragraph, to adopt the wording he had suggested for item 1: Killing of members of the group;

The above text of item 1 was adopted by a vote of five to two. The CHAIRMAN opened the discussion on item 2 of Article I of the Draft Articles proposed by the delegation of China, reading as follows: Subjecting such group to such conditions or measures as will cause the destruction, in whole or in part, of the physical existence of such group.

Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the Committee adopt, in place of the above text, that of the USSR proposal, reading: The premeditated infliction on these groups of such conditions of life which will be aimed at destroying totally or partially their physical existence.

E/AC.25/SR.13

877

He added that the above text had the advantage of being clearer than that proposed by the Chinese delegation, and of corresponding more closely to the principles on which the draft convention should be based. The Committee’s task was to provide for all possible forms of genocide in the wording of items 1 and 2. Mr. ORDONNEAU (France) referred to the reservations he had made in respect of item 1, and pointed out that provision should be made for two different aspects of genocide. On one hand, there was the case of acts directed against the corporal integrity of the members of a group; on the other, the subjection of members of a group to certain conditions of life. Both item 1, which had just been adopted by the Committee, and the text of the USSR draft proposal failed to specify those two cases. Item 2 might therefore be drafted as follows: Any acts directed against the corporal integrity of the members of a group.

Item 1 covered the murder of members of a group. Paragraph 1 of Article I did not provide for actions such as mutilation, or for any of the forms of violence which might lead to the death of members of a group. It was therefore necessary to express that concept clearly. He thought that that point should form the subject of a separate paragraph. The USSR and Chinese drafts could be inserted in the item that followed. The CHAIRMAN, as the representative of the United States of America, submitted the following text prepared by him: Subjecting members of a group to such physical conditions or measures as will cause their death or prevent the procreation of the group.

He thought that by introducing the word “death” the text had the advantage of including all actions leading to death. The text proposed by USSR did not seem to him to be sufficiently direct. He pointed out that his text was in fact a modification of the amendment to the Chinese delegation’s text as proposed by the USSR delegation. He suggested that the members of the Committee should vote first on the text proposed by him, and then vote in due order on the proposals submitted by the USSR and Chinese delegations. Mr. PEREZ-PEROZO (Venezuela) opposed the adoption of too general a formula. He thought that the Committee should not hesitate to give a

878

E/AC.25/SR.13

detailed list of obvious cases, such as measures which might be taken to deprive a group of its means of existence. The texts proposed up to that time did not provide for all such possibilities. It should not be forgotten that the texts would be subject to legal interpretation. Mr. ORDONNEAU (France) pointed out that item 1 covered the murder of members of a group. Item 2 should cover all actions directed against the corporal integrity of members of a group. Item 3 therefore should cover the conditions of life inflicted on members of a group. On that last point the Committee had the choice between the texts submitted by the delegations of China, the USSR and the United States of America. In reply to a remark by Mr. AZKOUL (Lebanon), who pointed out that the list did not cover acts directed against procreation of a group and that a separate item should be devoted to that point, Mr. ORDONNEAU stated that actions such as castration, compulsory abortion, segregation of the sexes or the enfeeblement of members of [p. 11-line 13] a group came under the item dealing with conditions of life. He saw [p. 11-line 13-ends] no need to enumerate them, since all enumeration was necessarily restrictive. [p. 11-para. 3] The CHAIRMAN felt that an entirely new element had been introduced into the discussion, namely, the enfeeblement of members of a group. He thought that the draft convention should cover the violent destruction of groups. If the new concept were adopted, the delegation of the United States of America would vote for the USSR text, from which it differed only on some points of wording. Mr. ORDONNEAU (France) pointed out that the adoption of the USSR delegation’s text would deprive Western legal systems of certain indispensable guarantees. After discussion, the Committee decided that the text proposed by the representative of France would become item 2 of Article I. The CHAIRMAN, after observing that the text proposed by the French delegation had the merit of clarifying a point, called for a vote on that proposal.

E/AC.25/SR.13

879

By five votes to one, with one abstention, the Committee adopted item 2 as proposed by the French delegation reading as follows: Any act directed against the corporal integrity of members of the group.

Mr. MOROZOV (Union of Soviet Socialist Republics) explained that he had voted against the French proposal not because he rejected its principle, but because he preferred his own text. To settle a question of procedure, the CHAIRMAN asked the Committee to decide on the order in which members wished to examine the proposals of the USSR and the United States of America. The text finally adopted would form a new item 3 in Article I. The two proposals were as follows: USSR proposal: “The premeditated infliction on these groups of such conditions of life which will be aimed at destroying totally or partially their physical existence”. United States proposal: “Subjecting members of a group to such conditions or measures as will cause their deaths or prevent the procreation of the group”. By four votes, with three abstentions, the Committee decided to examine the USSR text first. As a result of remarks made by the representatives of Poland and China, Mr. MOROZOV (Union of Soviet Socialist Republics) agreed to withdraw the word “premeditated” from his text and to insert the words “measures or” before the words “conditions of life”. Mr. ORDONNEAU (France) pointed out that there was a fundamental difference between the text of the USSR delegation, which covered the destruction of a group, and the United States delegation’s text, which covered the destruction of the individuals constituting a group. He added that each delegation should reserve the right to employ the appropriate terms used in the legal language of its own country in the translation of the final texts that would be adopted. Mr. PEREZ-PEROZO (Venezuela) stated that he preferred the text proposed by the United States of America, which protected the members of

880

E/AC.25/SR.13

a group, to that of the USSR which in effect protected only the group as such. Mr. RUDZINSKI (Poland) remarked that it was possible to destroy a group without destroying its members. For instance, it was sufficient to enforce measures such as the prolonged segregation of sexes. Mr. MOROZOV (Union of Soviet Socialist Republics), in reply to the remarks made by the representative of China and by the Chairman, explained that his text contained a clear condemnation of measures resulting in the partial destruction of a group. A legal text could not provide for every eventuality. It would be for the tribunal to decide whether, for instance, an isolated act of murder was aimed at the physical destruction of a group, since there were cases in which individual murders might lead to the disappearance of a group. Mr. PEREZ-PEROZO (Venezuela) submitted an amendment to the text of the new item 3 as proposed by the USSR delegation. The amendment read as follows: Inflicting on the members of the group such measures or conditions of life which would be aimed to cause their deaths.

By four votes to one, with three abstentions, the Committee adopted the text of the new item 3 as proposed by the delegation of Venezuela. Mr. AZKOUL (Lebanon) (Papporteur) [sic] endorsed the remark of the representative of Poland that no provision had yet been made to condemn measures aimed at restricting births within the group, and proposed to the Committee the addition of an item 4 to Article I, which would read as follows in the French text: Tout acte ou mesure destiné à limiter la natalité au sein du groupe.

After a discussion on the English translation of the above text, the CHAIRMAN asked the Committee to decide first on the principle of a separate paragraph dealing with that point. By four votes, with three abstentions, the Committee decided to accept the principle of a separate paragraph. By four votes, with three abstentions, the Committee adopted the text of item 4 of Article I proposed by the Lebanese representative.

E/AC.25/SR.13

881

The Committee approved the following wording of the English text of item 4: Any act or measure calculated to prevent births within the group.

The meeting rose at 6:20 p.m.

882

E/AC.25/SR.13/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.13/Corr.1 10 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE THIRTEENTH MEETING Lake Success, New York Tuesday, 20 April 1948, at 2 p.m. Page 11, line 13, read: “came either under the item dealing with corporal integrity, or under that dealing with conditions of life.”

E/AC.25/SR.13/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

883

UNRESTRICTED E/AC.25/SR.13/Corr.2 14 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE THIRTEENTH MEETING Lake Success, New York Tuesday, 20 April 1948, at 2 p.m. On page 6, in the remarks attributed to Mr. RUDZINSKI (Poland), in the second line change the words “asked whether” to read “stressed that”. In the last line, change the word “would” to “must”. On page 11, delete the whole of the third paragraph.

884

E/AC.25/SR.14

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.14 27 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE FOURTEENTH MEETING Lake Success, New York Wednesday, 21 April 1948, at 2.15 p.m. Chairman: Vice-Chairman:

Mr. MAKTOS Mr. MOROZOV

Rapporteur: Present:

Mr. Mr. Mr. Mr. Mr. Mr.

Secretariat:

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO SCHWELB

Mr. GIRAUD

United States of America Union of Soviet Socialist Republics Lebanon China France Poland Venezuela Deputy Director of the Human Rights Division Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.14

885

PREPARATION OF A DRAFT CONVENTION ON GENOCIDE: CONTINUATION OF THE DISCUSSION Article II (Cultural Genocide) The CHAIRMAN requested the members of the Committee to consider the definition of what it had been agreed to term cultural genocide. Item 3 of the draft of Article I submitted by the Chinese delegation (document E/AC.25/9) would be used as a basis of discussion. A separate article however would be assigned to the subject of cultural genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) considered that the decision to assign a separate article to cultural genocide had been invalidated by the adoption of the Chinese delegation’s draft as a working document, since that document correctly grouped the definitions of the different forms of genocide in a single article. Moreover Mr. Morozov thought it preferable that all forms of genocide should be enumerated in a single article. The CHAIRMAN was apprehensive that that formula would constitute one further obstacle to the adoption of the convention, since many governments were opposed to the notion of cultural genocide. Mr. LIN MOUSHENG (China) concurred in the USSR representative’s views. The inclusion of cultural genocide in article I would not entail any change in the introductory part, which had already been adopted by the Committee, as in that part genocide was defined as a criminal act directed against a group with the purpose of destroying it, and not as the destruction of the “physical existence” of that group. Moreover, as the Lebanese representative had very truly observed, the destruction of a group did not necessarily involve the destruction of the individuals who composed it. Mr. PEREZ-PEROZO (Venezuela) also thought that all the acts considered as comprising the concept of genocide should be included in a single article. Mr. AZKOUL (Lebanon), Rapporteur, suggested as a compromise that article I should be composed as follows: the introductory part would be drafted in general terms, as at present; while the rest of the article would

886

E/AC.25/SR.14

be divided into two sections, the first comprising the acts constituting physical genocide, the second consisting of cultural genocide. With regard to the latter, the Committee would draw up an enumeration similar to that contained in items 1, 2, 3 and 4, which had already been adopted. These would together form Section I. Mr. ORDONNEAU (France) suggested that in order to expedite its work the Committee should first define cultural genocide and subsequently should decide where the definition should be inserted. Whatever decision the Committee might reach on the latter point, however, the French delegation would oppose the inclusion of any definition of cultural genocide in the proposed convention. Indeed, while acknowledging that acts aimed at the destruction of the culture, the language or the faith of a group should be anticipated and suppressed, it considered that the question deserved more thorough examination and reserved the right to submit its objections again in the Economic and Social Council, and even, if necessary, in the General Assembly. Mr. RUDZINSKI (Poland) pointed out that the convention which the Committee was directed to draw up was not required to determine the penalties to be imposed on persons guilty of genocide, but to define the different aspects of the crime which should be suppressed. It was thus important to recognize that genocide was a crime resulting from persecution directed against a group, and that it could assume a physical character and a cultural character. To draw that distinction was not to place the two forms of the crime on an equality; the fact that the acts of genocide were placed in separate paragraphs should suffice to allay the fears of certain representatives. The CHAIRMAN ruled that the formal decision, taken by means of a vote, to give a separate article to cultural genocide, should not be reconsidered. He opened the discussion on the substance of the matter. Mr. RUDZINSKI (Poland) suggested that item 3 of the draft article submitted by the USSR delegation should be taken as a basis (see document E/AC.25/SR.12). It could then be decided what acts should be included in the category of cultural genocide before attempting to establish a general definition of the crime. Mr. LIN MOUSHENG (China) stated that he was prepared to accept the USSR formula as a basis of discussion. He suggested however the following

E/AC.25/SR.14

887

simpler wording: “Prohibiting the use of the language and destroying systematically and by violence the libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects, of the group.” The CHAIRMAN asked the Committee for a decision as to whether the text proposed by the USSR representative should be taken as the basis of discussion. The Committee decided in favour by 6 votes, with 1 abstention. Mr. PEREZ-PEROZO (Venezuela) observed that the text of the USSR delegation and the amendment submitted by the Chinese delegation both failed to cover the same point: they referred only to the destruction of libraries and other public monuments, and made no mention of the prohibition of the use of those institutions. Generally speaking, moreover, any enumeration was liable to contain omissions. Hence the delegation of Venezuela would prefer the following wording: “Preventing or restricting the licit use of its own language in daily intercourse, in education and publications, and destroying cultural and religious means and objects, or hindering the use thereof;”. Mr. Perez-Perozo pointed out that his reason for using the word “lawful” had been that a Government might conceivably forbid teaching to be carried on in a language other than that of the country, without having any intention of committing genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that since there would be a separate article dealing with cultural genocide, that article should be preceded by a general definition, which might read as follows: “Genocide means any measures and any actions directed against the use of the national language or against the national culture.” Following that introduction, Mr. Morozov proposed that the Committee should insert paragraph 3 of the draft article I submitted by the USSR delegation at the twelfth meeting. Mr. ORDONNEAU (France) pointed out that if that text were adopted, it would be advisable to say: “Genocide also means . . .”, since there was also an Article I defining genocide.

888

E/AC.25/SR.14

The CHAIRMAN asked the members of the Committee for their views on the amendment submitted by the representative of Venezuela. Mr. MOROZOV (Union of Soviet Socialist Republics) thought it would be unnecessary to speak of the “licit” use of language, in view of the fact that the Convention would state clearly that genocide meant only acts prompted by an intention to persecute. Mr. PEREZ-PEROZO (Venezuela) acknowledged the justice of the remark and stated that he would not press for the maintenance of the word “licit”. He upheld, however, the last part of his amendment, according to which the prohibition of the use of cultural institutions might constitute genocide equally with the destruction of those institutions. At the suggestion of the CHAIRMAN, Mr. MOROZOV (Union of Soviet Socialist Republics) agreed to the formula “hindering the use thereof ”. Mr. LIN MOUSHENG (China) proposed the following wording, which was based on the text of the USSR delegation, but also took into consideration the observations submitted by other delegations: In this convention, genocide also means any of the following deliberate acts committed with the intention of destroying the language and culture of a nation, racial or religious group on grounds of national or racial origin or religious belief: (1) prohibiting the use of the language of the group in private intercourse, in schools and in publications; (2) destroying, or preventing the use of, libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.

Mr. MOROZOV (Union of Soviet Socialist Republics) said that the new text appeared to him acceptable. He thought, however, that it would be preferable to use his delegation’s formula concerning the printing and distribution of books and publications, which was more comprehensive. The expression “in private intercourse” was in his opinion also much too narrow, and should be replaced by “in private and public life”. Mr. LIN MOUSHENG (China) suggested the replacement of the expression “private intercourse” by “daily intercourse”. He pointed out that books and other printed works were comprised in the expressions “publications” and “cultural objects”. It appeared to him more logical to place acts relating to the use of language in a separate paragraph; hence

E/AC.25/SR.14

889

he preferred his drafting to the enumeration contained in the third paragraph of the USSR text. Mr. ORDONNEAU (France) stated that his delegation attached great importance to the concept of cultural genocide, and regarded as essential the protection of the cultural life of groups. Nevertheless, it considered that the matter could not be settled as easily as was desired by some members of the Committee. One of the most delicate aspects of the question of genocide was that it raised the general problem of the rights of the State with respect to minority groups and the rights of minority groups with respect to the State. The French delegation had unhesitatingly declared itself in favour of the adoption of a convention on physical genocide dealing with such serious crimes as murder and assassination; its attitude was more reserved where actions which were not necessarily criminal were concerned. Mr. Ordonneau pointed out that some of the acts which it was proposed to include in the concept of cultural genocide might have a lawful basis; for example, current legislation acknowledged the right of States to impose certain restrictions on the use of the national language of minority groups living in their territory. The Committee should avoid stating the problem of genocide in such a way as to incriminate States exercising their powers in a normal way. Provisions of the nature of those that had been proposed, far from ensuring the protection of national groups, would run the risk of aggravating the conflict between those groups and the State. The French delegation would advocate proceeding with great caution. In its view the question related to the problem of the protection of the rights of minorities, which had been entrusted to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. It would be unwise for the Committee to adopt provisions which would prejudice the definition of human freedom included in the Declaration of Human Rights, without consulting the other competent organs of the United Nations. The French delegation would therefore vote against the inclusion of article II; not on principle but because it feared that the aim would not be achieved and that its wider and more comprehensive conception of cultural genocide would thus be compromised.

890

E/AC.25/SR.14

Mr. RUDZINSKI (Poland) said that the purpose of the proposed convention was not to interfere with the natural evolution of humanity, or the inevitable absorption of certain minority groups into the national whole, but rather to prevent the violence, persecutions and excesses which aroused the conscience of mankind. Mr. ORDONNEAU (France) wholly agreed on the aim of the convention, as defined by the representative of Poland. He wished to make clear that his Government had taken the view that it was better to adopt a waiting attitude in regard to the convention on cultural genocide, because it feared the grave dangers that might result from too broad an interpretation of the provisions of the convention. France did not oppose the suppression of cultural genocide; she was ready to co-operate with the Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities when they considered the problem. It was only after the question of cultural genocide had been thoroughly studied, however, that an international convention on the subject should be drawn up. Speaking as the representative of the United States of America, the CHAIRMAN said that he shared the opinion of the representative of France that the problem of cultural genocide was linked with that of the protection of minorities. Those who advocated the inclusion of cultural genocide in the convention defined it as inter alia the prohibition of the use of language, systematic destruction of books, and destruction or dispersion of documents and objects of historical or artistic value. The United States Government thought that cultural genocide should not be included in the convention. The decision to make genocide a new international crime was extremely serious, and the United States believed that the crime should be limited to barbarous acts committed against individuals, which, in the eyes of the public, constituted the basic concept of genocide. The acts mentioned in the various paragraphs that it was proposed to devote to cultural genocide would be more appropriately dealt with in connection with the question of the protection of minorities. Mr. Maktos asked that his statement should appear in full in the [p. 11-line 4] Committee’s report to the Commission on Human Rights.

E/AC.25/SR.14

891

Mr. MOROZOV (Union of Soviet Socialist Republics) said that the different drafts submitted aimed at the suppression only of acts committed with a view to national, religious or racial persecution. Of the acts enumerated, those for which persecution was not the motive came under the question of the protection of minorities and might very well be studied by other organs of the United Nations. Mr. AZKOUL (Lebanon) pointed out that, in general, the articles on cultural genocide in the texts submitted by the various delegations listed acts which were not as serious or as shocking to the conscience of the world as the acts denounced by the convention, which involved the physical existence of a group. He thought that the only acts on the subject which should be included in the convention were those which could cause the complete and rapid disappearance of the culture, language or religion of a group. The other acts might be covered by special provisions in the different national legislations or in the Declaration on Human Rights. Mr. Azkoul drew the Committee’s attention to the difficulty the courts would have in determining the motive for an act such as those listed in the proposed texts. While it was relatively easy to determine the motive for the massacre of a human group, it was much harder to prove the intention behind genocide which, for example, consisted of forbidding a group to use its own language. He therefore proposed the following text for article II of the convention: In this convention, genocide also means acts or measures directed against a national, racial or religious group on grounds of national or racial origin or religious beliefs, which will cause the rapid and complete disappearance of the language, culture or religion of the group.

His proposed text had the advantage of avoiding an enumeration of the acts which constituted cultural genocide and of providing the courts with a more substantial basis for judging the intention behind the incriminating act. Mr. MOROZOV (Union of Soviet Socialist Republics) was not satisfied with the text proposed by the representative of Lebanon. As it did not contain any criterion for determining the “rapidity” with which the language or the culture of a group disappeared, it would, in Practice [sic], be very hard to interpret. Mr. ORDONNEAU (France) stated that the new text was as unacceptable to his delegation as the drafts previously proposed.

892

E/AC.25/SR.14

He suggested that the authors of the various drafts should jointly prepare a single text for submission to the Committee. The CHAIRMAN decided to suspend the meeting in order to give the representatives of China, Lebanon, Poland, the Union of Soviet Socialist Republics and Venezuela an apportunity [sic] to agree on a draft. The meeting was suspended from 4:50 p.m. to 5:30 p.m. Mr. LIN MOUSHENG (China) read the following draft, which had been accepted by the majority of the Sub-Committee: In this convention, genocide also means any of the following deliberate acts committed with the intention of destroying the language or culture of a national, racial or religious group on grounds of national or racial origin or religious belief: 1) prohibiting the use of the language of the group in daily intercourse or in schools, or prohibiting the printing and circulation of publications in the language of the group; 2) destroying, or preventing the use of, the libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.

Mr. ORDONNEAU (France) observed that the French text should read “du fait de l’origine nationale ou raciale des membres du groupe, ou de leurs croyances religieuses.” Mr. AZKOUL (Lebanon), Rapporteur, proposed the following amendments to the draft that had been read by the representative of China: 1) The deletion, in the introductory paragraph, of the words “following” and the addition, at the end of that paragraph, of the words “such as”, in order thus to avoid a restrictive enumeration; 2) The addition of the word “religion” after the word “language” in the phrase “with the intention of destroying the language or culture of a . . . group”; 3) The addition of a third paragraph worded as follows: “Subjecting members of a group to such conditions as would cause them to renounce their language, religion or culture.” Speaking of his third proposed amendment, Mr. Azkoul said that there had been examples in history of minority groups that had been subjected to conditions that forced them to give up their language, religion or culture

E/AC.25/SR.14

893

although no formal measures such as those enumerated in the draft had been taken against them. His intention in proposing the addition of a third paragraph to article II was to prevent the repetition of such cases. Referring to the third Lebanese amendment, Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that the provisions of the proposed additional paragraph were a needles repetition of those of the first two paragraphs of the draft. It would be hard to imagine, for example, that members of a group would give up their language for any reason other than that they were forbidden to use it. Mr. LIN MOUSHENG (China) said that the adoption of the words “such as” would make the proposed third paragraph unnecessary. Mr. PEREZ-PEROZO (Venezuela) supported the views of the USSR and Chinese representatives. The cases that the representative of Lebanon had in mind would in all probability not arise, and it was unnecessary to devote a separate paragraph to them. The CHAIRMAN put to the vote separately each of the Lebanese amendments. The first Lebanese amendment was adopted by four votes, with three abstentions. The second Lebanese amendment was adopted by five votes, with two abstentions. The third Lebanese amendment was rejected by three votes to two, with two abstentions. The CHAIRMAN then put to the vote the amended text of article II of the draft convention. Article II was adopted by five votes to two. The meeting rose at 6:10 p.m.

894

E/AC.25/SR.14/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.14/Corr.1 14 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE FOURTEENTH MEETING Lake Success, New York Wednesday, 21 April 1948, at 2:15 p.m. Page 11, line 4: Delete the words “to the Commission on Human Rights.”

E/AC.25/SR.15

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

895

UNRESTRICTED E/AC.25/SR.15 27 April 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE FIFTEENTH MEETING Lake Success, New York Thursday, 22 April 1948 at 11.00 a.m. Present: Chairman: Mr. J. MAKTOS Vice-Chairman: Mr. MOROZOV Rapporteur: Members:

Mr. AZKOUL China France Poland

Venezuela

(United States of America) (Union of Soviet Socialist Republics) (Lebanon) Mr. Lin Mousheng Mr. Ordonneau Mr. Stawsky (replaced Mr. Rudzinski during a part of the meeting) Mr. Rudzinski Mr. Perez-Perozo

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing within the prescribed period to Mr. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

896

E/AC.25/SR.15

DRAFTING OF ARTICLES FOR THE INCLUSION IN THE CONVENTION ON GENOCIDE DRAFT ARTICLES PROPOSED BY THE DELEGATION OF CHINA ON 16 APRIL 1948 (document E/AC.25/9) The CHAIRMAN opened discussion on the last paragraph of Article I as proposed by the delegation of China. Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the questions dealt with in the last paragraph of the Chinese draft of Article I should be embodied in a new Article III. He submitted an amendment which was textually the same as the Secretary-General’s draft (document E/447). It was clear and valid from a legal point of view, included the question of preparatory acts, and stressed that attempts to commit genocide were punishable. It was decided unanimously that the substance of the last paragraph of the Chinese proposal should be in a separate article. Mr. LIN MOUSHENG (China) proposed that new Article III should read: “Conspiring, attempting, or inciting people to commit genocide shall be punishable”, and later proposed the addition of the word “preparing” with or without the deletion of “inciting”. Mr. AZKOUL (Lebanon) as Rapporteur of the Committee said that the first decision to be taken was whether the Chinese proposal should be enlarged. If the decision were in the affirmative the points of difference between the Soviet proposal and the Chinese draft could then be discussed. As a matter of fact, the USSR delegation has proposed to retain two additional points: Preparatory [sic] acts and propagandas. The CHAIRMAN on a point of procedure said that it should first be decided whether the word “preparing” should be added to the Chinese draft Article. The addition of “preparatory acts” might endanger ratification of the Convention by some States, and it was sufficient to outlaw certain acts without enumerating them. Speaking then as a representative of the United States, Mr. Maktos stressed that in the event of their being preparation with the intention of committing genocide there would also be a “conspiracy” or an “attempt” and perhaps both. It is for this reason that his delegation was opposed to the inclusion either of the word “preparing” or of the expression “preparatory acts”.

E/AC.25/SR.15

897

Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that whereas the attempt to commit a crime is punishable under common penal law, the preparation for the commission of a crime was punishable only when the preparatory act itself could be characterized as a crime. All the preparatory acts enumerated in his draft presented a great danger and should therefore be made punishable as separate offences. From a legal point of view, none of the words in the Chinese text covered the point. Moreover it was not within the terms of reference of the Committee to make prognostications regarding ratification of the Convention, but to prepare a convention which would best provide for prevention and punishment of genocide. Mr. PEREZ-PEROZO (Venezuela) said that enumerating the various preparatory acts would limit the domestic legislation of governments. Further, a detailed listing could not be all-inclusive and there would be a danger that some acts would remain unpunished. He would support a briefer draft which referred to preparatory acts. The CHAIRMAN pointed out that the Committee had the choice between the Chinese proposal to include the word “preparing” in the draft, and the USSR proposal aiming to introduce a list of preparatory acts which should be made punishable. As representative of the United States, he would prefer the Soviet wording to the Chinese, as the latter was still more dangerous as it used the word “preparing” without specifying the acts which would be considered as punishable. Nevertheless, he would prefer to omit any reference to preparatory acts for reasons already stated by him. With the assent of the representative of the Union of Soviet Socialist Republics, the Chairman put first to the vote the Chinese proposal to include the word “preparing”. It was decided by a vote of 4 to 3 that “preparing” should be included in the new Article III. Mr. ORDONNEAU (France), supported by the representative of the Lebanon, then proposed that the word “direct” should be inserted before “incitement”. Mr. PEREZ-PEROZO (Venezuela) believed the phrase should read “direct private and public incitement”.

898

E/AC.25/SR.15

Mr. MOROZOV proposed that both “direct” and “indirect” should be inserted before “incite”. After some discussion on a question of procedure, the Committee agreed to put the French proposal to the vote. No decision was taken as the votes were equally divided (3 for, 3 against and 1 abstention). According to rule 46 of the Rules of Procedure, the question was postponed to the next meeting. The meeting rose at 1.00 p.m.

E/AC.25/SR.16

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

899

UNRESTRICTED E/AC.25/SR.16 29 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE SIXTEENTH MEETING Lake Success, New York Thursday, 22 April 1948, at 2.15 p.m. Chairman: Mr. MAKTOS Vice-Chairman: Mr. MOROZOV Rapporteur: Members:

Secretariat:

Mr. Mr. Mr. Mr. Mr. Mr.

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO SCHWELB

Mr. GIRAUD

(United States of America) (Union of Soviet Socialist Republics) (Lebanon) (China) (France) (Poland) (Venezuela) Assistant Director, Human Rights Division Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

900

E/AC.25/SR.16

PREPARATION OF A DRAFT CONVENTION Continuation of the discussion on the Draft Articles submitted by the delegation of China. (document E/AC.25/9) Article III (Text submitted by the representative of China – Article I, in fine.) The CHAIRMAN recalled that the Committee had not fully dealt with the question of preparatory acts. Mr. MOROZOV (Union of Soviet Socialist Republics) thought that the other questions arising from Article III could be dealt with first. He reserved the right to raise some of them again afterwards. In accordance with Rule 46 of the Rules of Procedure of the Economic and Social Council, the CHAIRMAN put to the vote for the second time the question whether the word “directly” should be included before the word “incite”, in the Chinese proposal. The inclusion of the word “directly” was decided upon by 3 votes to 2, with 2 abstentions. The CHAIRMAN read out an amendment proposed by the representative of Venezuela, providing for the insertion of the words “publicly or privately” after the word “directly”. Mr. PEREZ-PEROZO (Venezuela) pointed out that the addition would obviate the need to insert further particulars, such as “press, radio, etc”. Mr. ORDONNEAU (France) agreed with Mr. Perez-Perozo’s comments and observed that in French law the term “incite” covered both public and private incitement. However, as some doubt had been expressed, he would vote for the Venezuelan proposal. The Committee decided by 5 votes to none with 2 abstentions, to insert the words “publicly or privately.” Mr. PEREZ-PEROZO (Venezuela) reverting to the text of the Secretariat draft proposed the addition of the words “whether the incitement be successful or not.” Such an amendment would stress the fact that the purpose of the Convention was not merely to punish the crime of genocide, but also to prevent it.

E/AC.25/SR.16

901

Mr. AZKOUL (Lebanon) agreed with the French representative in considering the amendment unnecessary and even tautological but stated that he would not oppose it. Mr. RUDZINSKI (Poland) thought that the addition was necessary, since otherwise incitement would not be punished if it were not followed by a crime. The Convention should state unequivocally that incitement was a punishable act, whether it was successful or not. Mr. PEREZ-PEROZO (Venezuela) explained that in the Venezuelan criminal code, incitement was punishable as a separate offence. Nevertheless he pressed his proposal, since he thought that the purpose of the convention was to combat incitement before it could take effect. Mr. MOROZOV (Union of Soviet Socialist Republics) thought that the clearer the wording was, the better. The CHAIRMAN, speaking as representative of the United States of America, agreed with the representatives of France and Lebanon in thinking that the amendment proposed by the Venezuelan representative was superfluous. However, he would abstain from voting. It was decided by 4 votes to none, with 3 abstentions, to add the words “whether the incitement be successful or not”. Speaking of preparatory acts, Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that the concept of conspiracy, as contained in the Chinese draft, had not yet been discussed. He thought that the question of the connection between conspiracy and attempt should be settled first, and that the Committee should then return to the clarification of those terms. Conspiracy might be introduced in the following manner: “Conspiracy or any other form of complicity conducing to the commission of genocide”. Mr. ORDONNEAU (France) observed that it would be difficult to reproduce the meaning of the word “conspiracy” in the French text. It was a concept that had no equivalent in French law. The CHAIRMAN explained that in Anglo-Saxon law “conspiracy” was an offence consisting in the agreement of two or more persons to effect any unlawful purpose.

902

E/AC.25/SR.16

Mr. ORDONNEAU (France) stated that French criminal law recognized conspiracy (association de malfaiteurs), though it was not considered as a separate offence but as an aggravating circumstance when it led to the commission of a crime. Mr. MOROZOV (Union of Soviet Socialist Republics) repeated the wording he had proposed (“conspiracy or any other form of complicity”) and explained that he had not referred to conspiracy only in the strict legal sense. His conception of the term was wider, and included agreement to commit genocide, even if commission of the act had not begun. Mr. ORDONNEAU (France) was prepared to accept the term “conspiracy” provided that a French equivalent were found for the translated text, in view of the fact that the idea covered agreement to commit the crime, whether or not the parties to the agreement had begun to carry out their design. Mr. PEREZ-PEROZO (Venezuela) remarked that in Spanish the word “conspiracion” meant a conspiracy against the Government and that the English term “conspiracy” was rendered in Spanish by “asociacion”, association for the purpose of committing a crime. Mr. RUDZINSKI (Poland) observed that in Anglo-Saxon law the word “complicity” extended only to the two concepts “aiding and abetting”. Consequently the offence described as “conspiracy” did not involve complicity. He recalled that the Secretariat draft made separate provision, on the one hand, for complicity and on the other, for association or any kind of agreement (“conspiracy”) to commit acts of genocide. (Article II, paragraph II, sub-paragraphs 1 and 3) After a brief discussion, the CHAIRMAN put the USSR proposal to the vote. The Committee decided by 3 votes to 2, with 2 abstentions, not to add the words “or any other form of complicity”. Mr. MOROZOV (Union of Soviet Socialist Republics) reverted to the question of preparatory acts. He thought that the question of “preparation” should be examined and that it would be useful to restrict the number of possible interpretations by drawing up a limitative list of preparatory acts. In this connection it would be well to revert to the provisions of the Secretariat draft (Article II, paragraph I sub-paragraph 1).

E/AC.25/SR.16

903

Mr. RUDZINSKI (Poland) and Mr. AZKOUL (Lebanon) were in favour of limitation. Mr. Azkoul observed, however, that intent was only revealed when the act was committed. He proposed inserting the word “direct” before the word “preparatory” in the Chinese proposal. Mr. MOROZOV (Union of Soviet Socialist Republics) thought that the expression “direct preparatory acts” was too vague, and expressed preference for the Secretariat draft. The CHAIRMAN first put to the vote the USSR amendment calling for the inclusion of the provisions of Article II of the Secretariat draft (Paragraph I, sub-paragraph 1). The amendment was rejected by 4 votes to 2 with 1 abstention. He then put to the vote the amendment proposed by the representative of Lebanon, calling for insertion of the word “direct” before the word “preparatory”. The amendment was rejected by 3 votes to 2 with 2 abstentions. The meeting was suspended at 4 p.m. and resumed at 4.25 p.m. The CHAIRMAN opened the discussion on Article III and submitted for consideration by the Committee the following draft including all the proposed amendments to the draft submitted by the Chinese representative: It shall be punishable to conspire, prepare, attempt or directly, privately or publicly to incite to commit genocide, whether the incitement be successful or not.

Mr. MOROZOV (Union of Soviet Socialist Republics) began by recalling his proposal to draft the Article in the form of a list of acts declared to be unlawful. He then formally proposed the inclusion of a further paragraph stipulating that the following acts were also unlawful: all forms of public propaganda (the press, radio, cinema, etc . . .) aimed at inciting racial, national or religious enmity or hatred and on provoking the commission of the crime of genocide.

904

E/AC.25/SR.16

He pointed out that the use of such powerful means of propaganda as the press; the radio and films could become one of the most effective instruments for the incitement of racial, national or religious hatred. He referred to past instances of the use of such propaganda which had led many persons to commit one of the most monstrous crimes against humanity. Anticipating the objections that might be made to the paragraph he proposed for fear that it would restrict the freedom of the press, Mr. Morozov stated that his proposal had no such purpose, and would not restrict the freedom of the press any more than the laws on obscene publications. He considered that the Committee was in [sic] duty bound to include the paragraph because the use of the radio, press, films, etc. for the purposes mentioned above, would certainly impede the progress of humanity. The CHAIRMAN, speaking as representative of the United States of America, said that the prohibition of genocide should not be confused with measures that might result in “muzzling” the press. If the clause proposed by the representative of the USSR were adopted, he feared that any hostile statement regarding a group of human beings might be denounced as incitement to genocide. This would hamper freedom of speech and in particular the freedom of the press, to a considerable extent. Consequently he thought that there was some danger in the USSR proposal. The Committee had agreed to condemn the crime, incitement to the crime and preparatory acts. It would be unwise to run the risk of impairing the freedom of the press by providing for conviction on grounds so far removed from the commission of the act as statements that might or might not represent incitement to the crime, or simply be incitement to hatred, which might or might not become the motive of the crime. He could not accept a provision restricting the freedom of the press as it would mean abrogation of the Bill of Rights and would compromise the free press system of the United States. He appealed to members of the Committee not to insert a clause that might unnecessarily jeopardize the ratification of the convention. Mr. RUDZINSKI (Poland) recalled that the majority of the Committee had accepted the principle that incitement to the crime of genocide must be punished; the USSR proposal dealt with a particular method of incitement because it was extremely effective. The proposal would outlaw

E/AC.25/SR.16

905

propaganda by radio, press and films, directed towards the encouragement of genocide. The propagation of hatred alone would not constitute sufficient grounds for conviction under the terms of the amendment; it would be necessary for the propaganda to have been carried on systematically and with intent to instigate the crime. In practice, the clause would only apply to the most extreme cases. If the proposed clause were omitted, the convention would bring about a paradoxical situation; for a single person guilty of verbal incitement to the crime of genocide would be punishable, while other persons inciting to commit the same crime would not be held guilty simply because incitement had taken place through the press, which was obviously far more dangerous. Mr. AZKOUL (Lebanon) understood the USSR amendment to refer to (1) indirect incitement to racial, national or religious hatred and (2) incitement to the crime. However, the Polish representative had explained that under the terms of the amendment the authors of propaganda could not be punished if they had only incited to hatred. They would not be punishable unless incitement to hatred were accompanied by incitement to the crime. He thought that if the Polish representative’s interpretation of the amendment was correct, the Committee had already provided for it by declaring public incitement unlawful. The USSR amendment would therefore be superfluous. Moreover, in view of possible misinterpretations which might lead to abusive restriction of the freedom of the press, it seemed preferable not to include it. Mr. LIN MOUSHENG (China) expressed his sympathy for the moral motives that had led the USSR representative to propose his amendment, but could not help sharing the view of the representative of Lebanon, since the draft of Article III already provided for punishment as public incitements of the acts listed in the USSR amendment. Mr. ORDONNEAU (France) agreed with the representatives of China and Lebanon. Mr. PEREZ-PEROZO (Venezuela) thought that a convention should keep to generic terms. It would be for national legislative bodies to define specific cases when laws were enacted to give effect to the provisions of the Convention. He would therefore vote against the amendment.

906

E/AC.25/SR.16

Mr. MOROZOV (Union of Soviet Socialist Republics) noted that the only objection involving principle came from the United States representative. The representatives of China, Lebanon and Venezuela agreed with the substance of the amendment he had proposed, but thought that its purpose was already covered by the clauses adopted. If the authors of the Convention had differences on the correct interpretation of these provisions, how could judicial authorities be expected to apply them correctly without more specific guidance? He therefore urged members of the Committee to make specific mention of one of the most evil forms of incitement, which had already led to the murder of millions of victims. Since the majority had no objections involving principle, the amendment could be redrafted in a form acceptable to the Committee. With regard to the freedom of the press, he reminded the United States representative of the wording of his amendment, which could not possibly be construed as impairing that freedom. Hostile newspaper comment directed against any country could never be denounced as genocide under the terms of the amendment as it stood. It was aimed at the deliberate and systematic preparation of the crime by means of one of the most powerful instruments of propaganda. No court would be able to indict the authors of a propaganda campaign under the amendment unless charges of incitement to the crime could be substantiated. Nor was the amendment in any way contrary to the laws of the United States, as was clearly shown by the ruling of Justice Holmes of the United States Supreme Court, which stated that freedom of speech was not even a defence for persons crying “fire” in a theatre, since their action might endanger human lives. Before any court gave a verdict based on the text he had proposed it would have to establish that the statements on which it had to rule actually impaired a freedom still more essential than the freedom of speech. The court would have to base its findings on fact in every case. But it would require a decision as to principle to enable it to act if the available evidence was conclusive. Mr. ORDONNEAU (France) opposed the USSR amendment. Any list of acts was bound to be restrictive. There were other means of propaganda such as television, bill-posting, etc. which had not been mentioned and which could also be used as instruments of incitement to the crime. He therefore thought that the text of Article III proposed at the beginning of the meeting would be fully sufficient for severe measures against per-

E/AC.25/SR.16

907

sons inciting to the crime, without incurring the risk of endangering the freedom of the press. Mr. AZKOUL (Lebanon) shared the view of the French representative. The convention could only refer to direct incitement, for attempts to punish a mental attitude might lead to grave injustices. Mr. MOROZOV (Union of Soviet Socialist Republics) thought that the wording of his amendment included all forms of propaganda. The phrase “by means of radio, press, films etc . . . .” should answer the French representative’s criticism. Since the Lebanese representative found it impossible to accept punishment of incitement to hatred unless accompanied by incitement to the crime, Mr. Morozov requested that his amendment be voted on in separate parts. Mr. ORDONNEAU (France) pointed out that it was not the practice in criminal penal law to list specific offences. To meet the wishes of the USSR representative he was prepared to agree that the Convention should make it a punishable offence “privately or publicly to incite to commit genocide, whether the incitement be successful or not”, but he could go no further. Mr. AZKOUL (Lebanon) agreed with the representative of France and explained that he understood “public incitement” to mean all written or verbal statements. The CHAIRMAN put the USSR amendment to the vote. The amendment was rejected by 5 votes to 2. Mr. MOROZOV (Union of Soviet Socialist Republics) read out the text he proposed for Article III which was: The following acts shall be punishable: a) any attempt to commit genocide; b) wilful participation in any acts of genocide of whatever description; c) public or private incitement to any act of genocide, whether it be successful or not; d) preparatory acts to the commission of genocide.

Mr. LIN MOUSHENG (China) preferred the following wording: “The following acts shall be punishable:

908

E/AC.25/SR.16

1) 2) 3) 4)

conspiracy to commit the crime of genocide; preparatory acts to the commission of genocide; attempts to commit the crime of genocide; direct public or private incitement to commit the crime of genocide whether such incitement be successful or not.

At the suggestion of Mr. ORDONNEAU (France), the Committee agreed with one abstention, to reverse the order of paragraphs 3 and 4, so as to place incitement before attempts. Mr. ORDONNEAU (France) drew attention to the need for a paragraph stating that complicity in all the acts mentioned in the preceding paragraphs were punishable, as well as complicity in the act of genocide itself. The Committee decided by 6 votes to 1 to include in Article III all the points contained in the proposal of the Chinese representative. The CHAIRMAN, speaking as representative of the United States, said that he had voted against the substance of the Chinese representative’s proposal because he did not agree to the inclusion of preparatory acts and incitement to the crime. He wished to reserve the United States position in that respect. Mr. Morozov (Union of Soviet Socialist Republics) thought that the Article in that form was not satisfactory, since it contained no reference to the most powerful means of propaganda and did not specify concrete cases of preparatory acts. The meeting rose at 6.15 p.m.

E/AC.25/SR.17

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

909

UNRESTRICTED E/AC.25/SR.17 30 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE SEVENTEENTH MEETING Lake Success, New York Friday, 23 April 1948, at 11 a.m. Chairman: Vice-Chairman:

Mr. MAKTOS Mr. MOROZOV

Rapporteur : Present:

Mr. Mr. Mr. Mr. Mr. Mr.

Secretariat:

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO SCHWELB

Mr. GIRAUD

United States of America Union of Soviet Socialist Republics Lebanon China France Poland Venezuela Assistant Director of the Human Rights Division Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC–119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

910

E/AC.25/SR.17

PREPARATION OF A DRAFT CONVENTION: CONTINUATION OF THE DISCUSSION The CHAIRMAN recalled that at its meeting the previous day the Committee had approved a provisional text of Article III of the Draft Convention, subject to (1) simplification or clarification of the draft and (2) possible addition of a new paragraph regarding “complicity”. Mr. PEREZ-PEROZO (Venezuela) thought it preferable to omit “preparatory acts” for the commission of genocide if “complicity” were to be included in the list of punishable acts. The idea of “attempt” was in fact already covered; if “complicity” were added it would be superfluous to mention “preparatory acts”. He made a proposal to that effect. The CHAIRMAN asked for the Committee’s views on the proposal to omit “preparatory acts” from the list in Article III and to add “complicity”. Mr. ORDONNEAU (France) supported the proposal. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out the necessity of avoiding any decision that was in flagrant contradiction to established concepts of criminal law regarding preparatory acts, attempt, complicity, etc. There was a clear distinction in the principles of criminal law between preparation of a crime and complicity in that crime, which were two different things. The proposal just made to substitute one of those concepts for the other, was inadmissible; its adoption would cause complete confusion in the legal terminology. After a strenuous debate at its last meeting, the Committee had decided to include preparatory acts leading to the crime of genocide among the punishable acts. Although the text then approved was not final so far as drafting details were concerned, he thought it hardly possible to go back on the decision taken on the question of principle, without another formal vote. Complicity should be included under Article III, and provision should also be made for the punishment of accomplices, in respect of all the criminal acts it specified. The principle of punishment for complicity was a part of the criminal law of all countries. It would be useful to define the idea, and he suggested the following: “Complicity in the crimes specified in this convention is also punishable”.

E/AC.25/SR.17

911

The Committee had set out to draft an international convention that would be of considerable importance. In justice to itself it should prepare a complete and coherent legal document. Mr. ORDONNEAU (France) replied that neither he nor the representative of Venezuela had any intention of confusing complicity and preparation, which were certainly different things. In the legislation of their two countries, however, as in the legislation of Latin countries generally, a preparatory act leading to a crime was not [p. 3-line 15] punishable in itself. Punishment of a preparatory act would imply a very critical study of intent and might lead to practical difficulties, injustice [p. 3-line 17] and arbitrary decisions. A preparatory act was punishable only if it involved an attempt or complicity. It was superfluous to add preparation to the list in Article III, if that list included the attempt, conspiracy to commit the crime and complicity. Moreover, it would be dangerous. He therefore supported the Venezuelan representative’s proposal. Mr. MOROZOV (Union of Soviet Socialist Republics) expressed partial satisfaction with the explanations of the French representative, who had admitted that preparatory acts differed from complicity. But since decisions already taken should be respected he urged that preparation be retained as a punishable offence. Two independent questions had been raised, and he proposed that they should be discussed separately. The first question was whether to include complicity in the list in Article III; the second, whether to go back on the previous day’s decision regarding preparation of the crime. The CHAIRMAN ruled that the Venezuelan representative’s proposal to substitute “complicity” for “preparatory acts” in Article III was in order. Mr. MOROZOV (Union of Soviet Socialist Republics) hoped that the Committee would reject the proposal and maintained his own proposal to consider the two questions separately. In order to clear up a misunderstanding, Mr. PEREZ-PEROZO (Venezuela) submitted his proposal in another form. He proposed that “preparatory acts” should be omitted from the list in Article III and that “complicity” should be added. He had no intention of causing confusion between those two ideas. In Venezuela, as in Latin countries generally, preparation of a crime was not punishable in itself. It had at least to be

912

E/AC.25/SR.17

followed by a beginning of commission and thus become an attempt. If attempt and complicity were made punishable, there was no need to mention preparation. Referring to procedure, Mr. RUDZINSKI (Poland) thought that it would not be in order to vote on a conditional proposal under which one term would be included provided that another were deleted. As the Venezuelan representative had amended his proposal, he asked for separate decisions on the two points it contained. Mr. MOROZOV (Union of Soviet Socialist Republics) supported this request. Mr. PEREZ-PEROZO (Venezuela) explained that his proposal was in no sense conditional. He himself did not ask for separate votes on the two points he proposed, though he recognized that each representative had the right to make such a request. Mr. AZKOUL (Lebanon), speaking as Rapporteur, favoured the procedure that would allow each representative to define his position most clearly. The CHAIRMAN observed that a proposal to substitute one term for another was by no means out of order, but that the two points in the Venezuelan representative’s proposal should be decided separately. Speaking as the Lebanese representative, Mr. AZKOUL (Lebanon) recalled that he had opposed the inclusion of “preparatory acts” in Article III. They could only be punishable when they formed part of an attempt. He would like to see such a vague and dangerous term eliminated. Mr. MOROZOV (Union of Soviet Socialist Republics) took up the question of how preparatory acts leading to a crime should be treated from a theoretical point of view. No doubt they only constituted a crime or criminal offence if they were of that nature independently and in themselves. Preparatory acts for the crime of genocide could be divided into various categories, such as: 1) investigation, study and perfection of means to commit the crime of genocide; 2) purchase of materials, setting up of installations, etc. with a view to the crime; and 3) issuing of instructions to commit genocide. Such concrete preparatory acts should be considered dangerous in themselves and therefore punishable. Did the Committee think that courts should regard construction of extermination plants, establishment of camps with special installations for genocide,

E/AC.25/SR.17

913

and illegal possession of arms for that purpose, as not being punishable? If the Committee decided that such actions could be left unpunished, it would not be accomplishing the whole of its task. Acts such as those he had mentioned were real crimes. He therefore opposed the omission of preparation, which was an important part of the crime of genocide, and proposed completing the concept by the addition of paragraphs (a), (b) and (c) of Article II of his delegation’s text. Those paragraphs were already included in the draft prepared by the Secretariat. Mr. ORDONNEAU (France) said that the French delegation fully realized the necessity of anticipating and punishing preparatory acts whose purpose was completely evident. It must be recognized, however, that it was impossible to undertake extensive preparations and build crematoriums without a previous conspiracy to commit genocide. Since the Committee had accepted the idea of conspiracy, offenders would certainly be prosecuted and punished on that charge; it was therefore unnecessary to introduce into the Convention the vague and general concept of “preparatory acts”. Mr. AZKOUL (Lebanon) agreed that preparatory acts should be punished if their purpose could be clearly determined; but it was most difficult and dangerous to introduce the general concept of “preparatory acts” into the convention without qualifying it. Mr. LIN MOUSHENG (China) also thought that preparatory acts, which were crimes in themselves regardless of their purpose, were punishable. The question was whether the word “conspiracy” covered all preparatory acts of that category. Mr. RUDZINSKI (Poland) thought that the Convention should [p. 6last line] specify all punishable preparatory acts, although, from a strictly legal point of view, the word “conspiracy” included only preparatory acts committed by two or more persons. Mr. ORDONNEAU (France) replied that it was very difficult to conceive of a single individual building crematoriums or undertaking research with a view to committing genocide. Consequently, all punishable preparatory acts were sufficiently covered by the terms “conspiracy” and “complicity”.

914

E/AC.25/SR.17

Mr. MOROZOV (Union of Soviet Socialist Republics) regretted that although unanimous in its condemnation of preparatory acts whose purpose was evident, the Committee did not expressly provide for the penalty. There were many punishable acts that would not be covered by the word “conspiracy”. Moreover, since the Convention was to constitute an international agreement of wide legal scope it was important that everything should be provided for in the most explicit manner. The CHAIRMAN put to the vote the Venezuelan proposal for: 1) omission from the Convention of the concept of “preparation”: and 2) inclusion of the concept of “complicity”. The proposal to omit from the Convention the concept of “preparation” for the crime of genocide was adopted by four votes to two, with one abstention. The proposal to include in the Convention the concept of “complicity” was adopted unanimously. The CHAIRMAN proposed the following paragraph: “Whoever directly commits any act constituting a crime as defined in any of the sections of this Convention, or is an accomplice to such act, shall be guilty of the crime.” [p. 8-para. 1] Mr. RUDZINSKI (Poland) supported by Mr. ORDONNEAU (France) considered that the ideas of “conspiracy” and “complicity” should not be included in the same paragraph, owing to the differences that had arisen regarding the legal interpretation of those two terms. Mr. ORDONNEAU (France) proposed the addition of the following sub-paragraph, to replace the previous sub-paragraph (b) of Article III: “Complicity in any of the acts enumerated above as well as in any acts of genocide as such.” He pointed out that the draft proposed by the United States delegation left some doubt as to the acts which constituted a crime. Mr. MOROZOV (Union of Soviet Socialist Republics) supported the French proposal which he changed slightly to read as follows: “Complicity in any of the acts enumerated in this article as well as in any of the acts of genocdie [sic] specified in the Convention.”

E/AC.25/SR.17

915

Mr. ORDONNEAU (France) suggested: “Complicity in any of the acts enumerated in this article as well as in any of the acts enumerated in articles I and II.” The CHAIRMAN thought the crime of genocide itself should head the list of punishable acts specified in article III and that complicity could be defined in an additional paragraph (e). Mr. LIN MOUSHENG (China) thought it preferable to declare that genocide was punishable in a separate article I, drafted as follows: “Genocide, which is a crime under international law, shall be punishable.” Mr. MOROZOV (Union of Soviet Socialist Republics) said that it would be better to consider the nature of genocide during the discussion of the preamble. He supported the original French proposal and withdrew the amendment he had made to it. Mr. ORDONNEAU (France) favoured the Chinese proposal, though he also preferred to postpone discussion of that point. Mr. RUDZINSKI (Poland) was of the same opinion. The Committee approved Article III subject to the following changes: The addition of a new paragraph (a) under the terms of which “genocide as defined in Articles I and II” was punishable. The present paragraph (a) to become paragraph (b). Deletion of former paragraph (b). Addition of a paragraph (e) under the terms of which “Complicity in any of the acts enumerated in this article” was punishable. Article III would then be as follows: The following acts shall be punishable: a) genocide as defined in Articles I and II; b) conspiracy to commit genocide; c) direct incitement in public or in private to commit genocide whether such incitement be successful or not; d) attempt to commit genocide; e) complicity in any of the acts enumerated in this article.

The meeting rose at 1 p.m.

916

E/AC.25/SR.17/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.17/Corr.1 4 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SEVENTEENTH MEETING Lake Success, New York Friday, 23 April 1948, at 11 a.m. On page 3, line 15, replace “in itself ” by “as such”; and on line 17, replace “was punishable” by “should be punished.”

E/AC.25/SR.17/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

917

UNRESTRICTED E/AC.25/SR.17/Corr.2 14 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE SEVENTEENTH MEETING Lake Success, New York Friday, 23 April 1948, at 11 a.m. On page 6, last line, put a period after the words “preparatory acts”.” Delete the word “although” and commence the next sentence with the word “From”. On page 8, 1st paragraph, add at the end the following words: “in different legal systems.”

918

E/AC.25/SR.18

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.18 26 April 1948 ENGLISH ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE EIGHTEENTH MEETING Lake Success, New York Friday, 23 April 1948, at 2 p.m. Chairman: Vice-Chairman:

Mr. MAKTOS Mr. MOROZOV

Rapporteur: Members:

Mr. Mr. Mr. Mr. Mr.

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO

(United States of America) (Union of Soviet Socialist Republics) (Lebanon) China France Poland Venezuela

NOTE: Any corrections of this record should be submitted in writing in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”, Corrections can be dealt with more speedily by the services concerned if delegations will be good enough to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.18

919

DRAFTING OF ARTICLES TO BE INCLUDED IN THE CONVENTION ON THE CRIME OF GENOCIDE, (CONTINUATION OF THE DISCUSSION) ARTICLE III The CHAIRMAN recalled that the Committee had agreed that the following acts should be punishable: (a) Genocide as defined in Articles 1 and 2; (b) conspiracy to commit genocide; (c) direct incitement in public or in private to commit genocide whether such incitement be successful or not; (d) complicity in any of the acts enumerated in this article.

He suggested that the phrase “whether such incitement be successful or not” be deleted from sub-paragraph (c), as he did not feel that it added to the provision. As several representatives, however, felt that the phrase lent clarification, he withdrew his suggestion. ARTICLE IV DEALING WITH PERSONS LIABLE FOR COMMISSION OF GENOCIDE, WHETHER RULERS, PUBLIC OFFICIALS OR PRIVATE INDIVIDUALS (DOCUMENT E/477, DOCUMENT E/AC.25/9 and DOCUMENT E/AC.25/11) The Chairman observed that the Committee had agreed on a text as to “principals and accomplices”, but that it yet had to decide upon a text with regard to “public officials and private individuals”. The Secretariat in its Memorandum listing substantive items to be discussed by the Committee (document E/AC.25/11) had suggested in Section III that the Committee might wish to consider whether the term “public officials”, used in Article II of the Chinese draft (document E/AC.25/9) was sufficiently comprehensive to cover also “Heads of State”. The Memorandum pointed out that during the discussions leading to the Charter of the International Military Tribunal (known as the Nurnberg Tribunal), some doubt had been expressed as to whether Heads of State could be held responsible for war crimes, crimes against humanity and crimes against peace, but that the question had been decided by the express provision of Article 7 of the Charter of the International Military Tribunal providing that the official position of defendants, whether as Heads of State or responsible officials in government departments, should not be considered as freeing them from responsibility or mitigating punishment. The Secretariat Memorandum further pointed out that Article 4 of the Secretariat

920

E/AC.25/SR.18

draft convention on genocide provided that those committing genocide should be punished, were they rulers (des gouvernants), public officials or private individuals. Mr. MOROZOV (Union of Soviet Socialist Republics) expressed the view that Article II of the Chinese text (document E/AC.25/9) was not sufficiently explicit to cover the problem. For example, in some States the Head of State was not considered as a public official, and, on the contrary officials were considered as “servants” of the Head of State. He proposed that the Chinese text be amended to read: Those committing genocide shall be punished, be they rulers, public officials or private individuals.

His amendment was in accord with the principles adopted at Nurnberg and with the wording of Article IV of the Secretariat’s draft convention. It was without ambiguity, as it directly established the liability of the Heads of State. Mr. ORDONNEAU (France) remarked that in France rulers and public officials were not the same and that the USSR wording would be beneficial. He favoured the USSR proposal, but asked if the USSR representative would be agreeable to amending the provision to read “those who committed one of the acts enumerated in the preceding article”. Mr. PEREZ-PEROZO (Venezuela) said that he was in agreement with the substance of the USSR proposal. He remarked, however, that it was difficult for his country to distinguish between rulers and public officials, as the Head of the State had the status of an official. The CHAIRMAN observed that in English, the appropriate term would be “heads of State”, rather than “rulers”. For example, the President of the United States was not a ruler. Mr. RUDZINSKI (Poland) supported the USSR proposal and felt that as the provision was meant to cover persons in power, and heads of State sometimes were merely figureheads, “rulers” was the better term. The following text based on the USSR proposal, was adopted unanimously: Those committing any of the acts enumerated in Article III shall be punished be they Heads of State, public officials or private individuals.

E/AC.25/SR.18

921

Mr. ORDONNEAU (France) stated that in the French version “Heads of State” should read: gouvernants. The Committee progressed to the consideration of part 2 of the USSR proposal providing that genocide could not be justified by the command of the law or superior orders. Mr. MOROZOV (Union of Soviet Socialist Republics) commented that there was some doubt whether or not the second portion of his proposal ought to be put into a separate paragraph. He felt, however, that the question should be defined clearly in Article IV. The principle had been recognized by the Nurnberg Charter [sic] It was essential that the provision be included in order that the broad circle of people who might become participants and attempt to use superior orders as an excuse be covered and brought to justice. He recalled that objections had been raised to the provision on the grounds that it might lead to mitigation of punishment and that the matter of mitigation should be determined by judges in accordance with individual cases and dealt with in national legislation. It had been argued also that as the Nurnberg Charter had been drawn between that Charter and the Convention on genocide. The CHAIRMAN opposed the inclusion in the convention of the second [p. 4-line 26] portion of the USSR proposal. He took the position that since 1945, when the principle was set for by Article 8 of the Charter of International Military Tribunal, it had been an established rule that the fact that the defendant acted pursuant to a superior order did not free him from responsibility and the ommission [sic] from the Convention of a specific reference could not change that rule of law. [p. 5-rule of law] Therefore, there was no need for the inclusion of a reference. A defendant should be able to plead superior orders in mitigation, but were mitigation to be mentioned in the Convention, it might inspire offenders to use it as an excuse and by the most extreme analogy, eventually only the top official would be punishable. Further, the provision might give rise to difficulties as certain representatives had expressed. He could foresee a situation in which a soldier, not knowing the consequences of his officer’s act, would be faced with the dilemma of having to die at the hands of his superior officer, or at the

922

E/AC.25/SR.18

hands of the authority enforcing the penalties for genocide, as defined in the provision. He noted that the Secretariat’s draft did not mention mitigation. It had been included in the principles established by the Nurnberg trials, but those trials were specific instances and the problem was not the same there as it was with regard to a convention. He favoured leaving the matter to the judgment of the court in the light of the usual rules of law. Mr. RUDZINSKI (Poland) supported the USSR proposal. He felt that as genocide was such a serious and atrocious crime, it should be made clear that no one could be excused on the basis of superior orders, as no order contrary to the precepts of elementary morals could be used as an excuse. He recalled that the principles of the Nurnberg Charter had been recognized by a resolution of the General Assembly, and he could not accept the argument that the Nurnberg trials were a special case and that the principles there accepted did not apply to the convention under consideration. Mr. PEREZ-PEROZO (Venezuela) opposed the second portion of the USSR proposal, explaining that his opposition was based on the fact that the inclusion would be contrary to the constitutional provisions of his country, as the legislature of his country had established a rule that those who had acted on superior orders were not subject to punishment. Mr. LIN MOUSHENG (China) said that he was hesitant to support the proposal owing to the reason that although it was agreed that genocide was a crime which must be punished, it was at the same time essential that justice be done to the defendant. In view of the varied rules in different legal systems, it might be unwise to include the provision. He agreed with the Chairman that the Nurnberg trials were ad hoc instances, and therefore, the problem was not the same as it was with regard to a convention. Mr. AZKOUL (Lebanon) expressed the view that the inclusion of the provision was unnecessary and felt that the situation was sufficiently covered by the definition of genocide. Genocide could not exist without a motive, and the provision might leave room for injustice to a person carrying out orders.

E/AC.25/SR.18

923

Mr. MOROZOV (Union of Soviet Socialist Republics) took the position that the principles under discussion should be included among the positive achievements of the United Nations, as they had been at the Nurnberg trials. Genocide was so significant a question that it could not be considered merely in the light of extreme individual instances, as the Chairman had cited in his opposing argument. The Committee must make it clear that no person for any reason could free himself from the responsibility for the crime. Viewing the problem from the opposite case from that given by the Chairman, it was owing to the participation of large numbers of persons that the crime of genocide had become apparent. There was no document to the effect that such persons could be punished. A specific provision in the convention for the punishment of those persons would guard against repetition. He recalled that the circumstance of superior orders did not always apply to the army and thos [sic] crimes had been committed not only by military organizations, nor were those acts always carried out on direct orders. The problem was not that simple. Conscious measures had been taken for the creation of a social insanity and an atmosphere in which people were taught to believe that it was heroism to commit the crime of genocide. He urged that the provision be included in order to prevent the recurrence of that situation. The Committee could not exclude from the Convention important principles as to which the members of the Committee agreed in principle. Mr. SCHWELB (Assistant Director of the Human Rights Division) read from the Charter of the International Military Tribunal Article 8, setting forth the provision that the fact that the defendant (at the Nurnberg trials) acted pursuant to order of his government or of a superior should not free him responsibility, but might be considered in mitigation of punishment. He observed further that according to the Charter of the Tribunal, the true text was whether or not moral choice was possible. He recalled that there had been two resolutions of the General Assembly recognizing that the principles established at the Nurnberg trials laid down valid international law. In response to a question posed by the representative of Venezuela as to whether the principles of the Nurnberg Charter applied only to crimes in time of war or also to peace-time crimes, Mr. Schwelb stated that the

924

E/AC.25/SR.18

Nurnberg principles applied to crimes against peace, war crimes and crimes against humanity, but that no jurisdiction existed for the punishment of crimes against humanity, unless such crimes were connected with crimes against peace or war crimes. He noted that minor officials in Germany were being punished under Law No. 10 of the Allied Control Commission (December 20, 1945), and that this Law did not contain a similar restriction. The CHAIRMAN stated that the issue before the Committee was whether it should include a provision to the effect that superior orders were not excuse for a crime, which was an established principle, whether or not it were included in the Convention, or whether the inclusion of the principle would give rise to more difficulties, as certain representatives had indicated, than if it were excluded. With regard to the relevant resolutions of the General Assembly, mentioned by the representative of Poland, it should be borne in mind that the recognition of Nurnberg principles meant only that there was to be a Codification Committee to deal with certain principles and all the work was not to be left to the Ad Hoc Committee on Genocide. The Assembly resolution referred not to all principles on which the judgment of the Nurnberg Tribunal was based, but only to principles of international law, and it was for the Codification Committee to ascertain the recognized principles of international law. In reference to the remarks made by the USSR representative to the effect that the Chairman had chosen a specific case, he said that he/had done so deliberately, as superior orders could be involved only in a field where an individual was under the control of others. Mr. AZKOUL (Lebanon) asked the USSR representative whether persons who committed a crime on superior orders but did not share the motives of religious or racial hatred were subject to punishment. The essence of the provision was to guard against persons using superior orders as an excuse. In order that the Committee create a serious practical convention which would be a weapon against the crime of genocide, it was essential that the convention include the clauses necessary to the definition of the crime. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that during the debate only the question of superior orders had been discussed, whereas his proposal dealt also with the command of the law. He insisted

E/AC.25/SR.18

925

that it was even more important to state in the convention that command of the domestic law could not be a defence for the crime of genocide. Mr. RUDZINSKI (Poland) commented that command of the law was no defence to the commission of a crime so clearly established as to be beyond all doubt. The CHAIRMAN felt that the phrase “command of the law” was superfluous, and domestic law could never be a defence to any obligation under a convention or a treaty. Therefore, if under the convention a State undertook certain obligations, the domestic law would not be a defence to a failure to fulfil such obligations. The second portion of the USSR proposal to the effect that there be included in the convention the provision that genocide could not be justified by the command of the law or superior orders was put to a vote. The proposal was rejected by two votes in favour, four against, with one abstention. Mr. RUDZINSKI (Poland) expressed the feeling that he could have no responsibility for the convention as it appeared in its present form, as the object of such a convention was to fill in the gaps in the principles established by the Nurnberg trials. The exclusion of a provision stating that superior orders and command of the law could not justify the crime of genocide was a definite regression both as concerns the Charter of Nurnberg and the accepted principles of international law. He asked that this statement, made in the name and on behalf of his Government, should be recorded verbatim in the Report. ARTICLE III OF THE CHINESE DRAFT (document E/AC.25/9) The CHAIRMAN submitted an alternative draft prepared by the United States delegation, as follows: Genocide shall be punished by any competent tribunal of the State in the territory of which the crime is committed or by a competent international tribunal.

As would be seen, the word “may” in the Chinese draft had been changed to the word “shall” to make it more imperative; the phrase “or the offender is found” in the Chinese draft had been omitted, as the United States

926

E/AC.25/SR.18

delegation did not consider universal jurisdiction of national courts desirable; and the words “by a competent international tribunal” had been substituted for the words “by such an international tribunal as may be established” in the Chinese draft, to give clearer recognition of the idea of international jurisdiction. The CHAIRMAN proposed that the Chinese draft should be taken as a basis for discussion, and he invited other members to submit any further proposals. Mr. MOROZOV (Union of Soviet Socialist Republics) speaking on a point of order, urged that before the Committee decided which Court was to be responsible for trying cases of genocide, it would be advisable to decide upon a question which was not included in the article in question namely, the obligation of the High Contracting Parties to introduce into their national legislation measures for the prevention and suppression of genocide and of incitement to racial, national and religious hatred. It was essential for the Committee to agree upon a minimum of responsibility os [sic] States to transfer the principles of the convention to their domestic legislation. He felt that such a provision should logically precede a provision dealing with competent courts, as it is necessary to state what law shall be applied by those courts. Upon Mr. ORDONNEAU (France) pointing out that the question had already been discussed in principle, and that the Committee had decided against such a provision, the CHAIRMAN ruled that the question whether to reconsider the question of national legislation should be put to a vote. Mr. MOROZOV (Union of Soviet Socialist Republics) saw no need for a vote. The vote already taken on the subject had been decided by a majority of only one, which indicated that there were varying points of view. There was no reason why a short exchange of views on the matter should be the object of a vote. The CHAIRMAN explained that his only motive had been to prevent a long debate on the subject which had already been decided. In view of the USSR representative’s objections, however, he would withdraw his suggestion.

E/AC.25/SR.18

927

Mr. ORDONNEAU (France) declared that in that case he would make the same motion. All members had agreed not to reopen discussions on general principles. Mr. PEREZ-PEROZO (Venezuela) and Mr. AZKOUL (Lebanon) supported the opinion of the USSR representative that discussion of certain questions could be reopened. Mr. LIN MOUSHENG (China) proposed that, in order to avoid a vote, the Committee could decide to consider the USSR draft and decide upon it after a very short discussion. Mr. ORDONNEAU (France) accepted that suggestion. Mr. MOROZOV (Union of Soviet Socialist Republics) thought that the Committee should first decide whether the Convention should contain a provision whereby the High Contracting Parties were required to introduce into their national legislation measures for the prevention and suppression of genocide and penalties for the punishment of the crime. If such a provision was agreed upon in principle, his draft and any amendments to it could next be discussed. The Committee decided, by four votes to three, to include such a provision. DISCUSSION OF TEXT OF ARTICLE FOR THE PROVISION OF MEASURES AGAINST GENOCIDE TO BE INTRODUCED INTO NATIONAL LEGISLATIONS Mr. MOROZOV (Union of Soviet Socialist Republics) proposed the following text: The High Contracting Parties pledge themselves to make provision in their criminal legislation for measures aimed at prevention and suppression of genocide and also at prevention and suppression of incitement to racial, national and religious hatred, as defined in articles I, II, III and IV of the present Convention and to provide measures of criminal penalties for the commission of those crimes, if such penalties are not provided for in the active codes of that State.

The CHAIRMAN, speaking as representative of the United States of America, proposed the following text: The High Contracting Parties shell make or recommend to their legislature such provision in their laws as required by their constitutional procedures

928

E/AC.25/SR.18

for giving effect within their own borders to the purposes of the Convention for the punishment of the crime of genocide.

He pointed out that the words “recommend to their legislature” were taken from the 1929 Red Cross Convention of Geneva. Mr. LIN MOUSHENG (China) proposed the following text: The High Contracting Parties undertake to enact such legislation for the prevention and punishment of genocide as may be necessary.”

After a short discussion, the Committee decided to take the USSR proposal as the basic text, and to regard the other drafts as amendments. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that his draft contained two separate elements, first the obligation of States to provide legislation for the prevention of genocide and punishment of the crime, and secondly, to provide measures for the prevention of incitement to racial, national and religious hatred. Incitement to hatred was one of the most significant factors in the development and justification of the crime of genocide. Cases of genocide that had occurred in the past had been closely linked with racial theories according to which so-called “superior” races had the right to destroy so-called “inferior” races. It was therefore essential for States to legislate against incitement to racial, national and religious hatred. Mr. RUDZINSKI (Poland) proposed that the words “as defined in the present Convention” should follow the words “prevention and suppression of genocide” in the USSR draft, and that the words “as defined in articles I, II, III and IV of the present Convention” after “religious hatred” should be deleted. Mr. MOROZOV (Union of Soviet Socialist Republics) accepted that amendment. Mr. PEREZ-PEROZO (Venezuela) considered the USSR draft somewhat long and repetitious, although he would be willing to support it in a shorter form. He proposed that the word “criminal” before the word “legislation” should be deleted, as he considered that such measures would be more effective if they were contained in other types of legislation besides criminal. Educational measures, for example, might be introduced.

E/AC.25/SR.18

929

Secondly, he suggested that the draft would be clearer and briefer in the following form: “. . . make provision in their legislation for measures aimed at the prevention and punishment of genocide and other punishable acts, as defined in the present Convention”, deleting the rest of the draft. Mr. MOROZOV (Union of Soviet Socialist Republics) accepted the deletion of the word “criminal”. He could not, however, agree to the second suggestion submitted by Mr. Perez-Perozo, and proposed therefore that the Committee should vote first on the Venezuelan amendment, and, if that were defeated, on the USSR draft. Mr. LIN MOUSHENG (China) considered that the authors of the other two drafts should be allowed to make statements in support of them before a vote were taken. The important difference between his draft and the proposed Venezuelan amendment of the USSR draft was that the former used the word “undertake” instead of “pledge”, and spoke of “such legislation . . . as may be necessary”. That was in accordance with the General Assembly resolution 96(I), which invited Member States “to enact the necessary legislation . . .”. If genocide were unknown in a certain State, the [p. 15-line 4] parliament of that State should be allowed to decide not to undertake such legislation. Mr. PEREZ-PEROZO (Venezuela) pointed out that the General Assembly resolution was only a recommendation, whereas the Convention would be a contract to which the ratifying States must pledge themselves. The CHAIRMAN, speaking as the United States representative, declared that a Government ratifying the Convention could only recommend measures to its legislature. If it pledged itself to enact certain measures, the legislature might refuse to do so, and that State would thus be violating the Convention. Mr. ORDONNEAU (France) considered the provision undesirable. There were already two General Assembly resolutions on the subject, and while they had, of course, only a moral value, it was obvious that a State which did not intend to abide by them would certainly not ratify the Convention. The provision, therefore, was only adding something which was not

930

E/AC.25/SR.18

essential and which might well have the effect of making it difficult for certain States to accept the Convention. He agreed with the United States representative that no government could undertake that its legislature would pass certain laws. Mr. MOROZOV (Union of Soviet Socialist Republics) did not see how a State could ratify a Convention unless its legislature agreed to do so; by ratifying the Convention, therefore the legislature would undertake to fulfil the obligations contained in it. Mr. RUDZINSKI (Poland) urged that without the provision in question, the Convention would be void and ineffective. The CHAIRMAN stated that he would have some amendments to propose at the following meeting, when the discussion would be continued. The meeting rose at 6.30 p.m.

E/AC.25/SR.18/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

931

UNRESTRICTED E/AC.25/SR.18/Corr.2 14 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE EIGHTEENTH MEETING Lake Success, New York Friday, 23 April 1948, at 2 p.m. On page 4, line 26, delete “He took the position . . . rule of law” (page 5), and substitute the following: He pointed out that Article 8 of the Charter of the International Military Tribunal at Nuremberg provided that the fact that one defendant acted pursuant to superior orders did not free him from responsibility. The omission from the Convention of a specific reference could not of course change such rules of law as may exist.

932

E/AC.25/SR.18/Corr.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.18/Corr.3 24 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE EIGHTEENTH MEETING Lake Success, New York Friday, 23 April 1948 at 2:00 p.m. Delete the fourth line on page 15, and substitute: “parliament of that State should not be compelled to undertake . . .”

E/AC.25/SR.19

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

933

UNRESTRICTED E/AC.25/SR.19 5 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE NINETEENTH MEETING Lake Success, New York, Monday, 27 April 1948, at 11.15 a.m. Chairman: Mr. MAKTOS Vice-Chairman: Mr. MOROZOV Rapporteur: Members:

Secretariat:

United States of America Union of Soviet Socialist Republics Mr. AZKOUL Lebanon Mr. LIN MOUSHENG China * Mr. DEVINAT France Mr. ORDONNEAU France Mr. RUDZINSKI Poland Mr. PEREZ-PEROZO Venezuela Mr. SCHWELB Assistant Director of the Human Rights Division Mr. GIRAUD Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record. * Mr. Devinat replaced Mr. Ordonneau during the first part of the meeting.

934

E/AC.25/SR.19

NEW RULES OF PROCEDURE The CHAIRMAN proposed that the Committee should observe the following rules of procedure in future discussions: 1) No speech should exceed five minutes. 2) The Committee should try to avoid reconsidering its decisions. Nevertheless, if representatives submitted a proposal that called a previous decision in question, the Committee should decide by vote whether to consider it or not, before taking any decision on the proposal itself. One speaker for the proposal and one against it should be heard. 3) Points that it had already been decided to include in the Convention should be discussed first; the Committee would then consider any new proposals. 4) At the second reading, the Committee should discuss only these articles on which no agreement had been reached at the first reading; other articles should be put to the vote forthwith. 5) The Committee might depart from the rules in order to adopt simpler procedure if it unanimously decided to do so. It was decided accordingly. ARTICLE FOR THE PROVISION OF MEASURES AGAINST GENOCIDE TO BE INTRODUCED INTO NATIONAL LEGISLATIONS: CONTINUATION OF THE DISCUSSION. The CHAIRMAN recalled that the Committee had adopted the text proposed by the USSR delegation as a basis for discussion, and that the representative of Venezuela had submitted an amendment to that text (document E/AC.25/SR.18). He invited the members of the Committee to continue the discussion on these two drafts. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that there was no great difference in substance between the two drafts. The USSR delegation would be prepared to accept the Venezuelan amendment if if [sic] laid greater stress on the principle of the duty of governments to

E/AC.25/SR.19

935

provide penalties for the prevention and punishment of crimes of genocide. He therefore proposed the addition of the following words at the end of the text proposed by the representative of Venezuela: “. . . and provide penalties for these crimes”. Mr. PEREZ-PEROZO (Venezuela): observed that the measures which governments would undertake to adopt under the terms of his amendment would of necessity be of a penal nature, in so far as they dealt with the punishment of the crime. Mr. MOROZOV (Union of Soviet Socialist Republics) accepted that view and said that he would not press his amendment at its first reading. Speaking as representative of the United States of America, the CHAIRMAN then submitted the following amendment: The High Contracting Parties shall make such provisions in their laws in accordance with their constitutional procedures as will give effect within their borders to the purposes of the Convention.

Mr. MOROZOV (Union of Soviet Socialist Republics) regretted that he could not accept that text, which did not call for a formal undertaking by States and did not establish their obligations clearly. Moreover, the reservations contained in the phrases “in accordance with their constitutional procedures” and “within their borders” seemed to him superfluous, since it was evident that States could only legislate in conformity with their constitutions and in respect of their own territory. Speaking as representative of the United States of America, the CHAIRMAN replied that in his country, for instance, the punishment of [p. 3last line] crime came under the jurisdiction of each State and not under federal jurisdiction. For that reason he had thought it necessary to include a reservation regarding respect of the constitutional provisions of each State. The reservation in no way affected the obligation to be assumed by Governments under this article of the Convention. Mr. Maktos proposed replacing the words: “as will give effect to the purposes of the Convention”, which Mr. Morozov had found too vague, by the words: “as will give effect to the provisions of the Convention”.

936

E/AC.25/SR.19

Mr. AZKOUL (Lebanon), Rapporteur, favoured the latter wording, whose wider scope covered not only the prevention and punishment of genocide but also the other provisions of the convention, such as those relating to the extradition of offenders. It was, however, difficult to give a precise definition of what came under prevention properly so called; it extended from moral and religious instruction to the prohibition of acts immediately preceding the crime. States were entitled to select for themselves the measures they considered useful and effective for the prevention and punishment of genocide. Mr. MOROZOV (Union of Soviet Socialist Republics) urged the necessity of asking States for a formal undertaking to enact legislation for the prevention and punishment of genocide. The CHAIRMAN agreed to substitute the words “obligate themselves to make” for the words “shall make”. At the request of Mr. Perez-Perozo (Venezuela) he also agreed to delete the words “within their borders”. However, he urged the retention of the word “provisions”. As the idea of prevention was not defined in the convention, the wording of the Venezuelan amendment might give rise to unwarranted complaints against States, which might be accused of not taking the necessary measures in that respect. Mr. PEREZ-PEROZO (Venezuela) stressed the United States representative’s endeavour to reach agreement, and asked the USSR representative not to oppose the inclusion of the reservation concerning the respect of the constitutional provisions of each State. He thought that with such a reservation the convention could be more easily ratified. Mr. MOROZOV (Union of Soviet Socialist Republics) complied with Mr. Perez-Perozo’s request. Nevertheless, he considered the last part of the United States amendment inacceptable [sic] and maintained that it should be replaced by the wording proposed by the Venezuelan delegation. Replying to the observations made by the Lebanese representative, Mr. RUDZINSKI (Poland) expressed surprise at the objections raised against the use of the word “prevention”. He pointed out that States should not be put under the sole obligation of punishing crimes of genocide; a moral obligation to prevent them was not sufficient, and such an obligation had to be given a legal character by writing it into the Article.

E/AC.25/SR.19

937

Mr. PEREZ-PEROZO (Venezuela) recalled that in resolution 96(I) the General Assembly had invited Member States to enact the necessary legislation “for the prevention and punishment” of the crime of genocide. The convention that the Committee was instructed to draft was not a penal code; it was no more a function of the Committee to decide what measures States should take for the prevention of genocide than it was their function to determine the penalties for offenders. Mr. LIN MOUSHENG (China), supported by Mr. DEVINAT (France), proposed that a vote should be taken. He thought that the proposal of his delegation (document E/AC.25/SR.18) which differed most from the basic text, should be voted on first. Mr. PEREZ-PEROZO (Venezuela) said that he would have to vote against the Chinese delegation’s text because of the words “as may be necessary”, which weakened the compulsory nature of the Article by making it possible for any State wishing to evade the obligation to take the legislative measures provided for in the Article, to declare that it did not consider them necessary. Mr. RUDZINSKI (Poland) and Mr. MOROZOV (Union of Soviet Socialist Republics) supported the view expressed by the Venezuelan representative. Mr. Morozov added that the Chinese proposal could not be regarded as an amendment to his own proposal as it had been submitted before the latter. As the Committee had decided to use the USSR draft as a basic text, that was the text that should be put to the vote first. The CHAIRMAN asked the Committee to decide whether a vote should be taken first on the Chinese delegation’s draft. The Committee decided by four votes that the Chinese delegation’s draft should be put to the vote first. Mr. RUDZINSKI (Poland) then formally proposed that the words “as may be necessary” be deleted from the text submitted by the Chinese delegation and replaced by the words “and the other punishable acts defined in the present convention.”

938

E/AC.25/SR.19

The CHAIRMAN pointed out that this amendment was tantamount to reverting to the text proposed by the delegation of Venezuela and, in those circumstances, he feared that it was not admissible. Mr. LIN MOUSHENG (China) agreed to delete the words “as may be necessary”, and proposed the following new wording: “The High Contracting Parties undertake to enact the necessary legislation for the prevention and punishment of genocide”, which was identical with that of the General Assembly’s resolution. He felt that this more general formula would lead more States to adhere to the convention. Mr. MOROZOV (Union of Soviet Socialist Republics) said that there was no reason for regarding the Chinese proposal as one to which no amendment could be proposed. He proposed completing Mr. Lin Mousheng’s new text by the addition of the words: “as provided for in the present convention”. Mr. LIN MOUSHENG (China) accepted the amendment. Speaking as representative of the United States of America, the CHAIRMAN asked that the new text should include the reservation regarding respect of the constitutional provisions of each State and urged that the words: “for the prevention and punishment of genocide” be replaced by the words: “to give effect to the provisions of the present convention”. Mr. RUDZINSKI (Poland) pointed out that this proposal too, amounted to reverting to the text of a previous proposal and consequently it should also be regarded as inadmissable [sic]. The CHAIRMAN asked the Committee whether they agreed that the proposal of the United States delegation should be put to the vote. The Committee decided by four votes to two, with one abstention, to put the United States proposal to the vote. The CHAIRMAN put to the vote the text of the draft Article submitted by the Chinese delegation and amended it to read as follows: The High Contracting Parties undertake to enact the necessary legislation, in accordance with their constitutional procedures, to give effect to the provisions of the present convention.

E/AC.25/SR.19

939

The Committee approved this text by four votes to three Mr. MOROZOV (Union of Soviet Socialist Republics) regretted that he was obliged to protest against the procedure that had been followed. Two amendments to the same text, submitted in the same procedural conditions, had been the subject of diametrically opposite rulings from the Chair regarding their admissibility. Such a manner of conducting the debates could not contribute to the normal progress of the Committee’s work. In explanation of his vote against the proposed text, he said that he had opposed it because, in its present form, it did not guarantee the real and practical adoption of legislation for the prevention and punishment of genocide. Moreover, this text did not take account of the prevention and punishment of incitement to racial, national and religious hatred. Consequently, the USSR delegation reserved the right to raise the matter again during the second reading of the draft convention. The CHAIRMAN recalled that following upon the observation of the Polish representative concerning the admissibility of the United States proposal, he had consulted the Committee which had itself decided by a vote that this proposal be voted on. The meeting terminated at 1:30 p.m.

940

E/AC.25/SR.19/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.19/Corr.1 14 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE NINETEENTH MEETING Lake Success, New York Monday, 27 April 1948, at 11:15 a.m. On page 3, last line, after the word “came” insert the word “primarily.”

E/AC.25/SR.20

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

941

UNRESTRICTED E/AC.25/SR.20 4 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTIETH MEETING Lake Success, New York Monday, 26 April 1948 at 2.00 p.m. Present: Chairman: Mr. J. MAKTOS Vice-Chairman: Mr. Morozov Rapporteur: Members:

Secretariat:

Mr. Azkoul China France Poland Venezuela Mr. E. Schwelb Mr. E. Giraud

(United States of America) (Union of Soviet Socialist Republics) (Lebanon) Mr. Lin Mousheng Mr. Ordonneau Mr. Rudzinski Mr. Perez-Perozo (Assistant Director, Division of Human Rights) (Committee Secretary)

NOTE: Corrections of this summary record provided for in the rules of procedure should be submitted in writing within the prescribed period to Mr. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter written on headed notepaper and enclosed in an envelope marked “Urgent” and bearing the appropriate symbol number.

942

E/AC.25/SR.20

DRAFT ARTICLES FOR INCLUSION IN THE CONVENTION ON GENOCIDE PROPOSED BY THE DELEGATION OF CHINA ON 16 APRIL 1948 (Document E/AC.25/9) Article III (Document E/AC.25/9) (Competent Courts) The CHAIRMAN opened the meeting by reading the amendment proposed by the United States of America to “Article III” of the Chinese proposal. With the exception of the word “genocide” which had been replaced by “any of the acts enumerated in Article III”, and of the word “act” which had been substituted for “crime” the text was the same as that communicated to the Secretariat on 23 April 1948. Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the text of the first paragraph of the United States proposal should read as follows: “The High Contracting Parties pledge themselves to prosecute the persons guilty of genocide, as defined in the present Convention, as responsible for criminal offences, submitting the cases of these crimes committed within the territory under their jurisdiction for trial by national courts in accordance with the national jurisdiction of that country”. This stressed the obligation to prosecute, and that the crime should come up before the domestic court of the country in which it was committed. The Article should be taken as a whole instead of considering separately the paragraphs relative to domestic and international jurisdiction, as suggested by the CHAIRMAN. The CHAIRMAN put the Soviet proposal to the vote, which resulted in an equal division of 3 to 3 with 1 abstention. As the previous decision accepting reference to international jurisdiction was sustained by a vote of 4 to 3, the Chinese text continued to be taken as the basis for discussion with the amendment proposed by the United States of America. It was decided by a vote of 5 with 2 abstentions to retain the word “shall” in the first sentence, as proposed by Mr. RUDZINSKI (Poland), in order to stress the obligation to punish.

E/AC.25/SR.20

943

Mr. LIN (China) believed that the words “. . . by a competent international tribunal” suggested that there were several international courts in existence, while actually no international criminal court had yet been established. [p. 2-line 26] The CHAIRMAN proposed the substitution of the words “. . . or by such an international tribunal as may be established”. Mr. RUDZINSKI (Poland), although opposed to the principle of international jurisdiction, suggested the words “. . . or by such an international criminal tribunal as may be established”, and made it clear that no obligation existed under the present Convention to create such a tribunal. Mr. ORDONNEAU (France) thought the word “may” put doubt on the establishment of the international court. He proposed, supported by the CHAIRMAN, that the sentence should read: “. . . by such a competent international tribunal as will be established in the future”. An explanation could be embodied in the Report. Mr. MOROZOV (Union of Soviet Socialist Republics) said he objected to the establishment of international jurisdiction for this category of crimes. Mr. AZKOUL (Lebanon) supported the CHAIRMAN’S proposal to divide the amendment of the United States of America into two parts. It was decided to consider the part on domestic tribunals separately from that on international jurisdiction, for the convenience of those who had opposed the latter in principle. Mr. AZKOUL (Lebanon) as Rapporteur, explained that the wording [p. 3-line 7] “as may be established” had been used to indicate that, although the majority was in favour of an international court, the details, such as date of establishment, had not yet been decided. Mr. PEREZ-PEROZO (Venezuela), objecting to any reference to an International Court, opposed the whole Article. The Convention should contain only specific obligations on the part of States. It was decided unanimously that the first part of the Article should read: “Any of the acts enumerated in Article III shall be punished by any competent tribunal of the State in the territory of which the act is committed . . .”

944

E/AC.25/SR.20

It was decided by a vote of 4 to 3 that the remaining part of [p. 3-lines 18–19] the paragraph should read: “. . . or by such a competent international tribunal as may be established in the future”. The proposal of Mr. AZKOUL (Lebanon) to reconsider the question of universal jurisdiction of national courts was rejected by a vote of 4 to 2 with one abstention. The text of the first paragraph of the amendment of the United States of America as a whole was approved at first reading by a vote of 4 to 3. Mr. ORDONNEAU (France) asked the Committee to reverse its previous decision on the principle of including the reference to international jurisdiction as embodied in the second paragraph of the amendment of [p. 3-line 28] the United States of America. The question had been decided prematurely. There should be no ruling at present on the scope of the International Court’s jurisdiction. He opposed inclusion of the paragraph in the Convention although he would be in favour of mentioning the question in the Report. It was decided by a vote of 6 with one abstention to reconsider the question of the scope of the international tribunal’s jurisdiction. Mr. AZKOUL (Lebanon) supported by the representative of China proposed that the paragraph should be included in the Report together with the views expressed, and should be deleted from the Convention. Mr. PEREZ-PEROZO (Venezuela) was against any mention of the Court in either the Convention or the Report. It was decided by a vote of 5 to 1 with 1 abstention not to include the paragraph in the convention, but by a vote of 4 to 3 to include it in the Report. Article IV of the Draft Articles Proposed by China (document AC.25/9) (Action by the United Nations) Mr. MOROZOV (Union of Soviet Socialist Republics) proposed an amendment to Article IV of the Chinese draft. It did not disagree in principle with the Chinese text, but stressed the obligation for the contracting parties to communicate to the Security Council every act of

E/AC.25/SR.20

945

genocide as well as every case of violation of the convention in order that the Council could take necessary measures in accordance with Chapter VI of the Charter. The amendment proposed by the Union of Soviet Socialist Republics was rejected by a vote of 5 to 2. Mr. PEREZ-PEROZO (Venezuela) proposed that the text should nevertheless mention the violation of the Convention as well as actual acts of genocide. Mr. RUDZINSKI (Poland) said that a difficulty would arise if the amendment were adopted because violation of the Convention might have legal consequences which were not quite the same as suppression of genocide. He quoted Article 36 paragraph 2(c) of the Statutes [sic] of the International Court of Justice. The CHAIRMAN proposed the following wording of the Chinese text: “Any Signatory to this Convention may bring to the attention of any competent organ of the United Nations cases of violation of the Convention, and may call upon such organ to take such action as may be appropriate. . . ” Mr. LIN (China) said his wording was broader in scope. Those who were signatories of the Convention could draw attention to acts by nonsignatories. Mr. RUDZINSKI (Poland) said there were two separate questions involved: 1. The right of Member States to request the United Nations organs to take action to suppress Genocide; 2. The violation of the Convention. Genocide might be committed in a State who had not become a Party to the Convention and would not be technically a violation of the Convention. A clause should be added to the effect that cases of violation of the Convention might be brought to an organ of the United Nations for appropriate action. Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the words “pledges itself ” should be substituted for “May bring”. Mr. RUDZINSKI (Poland) proposed the substitution of the words “Any member of the United Nations” for “Any Signatory. . . ”

946

E/AC.25/SR.20

Mr. ORDONNEAU (France) pointed out that the Convention would not apply to all members of the United Nations. Mr. LIN (China) supported by the CHAIRMAN, said non-members might ratify the Convention. Mr. MOROZOV (Union of Soviet Socialist Republics) said the question was twofold: 1. The obligation of the member under the Convention to report acts of genocide; 2. What organ should be informed of the facts and circumstances. The proposal to substitute a more obligatory term for “may bring” having been rejected by a vote of 3 to 2 with 2 abstentions and likewise the proposal to change “signatory” to “Member”, by a vote of 5 to 1 with 1 abstention, the Chinese text of “Article IV” as amended by the representative of POLAND and supported by the representative of VENEZUELA, [p. 5-lines 10-14] was adopted by a vote of 6 with 1 abstention, to read: “Any Signatory to this Convention may bring to the attention of any competent organ of the United Nations any cases of violation of the Convention to take such action as may be appropriate under the Charter for the prevention and suppression of genocide”. [p. 5-lines 10-14 end] The meeting adjourned at 4.30 p.m. until 4.45 p.m. THE POLISH PROPOSAL ON EXTRADITION Mr. LIN (China) supported the Polish proposal. The CHAIRMAN supported the text with the words “a ground for” substituted for “a cause”, with the substitution of “each High Contracting Party” for “The High Contracting Parties. . . ”, “The acts enumerated in Article III ” for “Genocide” in the first paragraph, and “in such cases” for in cases of genocide” in the second paragraph. Mr. PEREZ-PEROZO (Venezuela) proposed that “the laws” should be amended to read “its legislation”. Mr. RUDZINSKI (Poland) agreed with the proposed amendments. The text of the Polish proposal as amended by the United States of America and Venezuela was adopted unanimously to read as follows:

E/AC.25/SR.20

947

The High Contracting Parties declare that the acts enumerated in Article III shall not be considered as political crimes and therefore shall be a ground for extradition. Each High Contracting Party pledges itself to grant extradition in such cases in accordance with its legislation and treaties in force.

SECRETARIAT DRAFT CONVENTION (documents E/447 and E/623) Article XIV of the Secretariat Draft Convention (Settlement of disputes concerning the interpretation of the Convention by the International Court of Justice) The proposal to reconsider a previous decision regarding the banning of organizations was rejected by a vote of 3 to 2 with 2 abstentions. The CHAIRMAN read the comments by the United States of America on [p. 5-line 40] page 27 of document E/623. a case should go before the International Court only after it had been disposed of by the domestic court. It would be more [p. 6-line 1] consistent to say “. . . passed upon by a competent national criminal tribunal”. Conflict of jurisdiction was undesirable. Mr. MOROZOV (Union of Soviet Socialist Republics) objected to the inclusion of Article XIV in the Convention. Matters concerning genocide should be handled by national courts. Defining genocide as something coming under international jurisdiction would be interfering with the sovereign rights of states. Mr. RUDZINSKI (Poland) said that in the Statutes [sic] of the International Court the “interpretation” of a treaty was a ground for compromise and for referring to the International Court. It was therefore unnecessary to have it in the Convention. It might be charged that some tribunal had not applied the Convention properly, and that might be a ground for an appeal from a national court to an international court. The Article as it stood might raise some difficulties concerning the application of the Convention. Mr. ORDONNEAU (France) believed there was no danger in saying that disputes could be submitted to the Court, and there was some advantage

948

E/AC.25/SR.20

in speaking of “interpretation”. It was a question of interpretation only and did not reflect on how the provision was being applied. It was decided by a vote of 5 to 2 to accept the original French text as amended by the United States of America, with the following wording: Disputes between any of the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice.

It was decided by a vote of 4 to 1 with 1 abstention to add the following provisio [sic] as proposed by the United States of America: . . . provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to, and is pending before or has been passed upon by a competent international criminal tribunal

PREAMBLE AND ARTICLE I – Soviet and French Amendments. Mr. ORDONNEAU (France) explained that he did not propose to substitute his Article for the present Article I, but that the latter should become Article II. Mr. MOROZOV (Union of Soviet Socialist Republics) said, there were many proposals for Article I which were co-related to the preamble. Unless a decision were first taken on the preamble, he would reserve his right to discuss Article I at second reading. The preamble should state the motives leading to the creation of the Convention, the significance of the facts dealt with, decisions on the measures to be taken as a logical conclusion, It should be the basis of the Articles, and should emphasize that genocide was a crime against humanity and was bound up with the “superior-race” theory. Mr. ORDONNEAU said the Article he proposed would have a certain influence on the future wording of the preamble. It must also be decided [p. 7-line 5] whether certain juridical questions should be in Articles II and III. [p. 7-line 5 ends] Genocide was a crime against humanity which could be perpetrated in time of war or peace. Connection should be established between laws – between the Convention and the future work of the International Commission. There was no danger of confusion with the Nürnberg Charter, as suggested by the Representative of the

E/AC.25/SR.20

949

LEBANON, The preamble should contain historical considerations and the motives which led the High Contracting Parties to sign the Convention. It should contain no definitions or decisions. It could be discussed at the same time as Article I. [p. 7-Rudzinski remarks] Mr. RUDZINSKI (Poland) said although it was true that “the crime of genocide was a crime against humanity” that was not a sufficient reason for it to be included in the Convention. It over-reached the provisions of the General Assembly Resolution No. 180(II). The opinion of the International Law Commission had to be taken into account. The words “one of the gravest crimes against mankind” would avoid confusion. He proposed, supported by the Representative of FRANCE, the inclusion of the words “. . . in time of war and in time of peace” in order to avoid the difficulty raised by the Nürnberg Charter. Mr. PEREZ-PEROZO (Venezuela) believed no mistake could be made if the wording in the General Assembly Resolution No. 96(I) were used, namely [p. 7-line 25] “genocide is a crime against international law”. It was decided by a vote of 6 to 1 to amend the wording of the Chinese preamble to read “Genocide is a grave crime against mankind ”. It was decided by a vote of 5 to 1 with 1 abstention that genocide [p. 7-line 29] constituted a crime against international law. The meeting rose at 6.30 p.m.

950

E/AC.25/SR.20/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.20/Corr.1 14 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTIETH MEETING Lake Success, New York Monday, 26 April 1948, at 2 p.m. The following amendments should be made on pages 3, 5, 6 and 7: Page 3, lines 18 and 19: delete “. . . or by such . . . in the future” and substitute “. . . or by a competent international tribunal.” Page 3, line 28: After the words “United States of America” insert “(E/ AC.25/SR.8, page 13)”. Page 5, lines 10–14: Delete “Any signatory . . . genocide” and substitute “Any signatory of this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide. Any signatory to this Convention may bring to the attention of any competent organ of the United Nations any case of violation of this Convention.” Page 5, lines 40 [illegible]: Delete “A case . . . domestic court. It would be more. . . ”, and on Page 6, line 1: Delete the whole line “consistent . . . tribunal.” Page 7, line 25: Substitute “under” for “against.” Page 7, line 29: Substitute “under” for “against.”

E/AC.25/SR.20/Corr.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

951

UNRESTRICTED E/AC.25/SR.20/Corr.2 24 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTIETH MEETING Lake Success, New York, Monday, 26 April 1948, at 2:00 p.m. Delete line 26 on page 2, and replace the following: He suggested the following wording: “. . . or by”.

On Page 7 in the intervention of Mr. Rudzinski add the words “should the proposed text remain” before the words “the opinion of the International Law Commission.” Add the following sentence at the end of the fifth line: “This would jeopardize the conclusion of the Convention on Genocide for a very long period.”

952

E/AC.25/SR.20/Corr.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.20/Corr.3 25 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTIETH MEETING Lake Success, New York Monday, 26 April 1948, at 2 p.m. On page 3, line 7, in place of “as may be established” read “as will be established”.

E/AC.25/SR.21

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

953

UNRESTRICTED E/AC.25/SR.21 5 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTY-FIRST MEETING Held at Lake Success, New York on Tuesday, 27 April 1948, at 11 a.m. Chairman: Vice-Chairman:

Mr. MAKTOS Mr. MOROZOV

Rapporteur: Members:

Mr. Mr. Mr. Mr. Mr. Mr.

Secretariat:

Mr.

United States of America Union of Soviet Socialist Republics AZKOUL Lebanon LIN MOUSHENG China ORDONNEAU France RUDZINSKI Poland PEREZ-PEROZO Venezuela SCHWELB Assistant Director of the Human Rights Division GIRAUD Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

954

E/AC.25/SR.21

CONTINUATION OF THE DISCUSSION OF A NEW ARTICLE 1 TO BE ADDED TO THE DRAFT CONVENTION The CHAIRMAN asked the representative of Poland to submit the amendment which the Polish delegation wished to make to the new article 1 of the draft convention. Mr. RUDZINSKI (Poland) thought that the General Assembly had certainly intended that genocide should always be regarded as a criminal offence, whether committed in time of peace or in time of war. He therefore proposed that the following phrase should be inserted in the text of the new article 1, immediately after the words “. . . international law . . .”: “. . . regardless whether committed in time of war or time of peace . . . ” Mr. PEREZ-PEROZO (Venezuela) said he would vote in favour of the first part of the phrase proposed by the Chinese delegation. The addition proposed by the Polish representative was useless and he would vote against it. The addition proposed by the Polish delegation was adopted by the Committee by three votes to one, with three abstentions. The CHAIRMAN announced that he had received a communication from a non-governmental organization with regard to the draft convention and that he held it at the disposal of the Committee members. He then put to the vote the full text of the new article 1. The Committee adopted the full text of the new article 1 by six votes to one. Mr. MOROZOV (Union of Soviet Socialist Republics) explained that he had voted against the new text of article 1 not because he wished to limit the definitions which could be applied to genocide, but because he thought that the text of the draft convention applied in fact at all times. The provisions of article 1 were not precise and did not completely express the nature of the crime. Those definitions should appear in the preamble. He was against the wording which had just been adopted, because, in his opinion, it included a certain element of fatalism and implied that war was inevitable. He requested that his remarks be included in the Committee’s report.

E/AC.25/SR.21

955

DISCUSSION OF THE PREAMBLE OF THE DRAFT CONVENTION The CHAIRMAN opened the discussion of the proposed preamble to the draft convention submitted by the Chinese delegation (document E/AC.25/9). He explained that the USSR representative had submitted a number of amendments to the draft, which he asked the Committee to consider paragraph by paragraph. Mr. MOROZOV (Union of Soviet Socialist Republics) said that the text submitted by the USSR delegation did in fact include four different amendments which required to be considered one at a time. He urged, therefore, that the USSR text should be considered paragraph by paragraph so as to avoid the risk of the Committee rejecting outright a proposal, some elements of which might be acceptable to it. The CHAIRMAN stated that that procedure would be followed. Speaking as the representative of the United States of America, he added that the first paragraph of the USSR delegation’s text contained a definition of genocide already included in articles 2 and 3 of the draft convention. He thought it was useless to repeat that definition and that the text of the Chinese proposal seemed preferable. Mr. MOROZOV (Union of Soviet Socialist Republics), on a point of order, observed that the text of the Chinese delegation had been adopted at the previous meeting as a basis of discussion. The proposals of the USSR delegation were, in fact, an amendment to that text. In keeping with its rules of procedure, the Committee should first take a decision on the USSR amendments. The CHAIRMAN in reply to the point of order raised by the USSR representative, pointed out that the draft submitted by the Chinese delegation was worded in a more general manner. Speaking as the representative of the United States, he proposed the addition in the text of the Chinese draft, after the words “. . . which the civilized world condemns . . .”, of the following words “. . . and which shock the conscience of mankind . . .” He thought it proper to insert in the proposed preamble some condemnatory phrases of a general character.

956

E/AC.25/SR.21

[p. 4-Lin Mousheng remarks] Mr. LIN MOUSHENG (China) felt that the United States representative was adding a new conception to the preamble. It was true that the preamble should permit a definition of certain general ideas, but matters should be dealt with in the proper order. He therefore proposed that the Committee should begin by voting on the USSR proposals. Mr. PEREZ-PEROZO (Venezuela) expressed his preference for a preamble which had the merit of being brief, clear and definite, three conditions which the text submitted by the Chinese delegation seemed to fulfil. It was understood that that text could be amended in accordance with members’ proposals. He would willingly vote in favour of the Chinese proposal, to which he suggested adding, after the words “. . . international law . . .”, the following words “. . . contrary to the principles and purposes of the United Nations . . .” which would establish a close link between the draft convention and the principles, of the United Nations. The CHAIRMAN pointed out that the Committee had agreed to adopt the term “mankind” for “humanity”. He thought that the correct procedure would be to make certain additions in the text of the Chinese proposal. Mr. AZKOUL (Lebanon) then proposed certain changes in the USSR proposals, suggesting the substitution of the words “human groups” for “particular groups” and the deletion of the words “. . . of the population on racial, national or religious grounds . . .” These changes would maintain the general character of the preamble. Mr. MOROZOV (Union of Soviet Socialist Republics) subscribed to the first part of the amendment proposed by the Lebanese delegate, but was aginst [sic] the second. The preamble should include at least a short list of the motives of the crime. Mr. PEREZ-PEROZO (Venezuela) was opposed to the amendment, which he considered a useless repetition, as the motives in question were expressed in article 1 which had already been adopted (becoming article 11 after the adoption of the new article 1). Mr. AZKOUL (Lebanon) remarked that the Committee had decided at a previous meeting to include those motives in the preamble. The Committee rejected the proposal of the Lebanese delegate by four votes to three.

E/AC.25/SR.21

957

The CHAIRMAN proposed the addition of the word “political” to the list of motives. Mr. AZKOUL (Lebanon) proposed that the enumeration of motives should be omitted in order not to re-open a debate on points which had already been discussed at length. [p. 5-line 19] Mr. LIN MOUSHENG (China) thought that any addition to the text he proposed would be tantamount to including in the preamble the provisions set out in articles 1 and 2. The text of the amendment proposed by the USSR delegation was ambiguous in places and it was impossible to see what consequences it might entail in the future. He considered that a single phrase should suffice to express the Committee’s concepts in the preamble. Mr. MOROZOV (Union of Soviet Socialist Republics) felt that the new Lebanese amendment was merely a negative version of the proposal which had just been rejected. With regard to the objections raised by the representative of China, he said that it was incorrect to consider the preamble as a mere repetition of articles 1, 2 and 3 of the convention itself. Any preamble should naturally set forth in very general terms the principles contained in the main text. He considered that it was impossible to do justice to the text of the preamble which he proposed by studying it paragraph by paragraph, because the four paragraphs explained and completed each other. The CHAIRMAN asked the Committee to vote on the new Lebanese amendment. Mr. AZKOUL (Lebanon) explained the difference between the two amendments he had proposed. The first consisted in keeping the explanatory part – “. . . which aims at the destruction of human groups . . .” and in deleting the motives – “. . . on racial, national or religious grounds . . .” The second amendment consisted in omitting the whole phrase including the explanatory part. Mr. MOROZOV (Union of Soviet Socialist Republics), supported by Mr. LIN MOUSHENG (China), thought that the second Lebanese

958

E/AC.25/SR.21

amendment was nothing but the expression of a negative attitude towards the USSR amendment. Mr. RUDZINSKI (Poland) asked for a formal vote as to whether the Lebanese amendment could be accepted by the Committee. Mr. AZKOUL (Lebanon) withdrew his amendment in view of the interpretation placed on it by Mr. Morozov. The CHAIRMAN consequently proposed that a vote be taken on the USSR amendment as amended by the United States delegation, i.e., with the addition to the Soviet text of the words “or political” at the end of the list of motives. Mr. MOROZOV (Union of Soviet Socialist Republics) asked that a separate vote be taken on the United States amendment in view of the existence of a minority opinion on that question. A vote was taken on the United States amendment to introduce the words “or political” at the end of the motives enumerated in paragraph 1 of the USSR amendment. The United States amendment was rejected by four votes to three. Mr. ORDONNEAU (France) pointed out that in the absence of the words “or political”, the first paragraph of the USSR preamble was in contradiction with the actual text of the convention which provided for genocide for political motives. The CHAIRMAN proposed that a vote be taken on the whole of the first paragraph of the preamble, modified by the first Lebanese amendment as follows; “on grounds of national or racial origin or religious belief ”. Mr. AZKOUL (Lebanon) and Mr. LIN MOUSHENG (China) thought that after the rejection of the United States amendment, it was necessary to take a vote on the USSR amendment properly so-called, namely, the phrase “which aims at the destruction of human groups on grounds of national or racial origin or religious belief ”. Mr. PEREZ-PEROZO (Venezuela) having proposed that a vote be taken first on the introductory sentence of the preamble, namely, “The High Contracting Parties declare that the crime of genocide is one of the gravest

E/AC.25/SR.21

959

crimes against mankind”, the representative of POLAND said that that text was nothing more than the text proposed by China which had been adopted the previous day. Mr. AZKOUL (Lebanon), as Rapporteur, pointed out that the text adopted the previous day differed from that proposed by China, the term “mankind” having been substituted for “humanity”. Mr. PEREZ-PEROZO (Venezuela), after stating that he preferred the original Chinese text for its conciseness, requested that a vote be taken in the first place on the said Chinese text, of which only the principle and not the final wording had been adopted the previous day. The meeting rose at 1.15 p.m.

960

E/AC.25/SR.21/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.21/Corr.1 24 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTY-FIRST MEETING Held at Lake Success, New York on Tuesday, 27 April 1948, at 11:00 a.m. Delete the remarks attributed to Mr. Lin Mousheng (China) on page 4, and substitute the following: Mr. LIN MOUSHENG (China) accepted the United States amendment. He proposed, however, that the Committee should begin by voting on the USSR proposals.

On page 5, line 19, delete the word “any” and read “the proposed”.

E/AC.25/SR.22

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

961

UNRESTRICTED E/AC.25/SR.22 5 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTY-SECOND MEETING Held at Lake Success, New York, on Tuesday, 27 April 1948, at 2.20 p.m. Chairman: Vice-Chairman:

Mr. MAKTOS Mr. MOROZOV

Rapporteur: Members:

Mr. Mr. Mr. Mr. Mr. Mr.

Secretariat:

Mr.

United States of America Union of Soviet Socialist Republics AZKOUL Lebanon LIN MOUSHENG China ORDONNEAU France RUDZINSKI Poland PEREZ-PEROZO Venezuela SCHWELB Assistant Director of the Human Rights Division GIRAUD Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed note-paper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

962

E/AC.25/SR.22

PREAMBLE OF THE DRAFT CONVENTION (CONTINUATION OF THE DISCUSSION) The CHAIRMAN invited the Committee to resume its discussion of the four amendments proposed by the USSR representative to the draft preamble submitted by the delegation of China (document E/AC.25/9). Mr. AZKOUL (Lebanon), Rapporteur, reminded the Committee that during its morning meeting it had adopted, subject to final drafting, the principle embodied in one of the ideas contained in the first USSR amendment, namely that “The crime of genocide is a grave crime against mankind.” A decision had still to be taken on the second point of the same amendment, i.e., the general definition of genocide proposed by the USSR delegation, namely, that the crime of genocide “aims at the extermination of particular groups of the population on racial, national (and religious) grounds”. The CHAIRMAN put that part of the USSR amendment to a vote. The Committee decided, by five votes to two, against including the general definition proposed by the USSR delegation in the preamble of the draft convention. Speaking as the representative of the United States of America, the CHAIRMAN proposed that the part of the first USSR amendment retained by the Committee should be completed by adding the following words: . . . which shocks the conscience of humanity, which the civilized world condemns and which the parties to the present Convention agree to prevent and punish as herein provided.

Mr. ORDONNEAU (France) observed that the phrasing suggested by the United States representative presupposed that the preamble would contain only one paragraph. The CHAIRMAN replied that members of the Committee were free to suggest additional paragraphs if they wished.

E/AC.25/SR.22

963

Mr. PEREZ-PEROZO (Venezuela) remarked that his delegation would like to see, in the beginning of the preamble, the allusion to the principles and aims of the United Nations which was made in the third USSR amendment. He, therefore, suggested inserting the following words in the first paragraph of the preamble, after the definition of genocide adopted the previous evening: [p. 3] contrary to the principles and purposes of the United Nations.

Mr. RUDZINSKI (Poland) asked that the USSR amendments should be considered in the order in which they had been presented. In order not to delay matters, Mr. PEREZ-PEROZO (Venezuela) withdrew his amendment, reserving the right to submit it again at the proper time. The CHAIRMAN called for the discussion of the first clause of the amendment proposed by the United States delegation to the first USSR amendment: “which shocks the conscience of humanity”. Mr. MOROZOV (Union of Soviet Socialist Republics) in turn proposed completing that version as follows: “. . . and which is a shameful blot on those countries where such crimes are still committed, or propaganda and incitement to such crimes still exist.” The Committee rejected the proposed amendment by five votes to two. Speaking as the representative of the United States of America, the CHAIRMAN withdrew his amendment. Mr. MOROZOV (Union of Soviet Socialist Republics) said it was important to write into the preamble of the draft Convention the definition of the crime of genocide contained in the second amendment proposed by his delegation. He suggested re-drafting the second paragraph of the preamble as follows: The High Contracting Parties declare: That the crime of genocide is organically bound up with Fascism-Nazism and other similar race ‘theories’ which propagate racial and national hatred, the domination of the so-called ‘higher’ races and the extermination of the so-called ‘lower’ races.

964

E/AC.25/SR.22

Mr. ORDONNEAU (France) opposed a phrasing in which the crime of genocide was closely linked with Nazism-Fascism. Although it was true that in most recent times, Fascism and Nazism had been guilty of atrocious acts of genocide which the world was not ready to forget – and the French delegation was bent on seeing that the draft convention contained a clear reminder of that fact – it would nonetheless be both a historical and a theoretical error to impute such crimes solely to Fascism and Nazism and to assume that in the future such acts would not be perpetrated in the name of other doctrines. Mr. AZKOUL (Lebanon) and Mr. LIN MOUSHENG (China) stated that they fully shared the views of the representative of France. Mr. Lin Mousheng added the following considerations: (1) historically, genocide had preceded Fascism and Nazism; (2) genocide might be one of the results of Fascism and Nazism, but was not an essential part of them; (3) so-called racial theories were not necessarily bound up with genocide, and so-called “inferior” races were capable of acts of genocide against so-called “superior” races. Mr. MOROZOV (Union of Soviet Socialist Republics) said some representatives, in framing their criticisms, had fastened on a single phase of the question and had discounted the fact that the amendment proposed by his delegation clearly mentioned “other. . . race theories” which propagated hatred. Mr. Morozov thought the Committee should draft a convention which drew its strength from the lessons of history and took special notice of the lessons of the contemporary period. The United Nations ought, in the first international instrument of its kind to be created, to express vigorous condemnation of racial theories, and especially of Fascism and Nazism, which still existed today in certain parts of the world. Mr. ORDONNEAU (France) said he was wholly in agreement with the USSR representative when he said the Committee was planning for the future and not the past, but the past must be studied in order to regulate the future, and the strictly contemporary period was not the only one to be considered if really useful work was to be done. Mr. Ordonneau reminded the Committee that it had decided to mention political and religious groups among the victims of genocide, and thought it would be

E/AC.25/SR.22

965

unfortunate were the preamble to refer only to racial theories, without recognizing the other forms the crime might take. Mr. PEREZ-PEROZO (Venezuela) also opposed the adoption of the last USSR amendment because he understood that the General Assembly, through the medium of the Economic and Social Council, had entrusted the Committee with the drafting of a convention outlawing the crime of genocide and not Nazism and Fascism. That being so, the allusion to Fascism-Nazism seemed out of place in the preamble. Mr. ORDONNEAU (France), in his desire to meet the USSR delegation whenever and wherever possible, said his delegation was ready to write into the preamble some recognition of the fact that, during recent times, very numerous acts of genocide had been committed by the Fascist and Nazi regimes. Mr. AZKOUL (Lebanon), Rapporteur, acknowledged the necessity for linking the Convention to recent happenings. He suggested the following wording: “. . . which has found fertile soil in the Nazi and Fascist theories and other like racial theories which incite racial and national hatred, etc . . .” Mr. MOROZOV (Union of Soviet Socialist Republics) considered that wording acceptable. Mr. RUDZINSKI (Poland) suggested saying: “. . . which has produced dreadful effects . . .”. Mr. ORDONNEAU (France) pointed out that there was a different idea there, equally deserving of being retained. The delegation of France would be willing to accept the following text: “. . . which, in recent times, has been committed with particularly hideous results by Fascist and Nazi regimes”; but it was opposed to any mention of racial theories. Mr. MOROZOV (Union of Soviet Socialist Republics) remarked that the formula of the French delegation was limited to a mere recognition of an historical fact and contained no expression of reproof. The USSR delegation could not accept it for that reason. Speaking as the representative of the United States of America, the CHAIRMAN said the proposed Convention ought to proscribe genocide for both the present and the future and therefore should not be tied to contemporary events. Mr. LIN MOUSHENG (China) suggested closing the debate.

966

E/AC.25/SR.22

The CHAIRMAN put to a vote the text proposed by the representative of Lebanon. The Committee rejected the Lebanese text by four votes to three. The CHAIRMAN put to a vote the text proposed by the representative of France. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that he would vote against the French amendment because it omitted a condemnation of evil theories still alive today. If it were re-drafted in the manner advocated by the delegation of France, the preamble would not include the grave warning which should be given to the peoples of the world. Mr. AZKOUL (Lebanon), Rapporteur, and Mr. RUDZINSKI (Poland) said they would abstain, the former because he thought the French amendment would not lead to the desired result, the latter because he thought it necessary to denounce Fascism and Nazism vigorously. Mr. PEREZ-PEROZO (Venezuela) said he would vote against that amendment, which uselessly prolonged the preamble; the delegation of Venezuela was opposed to any special mention of Nazism-Fascism or of any theory. Mr. ORDONNEAU (France) said that under the circumstances, he would not press his motion. He nevertheless suggested that the Committee should vote whether, in principle, the preamble should include a mention of the circumstances which had occasioned the preparation of the convention on genocide. Mr. PEREZ-PEROZO (Venezuela) emphasized that the General Assembly resolutions 96(I) and 180(II) contained such historical allusions. He suggested that the Committee should continue its consideration of the amendments submitted by the USSR delegation before taking a decision on the principle suggested by Mr. Ordonneau. The CHAIRMAN put to a vote the text of the second amendment of the USSR delegation. The Committee rejected that text by five votes to two. The CHAIRMAN asked the Committee to discuss the third USSR amendment as well as the alternative text proposed at the beginning of

E/AC.25/SR.22

967

the meeting by the representative of Venezuela. The USSR amendment was drafted as follows: “That these crimes are a gross breach of the principles and purposes of the United Nations” (the text proposed by the representative of Venezuela was given on page 3). Mr. LIN MOUSHENG (China) accepted the principle of the two amendments, which were identical in substance. He suggested, however, the following wording: “. . . which violates the spirit and aims of the United Nations”. That was the wording of the General Assembly resolution which seemed preferable to him because it did not imply that genocide violated all the principles and all the [p. 8-line 7] aims of the United Nations, when in fact it had no bearing on certain of them. Mr. RUDZINSKI (Poland) felt on the contrary that the crime of genocide, by its very gravity, did not violate only the spirit but also and above all the principles, that is to say the very letter, of the United Nations Charter. It mattered little that all the principles were not violated; what did matter greatly and must be stressed was that some of them were violated. Mr. PEREZ-PEROZO (Venezuela) accepted the new draft suggested by Mr. Lin Mousheng. The CHAIRMAN put to a vote the amendment to the third amendment of the USSR delegation, submitted by the representatives of Venezuela and China. The Committee approved the amendment by five votes to one, with one abstention. The CHAIRMAN proposed the discussion of the fourth USSR amendment which read as follows: That the struggle against genocide requires all civilized peoples to take decisive measures aimed at the prevention of such crimes and also at the suppression and prohibition of the instigation of racial, national (and religious) hatred and at the severe punishment of the persons guilty of inciting, committing or preparing the commission of the crimes mentioned above.

Mr. MOROZOV (Union of Soviet Socialist Republics) said his delegation wished to keep its amendment intact and not to delete the last two lines, as it had voiced an intention to do at the previous meeting. The CHAIRMAN put the fourth USSR amendment to a vote.

968

E/AC.25/SR.22

The amendment received three votes for and three against. There was one abstention. Mr. ORDONNEAU (France), explaining his abstention, said his delegation had been unable to approve the USSR text because of its reference to racial, national and religious hatred. Since the vote had not been decisive, he suggested deleting from the text the following phrase: “. . . and also at the suppression and prohibition of the instigation of racial, national (and religious) hatred”. Mr. PEREZ-PEROZO (Venezuela) observed that the Committee could not very well take a decision concerning an amendment to a motion which had received a tie vote, since in accordance with article 46 of the rules of procedure of the Economic and Social Council, that motion would have to be the subject of a second vote at the next meeting. The meeting rose at 4.20 p.m.

E/AC.25/SR.22/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.22/Corr.1 24 May 1948 ENGLISH ONLY

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTY-SECOND MEETING Held at Lake Success, New York, on Tuesday, 27 April 1948, at 2:20 p.m. Line 7, page 8, for “aims” read “purposes”.

969

970

E/AC.25/SR.23

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.23 4 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTY-THIRD MEETING Lake Success, New York Tuesday, 27 April 1948, at 4:25 p.m. Chairman: Vice-Chairman: Rapporteur: Members:

Secretariat:

Mr. MAKTOS United States of America Mr. MOROZOV Union of Soviet Socialist Republics Mr. AZKOUL Lebanon China Mr. LIN MOUSHENG France Mr. ORDONNEAU Poland Mr. RUDZINSKI Venezuela Mr. PEREZ PEROZO Mr. SCHWELB Deputy Director of the Division of Human Rights Mr. GIRAUD Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed note-paper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.23

971

CONTINUATION OF THE DISCUSSION OF THE PREAMBLE TO THE DRAFT CONVENTION The CHAIRMAN asked the members of the Committee to express their views on the proposal made at the previous meeting by the French representative to delete the following phrase “and also at the suppression and prohibition of the instigation of racial, national (and religious) hatred” from the fourth amendment submitted by the USSR delegation. Mr. AZKOUL (Lebanon) (Rapporteur) said that he had opposed the insertion of a phrase of this kind into one of the articles of the convention, but he felt that the phrase referred to in the French amendment was perfectly appropriate in the preamble to the convention. It was indeed most useful to draw the attention of the signatories of the convention and of public opinion to the fact that racial, national and religious hatred were at the basis of genocide. The CHAIRMAN put the French representative’s proposal to the vote. Three votes were cast for and three against the proposal. There was one abstention. The CHAIRMAN then put to the vote the text of the fourth amendment put forward by the USSR delegation. This amendment was rejected by four votes against three. Mr. LIN MOUSHENG (China) suggested that the words “which the civilized world condemns” should be added at the end of that part of the preamble which had been so far approved by the Committee. The proposal of the Chinese representative was adopted by six votes, with one abstention. Mr. MOROZOV (Union of Soviet Socialist Republics) said that he had not taken part in the vote because he felt that the wording suggested by his delegation expressed better the notion contained in the Chinese proposal.

972

E/AC.25/SR.23

Mr. LIN MOUSHENG (China) returned to the question raised by the French representative at the previous meeting, namely, the necessity of connecting the convention with the circumstances which had led to its being drawn up. The Chinese delegation felt that the convention should contain a reference to recent events, and he suggested therefore that the following paragraph be added to the preamble: The high contracting parties, having been profoundly shocked by many recent instances of genocide, hereby agree to prevent and punish the crime as provided for in this convention.

Mr. ORDONNEAU (France) asked that the following phrase be added to the paragraph suggested by the Chinese representative: “. . . that the international military tribunal at Nuremberg, in its judgment of 30 September and 1 October 1946, has punished certain persons who have committed these crimes . . .” He felt it was necessary that this should be recalled, as at least two cases of genocide had been punished by the Nuremberg tribunal. The judgment in question constituted an important precedent which should be taken into account in an international convention on genocide. It was obvious that if the Tokyo tribunal were to pass a verdict of guilty before the draft convention had been submitted to the General Assembly, that precedent could also be mentioned in the preamble. At the present stage, however, any mention of the Tokyo tribunal would prejudge the outcome of the trial in progress. Mr. LIN MOUSHENG (China), supported by the representative of the United States of America, agreed to the insertion suggested by the French representative. He felt that the preamble should also state that the prevention and punishment of genocide required international co-operation. Mr. AZKOUL (Lebanon) (Rapporteur) was opposed to a reference to the judgment of the Nuremberg tribunal because the acts punished by that tribunal had not been regarded as cases of genocide but as constituting crimes against humanity. Mr. PEREZ PEROZO (Venezuela) shared the views of the Lebanese representative.

E/AC.25/SR.23

973

Mr. ORDONNEAU (France) suggested, in order to meet the objections voiced by the representative of Lebanon, that the words “certain persons who have committed these crimes” be replaced by “certain persons who have committed analogous acts”. Mr. AZKOUL (Lebanon) (Rapporteur) agreed with this new wording. The CHAIRMAN then put to the vote the following text: The High Contracting Parties, having been profoundly shocked by many recent instances of genocide, and having taken note of the fact that the International Military Tribunal at Nuremberg, in its judgment of September 30 and October 1, 1947, has punished certain persons who have committed analogous acts, and being convinced that the prevention and punishment of genocide requires international co-operation, hereby agree to prevent and punish the crime as provided in this convention.

This text was adopted by four votes, with three abstentions. Mr. RUDZINSKI (Poland) said he had not taken part in the vote because the proposed text did not contain any mention of Nazism and Fascism. Mr. PEREZ PEROZO (Venezuela) said he had abstained because there was no reason to mention the judgment of the Nuremberg tribunal in the convention. The CHAIRMAN then put to the vote the whole of the draft preamble reading as follows: The High Contracting Parties declare that genocide is a grave crime against mankind which violates the spirit and aims of the United Nations and which the civilized world condemns; The High Contracting Parties, having been profoundly shocked by many recent instances of genocide, and having taken note of the fact that the International Military Tribunal at Nuremberg, in its judgment of September 30 and October 1, 1946 has punished certain persons who have committed analogous acts, and being convinced that the prevention and punishment of genocide requires international co-operation, hereby agrees to prevent and punish the crime as provided in this Convention.

The whole of the preamble was adopted by four votes, with three abstentions.

974

E/AC.25/SR.23

FINAL PROVISIONS OF THE DRAFT CONVENTION The CHAIRMAN asked the Committee to examine the report of the sub-committee entrusted with the task of studying articles XV to XXIV of the draft convention drawn up by the Secretariat and the comments made by governments on this subject (document E/AC.25/10). He said that, on the whole, the three members of the sub-committee had agreed on the text proposed by the Secretariat or on the changes that should be made therein. He suggested considering last the controversial question of the languages in which the authentic text of the convention should be drawn up. ARTICLE XVI – What States may become Parties to the Convention. Ways to become Party to it. The CHAIRMAN said that in his capacity as representative of the United States of America he had suggested to the sub-committee that the General Assembly rather than the Economic and Social Council be entrusted with the task of inviting the states to sign this convention. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that the General Assembly held only one session while the Economic and Social Council held three. It would be preferable therefore that the task of issuing invitations should be entrusted to the latter. Mr. ORDONNEAU (France) preferred that that should be done by the General Assembly, because as a result of the work of the International Law Commission genocide might lie outside the competence of the Economic and Social Council. The Committee decided by four votes against three to entrust the General Assembly with the task of issuing invitations to states to sign the convention. The Committee also decided to delete the figure 8 in the year date mentioned in each of the two paragraphs of Article XVI. The whole of Article XVI was adopted unanimously. ARTICLE XVII – Reservations. Article XVII was adopted unanimously.

E/AC.25/SR.23

975

ARTICLE XVIII – Coming into force of the Convention. Article XVIII was adopted unanimously. ARTICLE XIX – Duration of the Convention – Denunciation. The CHAIRMAN said that the United States delegation was in favour of the first draft proposed by the Secretariat providing that the convention should remain in force for five years and be renewable by tacit consent. Mr. RUDZINSKI (Poland) observed that in drawing up a convention against a crime such as genocide it was impossible to foresee how long it would remain in effect. The adoption of the Secretariat’s first draft would give the impression that the convention was a temporary one and would apply only for the next five years. The condemnation of genocide should be made permanent; for that reason it was preferable not to determine the duration. Mr. MOROZOV (Union of Soviet Socialist Republics) supported that point of view. Mr. AZKOUL (Lebanon), Rapporteur, also preferred the second draft submitted by the Secretariat. There should be a permanent assurance of the prevention and suppression of genocide; it should not depend on political or historical events. Mr. ORDONNEAU (France) observed that renewal by tacit reaffirmation as provided for in the first draft ensured the continuance of the convention. Besides, it had the advantage of binding the contracting parties for a longer time, since denunciation could be effected only on the expiration of the current period, whereas under the terms of the second draft denunciation could be effected at any given moment and would take effect one year after receipt of the notification. The Committee decided by 4 votes to 3 to adopt the first draft of Article XIX submitted by the Secretariat. Article XX – Abrogation of the Convention. The CHAIRMAN stated that the United States delegation had proposed that the number of members below which the convention would cease

976

E/AC.25/SR.23

to have effect should be fixed at fifteen. He asked for a vote on that proposal. The United States proposal was adopted unanimously. Article XXI – Revision of the Convention. The CHAIRMAN read out the alternative draft of Article XXI submitted by the delegation of the United States of America. Mr. MOROZOV (Union of Soviet Socialist Republics) admitted that the provisions of that draft, according to which a request for the revision of the convention would not be transmitted to the General Assembly unless it came from one-fourth of the High Contracting Parties, would give greater force to the convention. He remarked, however, that those provisions were contrary to normal procedure, which permitted any Member State to submit a question for consideration by the General Assembly. The USSR delegation would not like Member States to be deprived of one of their essential rights. Mr. ORDONNEAU (France) emphasized that, in principle, nothing prevented signatory states from renouncing some of their rights in order to ensure greater stability for the convention. It was clear that Member States who had not signed the convention would at all time be free to submit to the General Assembly any question bearing on the convention which was of interest to them. He declared himself in favour of the United States proposal. Speaking as the representative of the United States of America, the CHAIRMAN drew the Committee’s attention to the fact that international conferences led to considerable expense and that the General Assembly would be in a better position to decide on the action it would take if requests for a revision of the convention came from one-fourth of the signatories rather than from a single State. The Committee adopted by 6 votes to 1, with one abstention, the draft of Article XXI submitted by the delegation of the United States of America. Article XXII – Notifications by the Secretary-General.

E/AC.25/SR.23

977

Article XXII was adopted unanimously. Article XXIII – Deposit of the Original of the Convention – Transmission of copies to Governments. In the interests of unanimity, Mr. MOROZOV (Union of Soviet Socialist Republics) withdrew the proposal he had submitted to the Sub-Committee. Mr. RUDZINSKI (Poland) did not insist that the Committee should adopt the text proposed by the Secretariat. The CHAIRMAN put to the vote the draft submitted by the delegation of the United States of America. The draft of Article XXIII submitted by the delegation of the United States of America was adopted unanimously. Article XXIV – Registration of the Convention. Article XXIV was adopted unanimously. Article XXV – Languages – Date of the Convention. The CHAIRMAN, speaking on behalf of the Committee, thanked the Secretariat for its excellent work. The detailed note prepared by the Secretariat and embodied in the annex to the Sub-Committee’s report would not fail to help the Committee in its work. He informed the Committee that in the Sub-Committee the delegations of the USSR and Poland held the view that the convention should be drafted in the five official languages, while the delegation of the United States of America felt that it should be drafted in the two working languages only. Mr. RUDZINSKI (Poland) pointed out that it was the usual practice to draft all important documents of the United Nations in the five official languages. A convention as important as the one it was now proposed to adopt should certainly receive the same treatment. Mr. LIN (China), Mr. PEREZ-PEROZO (Venezuela) and Mr. AZKOUL (Lebanon), Rapporteur, supported that point of view.

978

E/AC.25/SR.23

Mr. ORDONNEAU (France) had no objection to the convention being drafted in the five official languages, but wished to point out the danger inherent in the existence of five equally valid texts, especially in the case of a convention that would be interpreted by tribunals. It should not be forgotten that interpretation of texts of criminal law was always restrictive; consequently, there was a risk that a tribunal faced with five equally valid texts would apply the text permitting the narrowest interpretation. Speaking as the representative of the United States of America, the CHAIRMAN stated that, in the interests of unanimity, he was prepared to accept the drafting of the convention in the five official languages. The Committee decided unanimously that the convention should be drafted in the five official languages, the five texts being equally valid. The meeting rose at 6:15 p.m.

E/AC.25/W.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

979

RESTRICTED E/AC.25/W.1 26 April 1948 ORIGINAL: ENGLISH FRENCH

AD HOC COMMITTEE ON GENOCIDE COMMENTARY ON ARTICLES ADOPTED BY THE COMMITTEE ARTICLE 1 In this Convention genocide means any of the following deliberate acts committed with the intention of destroying a national, racial, religious or political group, on grounds of national or racial origin, religious belief, or political opinion; 1. killing members of the group; 2. any act directed against the corporal integrity of members of the group; 3. inflicting on the members of the group such measures or conditions of life which would be aimed to cause their deaths; 4. any act or measure calculated to prevent births within the group.

Observations Article 1 is the basic article defining genocide. It was the subject of long consideration by the Committee. [p.2] A. General elements of the definition The definition contains four elements: 1. The notion of premeditation. This was accepted by the Committee as a whole. 2. The intention of destroying a human group (accepted by four votes with three abstentions). In principle an isolated act directed against one or more members of a human group does not constitute genocide. However, such an act may constitute genocide if it is part of a chain of actions inspired by the intention of destroying the group.

980

E/AC.25/W.1

International or civil war conducted in accordance with the laws of war does not constitute genocide because there is no intention of destroying a group. Genocide is involved even if the authors of the act intended to destroy only part of the group, as for example if they sought to reduce it by a third or a quarter of the number of its members. 3. The third element is that of the human groups protected. The Committee was unanimously in favour of protecting national, racial and religious groups. The inclusion of political groups was accepted by four votes to three. The minority pointed out that political groups lack the stability of the other groups mentioned. They have not the same homogeneity and are less well defined. 4. The fourth element is that of the motives for genocide. In the opinion of some members of the Committee it was in the first place unnecessary to lay down the motives for genocide since it was indicated in the text that the intention of destroying a group must be present and, in the second place, motives should not be mentioned since, in their view, the destruction of a human group on any grounds should be forbidden. They accepted the mention of motives but only by way of illustration. This point of view was not accepted. The majority view was that the inclusion of certain motives was indispensable. In defining these motives the Committee agreed on the adoption of the following terms: As regards nationality and race it was decided to say, “on grounds of national or racial origin”. Members of a group are subjected to genocide because of their [p. 2 ends] racial or national origin and not because of their legal nationality. The German Jews were, for example, of German nationality. As regards religion and politics the expressions “religious belief ” and “political opinion” were adopted. The outlawing of genocide obviously does not preclude the taking of proper measures against a human group whose actions inside a state might imperil its existence, more especially in time of war. So long as the action taken

E/AC.25/W.1

981

remains within the ordinary bounds of self-defence there is no genocide because the specific motive for genocide does not exist. B. Indication of the types of acts constituting genocide. The Committee thought that it would be unsound to list the very varied acts which may constitute genocide. In its opinion, however, in this new matter affecting criminal law, it was essential to know what was envisaged. The Committee therefore established the following four categories: 1. Killing members of the group. (This formula was accepted by five votes to two.) This is the principal case of genocide in its most flagrant and radical form. The formula covers mass murders as well as the execution or assassination of individuals with a view to the total or partial destruction of the group. 2. Any act directed against the corporal integrity of members of the group. (Accepted by five votes to one, with one abstention.) This formula covers any acts, other than killing, which have the common characteristic of including a direct attack on the person of members of the group. (Blows and wounds, torture, mutilation, harmful injections, biological experiments conducted with no useful end in view etc.) 3. “Inflicting on the members of the group such measures or conditions of life which would be aimed to cause their deaths.” (Accepted by three votes to one with three abstentions.) The text covers two cases of great practical importance. The first is the case of individuals herded in ghettos, interned in concentration camps, imprisoned, subjected to forced labour and exposed to conditions of life – for example, inadequate food, lack of sanitation and excessive work – which condemned them to a slow death. The second case is that in which, while individuals are left at liberty, they are deprived of the means of existence enjoyed by other inhabitants.

982

E/AC.25/W.1

They are, for example, refused housing, access to provisions, or the right to work. 4. Any Act or measure calculated to prevent births within the group. (Accepted by four votes with three abstentions.) The formula refers to measures of any kind intended forcibly to prevent the births by which the group reproduces itself (the sterilization of individuals, forced abortions, separation of the sexes, barriers to marriage etc). ARTICLE 2 Cultural Genocide In this Convention genocide also means any deliberate acts committed with the intention of destroying the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools, or prohibiting the printing and circulation of publications in the language of the group; 2. Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.

Observations The question of cultural genocide gave rise to a fairly full discussion. Those who supported the concept of cultural genocide emphasized that there were two ways of suppressing a human group, the first by causing its members to disappear, and the second by abolishing, without making any attempts on the lives of the members of the group, their specific traits. According to this opinion, the Convention would fail fully to achieve its objects if it left out cultural genocide. The opponents of the concept of cultural genocide emphasized that there was a considerable difference between so-called “physical” genocide (including biological genocide) and “cultural” genocide. Only physical genocide presented those exceptionally horrifying aspects which had revolted the conscience of humanity. They also pointed to the difficulty of fixing the limits of cultural genocide, which impinged upon the violations of the rights of man and the rights of minorities. It was [p. 5] therefore through the protection of the rights of man, the prevention of discrimination and the

E/AC.25/W.1

983

protection of minorities that acts which would be improperly introduced into the notion of cultural genocide should be prevented. Finally, it was said that from the practical point of view, the inclusion of cultural genocide in the Convention might prevent many countries from becoming parties to the Convention and jeopardize its success. In this connection the United States delegation made a declaration for entry in the record.* During the discussion of principles, the Committee decided by six votes to one to retain the idea of cultural genocide (Fifth Meeting – 8 April). The Lebanese delegate had proposed a more restricted definition of cultural genocide, as follows: According to the terms of the Convention, it is also understood that genocide includes all acts and measures which are directed against a national, racial or religious group on grounds of the national or racial origin or religious beliefs of its members, and which aim at the systematic destruction by oppressive or violent means of the language, religion, or culture of that group.

The Ad Hoc Committee had intended to insert the definition of cultural genocide in Article 1 of the Convention, but subsequently decided by three votes to two with one abstention to make it the subject of a separate article (Tenth Meeting – 15 April). The reasons for this decision were as follows: In the first place, the Committee considered that it would be difficult to arrive at a definition the general terms of which would in every instance be applicable to cultural genocide as to other forms of genocide, owing to the fact that the idea of cultural genocide could not be applied in practice to political groups. The Committee then thought that Governments would * Declaration of the United States delegation: The prohibition of the use of language, systematic destruction of books, and destruction and dispersion of documents and objects of historical or artistic value commonly known in this Convention to those who wish to include it as cultural genocide is a matter which certainly should not be included in this Convention. The act of creating the new international crime of genocide is one of extreme gravity and the United States feels that it should be confined to those barbarous acts directed against individuals which form the basic concept of public opinion on this subject. The acts provided for in these paragraphs are acts which should appropriately be dealt with in connection with the protection of minorities.

984

E/AC.25/W.1

find it easier to make known their views on the inclusion of cultural genocide if the matter were treated in a separate article. [p. 5 ends] It is to be noted that the first sentence of Article 2 presents a certain differences [sic] compared to the first sentence of Article 1. It speaks of the destruction of language, religion or culture and makes no mention either of political groups or political opinions. There is no need to explain sub-paragraph 1, which deals with language, and sub-paragraph 2, which deals with cultural institutions (libraries, museums, historical monuments, etc. . . .). The Lebanese delegate had proposed to add a third sub-paragraph reading as follows: 3. Placing the members of the group in conditions calculated to make them renounce their language, religion or culture.

This proposal was rejected by three votes to two with two abstentions (Fourteenth Meeting – 21 April).

E/AC.25/W.1/Add.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

985

RESTRICTED E/AC.25/W.1/Add.1 27 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE COMMENTARY ON THE ARTICLES ADOPTED BY THE COMMITTEE (CONTINUATION) ARTICLE 3 (Conspiracy, incitement, attempt, The following acts shall be complicity) punishable: (a) genocide as defined in Articles 1 and 2; (b) conspiracy to commit genocide; (c) direct incitement in public or in private to commit genocide whether such incitement be successful or not; (d) attempt to commit genocide; (e) complicity in any of the acts enumerated in this article.

Comments Article 3 enumerates all the acts connected with genocide which should be punishable. It gave rise to prolonged debate. A. Principles included in the enumeration in Article 3 (a) “Genocide as defined in Articles 1 and 2” It seemed to the Committee that as the purpose of Article 3 was to mention all the acts connected with genocide that should be punishable, the list should, to be complete, begin by referring to the principal act of genocide as defined in Articles 1 and 2. (b) “Conspiracy to commit genocide” “Conspiracy” which is translated in French by the words “entente en vue de l’accomplisse du genocide” is an indictment under Anglo-Saxon law.

986

E/AC.25/W.1/Add.1

The Committee considered that conspiracy to commit genocide must be punished both in view of the gravity of the crime of genocide, and of the fact that in practice genocide is a collective crime, supposing the collaboration of a greater or smaller number of persons. (c) “Direct incitement in public or in private to commit genocide whether such incitement be successful or not” Direct incitement is that form of incitement whereby an individual invites or urges other individuals to commit genocide. [p. 2] The qualification “direct” in conjunction with the word “incitement” was adopted by 3 votes to 2 with 2 abstentions (Fifteenth Meeting – Thursday afternoon, 22 April). Incitement is public in form when made in public speeches or in the press, through the radio, the cinema or other ways of reaching the public. It is private when it is conducted through conversations, private meetings or messages. The qualification “in public or in private” was adopted by 5 votes with 2 abstentions (Fifteenth Meeting – Thursday afternoon, 22 April). Certain members of the Committee considered the final words “whether such incitement be successful or not” to be superfluous. Nevertheless, the Committee decided to insert them by 4 votes with 3 abstentions. (Fifteenth Meeting – Thursday afternoon, 22 April). (d) “Attempt to commit genocide” There was no debate on this clause. (e) “Complicity in any of the acts enumerated in this article” The Committee was unanimous on this point. B. Principles not retained in the enumeration in Article 3 1. The question of “preparatory acts” gave rise to lengthy controversy. At a first vote the Committee had decided, by 4 votes to 3, to include preparatory acts in the enumeration in Article 3. (Fifteenth Meeting – Thursday morning, 22 April). At a later vote the Committee decided by 4 votes to 3, to omit them.

E/AC.25/W.1/Add.1

987

The representative of the Union of Soviet Socialist Republics, who supported the inclusion of preparatory acts in the enumeration of punishable acts, said that according to the penal law of various countries the preparatory acts of a crime were not punishable, unless the law expressly provided that they were. The preparation of genocide should not be left unpunished. The notion of preparatory acts, however, should be limited to certain acts of particular gravity defined as follows:* (a) studies and research for the purpose of developing the technique of genocide; [p. 2 ends] (b) setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; (c) issuing instructions or orders, and distributing tasks with a view to committing genocide.

That proposal was rejected by 4 votes to 2 with 1 abstention. ( Meeting, ) The members of the Committee who did not support the inclusion of Preparatory acts stressed the difficulty in defining the notion of preparatory acts and the disadvantage of enumerating them if that difficulty were to be avoided. Furthermore, in the most serious cases where it would be desirable to punish the authors of preparatory acts, that could be effected either under the clause “conspiracy to commit genocide” or the clause “complicity”. If the construction of crematory ovens or the adaptation of motor-cars to the purpose of killing the occupants with noxious gases were at issue, such acts requiring the co-operation of a certain number of persons, would accordingly come under the heading of “conspiracy to commit genocide” even if genocide were not finally committed, and under the heading of “complicity” if genocide were committed. 2. Indirect propaganda in favour of genocide This means propaganda which is intended to incite national, racial or religious hatreds and to lead to genocide, but is not a direct incitement to genocide. * These formulas are taken verbatim from the Secretariat’s draft (Article II 2(a), (b) and (c) document E/447 – 26 June 1947).

988

E/AC.25/W.1/Add.1

As the representative of the Union of Soviet Socialist Republics considered the text adopted on direct incitement in public or in private to commit genocide, inadequate (see above), he proposed that the following additional paragraph be inserted in the enumeration of punishable acts: All forms of public propaganda (press, radio, cinema etc. . . .) aimed at inciting racial, national or religious enmities or hatreds or at provoking the commission of acts of genocide.

In opposition to this proposal other members of the Committee said that the punishment of hateful propaganda, the purpose of which was simply to create a state of mind favourable to the commission of genocide without inviting people to commit genocide, would be injurious to the free expression of opinion, and give free rein to tendentious or abusive acts of repression. That in itself would jeopardize the Convention’s success. The Soviet proposal was rejected by 5 votes to 2 (Sixteenth Meeting – Thursday afternoon, 22 April). ARTICLE 4 (Persons liable, command of the The authors of any of the acts law and superior orders) enumerated in Article 3 shall be punished, be they Heads of State, public officials or private individuals.

Comments The Committee successively examined the questions of persons liable for the commission of genocide, and of the command of the law and superior orders. Only the first question was retained in the text of Article 4. 1. Persons liable The Committee agreed unanimously that the authors of genocide should be punished, whatever their status. The discussion dealt with the terminology to be used. Invoking the principles of national constitutions, certain members of the Committee said that the expression “ruler” used in the English text in the absence of a term corresponding exactly to the French word “gouvernant”, was not the right term to apply to the head of the State. The expression “ruler” was replaced in the English text by “heads of State” (chefs de l’Etat), whilst

E/AC.25/W.1/Add.1

989

the word “gouvernant”, which in European civil law covers the Head of the State and the ministers was retained in the French text. The text of Article 4 was adopted by 7 votes, that is to say by a unanimous vote of all the members of the Committee. (Eighteenth Meeting, Friday evening, 23 April). 2. The command of the law or superior orders The representative of the Union of Soviet Socialist Republics proposed the following text: Command of the law or superior orders shall not justify genocide.

In support of this principle which may be found in the Charter of the International Military Tribunal (Article 8* and Article 6** paragraph (c)) and in the Secretariat draft (Article V) two delegates put forward the following arguments: [p. 5] The Convention suppressing genocide would sanctify an elementary moral principle which should be impressed upon everybody. Public officials or private individuals who massacred innocent persons could not escape their responsibility by putting forward the excuse that it was their duty to obey the law or superior orders. It is true that they would risk immediate punishment by refusing to commit genocide but it must be made clear to them that they would be risking punishment later by consenting to commit it. The purpose of the Convention on Genocide was not only to punish the authors of genocide when once their crime had been consummated, but should also prevent genocide by intimidating those who might be caused to commit it. In opposition to this argument, one representative stated that the principle behind armed force was essentially one of obedience and that the

* Article 8 which is concerned with superior orders states: The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. ** With regard to the order of the law, Article 6 (paragraph c) (Amended by the Berlin Protocol) defines crimes against humanity and states: Whether or not in violation of the domestic law of the country where perpetrated.

990

E/AC.25/W.1/Add.1

Constitution of his country guaranteed the non-responsibility of all those who only acted in obedience to the law or to superior orders. Another representative pointed out that Article 1 of the Convention only punished the authors of acts of genocide in cases where they had acted because of racial or national reasons, religious beliefs or political opinions. The individual who committed genocide solely in obedience to the command of the law or to superior orders was not inspired by any of those motives and could not therefore be punished under the rules laid down by Articles 1 and 2 of the Convention. The only exception would be in the case where the crime of genocide accorded with the personal sentiments of the individual who committed it. In reply to this argument it was stated that in practice the judge would have to determine in each case the motives which had driven the individual to commit the act with which he was charged. The Soviet proposal was rejected by two votes to four with one abstention (Fifteenth Meeting, Friday evening, 23 April). [p. 5 ends]

E/AC.25/W.1/Add.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

991

RESTRICTED E/AC.25/W.1/Add.2 28 April 1948 ORIGINAL: FRENCH ENGLISH

AD HOC COMMITTEE ON GENOCIDE COMMENTARY ON ARTICLES ADOPTED BY THE COMMITTEE (Continued)

(Obligation for Contracting Parties to harmonize their domestic legislation with the Convention)

ARTICLE 5 The High Contracting Parties undertake to enact the necessary legislation in accordance with their constitutional procedure to give effect to the provisions of the Convention.

COMMENTS When a State becomes Party to a Convention, it is under obligation to take every measure necessary for the performance of its obligations under the Convention. Especially in the case of a Convention dealing with repression of crimes it must revise its domestic criminal law, if necessary, so that criminals defined by the Convention may be prosecuted and sentenced by its domestic courts. The question was raised of the necessity of a special provision to this effect in the Convention. It was contended that States were under the obvious obligation to take every measure for the proper performance of the obligations to which they subscribe. Moreover, the facts constituting genocide are already dealt with by domestic criminal laws (manslauger [sic], etc. . . .). Moreover, a delegate remarked that in certain countries where the danger of genocide does not exist, it would not be appropriate to ask that domestic legislation to be revised on the subject. Therefore, he proposed that legislative reform be required only if necessary in the particular instance under consideration. This proposition was finally withdrawn by its author when his attention was called to the danger of an obligation qualified by condition, which would then cease to be a real obligation. It was also contended that the provisions of such an article might prevent certain countries from becoming parties to the Convention

992

E/AC.25/W.1/Add.2

owing to the difficulty of obtaining the passing of the necessary legislation. This obstacle is particularly serious in federal States where criminal law is in the sphere of [last line missing in the original document] [p. 2] The answer was that such a provision exists in conventions dealing with crimes in international law(1) and that it was inserted with the specific purpose of reminding States of an essential duty. It is immaterial whether States have no or little legislative reform to make. The answer to the argument that national legislation might prevent certain States from becoming parties to the Convention, was that, if a State is not in a position to perform its obligations under the Convention, then it is better that it should abstain. If the government fears that the legislature might not support it, then it should ascertain the fact before ratifying or joining the Convention. Nevertheless, to give satisfaction to the delegates who were pre-occupied with the situation of federal States, it was agreed to word as follows the provision concerning the necessary legislative reforms: in conformity with their constitutional procedure.

During the discussion on the particular purpose of the measures under consideration, it was debated whether the text should read “for the prevention and repression of genocide” or “to give effect to the provisions of the Convention”. The second wording was deemed preferable because it dealt with all the obligations of the States under the Convention and not merely with penal measures. The amendment was adopted by 4 votes against 3. The article as a whole was adopted unanimously. [p. 2 ends] (Courts of Jurisdiction)

(1)

– ARTICLE 6 – Any of the acts enumerated in Article 3 shall be punished by any competent tribunal of the State in the territory of which the act is committed or by a competent international tribunal.

For example: The convention for the prevention of traffic in women and children, Geneva, Sept. 30, 1921; convention for the repression of forgery of the currency, Geneva, April 28, 1929, etc.

E/AC.25/W.1/Add.2

993

Comments Several problems were solved directly or indirectly by this article which deals with repression by the national courts and by an international court. A – Repression by the national courts – 1. All members of the committee agreed to recognize the jurisdiction of the Courts of the State on the territory of which the offense was committed. The first part of the article, up to “. . . on the territory of which the offense was committed. . . ” was voted by all seven members of the Committee. 2. The extra-territorial jurisdiction of national court over individuals who had committed genocide abroad was discussed when they considered the fundamental principles of the Convention. Those in favour of extra-territorial jurisdiction held that genocide would be committed most of the time by the State authorities themselves or that these authorities would have aided and abetted. Obviously in this case the national courts of that State would not enforce repression of genocide. Therefore, whenever the authorities of another State had occasion to arrest the offenders they should turn them over to their Courts. The tenets of extra-territorial jurisdiction added that, so long as genocide became a crime [p. 4] in international law, it was natural to apply extra-territorial jurisdiction. They quoted conventions on the repression of international offenses such as traffic in women and children, forgery of currency, etc. . . The opposite view held that extra-territorial jurisdiction was against the traditional principles of international law and that permitting the Courts of one State to punish crimes committed abroad by foreigners was against the sovereignty of the State. They added that, as genocide generally implied the responsibility of the State on the territory of which it was committed, the principles of extra-territorial jurisdiction would lead national courts to judge the acts of foreign Governments. Dangerous international tension might result. A member of the Committee, while he accepted that the right to exercise repression should not be left exclusively to the Courts of the country where

994

E/AC.25/W.1/Add.2

genocide had been committed, declared himself opposed to the principle of extra-territorial jurisdiction in the case of genocide. It is a fact, he said, that the Courts of the various countries of the world do not offer the same guaranty. Moreover, genocide as against other international crimes (traffic in women, traffic in narcotic drugs, forgery of currency) has a distinct political character. Therefore, there is a danger that territorial jurisdiction might lead national Courts to exercise a biased and arbitrary authority over foreigners. This delegate therefore, proposed that jurisdiction be given to an international Court which would impose itself to all and to which States would turn the authors of genocide committed abroad whom they had arrested and whom they would be unwilling to extradite. [p. 5] The principle of extra-territorial jurisdiction was rejected by the Committee in the course of discussion by four votes against two, with one abstention. (Eighth meeting – Tuesday, 13 April). During the discussion of Article 6 the proposal to reverse the foregoing decision was rejected by four votes against two with one abstention. (Twentieth meeting – Monday April 26) B – Repression by an International Court – The set-up of an international jurisdiction gave rise to a lengthy discussion. For some delegates the granting of jurisdiction to an international Court was an essential element of the Convention. They claimed that in almost every serious case of genocide it would be impossible to rely on the Courts of the States where genocide had been committed to exercise effective repression because the government itself would have been guilty, unless it had been, in fact, powerless. The principle of extra-territorial jurisdiction having been set aside for the reasons indicated above the absence of an international Court would result in fact, in impunity for the offenders. The supporters of an international Court merely requested that the international jurisdiction be expressly provided for by the Convention without the latter setting up the actual organization of the Court. The opposition first declared that the intervention of an international Court would defeat the principle of the sovereignty of the State because this Court would be substituted for a national Court. Secondly, they claimed that mere reference in the Convention to an international Court would have no practical [p. 6] value. What would this

E/AC.25/W.1/Add.2

995

Court be? There is for the moment no international Court with criminal jurisdiction. It would be necessary either to create a new Court or to add a new criminal chamber to the international [sic] Court of Justice and all the members of the Committee had agreed that they had neither the qualifications nor the time necessary for settling these problems. During the discussion of principles, the Committee adopted by four votes against two, with one abstention, the principle of an international criminal jurisdiction. (Eighth meeting – Tuesday 13 April) The Committee voted by four votes against three (twentieth meeting – Monday, 26 April) the final provision of Article 6 “or by a competent international tribunal”. It was understood that the latter provision would not be a mere expression of opinion but would have the authority of a rule. It would later suffice to determine what would be the international Court called upon to judge the authors of genocide. Regarding jurisdiction of the international Court, the Committee during the discussion of questions of principle decided by four votes and three abstentions that the international Court would have jurisdiction when the national Court would not be in a position to enforce repression. (Eighth meeting – Tuesday, 13 April) The U.S. delegate proposed the following additional paragraph to Article 6: Assumption of jurisdiction by the international tribunal shall be subject to a finding by the tribunal that the State in which the crime was committed has failed to take adequate measures to punish the crime.

This proposal was rejected by five votes against one with one abstention. [p. 7] It was then decided by four votes against three that the report would mention the text. The reasons for which the provision in question was not inserted in the Convention are that for certain sponsors of the international Court the jurisdiction defined above merely represented a minimum beyond which they considered it necessary to go and that in any case the precise jurisdiction of the international Court would be determined later when the organization and the procedure of the Court were set up.

996

E/AC.25/W.1/Add.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

RESTRICTED E/AC.25/W.1/Add.3 30 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE Draft Report Submitted by Mr. Azkoul, Rapporteur* The Ad Hoc Committee on Genocide set up by virtue of the Economic and Social Council resolution dated 3 March 1948 met at Lake Success from 5 April to 30 April 1948. It held twenty-six meetings. The Committee was composed of the following members: Chairman:

Mr. John MAKTOS

Legal Adviser Department of State Vice-Chairman: Mr. Platon D. MOROZOV

Rapporteur:

Representative – Union of Soviet Socialist Republics Mr. Karim AZKOUL Secretary-General of the Lebanese Delegation Alternate Representative (Economic and Social Council and Interim Committee)

(United States of America)

(Union of Soviet Socialist Republics)

(Lebanon)

* The present document only contains the beginning of the draft report; the following parts have already been or will shortly be distributed. See documents: E/AC.25/W.1 – 26 April; E/AC.25/W.1/Add.1 – 27 April; E/AC.25/W.1/Add.2 – 28 April; E/AC.25/W.1/Add.3 – 29 April; E/AC.25/W.1/Add.4 – 30 April;

E/AC.25/W.1/Add.3

Present:

Mr. Lin MOUSHENG Technical Expert (Security Council) Adviser (Trusteeship Council) Mr. Pierre ORDONNEAU Maître des Requêtes au Conseil d’Etat (Master of Requests in the Council of State) Adviser (Security Council and Interim Committee) Mr. Aleksander RUDZINSKI Adviser – Poland Mr. Victor M. PEREZ PEROZO Minister Plenipotentiary Alternate Representative on the Interim Committee – Counsellor

997

(China)

(France)

(Poland) (Venezuela)

During its first meeting the Committee elected the Chairman, the ViceChairman and the Rapporteur. The Assistant Secretary-General for the Department of Social Affairs was represented by Mr. E. Schwelb, Assistant Director of the Human Rights Division. Professor Giraud assisted by Mr. E. Gordon fulfilled the duties of Secretary of the Committee. Mr. Kliava represented the Legal Department. The Committee began its work by a general debate during which several delegations expressed their views on the question of genocide. DETERMINATION OF PROCEDURE AND ORDER OF BUSINESS The Soviet representative submitted to the Committee a ten-point note (document E/AC.25/7 – 7 April 1948) containing the essential provisions for a Convention on genocide. On the proposal of the Rapporteur the Committee decided that it would first discuss the Soviet note, it being understood that it would retain not the formulas proper, but the principles

998

E/AC.25/W.1/Add.3

included in the note, and that secondly it would proceed to draw up the text of a draft convention. The discussion on principles occupied nine meetings (the third to the eleventh). The Committee then proceeded to the preparation of the articles of the Convention. It decided not to take as a basis any of the drafts before it, namely, the Secretariat draft (document E/477), the draft of the United States of America (document E/623) and the French draft (E/623/Add.1) but to take them into account in its work. The members were invited to submit proposals to the Committee which could form the basis of articles on each point. Subsequently, however, the Committee considered it expedient to adopt as the basic text a proposal submitted by the representative of China (document E/AC.25/9), the other proposals submitted by members of the Committee being considered as amendments to that text. The members of the Committee also submitted texts of articles dealing with points which were not included in the text of the representative of China. The preparation of the Convention draft [sic] occupied twelve meetings (the twelfth to the twenty-third). At its twenty-fourth meeting the Committee undertook a second reading of the Preamble and Articles of the Convention with the exception of the final clauses which had been examined by a Sub-Committee composed of the delegates of the United States of America, Poland and the Union of Soviet Socialist Republics (document E/AC.25/10). Only formal amendments to the Convention were made at this second reading. At the twenty-fifth and twenty-sixth meetings, the Committee undertook the second reading of the final clauses and adopted the present report. ∗

∗

∗

For the sake of clarity and in order to avoid repetition the order followed in the debates is not adhered to, and the report is submitted in the form of commentaries on the Preamble and on each of the Articles of the draft prepared by the Committee.

E/AC.25/W.1/Add.3

999

The purpose of these commentaries is to clarify the provisions of the articles, to indicate the reasons why certain provisions have been adopted or rejected, and to give a summary of the different opinions expressed in the course of the Committee's meetings. Several delegations submitted statements to be included in the report. All these statements will be found in the report in the form of notes appended to the relevant articles of the draft convention. The verbatim records, moreover, give a detailed account of the debates. The report indicates the results of the majority of votes taken. [p. 4] PREAMBLE THE HIGH CONTRACTING PARTIES declare that genocide is a grave crime against mankind which violates the spirit and aims of the United Nations and which the civilized world condemns; having been profoundly shocked by many recent instances of genocide, and having taken note of the fact that the International Military Tribunal at Nürnberg in its judgment of 30 September and 1 October 1946 has punished under a separate legal heading certain persons who had committed acts analogous to those which the present Convention aims at punishing; being convinced that the prevention and punishment of genocide requires international co-operation; HEREBY AGREE TO PREVENT AND PUNISH THE CRIME OF GENOCIDE AS PROVIDED IN THIS CONVENTION.

COMMENTS The preamble contains a certain number of considerations of a general or historical nature. Paragraph 1 THE HIGH CONTRACTING PARTIES declaring that genocide is a grave crime against mankind which violates the spirit and aims of the United Nations and which the civilized world condemns;

The members of the Committee reached agreement on the majority of the ideas expressed in this paragraph.

1000

E/AC.25/W.1/Add.3

It will be noticed that genocide is called “a crime against mankind”. One delegate had requested that it should be stated that genocide, while possessing specific characteristics, was a crime against humanity. He stated that it was for practical reasons that a convention was being drawn up on the crime of genocide which, in his opinion, came within the general category of crimes against humanity. It was desired to organize without delay the prevention and punishment of this particularly grave crime until such time as the International Law Commission in developing and going beyond the Nürnberg principles, should organize the punishment of all crimes against humanity and sever the link by which they were bound to crimes against the peace and to war crimes under the Charter of the International Military Tribunal of 8 August 1945. The unity of the principle regarding crimes against humanity should, however, be preserved. [p. 5] Certain members of the Committee thought that it was not necessary to insert in the preamble of the Convention doctrinal considerations of no practical utility. Other members of the Committee categorically opposed the expression “crimes against humanity” because it had acquired a well-defined legal meaning since the time of Charter of the International Military Tribunal and of its judgment pronounced at Nürnberg. They added that by the terms of its Resolution 180(II), the General Assembly itself had clearly separated genocide from the other crimes which the International Law Commission would be called upon to codify. The formula of “a crime against mankind ” was therefore adopted to express an idea that was not specifically legal, but on which the whole world was in complete agreement. In addition, the Committee rejected various proposals to indicate in the Preamble that genocide was directed towards the destruction of human groups, or that it arose from national, racial, religious or political motives. The Committee considered that this would be tantamount to repeating the articles of the Convention defining genocide. Paragraph 2 having been profoundly shocked by many recent instances of genocide.

Various proposals were submitted on this point. The representative of the Union of Soviet Socialist Republics proposed the following text:

E/AC.25/W.1/Add.3

1001

THE HIGH CONTRACTING PARTIES declare that the crime of genocide is organically bound up with FascismNazism and other similar race theories which preach racial and national hatred, the domination of the so-called higher races and the extermination of the so-called lower races.

It was stated in objection that while Fascism-Nazism was undoubtedly responsible for the crimes of genocide committed before or during the second world war, it was nevertheless wrong to consider genocide as being an exclusive product of Fascism-Nazism. In fact history revealed many previous cases of genocide. As regards the future, it was possible that crimes of genocide would be based on other motives. It would be dangerous to create the idea that genocide should only be punished if it were a product of Fascism-Nazism, and that the Convention was concerned only with that historical accident. Furthermore, this text was criticized as giving the impression that genocide was a result of racial hatred alone, whereas it could be inspired by religious fanaticism. The paragraph proposed by the representative of the Union of Soviet Socialist Republics was rejected by five votes to two (twenty-second [p. 6] meeting – Tuesday, 22 April – afternoon). Certain delegates wished however that there should be some mention in the preamble of the recent crimes committed by Hitlerite Germany and her Fascist allies which were in fact the prime cause of the present Convention’s coming about. Various amendments to this effect were put forward, among others a Lebanese amendment reading as follows: Crimes of genocide have found fertile soil in the theories of Nazism and Fascism and other similar theories preaching racial and national hatred.

This amendment was rejected by four votes to three (twenty-second meeting, Tuesday afternoon, 27 April). Another amendment put forward by the French delegate read as follows: That recently the crime of genocide has been committed with particularly hideous results by the Nazi and Fascist regimes.

The Committee briefly considered this proposal.

1002

E/AC.25/W.1/Add.3

Finally it was thought that the formula “having been profoundly shocked by many recent instances of genocide” was sufficient. Paragraph 3 having taken not [sic] of the fact that the International Military Tribunal at Nürnberg in its judgment of 30 September and 1 October 1946 has punished under a separate legal heading certain persons who had committed acts analogous to those which the present Convention aims at punishing;

There was some discussion on this text, which recalls the part played by the International Military Tribunal. It was redrafted at the second reading. Fearing that the crime of genocide might be confused with the crimes against humanity which had been judged by the Military Tribunal, and after having been inclined to favour the suppression of the first text quoted, the majority of delegates requested that it should be revised. Consequently, several amendments were made among others, the addition of the words “under a separate legal heading”. The revised paragraph was adopted by three votes to one with three abstentions. Paragraph 4 Being convinced that the prevention and punishment of genocide requires international co-operation.

The representative of the Union of Soviet Socialist Republics proposed the following text: [p. 7] That the campaign against genocide requires all civilized peoples to take decisive measures to prevent such crimes and also to suppress and prohibit the stimulation of racial, national (and religious) hatred and to insure that persons guilty of inciting, committing or encouraging the commission of such crime shall be severely punished.

This text was rejected by four votes to three. (Twenty-third meeting, Tuesday afternoon, 27 April – second afternoon meeting). This text was rejected because objections were raised to the following passage: to suppress and prohibit the stimulation of racial, national and (religious) hatred.

E/AC.25/W.1/Add.3

1003

The Committee wished, however, to retain one of the ideas contained in this text and adopted the paragraph given above. The preamble as a whole was adopted by four votes to one with two abstentions (twenty-fourth meeting, 28 April 1948). [p. 8] PRELIMINARY ARTICLE (Will become Article I) Genocide is a crime under international law whether committed in time of war or in time of peace.

COMMENTS This article is to some extent a preliminary one, as articles 2 and 3 define genocide. Certain members of the Committee wondered whether any useful purpose would be served by adopting this article and whether the ideas expressed therein ought not be included in the preamble. The majority of the members of the Committee decided on a separate article in order to give more weight to the essential ideas to which it gave expression. This article contains two ideas. 1. Genocide is a crime under international law. This statement already existed in General Assembly Resolution 96(I) of 11 December 1946. It means that the prevention and punishment of this crime is in the interests of all nations, which accordingly justifies the action of the United Nations in this field. The first part of this article was adopted by five votes to one with one abstention. (Twentieth meeting, Monday afternoon, 26 April). 2. It is stated that genocide can be committed in time of war or in time of peace. As defined in the articles of the Convention which follow genocide can be committed in time of peace as well as in time of war. History affords

1004

E/AC.25/W.1/Add.3

quite a number of examples of genocide committed in both war and peacetime. The crime presents distinctive characteristics in each case and special penalties should be prescribed for it. While not disputing the principle that genocide can be committed in time of war as well as in time of peace certain delegates considered that this reference was definitely superfluous. The representative of the Union of Soviet Socialist Republics thought, moreover, that it was out of place, as it implied that war was foreseen. This proposal was adopted by three votes to one with three abstentions. The article as a whole was adopted by six votes to one.

E/AC.25/W.1/Add.4

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1005

RESTRICTED E/AC.25/W.1/Add.4 30 April 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE DRAFT REPORT Submitted by Mr. Azkoul, Rapporteur Article 7 – (now Article 8) A party to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide. A party to this Convention may bring to the attention of any competent organ of the United Nations any case of violation of this Convention.

OBSERVATIONS This article was discussed at length when the Committee considered questions of principle, and it was discussed again when the articles of the Convention were being drafted. It was agreed that the United Nations should have the function of supervising the application of the Convention and of taking action should it be violated. The delegate of the Soviet Union proposed the following text: The high contracting parties pledge themselves to communicate to the Security Council all the cases of genocide as well as all the cases of violation of the commitments provided for by this Convention to take necessary measures in accordance with Chapter VI of the United Nations Charter.

In this connection there was disagreement on two main points: 1. Should provision be made for the intervention of a specific organ of the United Nations, in this case the Security Council, or should no organ be mentioned? It was urged in favour of naming the Security Council that the commission of Genocide was a grave matter likely to endanger world peace and

1006

E/AC.25/W.1/Add.4

therefore one which justified intervention by the Security Council, and that only the Security Council was capable of taking effective action to remedy the situation, that is to say to stop the commission of Genocide. It was argued against this point of view that although the Security Council appeared to be the organ to which Governments would most frequently [p. 2] wish to apply, it was undesirable to rule out the General Assembly, the Economic and Social Council or the Trusteeship Council. In some cases it would be of advantage to call on the General Assembly because it directly expressed the opinion of all the Members of the United Nations, and because its decisions were taken by a majority vote with no risk of the right of veto preventing a decision. 2. Should it be made compulsory for parties to the Convention to lay the matter before the organs of the United Nations or should they be merely given the right to do so? It was argued in favour of compulsion that the gravity of genocide justified such compulsion, while the organs to which the matter was referred would be free to assess the importance of the cases submitted to them. It was further pointed out that Members of the United Nations were already entitled to refer questions to that Organization and that nothing would be gained by mentioning this right in the Convention. It was argued against this view that if a serious case of genocide occurred, it would certainly be submitted to the United Nations and that it was unnecessary to make an obligation of an option which should be left to the judgment of Governments. It was undesirable that doubtful cases and accusations without any real foundation should be brought before the United Nations, as this would only serve to embitter international relations. The principle of compulsory notification was rejected by three votes to two with two abstentions. (20th meeting – Monday 26 April – afternoon) Having rejected by five votes to two (20th meeting – Monday 26 April – afternoon) the text submitted by the delegate of the Soviet Union, the

E/AC.25/W.1/Add.4

1007

Committee had to consider the text submitted by the delegate of China and adopted as the basis of discussion. The text read as follows: Any signatory to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide.

This text with some amendments was adopted by five votes to one with one abstention (20th meeting – Monday 26 April – afternoon) and became the first paragraph of the article. A second paragraph, adopted by six votes with one abstention, was added. (20th meeting – Monday 26 April – afternoon) Article 8 – (now Article 9) Genocide and the other acts enumerated in Article 4 shall not be considered as political crimes and therefore shall be grounds for extradition. [p. 2 ends] Each party to this Convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force.

OBSERVATIONS This article was included in the Convention at the request of the delegate of Poland. There was no opposition and it was unanimously adopted by the members of the Committee. Article 9 – (now Article 10) Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice, provided that no disputes shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international tribunal.

1008

E/AC.25/W.1/Add.4

OBSERVATIONS A member of the Committee requested that Article XIV of the Secretariat’s draft* regarding the settlement of disputes relating to the interpretation of application of the Convention be re-inserted. One delegate opposed this proposal, recalling his opposition in principle to the assignment of compulsory jurisdiction to an International Court, which in his opinion would be an infringement of the sovereignty of States. He added that in this case the International Court of Justice would exercise supervision over national courts. Another delegate, supporting the conferring of such competence on the International Court of Justice, pointed out that since the Convention elsewhere conferred competence on an international criminal tribunal (Article VI last sentence), it was desirable to avoid any overlapping of jurisdictions and not to establish the International Court of Justice as a Court of Appeals in relations to the international criminal tribunal. He therefore proposed, in order to avoid disputes regarding competence, that the following formula be added to that proposed by the Secretariat: provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international tribunal.

The first part of the article conferring competence on the International Court of Justice was accepted by five votes to two. The second part, including the proviso quoted, was accepted by four votes to one with two abstentions.

* This article read as follows: Disputes relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice.

E/AC.25/W.2

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1009

RESTRICTED E/AC.25/W.2 27 April 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE DRAFT ARTICLES FOR THE INCLUSION IN THE CONVENTION ADOPTED AT THE FIRST READING* (Definition: Physical Genocide)

(Definition: Cultural genocide)

 ARTICLE 1 – In this Convention genocide means any of the following deliberate acts committed with the intention of destroying a national, racial, religious or political group, on grounds of national or racial origin, religious belief, or political opinion: (1) killing members of the group; (2) any act directed against the corporal integrity of members of the group; (3) inflicting on the members of the group such measures or conditions of life which would be aimed to cause their deaths; (4) any act or measures calculated to prevent births within the group. – ARTICLE 2 – In this convention genocide also means any deliberate acts committed with the intention of destroying the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief such as: (1) Prohibiting the use of the language of the group in daily intercourse or in schools, or prohibiting the printing and circulation of publications in the language of the group: (2) destroying or preventing the use of, libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.

* This document reproduces the Draft Articles adopted up to the 20th Meeting inclusive. The numbering is tentative.

1010

E/AC.25/W.2

(Punishable Acts)

(Responsible Persons)

(Duty of the Parties to put their legislation in harmony with the Convention). (Competent Courts)

(Action by the United Nations)

(Extradition)

– ARTICLE 3 – The following acts shall be punishable: (a) Genocide as defined in Articles 1 and 2; (b) conspiracy to commit genocide; (c) direct incitement in public or in private to commit genocide whether such incitement be successful or not; (d) attempt to commit genocide; (e) complicity in any of the acts enumerated in this article. – ARTICLE 4 – Those committing any of the acts enumerated in Article 3 shall be punished, be they heads of State, public officials or private individuals. – ARTICLE 5 – The High Contracting Parties undertake to enact the necessary legislation in accordance with their constitutional procedure to give effect to the provisions of the Convention. – ARTICLE 6 – “Any of the acts enumerated in Article 3 shall be punished by any competent tribunal of the State in the territory of which the act is committed or by a competent international tribunal”. – ARTICLE 7 – Any Signatory to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide. Any Signatory to this Convention may bring to the attention of any competent organ of the United Nations any case of violation of this Convention. – ARTICLE 8 – The High Contracting Parties declare that genocide and the other acts enumerated in Article 3 shall not be considered as political crimes and therefore shall be ground for extradition. Each High Contracting Party pledges itself to grant extradition in such cases in accordance with its legislation and treaties in force.

E/AC.25/W.2

(Settlement of Disputes by the International Court of Justice.)

1011

– ARTICLE 9 – Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international criminal tribunal.

1012

E/AC.25/W.2/Add.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

RESTRICTED E/AC.25/W.2/Add.1 28 April 1948 ENGLISH ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE DRAFT OF THE PREAMBLE AND OF ARTICLE I FOR INCLUSION IN THE DRAFT CONVENTION (AS ADOPTED BY THE AD HOC COMMITTEE AFTER THE FIRST READING) – PREAMBLE – THE HIGH CONTRACTING PARTIES declare that genocide is a grave crime against [line 2] mankind which violates the spirit and aims of the United [line 2 ends] Nations and which the civilized world condemns THE HIGH CONTRACTING PARTIES, [line 4] having been profoundly shocked by many recent [line 5] instances of genocide, and [line 5 ends] having taken note of the fact that the International Military Tribunal at Nurnberg in its judgment of September 30th and October 1st 1946 has punished certain persons who had committed analogous acts, and being convinced that the prevention and punishment of genocide requires international cooperation, HEREBY AGREE TO PREVENT AND PUNISH THE CRIME AS PROVIDED IN THIS CONVENTION. – ARTICLE I – Genocide is a crime under international law regardless whether committed in time of war or in time of peace.

E/AC.25/SR.24

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1013

UNRESTRICTED E/AC.25/SR.24 12 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTY-FOURTH MEETING Lake Success, New York Wednesday, 28 April 1948, at 2:00 p.m. Chairman: Mr. MAKTOS Vice-Chairman: Mr. MOROZOV Rapporteur: Members:

Secretariat:

Mr. Mr. Mr. Mr. Mr. Mr.

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO SCHWELB

Mr. GIRAUD

(United States of America) (Union of Soviet Socialist Republics) (Lebanon) China France Poland Venezuela Deputy Director of the Human Rights Division Secretary of the Committee

NOTE: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

1014

E/AC.25/SR.24

SECOND READING OF ARTICLES ADOPTED BY THE COMMITTEE FOR INCLUSION IN THE CONVENTION ON GENOCIDE (DOCUMENTS E/AC.25/W.2/Add.1 AND E/AC.25/W.2) “Preliminary Article”, later Article 1 Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the “Preliminary” Article should be excluded because the general nature of the crime of genocide should be specified in the preamble. Furthermore, he considered that in place of the words “crime under international law” the preamble should state that the crime of genocide was one of the worst forms of crimes against humanity directed towards the destruction of individual human groups on racial, national (religious) grounds. The representative of the USSR reserved his opinion with regard to the considerations contained in the second part of the “Preliminary” article. Mr. PEREZ-PEROZO (Venezuela) supported the proposal made by the representative of the Soviet Union for the deletion of the “Preliminary” article stating that his delegation also preferred the inclusion in the preamble of the reference to international law. The CHAIRMAN reminded the Committee that as the draft articles under consideration already had been adopted by the Committee, before there could be a substantive discussion on any one of those points, it first would be necessary to decide the question of whether or not the Committee wished to reconsider the point. Mr. ORDONNEAU (France) expressed the view that the purpose of the second reading of the articles was merely to improve on drafting. During the first part of its work, the Committee had reversed a number of its decisions, but as regards the second reading, there was no precedent for such action. He was opposed to any attempt to reconsider or change decisions already made by the Committee. The CHAIRMAN supported the view stated by the representative of France and expressed the hope that the Committee would not re-open the discussion on the various articles. Mr. MOROZOV (Union of Soviet Socialist Republics) took the position that until the convention was completed and ratified, there should be

E/AC.25/SR.24

1015

opportunity for amendments and changes. Therefore, he proposed that the discussion of the “Preliminary” article be re-opened. The proposal was rejected by three votes to two, with two abstentions. Article 1, later Article 2. The CHAIRMAN proposed that the first paragraph of Article 1 be amended to read: “In this Convention genocide means any of the following deliberate acts committed with the intent to destroy a national, racial, religious or political group, on the grounds of the national or racial origin, religious belief, or political opinion of its members.” He was supported by the representative of France. Mr. AZKOUL (Lebanon) proposed that the words “for the purpose of destroying” be substituted for the words “with the intent to”. The proposal was rejected by two votes to one, with four abstentions. Upon the suggestion of the CHAIRMAN parts (2) and (3) of Article 1 were amended to read as follows: (2) any act impairing the physical integrity of members of the group; (3) inflicting on members of the group measures or conditions of life which would be aimed at causing their deaths;

The Chairman proposed that part (4) of Article 1 be amended to read: “imposing measures preventing births within the group.” He was supported by the representatives of Venezuela and China. Mr. RUDZINSKI (Poland) took the position that it was preferable to retain the words “calculated to prevent”, as the word “preventing” did not have the same meaning as “calculated to prevent”, and the latter was the stronger and clearer term. The Chairman’s proposal to the effect that part (4) of Article 1 be amended to read: “imposing measures preventing births within the group” was put to a vote. The proposal was adopted by three votes to one, with three abstentions.

1016

E/AC.25/SR.24

Mr. ORDONNEAU (France) commented that preventing was a negative act; therefore, he proposed that part (4) of Article 1 be amended to read: “imposing measures intended to prevent”. The proposal was adopted unanimously. Article 1 as a whole was then put to a vote. The Article was adopted by five votes to two. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that he had voted against Article 1 of the Convention as a whole on the following grounds: It was wrong to add political groups to the list of groups protected by the Convention on Genocide, and political convictions to the list of motives for the commission of the crime of genocide. Crimes committed for political motives belonged to a special type of crime and had nothing in common with crimes of genocide, the very name of which, derived as it was from the word genus – race, tribe, referred to the destruction of nations or races as such for reasons of racial or national persecution, and not for political opinions of those groups. Crimes committed for political reasons had no connection with racial or national hatred propaganda, and could not therefore be added to the category of crimes embraced by the concept of genocide. Crimes committed for reasons of racial or national hatred could also include in some cases motives of a religious character, but that type of motive for the crime of genocide was closely linked with motives of a national character. The inclusion in the definition of genocide of political groups as being groups protected by the Convention, and the addition of political convictions to the list of motives for committing the crime of genocide would signify such a broadening of the concept of genocide as to contradict the basic, scientifically recognized meaning of that word. Such a broadening of the concept of genocide would lead in practice to a loss of perspective and consequently to the absence of a proper campaign against the annihilation of human groups on racial, national (religious) grounds, which it should be the aim of the present Convention to prevent.

E/AC.25/SR.24

1017

Moreover, the enumeration of the actual crimes of genocide in Article 1, paragraphs 1 to 4 was not exhaustive and since no list of possible crimes of genocide could be complete the representative of the Union of Soviet Socialist Republics considered that Article 1 of the Convention should have been worded as follows: In this Convention the word ‘genocide’ includes any of the criminal acts mentioned below directed towards the physical destruction of racial, national and religious groups on grounds of racial, national or religious persecution: 1. The physical destruction of such groups in whole or in part, 2. The premeditated creation of such conditions of life as would be directed towards their physical destruction in whole or in part.

Mr. RUDZINSKI (Poland), explaining his vote against Article 1, supported the statements made by the representative of the Soviet Union to the effect that political groups should not be included in the article. Political groups could not be dealt with properly on the same ground as national, racial and religious groups and there was great danger for the whole convention in the inclusion of political groups in the article. Article 2, later Article 3 Mr. AZKOUL (Lebanon) commented that there could be “cultural genocide” because of political opinions. The exclusion of a reference to political opinions might lead to the mistaken idea that it was legal to destroy the culture and language of a group because of its political opinions. Article 2 should be brought into accord with Article 1. To this end, he proposed that the words “or political opinions” be added after the words “religious belief ”. Mr. MOROZOV (Union of Soviet Socialist Republics) objected to the proposal made by the representative of Lebanon on the ground that it was a change of substance and not a drafting proposal. The CHAIRMAN put to a vote the question of whether or not Article 2 should be reconsidered. The proposal was rejected by five votes to two, with one abstention.

1018

E/AC.25/SR.24

Mr. LIN MOUSHENG (China) suggested certain drafting changes necessary to bring Article 2 into accord with Article 1. The first paragraph of Article 2 was amended to read: In this convention genocide also means any deliberate acts committed with the intention to destroy the language, religion or culture of a national, racial or religious group on the grounds of the national or racial origin or religious belief of its members, such as:

In part (1) the word “prohibiting” was deleted. Upon the suggestion of the representative of Lebanon, Article 2 was put to a vote in two separate parts. The first paragraph of Article 2 was adopted by four votes to one, with two abstentions. The remaining part of Article 2 was adopted by five votes to two. It was agreed that titles, such as “cultural genocide” would be omitted from the Convention, although such terms might be used in quotations in the report. Article 3, later Article 4. Article 3 was adopted by six votes, with one abstention. The CHAIRMAN explained that he had abstained from voting in favour of Article 3 because of the inclusion therein of the word “incitement”. The United States delegation believed that the Convention should establish the culpability of all who directly perform the physical acts comprehended in the crime of genocide, all who “conspired” together to achieve the end which was to be prescribed by this Convention, i.e. the act of genocide, all who “attempted” to achieve that end. In that connexion a “direct incitement” to the achievement of the prescribed end, if of a nature to create an imminent danger that would result in the commission of the crime, would constitute part of an attempt thereto and/or an overt act of conspiracy thereto. To outlaw such incitements, it was sufficient to outlaw the attempt and conspiracy without specifically enumerating the acts of direct incitement in the Convention.

E/AC.25/SR.24

1019

Mr. MOROZOV (Union of Soviet Socialist Republics) explained that he had voted for Article 3 as a whole with the reservation that it did not correspond completely with the definition of genocide laid down in Article 1. He was supported by the representative of Poland. Article 4, later Article 5 In accordance with drafting changes suggested by the Chairman and the representative of Poland and China, Article 4 was amended to read: Those committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are heads of State, public officials or private individuals.

Article 4 was adopted unanimously. Mr. MOROZOV (Union of Soviet Socialist Republics) explained that he had voted for Article 4 as a whole, but made the following statement with regard to the article: The delegation of the Union of Soviet Socialist Republics considered that Article 4 should be supplemented by the following paragraph 2: 2. Command of the law or superior order shall not justify genocide. The exclusion of that point by a majority of the Committee was contradictory to the principles recognized by the Nuremburg Tribunal, signified a renunciation of ideas already recognized by the United Nations and might essentially weaken the struggle against genocide. It was wrong to assert that the formula constituted a repetition of paragraph (a). Article 4 was concerned with the persons responsible for genocide, where the crimes had been committed in obedience to superior orders, and the perpetrators of those crimes accordingly tried to justify themselves by referring to superior orders or the command of the “law”. Mr. RUDZINSKI (Poland) supported the views expressed by the representative of the Soviet Union and recalled that he had voiced strong objections to the Committee’s rejection of the Soviet proposal for the [p. 8-second line from the bottom] inclusion in Article 4 of a reference to “command of the law or superior [p. 8-last line] orders”. His position with regard to the omission of that reference remained unchanged.

1020

E/AC.25/SR.24

Article 5, later Article 6 Article 5 was adopted by five votes to one, with one abstention. Mr. MOROZOV (Union of Soviet Socialist Republics) explained that his reasons for voting against Article 5 were as follows: The text of Article 5 adopted by a majority of the Committee was not appropriate to the task of organizing a genuine campaign against genocide as it did not make it obligatory for signatories to the Convention to make provision in their legislation for the prevention and punishment of genocide and also for the prevention and punishment of incitement to racial, national and religious hatred and provide criminal penalties for these offences, since in view of their vagueness the words “essential legislation” might be variously interpreted. The representative of the Union of Soviet Socialist Republics considered that the Article should have been drafted as follows: The High Contracting Parties pledge themselves to make provision in their legislation for the prevention and punishment of genocide and also for the prevention and punishment of incitement to racial, national and religious hatred, and provide criminal penalties for these offences.

Mr. RUDZINSKI (Poland) explained his reasons for abstaining from voting on Article 5. He had proposed that the word “necessary” be inserted after the word “procedures”, but the Chair had ruled his proposal out of order on the ground that it was a substantive and not a drafting change. He had asked for an explanation of the meaning of the words “constitutional procedures to give effect”, as they appeared in the article, and as their meaning was not clear to him, he had been obliged to abstain. Article 6, later Article 7 Following amendments suggested by the CHAIRMAN and Mr. RUDZINSKI (Poland), the article was redrafted to read: Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal.

The article, as redrafted, was adopted by four votes to three.

E/AC.25/SR.24

1021

Mr. PEREZ PEROZO (Venezuela) explained that he had voted against the article because he opposed the inclusion in Article 6 of the sentence “or by a competent international tribunal”, because he considered that therein was a vague allusion to a possible international jurisdiction the constitutive elements of which were not known to the signatories of the Convention. Mr. RUDZINSKI (Poland) saw a paradox in the fact that provisions were being made for the establishment of an international criminal court, whereas, in the absence of a world government, there were no means of enforcing its jurisdiction. The Polish delegation would have been able to accept the article had it contained a mere reference to an international criminal court possibly to be established in the future without obliging signatory States to [p. 18Rudzinski remarks-para. 2-line 4] assume a priori responsibility with respect to such a court; however, [p. 18-Rudzinski remarks-para. 2-line 5] since the responsibility of signatory States had been made quite explicit, he had been unable to vote in favour of the Article. Mr. MOROZOV (Union of Soviet Socialist Republics) considered that the decision of a majority of the Committee to place cases of genocide under the jurisdiction of a competent international court was wrong, since the establishment of an international court would constitute intervention in the internal affairs of States and a violation of their sovereignty an important element of which was the right to try all crimes without exception, committed in the territory of the State concerned. The representative of the Union of Soviet Socialist Republics considered that Article 6 of the Convention should have been drafted as follows: The High Contracting Parties pledge themselves to punish any offender under this Convention within any territory under their jurisdiction, the case to be heard by the national courts in accordance with the domestic legislation of the country.

Article 7, later Article 8 The CHAIRMAN, supported by Mr. ORDONNEAU (France) suggested that the words “A Party” should replace “Any Signatory” in the first line of the article.

1022

E/AC.25/SR.24

The article, as redrafted, was adopted by five votes to one, with one abstention. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that in order really to combat genocide it was essential that the signatories to the Convention should undertake the obligation to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention, so that the necessary measures might be taken in accordance with Chapter VI of the United Nations Charter. An appeal precisely to the Security Council would be fully in accordance with the gravity of the question of genocide. The representative of the Union of Soviet Socialist Republics considered that Article 8 should read as follows in the Convention: The High Contracting Parties undertake to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter.

Article 8, later Article 9 The CHAIRMAN suggested redrafting the article to read: Genocide and the other acts enumerated in Article 3 shall not be considered as political crimes and therefore shall be grounds for extradition. Each Party to this Convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force.

The article, as redrafted, was adopted unanimously. Mr. MAKTOS (United States of America) wished to explain that until the Congress of the United States shall have enacted the necessary legislation to implement the Convention, it would not be possible for the Government of the United States to surrender a person accused of a crime not already extraditable under existing laws. Moreover, the provision in the Constitution of the United States regarding ex post facto laws would preclude the Government from granting extradition of any person charged with the commission of the offence prior to the enactment of legislation defining the new crime.

E/AC.25/SR.24

1023

Article 9, later Article 10 Mr. PEREZ PEROZO (Venezuela) said that he had voted against the article for the reasons previously mentioned in connection with Article 6. Mr. MOROZOV (Union of Soviet Socialist Republics) considered that the establishment of the system contemplated by Article 9 must inevitably lead to intervention by the International Court of Justice in the trial of cases of genocide which should be heard by the national courts in accordance with their jurisdiction. The representative of the Union of Soviet Socialist Republics based his argument on the fact that the establishment of international jurisdiction for cases of genocide would constitute intervention in the internal affairs of States and would be a violation of their sovereignty. Consequently, in his opinion Article 9 should have been excluded. SECOND READING OF THE PREAMBLE TO THE DRAFT CONVENTION (E/AC.25/W.2/Add.1) Mr. LIN MOUSHENG (China) suggested that the word “declare” should be changed to “considering”, and that the repetition of the words “The high contracting parties” should be omitted. The CHAIRMAN thought that the word “violates”, in the second line, should be replaced by the words “is contrary to”, the last three words of the preamble should be deleted, and the word “hereinafter” should be placed before the word “provided”. Mr. RUDZINSKI (Poland) agreed to the Chairman’s suggestion, and proposed that the word “recent”, in the fourth line, should be deleted while the words “committed under the Nazi-Fascist regime” should be added after the word “genocide” in the fifth line. In his opinion the word “recent” was so vague as to be completely meaningless, while what was actually meant by it could be stated much more explicitly in the wording which he proposed. The CHAIRMAN felt that the proposal to include reference to “the NaziFascist regime” constituted a substantive amendment and would have to

1024

E/AC.25/SR.24

be voted upon by the Committee in two stages: first, as a proposal to reconsider a previous decision, and second, as the substantive proposal itself. The proposal to reopen the matter for consideration was accepted by three votes to one, with three abstentions. Mr. MOROZOV (Union of Soviet Socialist Republics) wished to amend the text proposed by the Polish delegate so as to include a reference not only to Nazism and Fascism, but to all other similar racist theories which spread racial hatred and prejudice and instigated persecution of so-called “lower races” by members of the self-styled “higher races”. Reference to the historic decision rendered at the Nuremberg trials was insufficient, as it did not exhaust the considerations which should be mentioned in connection with the circumstances which led to the commission of genocide. He wondered whether the Polish representative would accept such an amendment to his proposal. Mr. RUDZINSKI (Poland) replied in the affirmative. The Polish proposal, amended by the USSR, was rejected by five votes to two. Mr. AZKOUL (Lebanon), referring to the third paragraph of the preamble, proposed the insertion of the words “under a different legal description” after the word “punished” and using the phrase “acts of a similar nature” instead of “analogous acts”. Mr. ORDONNEAU (France) suggested a substitute text for the last one proposed by the Lebanese representative: “acts similar to these which the present convention intends to make punishable”. The Lebanese proposal, to include the words “under a different legal description”, was adopted by three votes, with four abstentions. The French proposal was adopted by three votes with four abstentions. The third paragraph as a whole was adopted by three votes, with four abstentions. The preamble to the draft convention was adopted by four votes to one, with two abstentions.

E/AC.25/SR.24

1025

Mr. PEREZ PEROZO (Venezuela) stated that he had abstained from voting on the preamble because his delegation considered that the reference made to the judgment of the Nuremberg Tribunal weekened [sic] the effect of the preamble, and, to a certain extent, was contrary to the General Assembly Resolution. Mr. RUDZINSKI (Poland) said that with the omission of all reference to the origin of genocide in Nazi and Fascist philosophies, the preamble lacked the one statement which would have been of real importance. Mr. MOROZOV (Union of Soviet Socialist Republics) stated that the text of the preamble of the Convention as adopted by the majority of the Committee did not give a complete and correct definition of the crime of genocide. As a matter of fact, the following elements were missing: (a) The indication that the crime of genocide tended to exterminate certain groups of the population because of their race, nationality or religion. (b) The indication that the crime of genocide was organically bound up with Fascism-Nazism and other similar race “theories” which propagated racial and national hatred, the domination of the so-called “higher” races and the extermination of the so-called “lower” races. (c) The indication that the struggle against genocide required decisive measures aimed at the prevention of such crimes and also at the suppression and prohibition of the instigation of racial, national (and religious) hatred and at the severe punishment of the persons guilty of inciting, committing or preparing the commission of the crime mentioned above. The representative of the USSR esteemed that it would have been indispensable to amend the preamble of the Convention in accordance with the text of the first part of the “Basic Principles of the Convention on Genocide”, submitted by the USSR. Mr. MAKTOS (United States of America) congratulated the members of the Committee on the energy and the wholeheartedness with which they had participated in the drafting of the Convention, which, for the first time in history, would outlaw the most heinous crime against humanity – the crime of genocide – declared by the General Assembly in the Resolution of 11 December 1946 a “crime under international law”. The request

1026

E/AC.25/SR.24

of the General Assembly directing the Economic and Social Council to undertake studies with a view to drafting a convention on genocide had resulted in the proposed draft convention, providing, among other things, for a precise definition of the crime, for steps toward enforcement and for trial of offenders. The importance of the new convention lies in the fact that it established a new legal relationship between individuals and their governments, which, when the convention would come into force, would no longer be able to deal with their nationals as they pleased, but would be answerable for their actions under international law. The extermination of human beings because of their race, nationality, religion or political beliefs would be punishable, regardless of who the perpetrators might be. He expressed his gratification at the active participation of the United States Government as well as of other governments in the effort of the United Nations to outlaw a crime which had shocked the conscience of mankind and which the civilized world had condemned. The meeting rose at 7.05 p.m.

E/AC.25/SR.24/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1027

UNRESTRICTED E/AC.25/SR.24/Corr.1 25 May 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTY-FOURTH MEETING Lake Success, New York Wednesday, 28 April 1948, at 2 p.m. On page 8 in the remarks attributed to Mr. RUDZINSKI (Poland), second line from the bottom, change the words “reference to” to read “provision concerning”. On the same page, last line, change the word “reference” to read “provision”. On page 10 in the remarks attributed to Mr. Rudzinski, second paragraph, fourth line, change the word “responsibility” to read “obligation”. The same correction should be made in the fifth line.

1028

E/AC.25/SR.25

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.25 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTY-FIFTH MEETING Held at Lake Success, New York, on Friday, 30 April 1948, at 11 a.m. Chairman: Vice-Chairman:

Mr. MAKTOS Mr. MOROZOV

Rapporteur: Members:

Mr. AZKOUL China France Poland Venezuela Mr. SCHWEIB [sic]

Secretariat:

Mr. GIRAUD

United States of America Union of Soviet Socialist Republics Lebanon Mr. LIN MOUSHENG Mr. ORDONNEAU Mr. RUDZINSKI Mr. PEREZ-PEROZO Assistant Director of the Human Rights Division Secretary of the Committee

Note: Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.25

1029

Mr. MOROZOV (Union of Soviet Socialist Republics), proposed that the Committee should examine the final clauses of the convention on genocide, vote on the whole of the convention and then proceed with the examination of that part of the report which had been translated into the two working languages and Russian. The CHAIRMAN noted the suggestion made by the representative of the USSR and informed the Committee of the communications he had received from the delegation of Panama and from the delegation of the Cuban Republic requesting that the convention should not contain any reference to he [sic] International Tribunal of Nurnberg. The members of the Committee praised the quality of the report presented by the Rapporteur and the manner in which it had grasped the meaning of the discussion and defined the ground on which agreement had been reached. Mr. AZKOUL (Lebanon), Rapporteur, thanked the representatives for their appreciation and stressed the part played by Mr. Giraud, Secretary of the Committee, and his assistants, in the drawing up of the report. The CHAIRMAN drew attention, however, to the way the report had interpreted the first articles of the convention; that interpretation could be regarded as binding all the members of the Committee. He stressed the drawbacks inherent in a report based upon interpretations for it would have to record all the points of view expressed on debatable proposals. For instance, he pointed out that the general elements of the definition given on page 2 of document E/AC.25/W.1 ruled that there was genocide even if those who were guilty of the acts in question were aiming only at the partial destruction of a group of human beings. Should the wording of this definition remain unchanged, the Chairman would, as representative of the United States, have to make reservations. Indeed, he believed that the word “group” required definition and felt that its interpretation should be left to the Courts which would have to deal with acts of genocide. Although he did not disagree on the whole with the interpretations given in the report, he felt it would be wiser either: 1) to omit any interpretation binding the Committee as a whole, or else

1030

E/AC.25/SR.25

2) to have such interpretations preceded by the following expression: “Some members of the Committee believe that . . . ” The adoption of either of those methods offered tangible advantages, particularly, when it applied to interpretations which had not been discussed or which had not been approved by a vote. Mr. MOROZOV (Union of Soviet Socialist Republics), spoke in favour of omitting interpretations of articles which had been passed unanimously. Such interpretations could not bind the Governments and were of no legal value. He proposed: 1) that clauses adopted unanimously should be presented without comments; 2) that clauses adopted by a majority should be followed by a mention of the opinion of the majority and of the minority; 3) that the result of the vote should be given, showing the countries which had voted for or against; 4) that the reservations made by members of the Committee should be recorded when necessary. He hoped that the report, which was not yet quite ready would also deal with the historical foundations of the convention and outline the working methods adopted by the Committee. Mr. ORDONNEAU (France), felt it was essential that the report should give a summary of the meetings and of the opinions expressed. He thought that the comments included in the report were in conformity with the intentions of the Committee, but pointed out that, by including them, the document submitted to the Committee was exceeding the usual scope of a report; he thought that it would be better to present them, as was usual, in the form of a survey of the session, of a description of the working methods, followed by an account of the decisions taken during the meetings, so as to build up the final result step by step. He agreed with the representative of the USSR that the interpretations could not be regarded as binding the Governments represented on the Committee; they could be retained only as personal remarks by the Rapporteur.

E/AC.25/SR.25

1031

Mr. AZKOUL (Lebanon), Rapporteur, pointed out that the report contained interpretations of clauses only in connexion with the first articles defining genocide and only when the members of the Committee had unanimously agreed on the interpretation to be given; as regards other clauses, the report mentioned the opinions of the majority and of the minority. He pointed out that the Committee’s task had been to draw up a convention on a subject which, for many States, was completely new. Many questions would arise in connextion with articles 1, 2 and 3. Moreover, as representative of Lebanon, his vote had always been determined by the explanations given on the way each clause should be interpreted; other members of the Committee had no doubt also based their vote on the explanations given; he felt, therefore, that it was necessary to supply Governments with elucidations concerning the interpretations to be given to the first articles so as to acquaint them of the manner in which the Committee had viewed the problem. If some members disagreed with the interpretation given or wished to make reservations, the Rapporteur suggested that that should be recorded after the interpretations contained in the report. When entrusting the Economic and Social Council with the task of drawing up a convention on genocide, the General Assembly [sic] its resolution 180(II), had also asked the Council “. . . to submit a report . . .” on this question” [sic] together with the text of the convention. It seemed perfectly clear that such a report had been requested precisely for the purpose of enabling Governments to realize the meaning of the legal action they were called upon to undertake. As the Council would base itself on the report of the Committee, it was essential that it should be supplied with the necessary elucidations regarding debates. Mr. RUDZINSKI (Poland), wished to say, in the first place, [p. 5Rudzinski remarks-line 2] that he had been surprised by the remarks made by the representative [p. 5-Rudzinski remarks-line 3] of the United States of America concerning the general elements of the definition of the crime, which stated that the perpetrators of the act in question were guilty of genocide even when the act was aimed only at the partial destruction of a group (document E/AC.25/W.1, page 2). He reminded the Committee that this question had been discussed at length. If divergent views

1032

E/AC.25/SR.25

were now expressed, the report should mention the delegations expressing them and record their reservations. Mr. Rudzinski also said that he did not agree with those who felt that the report should be presented in the form of a historical survey of the debates. He pointed out that the Committee of Experts which had drawn up the rules of procedure of the Security Council, the rules of procedure of the Military Staff Committee, etc. had always included evaluating statements in its reports. If that had appeared necessary in drawing up rules of procedure for such bodies, it was still more indispensable when the report had to do with a convention as important as that for the repression of genocide. Mr. Rudzinski understood quite well that it was now too late to adopt such a method, but he wished to point out that it should have been followed. Mr. ORDONNEAU (France) remarked in reply to Mr. Rudzinski that the Committee of Experts had not included any comments in its report, but had confined itself to indicating the minority view on any question involving a difference of opinion. He advocated the same method for the report of the Ad Hoc Committee on Genocide, since such procedure made it possible to attach to the opinions embodied in the report a definite interpretative value derived from statements made in the course of meetings rather than on the report itself. In the case of clauses adopted unanimously, Mr. Ordonneau hoped that they were sufficiently clear to make comment unnecessary. The Lebanese representative would thus be able to define his interpretation of any article which was of special interest to him, and to make clear that his vote was based on that interpretation. As far as the General Assembly resolution on genocide was concerned, he did not think that any particular significance should be attached to the request for a report. It was common practice for the General Assembly to ask for a report on questions it selected for study. Mr. SCHWELB (Secretariat), in reply to a question by the Rapporteur, said that the General Assembly had instructed the Economic and Social Council to submit a report on genocide. It was for the Council to decide whether the question of genocide should be included in its annual report

E/AC.25/SR.25

1033

to the Assembly or should form the subject of a special report. He did not think that any formal task had been assigned to the Committee in that connexion, but pointed out that its report would be transmitted to the Human Rights Commission. The CHAIRMAN proposed to take a vote on the USSR proposal which advocated the following structure for the sections of the report dealing in turn with the articles of the convention: 1) The text of the article or clause; 2) If the text had been adopted unanimously, it should be given without comment. If it had been adopted by a majority of votes, both the arguments of the majority and of the minority should be stated. 3) Result of the vote on the article or clause in question, showing the countries which had voted for and against; and where necessary, 4) Statements or reservations made in connexion with the clause in question, or explanatory statements regarding the vote. Mr. MOROZOV (Union of Soviet Socialist Republics asked the Committee likewise to define the structure for the presentation of the most important clauses which had been proposed or rejected, and suggested the following arrangement: 1) Subject of the proposal, with mention of its author and a brief description of its motives; 2) Arguments advanced against its adoption; 3) Result of the vote, with mention of the reasons leading to the rejection of the proposal. Mr. PEREZ-PEROZO (Venezuela) opposed the procedure advocated by the USSR representative in connexion with rejected proposals. He thought that it was unnecessary to go into details where rejected proposals were concerned; it would be enough to give a brief description of the minority arguments against each adopted proposal. There was no need for a separate mention of each rejected proposal, which would make the report excessively lengthy. He remarked that the procedure advocated in the USSR proposal would amount to a duplication of the summary records of meetings.

1034

E/AC.25/SR.25

As regards the presentation of adopted articles, the representative of Venezuela agreed with and would vote in favour of the USSR proposal. Mr. AZKOUL (Lebanon), Rapporteur, asked for the right to state in the report that his vote on certain articles had been based on assurances given, during the course of the meetings, with regard to the exact interpretation. That was particularly important in the case of articles adopted unanimously. The representatives of the Union of Soviet Socialist Republics, the United States of America, and France thought that no representative should have the right to commit other delegations in such a way. Mr. RUDZINSKI (Poland) recalled that a similar request made to the Committee of Experts in connection with the rules of procedure of the Security Council had been rejected. Mr. AZKOUL (Lebanon) stated that if that was the case, he clearly had the right, as representative of the Lebanon, to include the interpretation which had led him to vote for or against a given article. Other members would no doubt wish to insert statements expressing their disagreement or, as the case might be, their reservations in respect to that interpretation, with the absurd result that a reproduction of the whole debate would be embodied in the report. He, therefore, insisted strongly on the inclusion in the report of comments on unanimously adopted articles. If the USSR representative’s proposal concerning the structural presentation of each article was put to the vote, he asked for a separate vote on the question whether the report should or should not contain comments on unanimously adopted articles. The CHAIRMAN asked for a vote on the USSR proposal to give unanimously adopted articles without comment. The proposal was adopted by five votes to one, with one abstention. The CHAIRMAN then asked for a vote on the remainder of the proposal submitted by the USSR representative. The other points of the proposal were adopted without objection.

E/AC.25/SR.25

1035

Mr. LIN MOUSHENG (China) thought that there was no need for great changes in the report. Certain sections could be dropped when the report was discussed in detail. He thought that rejected proposals, or at least the most important ones, should be included in the report, as the Economic and Social Council might wish to take note of them and might even reopen discussion on them before submitting its report to the General Assembly. Mr. MOROZOV (Union of Soviet Socialist Republics) was of the same opinion. In reply to Mr. Perez-Perozo, who thought that such a procedure would make the report too lengthy, he remarked that it was already possible to form an idea of its length, as it was complete but for, at most, some four pages. The rejected proposals already mentioned in it were sufficient. He did not wish to add any others. Mr. ORDONNEAU (France) requested the Secretariat to prepare a redraft of the report based on the decision adopted with regard to its structure. The meeting rose at 1.10 p.m.

1036

E/AC.25/SR.25/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.25/Corr.1 25 May 1948 ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTY-FIFTH MEETING Held at Lake Success, New York, on Friday, 30 April 1948, at 11 a.m. On page 5 in the second line of the remarks attributed to Mr. Rudzinski, change the words “by the remarks made” to read “by the opposition raised.” Change in the third line the word “concerning” to read “against”.

E/AC.25/SR.26

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1037

UNRESTRICTED E/AC.25/SR.26 12 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTY-SIXTH MEETING Lake Success, New York Friday, 30 April 1948 at 2.45 p.m. Chairman: Mr. J. MAKTOS Vice-Chairman: Mr. MOROZOV Rapporteur: Members:

Secretariat:

Mr. Mr. Mr. Mr. Mr. Mr.

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO E. SCHWELB

Mr. E. GIRAUD

United States of America Union of Soviet Socialist Republics Lebanon China France Poland Venezuela Assistant Director, Division of Human Rights Secretary of the Committee

Any corrections of this record should be submitted in writing in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

1038

E/AC.25/SR.26

ADOPTION OF THE FUNDAMENTAL CLAUSES (Rapporteur’s Report) The Committee decided to take a vote article by article, omitting consideration of the Comments. ARTICLE XI Article XI was adopted unanimously. ARTICLE XII Article XII was adopted by six votes to one. Mr. MOROZOV (Union of Soviet Socialist Republics) said that he had voted against that article, although he was not opposed to its provisions as a whole, because he thought that invitations to sign the Convention should be issued by the Economic and Social Council and not by the General Assembly, as this would expedite the accession to the Convention of States desiring to do so. ARTICLE XIII Article XIII was adopted unanimously. ARTICLE XIV Article XIV was adopted by five votes to two. Mr. MOROZOV (Union of Soviet Socialist Republics) said that he had voted against that article as he felt that the period of validity of a convention, which aimed at combating genocide, should not be limited. He would have preferred the following text: The present Convention may be denounced by a notification in writing addressed to the Secretary-General of the United Nations. Such notification will come into force one year after it has been received.

E/AC.25/SR.26

1039

ARTICLE XV Mr. LIN MOUSHENG (China) suggested replacing “members of the United Nations and non-member States bound by this Convention” by “contracting parties to the present Convention.” Mr. AZKOUL (Lebanon) proposed that “fifteen or less” be replaced by “less than sixteen.” Article XV, as amended, was adopted unanimously. ARTICLE XVI Article XVI was adopted by five votes to two. Mr. MOROZOV (Union of Soviet Socialist Republics) explained that he had voted against that article as he considered it would be contrary to the spirit of the Charter to limit the right of a State to apply to the United Nations for revision of the Convention. He would prefer the following wording: A request for the revision of the present Convention may be made at any time by any State signatory to the Convention by means of a notification in writing, addressed to the Secretary-General. The Economic and Social Council will decide what action should be taken regarding such a request.

ARTICLE XVII Article XVII was adopted unanimously. ARTICLE XVIII Article XVIII was unanimously adopted, replacing “Article XVI” by “Article XII” in the last line. ARTICLE XIX Article XIX was adopted unanimously. The CHAIRMAN, in compliance with a request from the representative of the Union of Soviet Socialist Republics proposed putting the Convention

1040

E/AC.25/SR.26

to the vote as a whole. It was understood that the vote would in no way prejudice the reservations which had been made by various members on certain articles and which figured in the statements annexed to the Ad Hoc Committee’s Report. The Convention as a whole was adopted by five votes to one with one abstention. Mr. MOROZOV (Union of Soviet Socialist Republics) wished to make the following statement in explanation of his delegations attitude to the Convention as a whole. The USSR representative states that a number of important provisions which were proposed by the Soviet Union in ‘The basic principles of a draft Convention’ submitted to the Committee and adopted as a basis for the discussion of the principles of the Convention, which the Soviet Union considers to be of vital importance, have found sufficient reflection in separate articles of the draft Convention. The following are among them: a) Establishing that genocide means also premeditated acts committed with the intention of destroying the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief. (Article III of the Convention) b) Definition in Article IV of the acts punishable under the present Convention, punishment of conspiracy, instigation, attempts and complicity (except the reservations made by the United States regarding Article II); c) Imposition of responsibility for committing genocide regardless of the fact whether the guilty are rulers, public officials or private individuals (Article V). d) Providing that genocide should not be considered a political crime and that consequently the guilty are subject to extradition; e) Inclusion in the definition of genocide (Article II) as the qualifying indications of genocide: physical extermination of human groups whether directly or by creating conditions aimed at their extinction; motives for committing the crimes of genocide. f ) Inclusion in the preamble on genocide the statement that genocide is the gravest crime against humanity; indication in the preamble to the effect that these crimes are the violation of the spirit and purposes of the United Nations. Noting this positive aspect of the Committee’s activities in the working out of the Convention, the USSR representative states that, as a result of the adoption by the majority in the Committee of some profoundly wrong decisions, the opposition to which was voted by the USSR and some other States, this Convention as a whole and as it was prepared by the majority

E/AC.25/SR.26

1041

in the Committee is not a sufficiently effective instrument for the suppression of genocide and does not therefore correspond to the purpose which was set before the Committee by the General Assembly and then by the Economic and Social Council. The preamble of the Convention does not give a complete and correct definition of the character of the crimes of genocide and an important indication that they are organically bound up with fascism-nazism and other similar race theories which propagate racial and national hatred, the domination of the so-called “higher races” and the extermination of the so-called “lower” races. The inclusion of political groups in the number of objects of genocide, having nothing in common with its scientific definition, will practically lead to the loss of perspective and to the absence of the suppression of the destruction of human groups of national, racial and religious grounds which actually takes place, and the punishment of which must be aimed at by this Convention. The inclusion of such a proposal in the Convention weakens this document considerably and minimizes the importance of the tasks of the suppression of genocide and violators of the Convention. By doing so, the blow to instigators and sponsors of genocide is averted. This is also manifested in the refusal of the majority in the Committee to establish punishability of a number of dangerous crimes of genocide which are the following: 1. All forms of public propaganda (press, radio and cinema) aimed at inciting racial, national or religious hatred and at provoking the commission of genocide, which create the conditions encouraging crimes of genocide and provoking the commission of these crimes. 2. Preparatory actions for the commission of genocide in cases where they by themselves do not constitute a crime such as a) studies and research for the purpose of developing the technique of genocide; b) setting up of installations, manufacturing, obtaining, possessing and supplying of articles or substances with the knowledge that they are intended for the perpetration of genocide; c) issuing of instructions, orders, or assignments and distributing tasks with a view to committing genocide. 3. The refusal of the majority in the Committee to agree that the parties to the Convention should pledge themselves to disband and not to allow in future the existence of organizations, the purpose of which is to instigate racial, national and religious hatred and to commit the crime of genocide. 4. The refusal of the majority in the Committee to include in the Convention the principle established in Nuremberg that genocide cannot be justified by the command of the law or superior orders; 5. The refusal to formulate specifically and exactly the obligations of the parties to the Convention to introduce into the national legislation measures directed towards the prevention and suppression of genocide

1042

E/AC.25/SR.26

as well as towards the prevention and suppression of the instigation of racial, national and religious hatred and to ensure effective measures of criminal punishment; and together with this the attempts at interference in the internal affairs of States and violation of their sovereignty by the establishment of the principle of the jurisdiction of the International Court of Justice in cases of genocide. As a result of all this the USSR representative is unable to consider that the document prepared by the majority in the Committee corresponds to its purpose. While this document was being prepared, the USSR delegation repeatedly sought to convince the Committee of the necessity to act in such a way as to work out a draft Convention, on the basis of which an effective suppression of the crime of genocide could be organized in the future. The USSR representative has introduced detailed proposals on all the abovementioned questions. However, for reasons beyond the control of the Soviet delegation the necessary decisions have not been adopted by the majority in the Committee. That is why the USSR representative voted against the draft of the Convention as a whole in its present wording.

Mr. RUDZINSKI (Poland) said that while his delegation was in favour of the drawing up of a Convention to combat genocide and had, to a large extent, been instrumental in the setting up of an ad hoc Committee, he was forced to abstain from voting for the present draft Convention, which he considered inadequate. The Convention ignored the crimes committed by the Nazis and Fascists during the last war. Nor did it include the principle recognized by international law and by the Nuremberg Tribunal, that the command of the law or the orders of a superior did not justify genocide. There was no provision for disbanding organizations whose aim was to incite racial, national or religious hatred and commit genocide. Furthermore, the inclusion of political groups amongst those covered by genocide might, in practice, lead to interference in the domestic affairs of States. Moreover, the setting up of an International Court seemed rather premature at this stage. He deeply regretted not having been able to vote for the Convention in its present form, and sincerely hoped that it would be improved in the future. He would submit his statement later in writing so that it could be incorporated in the report.

E/AC.25/SR.26

1043

CONSIDERATION OF THE DRAFT REPORT (DOCUMENTS E/AC.25/W.1, E/AC.25/W.1/Add.1, Add.2, Add.3, Add.4) The RAPPORTEUR read the new wording of the Comments annexed to the articles, in accordance with the procedure agreed upon by the Committee at its previous meeting. The following deletions were suggested: Article 1 (document E/AC.25/W.1) A,2), the last three sub-paragraphs. A,4), the second sub-paragraph; in the fourth sub-paragraph, the sentences beginning with “members of a group . . .” and ending with “German nationality”; the fifth sub-paragraph. B,1), the last sub-paragraph. B,2), the last sub-paragraph. B,3), the three last sub-paragraphs. B,4), the last sub-paragraph. Article 3 (document E/AC.25/W.1/Add.1) A, c), the first and third sub-paragraphs. B, 2), the first sub-paragraph. Article 5 (document E/AC.25/W.1/Add.2) “Comments”, the first sub-paragraph. Article 6 B, (page 6) the third sub-paragraph. Preliminary Article (document E/AC.25/W.1/Add.3) Paragraph 1, second sub-paragraph. Paragraph 2, second sub-paragraph. At the request of the USSR representative, the following sentence in the penultimate sub-paragraph: “The representative of the Union of Soviet

1044

E/AC.25/SR.26

Socialist Republics thought, moreover, that it was out of place, as it implied that war was foreseen”. The meeting was resumed at 4:50 p.m. after a half-hour recess. The CHAIRMAN asked members for their views on the proposed deletions. Mr. LIN MOUSHING (China) proposed the further deletion from Article VI of the whole of paragraph 2 in section A of the Comments relating to “extra-territorial jurisdiction”. That idea had never been discussed. Mr. ORDONNEAU (France) observed that the French term “repression universelle” had been inaccurately translated. Mr. LIN NOUSHENG (China) proposed that in that case the text in question should be included among the proposals rejected by the Committee. Mr. MOROZOV (Union of Soviet Socialist Republics) pointed out that the result of the vote was not mentioned at the end of the Comments on Article VI. He requested its inclusion in the text, together with a brief statement by his delegation explaining its vote. Mr. ORDONNEAU (France) asked that the names of countries should be mentioned in the result of each vote. He was particularly anxious that the report should mention the French delegation each time it voted in the negative. The RAPPORTEUR remarked that so far there had been no vote by rollcall, but during the reading of the report any representative could ask for the name of his country to be mentioned in the result of the vote. The Committee then considered the introduction to the report (document E/AC.25/W.1/Add.3) and decided to make some drafting amendments. The RAPPORTEUR pointed out that the last part of the introduction would be re-arranged in accordance with the new method of presentation which the Committee had adopted for its report. The Committee proceeded to examine the report article by article.

E/AC.25/SR.26

1045

Article I (Now Article II) Mr. MOROZOV (Union of Soviet Socialist Republics) proposed the following addition to the last sub-paragraph of paragraph A 3: the inclusion of political groups in the definition of genocide would give the words an extension of meaning contrary to the fundamental conception of genocide as recognized by science. The perspective would be distorted and in practice it would end in abandoning the necessary struggle against the destruction of human groups on grounds of race, nationality or religion, the prevention of which was the very purpose of the Convention.

He suggested that the representative of Venezuela, who seemed to him to have taken a rather different view, might make a statement on the subject. On the other hand, if the representative of Poland agreed with the view of the USSR it might be expressly stated in the same sub-paragraph that “the representatives of Poland and of the USSR said that the inclusion etc.” Mr. PEREZ-PEROZO (Venezuela) proposed the following wording: Another member of the minority expressed the opinion that the inclusion of political groups would have the effect of making the Convention inacceptable [sic] to certain Governments. Such Governments might fear that the Convention would hamper their action against domestic subversive movements by possibly exposing them to unjustified accusations.

Mr. RUDZINSKI (Poland) agreed with the USSR representative’s view. Mr. MOROZOV (Union of Soviet Socialist Republics) asked that mention should also be made at the end of Article 1 of the fact that his delegation had voted against that article for reasons given in a previous statement. Mr. ORDONNEAU (France) considered that the term “motives” in paragraph A 4 was not exact from a legal point of view. It was a question of what French law called dolus specialis, a term which could scarcely be translated otherwise than by “specific motives” or “particular intents”. He also requested that mention should be made, either before or after the result of the vote, of the fact that the French delegation, although it had expressed a wider point of view than that of the majority, finally accepted the latter. It should also be noted in B 3 and 4 that the French delegation had abstained from voting.

1046

E/AC.25/SR.26

Mr. LIN MOUSHENG (China) pointed out that his delegation had voted for the Article as a whole but had abstained from voting on its four points. He would like them to be drafted as follows: 1) Total or partial destruction of the physical existence of such groups; 2) Subjection of those groups to conditions of life or to such measures as would lead to total or partial destruction of their physical existence.

Article II (now Article III) Speaking as representative of the United States, the CHAIRMAN proposed in agreement with the representative of France the addition to the second sub-paragraph of page 5 of document E/AC.25/W.1 of the words: The text of the entire article was adopted in the first reading by five votes to two (United States of America and France). In the second reading the entire article was adopted by four votes with three abstentions.

Mr. PEREZ-PEROZO (Venezuela) asked for the inclusion in the Comments on Article II of the following statement: The representative of Venezuela expressed the fear that sub-paragraph 1 of Article 3 does not protect the parties against accusations when they take measures with a view to protecting their own language.

The CHAIRMAN proposed the substitution in the third sub-paragraph of the Comments of the expression “especially genocide” for “only physical genocide.” In the fourth sub-paragraph of page 5 he would substitute “the Special Committee considered” for “it was considered.” Mr. LIN MOUSHENG (China) suggested that the Comments should begin with the statement “this article gave rise to” instead of “the question of cultural genocide gave rise to.” Mr. ORDONNEAU (France) added that the subsequent paragraphs should say “those who supported the inclusion – of cultural genocide” and “those who opposed the inclusion of cultural genocide”. Article III (document E/AC.25/W.1/Add.1) (Now Article IV) Speaking as representative of the United States, the CHAIRMAN proposed the substitution in A b of “an indictment under Anglo-Saxon law” for “a crime under Anglo-Saxon law”; and the insertion in A 3 of:

E/AC.25/SR.26

1047

In voting against this paragraph the representative of the United States made the following statement: [p. 13-last para.] The delegation of the United States like the other delegations represented on this Committee considers that the Convention should recognize the criminal responsibility of all those who directly commit acts constituting the crimes of genocide, who get together to achieve a purpose which the Convention proposed to prevent, that is to say, to permit an act of genocide or all those who attempt to achieve that purpose. In this connection any “direct incitement” to achieve the forbidden end and which might be feared would provoke by its very nature the committing of this crime would generally partly constitute an attempt/and/or a conspiracy to permit the crime. To make such incitement illegal it is sufficient to make the attempt and the conspiracy illegal without there being any need to list specifically in the Convention acts constituting direct incitement.

Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the last line of the last paragraph on page 2 should be amended to read: “Certain acts of particular gravity which themselves constitute crimes so defined”. In view of the deletion of the first sub-paragraph of paragraph B 2 he suggested that the second sub-paragraph should be worded: As the representative of the USSR considered the text adopted regarding direct incitement in public or in private to commit genocide inadequate (see above), he proposed the punishment of those who used all forms of public propaganda (press, radio, cinema etc.) aimed at inciting racial, national or religious enmities or hatreds or at provoking the commission of acts of genocide, and later proposed the addition of a paragraph to that effect in the enumeration of punishable acts.

Mr. LIN MOUSHENG (China) proposed substitution of the following text for sub-paragraph 3 of paragraph B 2: In opposition to this proposal certain members of the Committee said that the repression of propaganda termed as hateful propaganda would be outside the terms of reference to the Convention. It might be misinterpreted in such a way that it would prove injurious to freedom of information and therefore might jeopardize the Convention’s success.

Speaking as representative of the United States, the CHAIRMAN agreed with Mr. Lin Mousheng (China). Mr. MOROZOV (Union of Soviet Socialist Republics) recalled that some members had agreed as to the punishable character of the acts enumerated

1048

E/AC.25/SR.26

in the USSR proposal but had considered it useless to include them in Article III because they thought that they were sufficiently covered by Article III of the Convention. Other members had expressed the view that suppression of such acts would limit freedom of expression and leave the way open to tendentious repressive measures. He asked that those two points of view should be emphasized in the report. Mr. ORDONNEAU (France) supported by Mr. Perez-Perozo (Venezuela) wished the report to mention the fact that “the delegations of Venezuela wished the report to mention the fact” that “the delegations of Venezuela and France voted against the USSR representative’s proposal because they considered its aim sufficiently achieved by Article III c”. Speaking as representative of the United States, the CHAIRMAN observed that in that case he would like the text proposed by the representative of China to begin with the words “the representatives of China and the United States”. Article IV (Now Article V) Mr. MOROZOV (Union of Soviet Socialist Republics) proposed that the paragraph beginning at the foot of page 5 of document E/AC.25/W.1/ Add.1 be replaced by the following: In support of this proposal the representatives of Poland and of the Union of Soviet Socialist Republics advanced the following argument: The Convention on genocide must include this principle which has already been recognized in international law (especially by the Statute of Nuremberg). Rejection of this principle would mean from the practical point of view that all individuals who could put forward the excuse that they acted according to the command of the law or superior orders were proclaimed in advance as exempt from all punishment. On the other hand, acceptance of this principle would signify that the Convention on genocide would have a considerable educative influence by warning those who might be led to commit the crime of genocide. References to military or any other kind of discipline cannot justify acts of genocide even when committed merely by ‘executives’.

Mr. RUDINSKI (Poland) accepted the USSR representative’s proposal. He remarked further that his own statement after the vote on Article IV had been omitted from the report. He would like that statement to be included. It was:

E/AC.25/SR.26

1049

The representative of Poland stated that the non-inclusion in the Convention of the principle which has already been recognized in international law namely that neither obedience to the command of the law or to superior orders may excuse genocide, is a serious step backwards and in practice places in jeopardy the repression of genocide. This fact prevents the Polish delegation from accepting responsibility for the Convention in its present form.

He further proposed that the penultimate paragraph be replaced by the following: In reply to this argument the representative of Poland stated that the Judge would have to determine in each case whether an individual was guilty or not.

The meeting rose at 6.45 p.m.

1050

E/AC.25/SR.26/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.26/Corr.1 1 June 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTY-SIXTH MEETING Lake Success, New York Friday, 30 April 1948, at 2.45 p.m. Delete the last paragraph on page 13, and substitute the following: The United States Delegation, together with the other delegations comprising this Committee, believes that the Convention should establish the culpability of all who directly perform the physical acts comprehended in the crime of genocide, all who ‘conspire’ together to achieve the end which is to be prescribed by this Convention, the act of genocide, all who ‘attempt’ to achieve this end. In this connection a ‘direct incitement’ to the achievement of the prescribed end, if of a nature to create an imminent danger that it would result in the commission of the crime would generally constitute part of an attempt thereto and/or an overt act of conspiracy thereto. To outlaw such incitements, it is sufficient to outlaw the attempt and conspiracy without specifically enumerating the acts of direct incitement in the Convention.

E/AC.25/W.3

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1051

RESTRICTED E/AC.25/W.3 30 April 1948 FRENCH ORIGINAL: RUSSIAN

COMITE SPECIAL DU GENOCIDE DECLARATION DU REPRESENTANT DE L’UNION DES REPUBLIQUES SOCIALISTES SOVIETIQUES AU COMITE SPECIAL DU GENOCIDE EXPOSANT LES MOTIFS DU VOTE CONTRE L’ENSEMBLE DE LA CONVENTION (pour insertion au compte rendu de la séance et au rapport du Comité) Le représentant de l’Union des Républiques socialistes soviétiques constate que plusieurs des propositions importantes énoncées par l’Union soviétique et exposées au Comité dans les “Principes fondamentaux de la Convention pour la lutte contre le génocide” et qui ont été prises pour base de discussion des principes de la convention auxquels l’Union des Républiques socialistes soviétiques attache une importance considérable, sont reflétées d’une manière suffisamment complète dans les différents articles du projet de convention. C’est ainsi que: (a) Il a été établi que la notion de génocide désigne également tous actes prémédités visant à l’anéantissement de la langue, de la culture et de la religion d’un groupe racial, national ou religieux, en raison de son appartenance à une race, une nationalité ou une croyance religieuse quelconque (article III de la Convention); (b) On a défini à l’article IV les actes punissables aux termes de la présente Convention (sous certaines réserves formulées par nous à l’égard de l’article II); (c) La responsabilité du crime de génocide a été fixée sans égard au fait que les coupables soient chefs d’Etat, fonctionnaires ou particuliers (article V); (d) Il a été reconnu que le génocide ne doit pas être considéré comme crime politique et, partant, que les coupables sont passibles d’extradition; (e) On a fait rentrer dans la définition du génocide (article II) les caractères suivants qui qualifient ce crime: (1) anéantissement physique de tel ou tel groupement humain, soit directement, soit en créant des conditions de nature à provoquer leur perte; (2) On a inclus dans la définition certains motifs de perpétration du crime de génocide; (f ) On a fait figurer dans le préambule de la Convention sur le génocide une déclaration comme quoi le génocide est un crime grave contre l’humanité; on a indiqué dans le préambule que ce crime constitue

1052

E/AC.25/W.3

une violation de l’esprit de l’Organisation des Nations Unies et qu’il est contraire aux buts de cette dernière. Tout en rendant justice à cette partie positive de l’activité du Comité chargé d’élaborer la convention, le représentant de l’Union des Républiques socialistes soviétiques constate que, du fait de l’adoption par la majorité du Comité de certaines décisions profondément entachées d’erreur, contre lesquelles ont voté l’Union des Républiques socialistes soviétiques et quelques autres Etats, l’ensemble de la convention telle qu’elle a été élaborée par la majorité du Comité ne constitue pas une arme suffisamment efficace pour la lutte contre le génocide et, par conséquent, ne répond pas au but fixé au Comité par l’Assemblée générale et ensuite par le Conseil économique et social. Il manque, dans le préambule de la Convention, une définition complète et exacte de la nature des crimes de génocide et une indication essentielle qu’ils sont indissolublement liés au fascisme, au nazisme et aux autres doctrines racistes analogues qui prêchent la haine raciale et nationale, la domination des races dites “supérieures” et l’extermination des races dites “inférieures”. L’adjonction au nombre des objets visés par le génocide des groupements politiques, totalement étrangers à la définition scientifique de ce crime, aboutira dans la pratique à faire perdre de vue les justes perspectives; elle aura aussi pour résultat qu’on ne luttera pas contre l’extermination, réelle celle-là, de groupements humains pour des motifs d’ordre national, racial ou religieux, fait dont la punition doit être le but de la Convention. Le fait d’insérer une telle proposition dans la convention affaiblit sensiblement cet instrument et restreint l’importance des objectifs de la lutte contre le génocide et les violateurs de la convention. Par là même on fait dévier le coup qui doit atteindre les instigateurs et les organisateurs du génocide. La preuve en est aussi fournie par le refus de la majorité du Comité de décider de la pénalisation d’une séries de dangereux crimes de génocide, à savoir: 1. La propagande publique sous toutes ses formes (presse, radio, cinéma) visant à attiser la haine raciale, nationale et religieuse et à inciter au génocide, propagande qui crée un terrain favorable à la perpétration du génocide et à la provocation à ce crime. 2. La préparation des actes de génocide lorsqu’elle comporte en elle-même les éléments constitutifs du crime et notamment: (a) des études et recherches ayant pour but l’élaboration d’une technique du génocide; (b) la création de dispositifs ainsi que la fabrication, l’acquisition, la détention et la fourniture de matières ou produits sciemment destinés à la perpétration du génocide; (c) le fait de donner des instructions, des ordres et des missions et d’assigner des tâches ayant pour objectif la perpétration du génocide. 3. Le refus de la majorité du Comité de demander aux parties à la Convention de s’engager à dissoudre et à interdire, à l’avenir, les organisations qui ont pour objet l’excitation à la haine raciale, nationale et religieuse et la perpétration du crime de génocide.

E/AC.25/W.3

1053

4. Le refus de la majorité du Comité d’insérer dans la Convention le principe déjà établi à Nuremberg que le génocide ne peut être justifié par des dispositions légales ou par l’ordre d’une autorité supérieure. 5. Le refus de formuler avec précision et netteté l’obligation incombant aux parties à la Convention d’introduire dans leur législation nationale des mesures tendant à prévenir et à réprimer le génocide ainsi qu’à prévenir et à réprimer l’excitation à la haine raciale, nationale et religieuse et à prévoir des sanctions pénales efficaces; et, en même temps que cela, des tentatives d’ingérence dans les affaires intérieures des Etats et de violation de leur souveraineté sous prétexte d’attribution de compétence à la justice internationale pour les cas de génocide. Il résulte de tout cela que le représentant de l’Union des Républiques socialistes soviétiques se trouve dans l’impossibilité de considérer que le document élaboré par la majorité du Comité puisse répondre au but qu’on s’est proposé. Au cours de la préparation de ce document, la délégation de l’Union des Républiques socialistes soviétiques a maintes fois tenté de convaincre le Comité qu’il est indispensable de faire en sorte d’élaborer un projet de convention qui puisse par la suite servir de base pour organiser une lutte efficace contre le crime de génocide. Le représentant de l’Union des Républiques socialistes soviétiques a déposé des propositions détaillées à propos de tous les points énumérés plus haut. Or, pour des raisons indépendantes d [sic] la volonté de la délégation de l’Union des Républiques socialistes soviétiques, la majorité du Comité n’a pas adopté les décisions nécessaires. C’est pour ces motifs que le représentant de l’Union des Républiques socialistes soviétiques a voté contre l’ensemble du projet de convention dans son texte actuel.

1054

E/AC.25/W.4

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

RESTRICTED E/AC.25/W.4 3 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE Meeting held on 30 April 1948 (Afternoon) PORTIONS OF REPORT ADOPTED IN FIRST READING Items dealt with in this Document 1. Introduction to Report. 2. The following articles (definitive numbering): Article 2 – Physical Genocide Article 3 – Cultural Genocide Article 4 – Conspiracy, incitement, attempt, complicity Article 5 – Persons liable Article 6 – Obligation for contracting parties to harmonize their legislation with the Convention. Note: The Rapporteur has made the corrections and additions to the text requested by the Committee. [p. 2] REPORT OF COMMITTEE (Mr. Karim Azkoul, Rapporteur) The Ad Hoc Committee on Genocide set up by virtue of the Economic and Social Council resolution dated 3 March 1948 met at Lake Succes [sic] from 5 to May 1948. It held

meetings.

The Committee was composed of the following members: Chairman: Vice Chairman: Rapporteur: Present:

Mr. John MAKTOS

(United States of America) Mr. Platon D. MOROZOV (Union of Soviet Socialist Republics) Mr. Karim AZKOUL (Lebanon) Mr. Lin Mousheng (China)

E/AC.25/W.4

Mr. Pierre Ordonneau Mr. Aleksander Rudzinski Mr. Victor M. Perez Perozo

1055

(France) (Poland) (Venezuela)

During its first meeting the Committee elected the Chairman, the ViceChairman and the Rapporteur. The Assistant Secretary-General for the Department of Social Affairs was represented by Mr. E. Schwelb, Assistant Director of the Human Rights Division. Professor Giraud assisted by Mr. E. Gordon fulfilled the duties of Secretary of the Committee. The Committee began its work by a general debate during which several delegations expressed their views on the question of genocide. DETERMINATION OF PROCEDURE AND ORDER OF BUSINESS The Soviet representative submitted to the Committee a ten-point note (document E/AC.25/7 – 7 April 1948) containing the essential provisions for a Convention on genocide. On the proposal of the Rapporteur the Committee decided that it would first discuss the Soviet note, it being understood that it would retain not the formulas proper, but the principles included in the note, and that secondly it would proceed to draw up the text of a draft convention. The discussion on principles occupied nine meetings (the third to the eleventh). The Committee then proceeded to the preparation of the articles of the Convention. It decided not to take as a basis any of the drafts before it, namely, the Secretariat draft (document E/447), the draft of the United States of America (document E/623) and the French draft (E/623/Add.1) but to take them [p. 3] into account in its work. The members were invited to submit proposals to the Committee which could form the basis of articles on each point. Subsequently, however, the Committee considered it expedient to adopt as the basic text a proposal

1056

E/AC.25/W.4

submitted by the representative of China (document E/AC. 25/9), the other proposals submitted by members of the Committee being considered as amendments to that text. The members of the Committee also submitted texts of articles dealing with points which were not included in the text of the representative of China. The preparation of the Convention draft occupied twelve meetings (the twelfth to the twenty-third). At its twenty-fourth meeting the Committee undertook a second reading of the Preamble and Articles of the Convention with the exception of the final clauses which had been examined by a Sub-Committee composed of the delegates of the United States of America, Poland and the Union of Soviet Socialist Republics (document E/AC.25/10). Only formal amendments to the Convention were made at this second reading. At the twenty-fifth and and adopted the present report.

meetings, the Committee discussed ∗

∗

∗

For the sake of clarity and in order to avoid repetition the order followed in the debates is not adhered to, and the report consists of explanations appended to the Preamble and each of the Articles of the Draft prepared by the Committee. The purpose of these commentaries is to indicate, whenever unanimity was not achieved, the reasons why certain provisions were adopted or rejected, and to give a summary of the different opinions expressed.* Several delegations submitted statements to be included in the report. All these statements will be found in the report in the form of notes appended to the relevant articles of the draft convention. The summary record moreover, give a detailed account of the debates.

* [p. 3-note at the bottom] The draft report submitted by the Rapporteur contained commentaries on the scope of the provisions unanimously adopted, based on the opinions expressed in the Committee. The Committee decided in limine to eliminate all commentaries of this kind (E/AC.25/W.1 and Add. 1, 2, 3, and 4).

E/AC.25/W.4

1057

The report indicates the results of the majority of votes. The section of the report dealing with the Preamble and Article 1 have not yet been examined. [p. 4] ARTICLE 2 (Physical genocide) In this Convention genocide means any of the following deliberate acts committed with the intention of destroying a national, racial, religious or political group, on grounds of national or racial origin, religious belief, or political opinion, 1. killing members of the group; 2. any act directed against the corporal integrity of members of the group; 3. inflicting on the members of the group such measures or conditions of life which would be aimed to cause their deaths; 4. any act or measure calculated to prevent births within the group.

OBSERVATIONS Article 2 is the basic article defining genocide. It was the subject of long consideration by the Committee. A. General elements of the definition The definition contains four elements: 1. The notion of premeditation. This was accepted by the Committee as a whole. 2. The intention of destroying a human group (accepted by four votes with three abstentions). 3. The third element is that of the human groups protected. The Committee was unanimously in favour of protecting national, racial and religious groups. The inclusion of political groups was accepted by four votes to three. The minority pointed out that political groups lack the stability of the other groups mentioned. They have not the same homogeneity and are less well defined. In particular the delegates of Poland and the Soviet Union said

1058

E/AC.25/W.4

that the inclusion of political groups in the definition of genocide would give the words an extension of meaning contrary to the fundamental conception of genocide as recognized by science. The perspective would be distorted and in practice it would end in abandoning the necessary struggle against the destruction of human groups on grounds of race, nationality, (or religion) the prevention of which was the very purpose of the Convention. Another member of the minority expressed the opinion that the inclusion of political groups would have the effect of making the Convention inacceptable [sic] to certain Governments. Such Governments might fear that the Convention would hamper their action against domestic subversive movements by possibly exposing them to unjustified accusations. The inclusion of political groups and political opinions was accepted by four votes to three (thirteenth meeting, Tuesday 20 April). 4. The fourth element is that of the motive of genocide. In the opinion of some members of the Committee it was in the first place unnecessary to lay down the motives for genocide since it was indicated in the text that the intention of destroying the group must be present and in the second place, motives should not be mentioned since, in their view the destruction of a human group on any grounds should be forbidden. They accepted the mention of motives, but only by way of illustration. The text would have read “particularly on grounds of national or racial origin or religious belief ”. (The question of political groups and political opinions was at that time still reserved). This point of view was not accepted. The word “particularly” was rejected by four votes to three (12th meeting Monday 19 April). The majority view was that the inclusion of specific motives (dolus specialis) was indispensable. In defining these motives the Committee agreed on the adoption of the following terms: Instead [sic] of “grounds of nationality or race” it was decided to say “on grounds of national or racial origin”. As regards religion and politics the expressions “religious belief ” and “political opinion” were adopted.

E/AC.25/W.4

1059

The delegate of France who had pointed out that the formula “opinions” contained in the draft submitted by his delegation was wider than the expression preferred by the majority, accepted the majority decision. B. Indication of the types of acts constituting genocide The Committee thought that it would be unsound to list the very varied acts which may constitute genocide. In its opinion, however, in this new matter affecting criminal law, it was essential to know what was envisaged. The Committee therefore established the following four categories: 1. Killing members of the group This formula was accepted by five votes to two. 2. Any act directed against the corporal integrity of members of the group. (Accepted by five votes to one, with one abstention). [p. 6] 3. Inflicting on the members of the group such measures or conditions of life which would be aimed to cause their deaths. (Accepted by three votes to one with three abstentions). 4. Any act or measure calculated to prevent births within the group (Accepted by four votes with three abstentions). The representative of France has requested that his abstention be noted. The article as a whole was accepted in second reading by five votes to two. The representative of China who voted for the article as a whole has requested that it be noted that he abstained from voting on the four sub-paragraphs.*

* [p. 6-first note at the bottom] The delegate of China would have preferred to see the sub-paragraphs drafted as follows: 1. Destroying in whole or in part the physical existence of such group; 2. Subjecting such group to such conditions or measures as would cause the destruction in whole or in part of its physical existence.

1060

E/AC.25/W.4

The delegate of the Soviet Union has made a statement explaining his reasons for voting against the article.** [p. 7] On the other hand the enumeration of specific acts of genocide included in paragraphs one to four of Article 2 is not exhaustive; moreover, any enumeration of possible acts of genocide will necessarily be incomplete; the representative of the Soviet Union therefore considers that Article 2 of the Convention should be drafted as follows: In this Convention genocide means any of the following acts aimed at the physical destruction of racial, national and religious groups and committed on grounds of racial, national or religious persecutions: 1. The physical destruction in whole or in part of such groups; 2. The deliberate creation of conditions of life aimed at the physical destruction in whole or in part of such groups. ARTICLE 3 (“Cultural” Genocide) In this Convention genocide also means any deliberate acts committed with the intention of destroying the language, religion or culture of a national, ** The representative of the Soviet Union stated that he voted against Article 2 of the Convention as a whole for the following reasons: It is a mistake to include political groups among the groups protected by the Convention on Genocide, just as it is a mistake to include political opinions among the grounds for perpetrating the crime of genocide. Crimes committed for political motives are crimes of a special kind and have nothing in common with crimes of genocide. The very word “genocide” derived from the word “genus” – race, people – shows that it concerns the destruction of nations or races as such, for reasons of racial or national persecution and not for the particular political opinions of such human groups. Crimes committed for political motives are not connected to propaganda of racial and national hatred and cannot therefore be included in the category of crimes covered by the notion of genocide Crimes committed for reasons of racial and national hatred may, in certain cases, also include motives of a religious kind, but motives of this kind are closely linked, in the crime of genocide, to motives of nationality. The inclusion in the definition of genocide of political groups as groups protected by the Convention and of political opinions among the motives for the perpetration of this crime gives the words an extension of meaning contrary to the fundamental notion of genocide recognized by science. The extension of the notion of genocide to this degree will in practice end in the distortion of the perspective and consequently in the abandoning of the necessary struggle against the destruction of human groups on grounds of race, nationality (or religion) the prevention of which is the very purpose of this Convention.

E/AC.25/W.4

1061

racial or religious group on grounds of national or racial origin or religious belief such as: (1) Prohibiting the use of the language of the group in daily intercourse or in schools, or prohibiting the printing and circulation of publications in the language of the group; (2) Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.

OBSERVATIONS The question of cultural genocide gave rise to a fairly full discussion. Those who supported the inclusion in the Convention of “cultural” genocide emphasized that there were two ways of suppressing a human group, the first by causing its members to disappear, and the second by abolishing, without making any attempts on the lives of the members of the group, their specific traits. According to this opinion, the Convention would fail fully to achieve its object if it left out “cultural” genocide. Those who opposed the inclusion of “cultural” genocide emphasized that there was a considerable difference between so called “physical” genocide (including biological genocide) and “cultural” genocide. Only physical genocide presented those exceptionally horrifying aspects which had revolted the conscience of humanity. They also pointed to the difficulty of fixing the limits of “cultural” genocide, which impinged upon the violation of the rights of man and the rights of minorities. It was therefore through the protection of the rights of man, the prevention of discrimination and the protection of minorities that acts which would be improperly introduced into the notion of “cultural” genocide should be prevented. Finally, it was said that from the practical point of view, the inclusion of cultural genocide in the Convention might prevent many countries from becoming parties to the Convention and jeopardize its success. In this connection the United States delegation made a declaration for entry in the record.*

* Declaration of the United States delegation: The prohibition of the use of language [sic] systematic destruction of books, and destruction and dispersion of documents and objects of historical or artistic value commonly

1062

E/AC.25/W.4

During the discussion of principles, the Committee decided by six votes to one to retain the idea of “cultural” genocide (Fifth Meeting – 8 April). The Lebanese delegate proposed a more restricted definition of cultural genocide, as follows: According to the terms of the Convention, it is also understood that genocide includes all acts and measures which are directed against a national, racial or religious group on ground of the national or racial origin or religious beliefs of its members, and which aim at the systematic destruction by oppressive or violent means of the language [sic] religion or culture of that group.

It had been intended to insert the definition of cultural genocide in Article 1 of the Convention, but subsequently it was decided by three votes to two with one abstention to make it the subject of a separate article (Tenth Meeting – 15 April). The reasons for this decision were as follows: In the first place it was thought that it would be difficult to arrive at a definition the general terms of which would in every instance be applicable to “cultural” genocide as to other forms of genocide, owing to the fact that the idea of “cultural” genocide could not be applied in practice to political groups. It was also thought that Governments would find it easier to make known their views on the inclusion of cultural genocide if the matter were treated in a separate article. The Lebanese delegate proposed to add a third sub-paragraph reading as follows: (3) Placing the members of the group in conditions calculated to make them renounce their language, religion or culture.

This proposal was rejected by three votes to two with two abstentions (Fourteenth Meeting – 21 April).

known in this Convention to those who wish to include it as “cultural genocide” is a matter which certainly should not be included in this Convention. The act of creating the new international crime of genocide is one of extreme gravity and the United States feels that it should be confined to those barbarous acts directed against individuals which form the basic concept of public opinion on this subject. The acts provided for in these paragraphs are acts which should appropriately be dealt with in connection with the protection of minorities.

E/AC.25/W.4

1063

The text of the entire article was adopted in the first reading by five votes to two (United States of America and France). In the second reading the entire article was adopted by four votes with three abstentions. The delegate of Venezuela asked to place on record a declaration.* ARTICLE 4 (Conspiracy, incitement attempt, complicity

The following acts shall be punishable: (a) genocide as defined in Articles 1 and 2 (b) conspiracy to commit genocide; (c) direct incitement in public or in private to commit genocide whether such incitement be successful or not; (d) attempt to commit genocide; (e) complicity in any of the acts enumerated in this article.

COMMENTS Article 4 enumerates all the acts connected with genocide which should be punishable. It gave rise to prolonged debate. A. Principles included in the Enumeration in Article 4 (a) Genocide as defined in Articles 2 and 3. It seemed to the Committee that as the purpose of Article 4 was to mention all the acts connected with genocide that should be punishable, the list should, to be complete, begin by referring to the principal act of genocide as defined in Articles 2 and 3.

* “The representative of Venezuela expressed the fear that sub-paragraph 1 of Article 3 does not protect the parties against accusations when they take measures with a view to protecting their own language”.

1064

E/AC.25/W.4

(b) Conspiracy to commit genocide Conspiracy which is translated in French by the words “entente en vue de l’accomplisse [sic] du genocide” is an indictment under Anglo-Saxon law. The Committee considered that conspiracy to commit genocide must be punished both in view of the gravity of the crime of genocide and of the fact that in practice genocide is a collective crime, supposing the collaboration of a greater or smaller number of persons. (c) “Direct incitement in public or in private to commit genocide whether such incitement be successful or not”. The qualification “direct” in conjunction with the word “incitement” was adopted by three votes to two with two abstentions (Fifteenth Meeting – Thursday afternoon, 22 April). The qualification “in public or in private” was adopted by five votes with two abstentions (Fifteenth Meeting – Thursday afternoon, 22 April). Certain members of the Committee considered the final words “whether such incitement be successful or not” to be superfluous. Nevertheless, the Committee decided to insert them by four votes with three abstentions (Fifteenth Meeting – Thursday afternoon, 22 April). [p. 12] The United States delegate in voting against this paragraph made a declaration.* (d) Attempt to commit genocide There was no debate on this clause.

* The statement was as follows: The delegation of United States like the other delegations represented on this Committee considers that the Convention should recognize the criminal responsibility of all those who directly commit acts constituting the crime of genocide, who get together to achieve a purpose which the Convention proposes to prevent, that is to say, to permit an act of genocide or all those who attempt to achieve that purpose. In this connection any “direct incitement” to achieve the forbidden end and which might be feared would provoke by its very nature the committing of this crime would generally partly constitute an attempt and/or a conspiracy to permit the crime. To make such incitement illegal it is sufficient to make the attempt and the conspiracy illegal without their being any need to list specifically in the Convention acts constituting direct incitement.

E/AC.25/W.4

1065

(e) Complicity in any of the acts enumerated in this Article The Committee was unanimous on this point. B. Principles not retained in the Enumeration in Article 4 1. The question of “preparatery acts” gave rise to lengthy controversy. At a first vote the Committee had decided, by four votes to three, to include preparatory acts in the enumeration in Article 4. (Fifteenth Meeting – Thursday morning, 22 April). At a later vote the Committee decided by four votes to three, to omit them. The representative of the Union of Soviet Socialist Republics, who supported the inclusion of preparatory acts in the enumeration of punishable acts, said that according to the penal law of various countries the preparatory acts of a crime were not punishable, unless the law expressly provided that they were. The preparation of genocide should not be left unpunished. The notion of preparatory acts, however, should be limited to certain acts of particular gravity defined as follows.** (a) studies and research for the purpose of developing the technique of genocide; (b) setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; (c) issuing instructions or orders, and distributing tasks with a view to committing genocide.

[p. 13] That proposal was rejected by four votes to two with one abstention. (Sixteenth Meeting, Thursday, 22 April). The members of the Committee who did not support the inclusion of preparatory acts stressed the difficulty in defining the notion of preparatory acts and the disadvantage of enumerating them if that difficulty were to be avoided. Furthermore, in the most serious cases where it would be desirable to punish the authors of preparatory acts, that could be effected either under the clause “conspiracy to commit genocide” or the clause ** These formulas are taken verbatim from the Secretariat’s draft (Article II 2(a), (b) and (c), document E/447 – 26 June 1947).

1066

E/AC.25/W.4

“complicity”. If the construction of crematory ovens or the adaptation of motor-cars to the purpose of killing the occupants with noxious gases were at issue, such acts requiring the co-operation of a certain number of persons, would accordingly come under the heading of “conspiracy to commit genocide” even if genocide were not finally committed, and under the heading of “complicity” if genocide were committed. 2. Indirect Propaganda in Favour of Genocide As the representative of the Union of Soviet Socialist Republics considered the text adopted on direct incitement in public or in private to commit genocide, inadequate (see above), he proposed that the following additional paragraph be inserted in the enumeration of punishable acts: All forms of public propaganda (press, radio, cinema, etc. . . .) aimed at inciting racial, national or religious enmities or hatreds or at provoking the commission of acts of genocide.

In opposition to this proposal certain members of the Committee said that the repression of propaganda termed as hateful propaganda would be outside the terms of reference to the Convention. It might be misinterpreted in such a way that it would prove injurious to freedom of information and therefore might jeopardize the Convention’s success. Other members added that in their opinion the repression of such propaganda was covered in so far as it came under paragraph (c) of the article under discussion. The Soviet proposal was rejected by five votes to two (Sixteenth Meeting – Thursday afternoon 22 April). [p. 14] ARTICLE 5 (Persons liable, command of the law The authors of any of the acts enumerated and superior orders) in Article 3 shall be punished, be they Heads of State, public officials or private individuals.

COMMENTS Persons Liable The Committee agreed unanimously that the authors of genocide should be punished, whatever their status.

E/AC.25/W.4

1067

The discussion dealt with the terminology to be used. Invoking the principles of national constitutions, certain members of the Committee said that the expression “ruler” used in the English text in the absence of a term corresponding exactly to the French word “gouvernant”, was not the right term to apply to the head of the State. The expression “ruler” was replaced in the English text by “heads of State” (chefs de l’Etat), whilst the word “gouvernant”, which in European civil law covers the Head of the State and the ministers was retained in the French text. The text of Article 5 was adopted by 7 votes, that is to say by a unanimous vote of all the members of the Committee. (Eighteenth Meeting, Friday evening, 23 April). REJECTED PROPOSALS Command of the law or superior orders The representative of the USSR proposed the following text: Command of the law or superior orders shall not justify genocide.

In support of this proposal the delegates of Poland and of the Union of Soviet Socialist Republics advanced the following argument: The Convention on genocide must include this principle which has already been recognized in international law (especially by the Statute of Nurenberg). A rejection of this principle would mean from the practical point of view that all individuals who could put forward the excuse that they acted according to the command of the law or superior orders were proclaimed in advance as exempt from all punishment. On the other hand the acceptance of this principle would signify that the Convention on genocide would have a considerable educative influence by warning those who might be led to commit the crime of genocide. References to military or any other kind of discipline cannot justify acts of genocide even when committed merely by “Executives”.

In opposition to this argument one representative stated that the principle behind armed force was essentially one of obedience and that the constitution of his country guaranteed the non-responsibility of all those [p. 15] who only acted in obedience to the law or to superior orders and punished only those who gave illegal orders.

1068

E/AC.25/W.4

The representative of Lebanon observed that Article 2 of the Convention only punished the authors of acts of genocide in cases where they had acted because of racial or national reasons, religious beliefs or political opinions. Thus an individual who committed genocide solely in obedience to the command of the law or to superior orders was not inspired by any of those motives and could not therefore be punished under the rules laid down in Articles 2 and 3 of the Convention. The only exception would be in the case where the crime of genocide accorded with the personal sentiments of the individual who committed it. In reply to this argument the representative of Poland stated that the Judge would have to determine in each case whether an individual was guilty or not. The Soviet proposal was rejected by two votes to four with one abstention (Fifteenth Meeting – Friday evening 23 April). The representatives of Poland* and of the Union of Soviet Socialist Republics made statements.**

* Statement by the representative of Poland. The representative of Poland stated that the non-inclusion in the Convention of the principle which has already been recognized in international lawm [sic] namely that neither obedience to the command of the law or to superior orders may excuse genocide, is a serious step backwards and in practice places in jeopardy the repression of genocide. This fact prevents the Polish delegation from accepting responsibility for the Convention in its present form. ** Statement by the representative of the Union of Soviet Socialist Republics The delegation of the Union of Soviet Socialist Republics considers that Article 5 should be completed by the addition of a second sub-paragraph reading as follows: Sub-paragraph 2. Command of the law or superior orders shall [sic] justify genocide. The exclusion of this paragraph by the majority of the Committee is contrary to the principles proclaimed at Nurenburg [sic]; It will constitute a renunciation of principles that are recognized by the United Nations and there is a risk that the fight against genocide will be considerably weakened. It is incorrect to assert that this provision is already included in Article 4, paragraph (a) of the present Convention in view of the fact that Article 5 deals with all the persons who will be responsible for the crime of genocide, a crime which in very many cases was committed systematically and on superior orders, after which the authors of these crimes attempted to exculpate themselves by pleading the command of their superiors or the command of the law.

E/AC.25/W.4

1069

[p. 16] ARTICLE 6 (Obligation for Contracting Parties The High Contracting Parties undertake to to harmonize their domestic enact the necessary legislation in accordance legislation with the Convention) with their constitutional procedure to give effect to the provisions of the Convention.

COMMENTS The question was raised of the necessity of a special provision to this effect in the Convention. It was contended that States were under the obvious obligation to take every measure for the proper performance of the obligations to which they subscribe. Moreover, the facts constituting genocide are already dealt with by domestic criminal laws (manslaughter, etc.) Moreover, a delegate remarked that in certain countries where the danger of genocide does not exist, it would not be appropriate to ask that domestic legislation be revised on the subject. Therefore, he proposed that legislative reform be required only if necessary in the particular instance under consideration. This proposition was finally withdrawn by its author when his attention was called to the danger of an obligation qualified by condition, which would then cease to be a real obligation. It was contended that the provisions of such an article might prevent certain countries from becoming parties to the Convention owing to the difficulty of obtaining the passing of the necessary legislation. This obstacle is particularly serious in federal States where criminal law is in the sphere of individual State legislation. The answer was that such a provision exists in conventions dealing with crimes in international law* and that it was inserted with the specific purpose of reminding States of an essential duty. It is immaterial whether States have no or little legislative reform to make. The answer to the argument that national legislation might prevent certain States from becoming parties to the Convention, was that, if a State is not in a position to perform its obligations under the Convention, then it is

* For example: The Convention for the Prevention of Traffic in Women and Children, Geneva, September 30, 1921; Convention for the Repression of Forgery of the Currency, Geneva, April 20, 1929, etc.

1070

E/AC.25/W.4

better that it should abstain. If the government fears that the legislature might not support it, then it should ascertain the fact before ratifying or joining the Convention. Nevertheless, to give satisfaction [p. 17] to the delegates who were pre-occupied with the situation of federal States, it was agreed to word as follows the provision concerning the necessary legislative reforms: in conformity with their constitutional procedure.

During the discussion on the particular purpose of the measures under consideration, it was debated whether the text should read “for the prevention and repression of genocide” or “to give effect to the provisions of the Convention”. The second wording was deemed preferable because it dealt with all the obligations of the States under the Convention and not merely with penal measures. The amendment was adopted by four votes against three. The article as a whole was adopted by five votes to one with one abstention. The delegate of the Soviet Union made a statement in support of his vote against the Article.*

* [p. 17-note at the bottom] The text adopted by the majority of the Committee for Article 6 is not satisfactory as regards the organization of a genuine campaign against genocide since it does not include an obligation for the signatories of the convention to introduce in their legislation measures for the prevention and suppression of genocide and the prevention and suppression of incitement to racial, national and religious hatred and the obligation to provide criminal penalties for the authors of such crimes. The expression “necessary legislative measures” may in fact be interpreted in various ways because of its vagueness. The representative of the Soviet Union considers that this Article of the convention should be drafted as follows: The High Contracting Parties pledge themselves to make provision in their criminal legislation for measures aimed at the prevention and suppression of genocide and also at the prevention and suppression of incitement to racial, national and religious hatred in accordance with the provisions of this Convention and to provide criminal penalties for the authors of such crimes.

E/AC.25/W.5

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1071

RESTRICTED E/AC.25/W.5 5 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE (Meeting of 4 May 1948 – afternoon) PORTIONS OF REPORT ADOPTED IN FIRST READING This document is the continuation of Doc. E/AC.25/W.4 – 3 May 1948 to which one should refer. These two documents contain the whole report adopted in the first reading with the exception of the portion concerning the final clauses and the vote of the draft Convention as a whole. CONTENTS OF THIS DOCUMENT Preamble – Article 1 – Genocide: crime under international law – ......................... Article 7 – Jurisdiction – Article 8 – Action of the United Nations – Article 9 – Extradition – Article 10 – Settlement of disputes by the International Court of Justice – Rejected Article – Disbanding of Organizations having participated in genocide – PREAMBLE THE HIGH CONTRACTING PARTIES declaring that genocide is a grave crime against mankind which violates the spirit and aims of the United Nations and which the civilized world condemns; having been profoundly shocked by many recent instances of genocide, and having taken note of the fact that the International Military Tribunal at Nurnberg in its judgment of 30 September and 1 October 1946 has punished under a different legal description certain persons who had committed acts similar to those which the present Convention aims at punishing;

1072

E/AC.25/W.5

being convinced that the prevention and punishment of genocide requires international co-operation; HEREBY AGREE TO PREVENT AND PUNISH THE CRIME OF GENOCIDE AS PROVIDED IN THIS CONVENTION.

COMMENTS The preamble contains a certain number of considerations of a general or historical nature. PARAGRAPH 1 THE HIGH CONTRACTING PARTIES declaring that genocide is a grave crime against mankind which violates the spirit and aims of the United Nations and which the civilized world condemns;

The members of the Committee reached agreement on the majority of the ideas expressed in this paragraph. It will be noticed that genocide is called “a crime against mankind”. The delegate of France had requested that it should be stated that genocide, while possessing specific characteristics, was a crime against humanity. He stated that it was for practical reasons that a convention was being drawn up on the crime of genocide which, in his opinion, came within the general category of crimes against humanity. According to him it was desired to organize without delay the prevention and punishment of this particularly grave crime until such time as the International Law Commission in developing and going beyond the Nurnberg principles, should organize the punishment of all crimes against humanity and sever the link by which they were bound to crimes against the peace and to war crimes under the Charter of the International Military Tribunal of 8 August 1945. The unity of the principle regarding crimes against humanity should, in his opinion, however, be preserved. Certain members of the Committee thought that it was not necessary to insert in the preamble of the Convention doctrinal considerations of no practical utility. Other members of the Committee categorically opposed the expression “crimes against humanity” because, in their opinion, it had acquired a well defined legal meaning in the Charter of the International Military Tribunal and of its judgment pronounced at Nurnberg. They

E/AC.25/W.5

1073

added that by the terms of its Resolution 180(II), the General Assembly itself had clearly separated genocide from the other crimes which the International Law Commission would be called upon to codify. The formula of “a crime against mankind ” was therefore adopted to express a popular idea on which everyone was in complete agreement. The Committee also rejected the following suggestions: (a) that of the representative of the U.S.S.R. to the effect that it should be noted in the preamble that the aim of genocide is the destruction of separate human groups on racial, nationalistic or religious grounds and (b) the suggestion of other members of the Committee who considered that this definition should be supplemented by the addition of political motives. The majority of the Committee considered that this would be a duplication of the articles of the Convention in which such a definition was given. PARAGRAPH 2 having been profoundly shocked by many recent instances of genocide

Various proposals were submitted on this point. The representative of the Union of Soviet Socialist Republics proposed the following text: THE HIGH CONTRACTING PARTIES declare that the crime of genocide is organically bound up with FascismNazism and other similar race theories which preach racial and national hatred, the domination of the so-called higher races and the extermination of the so-called lower races.

The representative of the U.S.S.R. pointed out that the idea of putting the question in this form was not only to place on record generally known historical facts, but also to give proper emphasis to the fact that genocide by the very nature of the crime was organically connected with fascism-nazism and similar racial “theories” about the so-called “higher” and “lower” races; and that a reference to this in the preamble would eo ipso imply condemnation of such regimes and “theories” as instigating to the commission of genocide. [p. 5] It was emphasized that, although genocide might be committed from [sic] motives of religious fanaticism also, nevertheless in actual practice committed from [sic] such motives were at the same time committed from [sic] national motives also.

1074

E/AC.25/W.5

It was stated in objection that while Facism-Nazism [sic] was undoubtedly responsible for the crimes of genocide committed before or during the second world war, it was nevertheless wrong to consider genocide as being an exclusive product of Fascism-Nazism. In fact, history revealed many [illegible] previous cases of genocide. As regards the future, it was possible that crimes of genocide would be based on other motives. It would be dangerous to create the idea that genocide should only be punished if it were a product of Fascism-Nazism, and that the Convention was concerned only with that historical accident. Furthermore, this text was criticized as giving the impression that genocide was a result of racial hatred alone, whereas it could be inspired by religious fanaticism. The paragraph proposed by the representative of the U.S.S.R. was rejected by five votes to two (twenty-second meeting – Tuesday, 22 April afternoon). Certain delegates wished however that there should be some mention in the preamble of the recent crimes committed by Hitlerite Germany and her Facist [sic] allies which were in fact the prime cause of the present Convention’s coming about. Various amendments to this effect were put forward, among others, a Lebanese amendment reading as follows: Crimes of genocide have found fertile soil in the theories of Nazism and Fascism and other similar theories preaching racial and national hatred.

This amendment was rejected by four votes to three (twenty-second meeting, Tuesday afternoon, 27 April). Another amendment put forward by the Polish delegate read as follows: That recently the crime of genocide has been committed with particularly hideous results by the Nazi and Fascist regimes

Finally it was thought by the majority that the formula “having been profoundly shocked by many recent instances of genocide” was sufficient. [p. 6] PARAGRAPH 3 having taken note of the fact that the International Military Tribunal at Nürnberg in its judgment of 30 September and 1 October 1946 has punished

E/AC.25/W.5

1075

under a different legal description certain persons who had committed acts analogous to those which the present Convention aims at punishing;

There was some discussion on this text, which recalls the part played by the International Military Tribunal. It was redrafted at the second reading. Fearing that the crime of genocide might be confused with the crimes against humanity which had been judged by the Military Tribunal, and after having been inclined to favour the suppression of the first text quoted, the majority of delegates requested that it should be revised. Consequently, several amendments were made among others, the addition of the words “under a different legal description”. The revised paragraph was adopted by three votes to one with three abstentions. PARAGRAPH 4 Being convinced that the prevention and punishment of genocide requires international co-operation.

The representative of the Union of Soviet Socialist Republics proposed the following text: [sic] hat the campaign against genocide requires all civilized peoples to take decisive measures to prevent such crimes and also to suppress and prohibit the stimulation of racial, national (and religious) hatred and to insure that persons guilty of inciting, committing or encouraging the commission of such crime shall be severely punished.

This text was rejected by four votes to three. (Twenty-third meeting. Tuesday afternoon, 27 April – second afternoon meeting). This text was rejected because objections were raised to the following passage: [p. 7] to suppress and prohibit the stimulation of racial, national and (religious) hatred.

The Committee wished, however, to retain one of the ideas contained in this text and adopted the paragraph given above. Vote on the preamble as a whole – The preamble as a whole was adopted by four votes to one with two abstentions (twenty-fourth meeting, 28 April 1948).

1076

E/AC.25/W.5

The delegate of the U.S.S.R. has made a statement explaining his reasons for voting against the preamble.(1) The delegate of Poland has made a statement explaining his reasons for not supporting the preamble.(2) – ARTICLE 1 – (Genocide: crime under international Genocide is a crime under international law) law whether committed in time of peace or in time of war.

COMMENTS This article is to some extent a preliminary one, as articles 2 and 3 define genocide.

(1)

(2)

Declaration of the delegate of the U.S.S.R.: The text of the Preamble of the Convention as adopted by the majority of the Committee does not give a complete and correct definition of the crime of genocide. As a matter of fact, the following elements are missing: a) The indication that the crime of genocide tends to exterminate certain groups of the population because of their race and nationality (religion). b) The indication that the crime of genocide is organically bound up with FascismNazism and other similar race “theories” which propagate racial and national hatred, the domination of the so-called “higher” races and the extermination of the so-called “lower” races. c) The indication that the struggle against genocide requires decisive measures aimed at the prevention of such crimes and also at the suppression and prohibition of the instigation of racial, national (and religious) hatred and at the severe punishment of the persons guilty of inciting, committing or preparing the commission of the crime mentioned above. The Representative of the U.S.S.R. esteems that it would be indispensable to amend the Preamble of the Convention in accordance with the text of the first part of the “Basic Principles of the Convention on Genocide” [sic], submitted by the U.S.S.R. Declaration of the delegate of Poland: The text of the Preamble as it now stands avoids any reference to the crimes committed on a horrible and unprecedented scale and manner under the Nazi-Fascist regimes, and to the connection between those crimes and the propaganda of the so-called race theories by said regimes. Such an omission being deliberate is deeply disturbing and quite incomprehensible to the Polish Delegation and makes it impossible to support the Preamble until amended.

E/AC.25/W.5

1077

Certain members of the Committee wondered whether any useful purpose would be served by adopting this article and whether the ideas expressed therein ought not be included in the preamble. The majority of the members of the Committee decided on a separate article in order to give more weight to the essential ideas to which it gave expression. This article contains two ideas. 1. Genocide “is a crime under international law”. This statement already existed in General Assembly Resolution 96(I) of 11 December 1946. The first part of this article was adopted by five votes to one with one abstention. (Twentieth meeting, Monday afternoon, 26 April). 2. Genocide “is a crime . . . whether committed in time of peace or in time of war”. While not disputing the principle that genocide can be committed in time of war as well as in time of peace certain delegates considered that this reference was definitely superfluous. The second part of this article was adopted by three votes to one with three abstentions. Concerning the Article as a whole several delegations indicated their attitude as follows: The delegate of France proposed a different wording according to which genocide would be described as a crime against humanity. This wording was rejected by 6 votes to one. The delegate of France stated in this connection that in the opinion of his government genocide was the most typical of the crimes against humanity. Though the French Delegation has accepted, with a view to facilitate the speedy adoption of special draft conventions, to sever the problem of genocide from the two more general problems referred to the International Law Commission and to submit it to a committee of the Economic and Social Council, this attitude should nevertheless in no way prejudice the general principle which, according to the French Delegation, remains unchanged.

1078

E/AC.25/W.5

The delegate of the U.S.S.R. is opposed to the insertion of this article in the Convention for the reason given in his declaration to explain his vote. The delegate of Venezuela proposed the suppression of the second part of the Article and the transfer of the first part to the preamble. Vote on the article as a whole The article as a whole was adopted by five votes to two. The delegate of the U.S.S.R. has made a statement explaining his reasons for voting against the article.(1) – ARTICLES 2, 3, 4, 5 and 6 – (See document E/AC.25/W.4, 3 May 1948.) – ARTICLE 7 – (Jurisdiction)

Any of the acts enumerated in Article 3 shall be punished by any competent tribunal of the State in the territory of which the act is committed or by a competent international tribunal.

COMMENTS Several problems were solved directly or indirectly by this article which deals with repression by the national courts and by an international court.

(1)

Declaration of the delegate of the U.S.S.R. Article I should be excluded because the general nature of the crime of genocide should be specified in the preamble. Furthermore, I consider that in place of the words “crimes against the Law of Nations” the preamble should state that the crime of genocide is one of the worst forms of crimes against humanity directed towards the destruction of individual human groups on racial, national (religious) grounds. With regard to the indication in the second part of Article 1 that genocide is a crime whether committed in time ot [sic] peace or in time of war, the representative of the U.S.S.R. considered that this provision could be included in the Preamble to the Convention.

E/AC.25/W.5

1079

A – Repression by the national courts All members of the committee agreed to recognize the jurisdiction of the Courts of the State on the territory of which the offense was committed. The first part of the article, up to “. . . on the territory of which the offense was committed . . .” was voted by all seven members of the Committee. B – Repression by an International Court The set-up of an international jurisdiction gave rise to a lengthy discussion. For some delegates the granting of jurisdiction to an international Court was an essential element of the Convention. They claimed that in almost every serious case of genocide it would be impossible to rely on the Courts of the States where genocide had been committed to exercise effective repression because the government itself would have been guilty, unless it had been, in fact, powerless. The principle of universal repression having been set aside for the reasons indicated above the absence of an international Court would result in fact in impunity for the offenders. The supporters of an international Court merely requested that the international jurisdiction be expressly provided for by the Convention without the latter setting up the actual organization of the Court. The opposition first declared that the intervention of an international Court would defeat the principle of the sovereignty of the State because this Court would be substituted for a national Court. Secondly, they claimed that mere reference in the Convention to an international Court would have no practical value. What would this Court be? There is for the moment no international Court with criminal jurisdiction. It would be necessary either to create a new Court or to add a new criminal chamber to the international Court of Justice and all the members of the Committee had agreed that they had neither the qualifications nor the time necessary for settling these problems. During the discussion of principles, the Committee adopted by four votes (China, France, Lebanon, United States of America) against two (Poland, U.S.S.R.) with one abstention (Venezuela), the principle of an international criminal jurisdiction. (Eighth meeting – Tuesday, 13 April) [sic]

1080

E/AC.25/W.5

The Committee voted by four votes (China, France, Lebanon, United States of America) against three (twentieth meeting – Monday, 26 April) the final provision of Article 6 “or by a competent international tribunal”. The United States delegate proposed the following additional paragraph to article 7: Assumption of jurisdiction by the international tribunal shall be subject to a finding by the tribunal that the State in which the crime was committed has failed to take adequate measures to punish the crime.

The Committee decided by four votes and three abstentions in favour of this principle (Eighth meeting – Tuesday, 13 April). However, the inclusion of this principle in the Convention was rejected by five votes against one (United States of America) with one abstention (U.S.S.R.) on the ground that the inclusion of this paragraph in the Convention might prejudice the question of the Court jurisdiction. The article as a whole was voted by four votes to three. The delegates of Poland,(1) of Venezuela(2) and of the U.S.S.R.(3) respectively, made a declaration with regard to their negative vote.

(1)

(2)

(3)

Declaration of the delegate of Poland: (Concerning article 7 and article 10) The inclusion in the Convention of the principle of an International Criminal Tribunal constitutes an obligation of the parties to this Convention, the contents of which are wholly unknown to them. The creation of an International Criminal Court whose jurisdiction could only be compulsory and not optional, is contrary to the principles on which the International Court of Justice and its Statutes are based. Declaration of the delegate of Venezuela: The Representative of Venezuela has opposed the inclusion in article 7 of the sentence ‘or by a competent international tribunal’, because he considered that therein was a vague allusion to a possible international jurisdiction the constitutive elements of which are not known to the signatories of the Convention. He has made a similar objection to the sentence ‘by a competent international criminal tribunal’, contained in article 10. Declaration of the delegate of the U.S.S.R.: The Representative of the Union of Soviet Socialist Republics considers that the decision of a majority of the Committee to place cases of genocide under the jurisdiction of a competent international court is wrong, since the establishment of an international court would constitute intervention in the internal affairs of States and a violation of

E/AC.25/W.5

1081

Rejected proposal The principle of universal repression The principle of universal repression by a national court over individuals who had committed genocide abroad was discussed when they considered the fundamental principles of the Convention. Those in favour of the principle of universal repression held that genocide would be committed most of the time by the State authorities themselves or that these authorities would have aided and abetted the crime. Obviously in this case the national courts of that State would not enforce repression of genocide. Therefore, whenever the authorities of another State had occasion to arrest the offenders they should turn them over to their own Courts. The supporters of the principle of universal repression added that, since genocide was a crime in international law, it was natural to apply the principle of universal repression. They quoted conventions on the repression of international offenses such as traffic in women and children, forgery of currency, etc. The opposite view held that universal repression was against the traditional principles of international law and that permitting the Courts of one State to punish crimes committed abroad by foreigners was against the sovereignty of the State. They added that, as genocide generally implied the responsibility of the State on the territory of which it was committed, the principle of universal repression would lead national courts to judge the acts of foreign Governments. Dangerous international tension might result. A member of the Committee, while he agreed that the right to prosecute should not be left exclusively to the Courts of the country where genocide had been committed, declared himself opposed to the principle

their sovereignty, an important element of which is the right to try all crimes without exception, committed in the territory of the State concerned. The Representative of the Union of Soviet Socialist Republics considers that article 7 of the Convention should be drafted as follows: ‘The High Contracting Parties pledge themselves to punish any offender under this Convention within any territory under their jurisdiction, the case to be heard by the national courts in accordance with the domestic legislation of the country’.

1082

E/AC.25/W.5

of universal repression in the case of genocide. It is a fact, he said, that the Courts of the various countries of the world do not offer the same guaranty. Moreover, genocide as distinguished from other crimes under International Conventions (traffic in women, traffic in narcotic drugs, forgery of currency) has a distinct political character. Therefore, there is a danger that the principle of universal repression might lead national Courts to exercise a biased and arbitrary authority over foreigners. This delegate, therefore, proposed that jurisdiction be given to an international Court possessing an authority recognized by and to which States would surrender the authors of genocide committed abroad whom they had arrested and whom they would be unwilling to extradite. The principle of universal repression was rejected by the Committee in the course of discussion by four votes (among which France, the United States of America and the U.S.S.R.) against two with one abstention. (Eighth meeting – Tuesday, 13 April). During the discussion of Article 6 the proposal to reverse the foregoing decision was rejected by four votes against two with one abstention. (Twentieth meeting – Monday, April 26) [sic] [p. 16] ARTICLE 8 (Action of the United Nations)

A party to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide. A party to this Convention may bring to the attention of any competent organ of the United Nations any case of violation of this Convention.

OBSERVATIONS This article was discussed at length when the Committee considered questions of principle, and it was discussed again when the articles of the Convention were being drafted. The delegate of the Soviet Union proposed the following text: The High Contracting Parties pledge themselves to communicate to the Security Council all the cases of genocide as well as all the cases of viola-

E/AC.25/W.5

1083

tion of the commitments provided for by this Convention in order to take necessary measures in accordance with Chapter VI of the United Nations Charter. [p. 16 ends]

In this connection there was disagreement on two main points: (1) Should provision be made for the intervention of a specific organ of the United Nations, in this case the Security Council, or should no organ be mentioned? It was urged in favour of naming the Security Council that the commission of Genocide was a grave matter likely to endanger world peace and therefore one which justified intervention by the Security Council, and that only the Security Council was capable of taking effective action to remedy the situation, that is to say to stop the commission of genocide. It was argued against this point of view that although the Security Council appeared to be the organ to which Governments would most frequently wish to apply, it was undesirable to rule out the General Assembly, the Economic and Social Council or the Trusteeship Council. In some cases it would be of advantage to call on the General Assembly because it directly expressed the opinion of all Members of the United Nations, and because its decisions were taken by a majority vote with no risk of the right of veto preventing a decision. (2) Should it be made compulsory for parties to the Convention to lay the matter before the organs of the United Nations or should they be merely given the right to do so? It was argued in favour of compulsion that the gravity of genocide justified compulsory reference to the Security Council to which organ would be free to assess the importance of the cases submitted to it and to take the necessary steps for the prevention and suppression of genocide. It was further pointed out that in accordance with the Charter Members of the United Nations were already entitled to refer questions to that Organization and that nothing would be gained by mentioning this right in Article 8 of the Convention. It was argued against this view that if a serious case of genocide occurred, it would certainly be submitted to the United Nations and that it was

1084

E/AC.25/W.5

unnecessary to make into an obligation a right the exercise of which should be left to the judgment of Governments. The principle of compulsory notification was rejected by three votes to two with two abstentions. (20th meeting – Monday 26 April – afternoon) [sic] Having rejected by five votes to two (20th meeting – Monday 26 April – afternoon) the text submitted by the delegate of the Soviet Union, the Committee had to consider the text submitted by the delegate of China and adopted as the basis of discussion. This text with some amendments was adopted by five votes to one with one abstention. (20th meeting – Monday 26 April – afternoon) and became the first paragraph of the article. A second paragraph, adopted by six votes with one abstention, was added. (20th meeting – Monday 26 April – afternoon) The Article as a whole was adopted by five votes to one with one abstention. The delegate of the Union of Soviet Socialist Republics made a declaration with regard to his negative vote1 [sic]

1

Declaration of the Delegate of the Union of Soviet Socialist Republics: In order really to combat genocide it is essential that the signatories to the Convention should undertake the obligation to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention, so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter. An appeal precisely to the Security Council would be fully in accordance with the gravity of the question of genocide. The Representative of the Union of Soviet Socialist Republics considers that Article VIII should read as follows in the Convention: The High Contracting Parties undertake to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter.

E/AC.25/W.5

1085

Article 9 (Extradition)

Genocide and the other acts enumerated in Article 4 shall not be considered as political crimes and therefore shall be grounds for extradition. Each party to this Convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force.

OBSERVATIONS This Article was included in the Convention, at the request of the delegate of Poland. There was no opposition and it was unanimously adopted by the Members of the Committee. However, the U.S.A. Delegate made a Declaration concerning this Article.(1) Article 10 (Settlement of the disputes by the International Court of Justice)

(1)

Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice, provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international tribunal.

Declaration of the U.S.A. Delegate: With respect to the article on extradition, the representative of the United States desires 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. Moreover, the provision in the Constitution of the United States regarding ex post facto laws would preclude the Government from granting extradition of any person charged with the commission of the offence prior to the enactment of legislation defining the new crime.

1086

E/AC.25/W.5

OBSERVATIONS A member of the Committee requested that Article XIV of the Secretariat’s draft(1) regarding the settlement of disputes relating to the interpretation of application of the Convention be re-inserted. The delegate of the USSR opposed this proposal, recalling his opposition in principle to the establishing of an International Court, which in his opinion, would be an infringement of the sovereignty of States and would amount to intervention in the internal affairs of the State. The Article as a whole was adopted by 4 votes to 3. The Delegate of the USSR(2) and the Delegate of Poland(3) made a declaration with regard to their negative vote. Rejected Article (Disbanding of Organizations having participated in genocide)(1) The Delegate of Poland made the following proposals which would have constituted a separate article: (1)

(2)

(3)

(1)

This article reads as follows: Disputes relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice. Declaration of the Delegate of USSR. Establishment of the system contemplated by Article IX must inevitably lead to intervention by the International Court of Justice in the trial of cases of genocide which should be heard by the national courts in accordance with their jurisdiction. The Representative of the Union of Soviet Socialist Republics bases his argument on the fact that the establishment of international jurisdiction for cases of genocide would constitute intervention in the internal affairs of States and be a violation of their sovereignty. Consequently, in the opinion of the Representative of the Union of Soviet Socialist Republics, Article X should be excluded. Declaration of the Delegate of Poland: The inclusion in the Convention of the principle of an International Criminal Tribunal constitutes an obligation of the parties to this Convention, the contents of which are wholly unknown to them. The creation of an International Criminal Court whose jurisdiction could only be compulsory and not optional, is contrary to the principles on which the International Court of Justice and its Statute are based. The High Contracting Parties pledge themselves to disband any group or organization which has participated in any act of genocide mentioned in Articles I, II and III.

E/AC.25/W.5

1087

The High Contracting Parties pledge themselves to disband any group or organization which have participated in any act of genocide.

This question was mentioned in the Soviet Note, concerning the principles, which was discussed by the Committee in the first stage of its work. It was decided not to retain it by 4 votes to 3. (6th Meeting – Friday 9 April) A proposal to reconsider the questions _____ was then rejected by 3 votes to 1 with no abstentions. The Delegate of Poland made a declaration in this regard.(2)

(2)

Declaration of the Delegate of Poland: The Committee declined to include in the Convention any provision concerning disbanding of groups and organizations which have participated in acts of genocide. The lack of such a provision (having the result that such organizations would be permitted to carry on their criminal activities makes it impossible for the Polish Delegation to support the Convention until amended.

1088

E/AC.25/SR.27

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.27 14 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTY-SEVENTH MEETING Lake Success, New York Monday, 4 May 1948, at 2.25 p.m. Chairman:

Mr. MAKTOS

Vice-Chairman:

Mr. MOROZOV

Rapporteur: Members:

Mr. Mr. Mr. Mr. Mr. Mr.

Secretariat:

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO SCHWELB

Mr. GIRAUD

(United States of America) (Union of Soviet Socialist Republics) (Lebanon) China France Poland Venezuela Assistant-Director, Human Rights Division Secretary of the Commission

Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.27

1089

CONTINUATION OF THE CONSIDERATION OF THE DRAFT REPORT (documents E/AC.25/W.1, E/AC.25/W.1/Add.1, Add.2, Add.3, Add.4 and E/AC.25/W.4) Mr. RUDZINSKI (Poland) requested the inclusion in the report of the following general statement: The delegation of Poland, a country which suffered so terribly from genocide committed by Hitlerite Germany, was and is one of the main supporters of an International Convention on Genocide as a matter of great international importance and urgency. During the General Assembly in 1946, in the Committee on Codification of International Law as well as during the General Assembly in 1947, and in the last session of the Economic and Social Council, the Polish delegation expressed with great emphasis and several times its opinion on this matter, and submitted proposals and suggestions. It is, therefore, with profound regret that the Polish delegation abstained from voting on the draft adopted by the Ad Hoc Committee for the reasons explained below. The Polish delegation will do all in its power to achieve a text of the Convention on Genocide which would be both effective and acceptable to Members of the United Nations. Poland wishes to be one of the first signatories of the Convention on Genocide.

He would present other statements during the examination of each of the articles of the report. Article 5, (document E/AC.25/W.1/Add.2) (Now Article 6) The CHAIRMAN reminded the Committee that it had decided to delete paragraph 1 of the Comments on that article. Speaking as representative of the United States, he proposed a few slight drafting amendments as well as the following changes: 1) page 2, paragraph 1, replace the words “crimes in international law” by “certain types of crimes”; 2) in the next paragraph replace “to give satisfaction to the delegates who were pre-occupied with the situation for federal States” by “in view of the diversity of the types of national constitutions.” Mr. RUDZINSKI (Poland) requested the inclusion in the report of the following statement: The Polish delegation is of the opinion that the present text of Article 6 is ambiguous and insufficient. The text should at least be amended to read ‘the high contracting parties undertake to enact in accordance with their constitutional procedures the legislation necessary to give effect to the provisions of this

1090

E/AC.25/SR.27

Convention’, and supplemented with a provision concerning the prevention of genocide as well as combatting any propaganda to racial, national and religious hatred.

Article 6 (Now Article 7) The CHAIRMAN said that the expression “répression universelle” had been translated as “extra-territorial jurisdiction”. He requested the use of the term “universal repression” in the English text, wherever that expression occurred. He then suggested certain drafting amendments to the last paragraph on page 4 and the first paragraph on page 5. After a brief discussion the Committee decided to replace “as against other international crimes” in the last paragraph on page 4 by “as distinguished from other crimes under international conventions”, and to delete “which would impose itself to all” at the end of the same paragraph. Speaking as the United States representative, the CHAIRMAN, supported by Mr. MOROZOV (Union of Soviet Socialist Republics), requested that the names of the four members who had voted against the principle of universal repression, namely, France, Poland, the Union of Soviet Socialist Republics, and the United States of America, should be mentioned after the result of the vote in paragraph 1, page 5. Mr. ORDONNEAU (France) and Mr. RUDZINSKI (Poland) had no objection to that being done. Speaking as representative of the United States, the CHAIRMAN suggested that the wording of paragraphs 4, 5, 6 and 7 on page 6 should be redrafted as follows: The United States delegate proposed the following additional paragraph: Assumption of jurisdiction by the international tribunal shall be subject to a finding by the tribunal that the State in which the crime was committed has failed to take adequate measures to punish the crime. The Committee during the discussion of questions of principle decided by four votes and three abstentions in favour of this principle (Eighth meeting – Tuesday, 13 April). The inclusion of this principle in the convention was, however, rejected by five votes against one with one abstention.

E/AC.25/SR.27

1091

Mr. LIN MOUSHENG (China) thought that it would be preferable to state the reason for that decision. He therefore requested that the last sentence of the above text should be supplemented with the following words: “On the grounds that the inclusion of this principle in the Convention might prejudge the question of the jurisdiction of the Court.” The CHAIRMAN, speaking as the representative of the United States, requested that the names of the four members who had voted for the principle of an international criminal jurisdiction, namely, China, France, Lebanon and the United States of America should be mentioned after the results of the vote in paragraphs 1 and 2 on page 6. Mr. MOROZOV (Union of Soviet Socialist Republics) requested that the names of the members who had voted against that principle should also be mentioned. Mr. LIN MOUSHENG (China), supported by Mr. MOROZOV (Union of Soviet Socialist Republics), suggested the deletion of the first paragraph on page 7, and Mr. Morozov added that if that paragraph was to be retained it should be explained that the reasons referred to represented the view of certain delegations mentioned by name, and that his delegation held a contrary view. After a brief discussion it was decided to mention the names of the members who had voted for or against, or had abstained from voting, after the results of the votes which appeared in the second, third and fifth paragraphs on page 6 and in the first paragraph on page 7. It was also decided to delete the entire explanatory part of the first paragraph on page 7. Mr. RUDZINSKI (Poland) requested the insertion in the report of the following statement: The inclusion in the Convention of the principle of an International Criminal Tribunal constitutes an obligation of the parties to this Convention, the contents of which are wholly unknown to them. The creation of an International Criminal Court whose jurisdiction could only be compulsory and not optional, is contrary to the principles on which the International Court of Justice and its Statutes are based.

1092

E/AC.25/SR.27

Article 7 (document E/AC.25/W.1,Add.4) (Now Article 8) The CHAIRMAN, speaking as the representative of the United States, requested that paragraph 2 of the observations on that article should be amended as follows: “It was generally agreed that genocide was a matter of concern to the United Nations which might take action in appropriate circumstances.” Mr. MOROZOV (Union of Soviet Socialist Republics) was opposed to the new wording proposed by Mr. Maktos, since the Committee had not reached unanimous agreement on what the function of the United Nations should be in the event of the Convention on Genocide being violated. He suggested the deletion of that paragraph. The CHAIRMAN and Mr. AZKOUL (Lebanon), Rapporteur, agreed to the deletion proposed by the USSR representative. Mr. MOROZOV (Union of Soviet Socialist Republics) requested that mention should be made in paragraph 2 (page 2) of the obligations for the High Contracting Parties to refer matters to the Security Council and suggested the following wording: “It was argued in favour of compulsion that the gravity of genocide justified compulsory reference to the Security Council, which would be free to assess the importance of the cases submitted to it, and to take the necessary steps to prevent and punish genocide. It was further pointed out that under the Charter, Members of the United Nations were already entitled to refer questions to that Organization and that nothing would be gained by mentioning this right in Article 7 of the Convention.” The CHAIRMAN suggested some changes of wording in the fourth paragraph on page 2. At the request of Mr. LIN MOUSHENG (China), the second sentence of that paragraph was deleted. At the request of Mr. RUDZINSKI (Poland), the text proposed by the Chinese delegation for the sixth paragraph on page 2 was deleted. Article 8 (Now Article 9) No comment.

E/AC.25/SR.27

1093

Article 9 (Now Article 10) Mr. MOROZOV (Union of Soviet Socialist Republics) requested that paragraph 2 of the observations on that article should be amended as follows: “The representative of the USSR opposed this proposal, recalling his opposition in principle to the establishment of an International Court which, in his opinion, would be an infringement of the sovereignty of States and interference in their domestic affairs.” The CHAIRMAN, speaking as representative of the United States, requested that the expression “overlapping of jurisdictions” in the next paragraph should be replaced by “concurrent or conflicting jurisdiction”, and the rest of the paragraph deleted. The meeting adjourned from 4 p.m. to 4.30 p.m. Preamble (document E/AC.25/W.1/Add.3) Mr. RUDZINSKI (Poland) said that it seemed to him/that [sic] one point had not yet been settled with regard to the wording of the Preamble. As the Secretariat shared his uncertainty, he asked the Committee to choose between the expressions “declaring that” and “considering that”, which had both been suggested for the first paragraph of the Preamble. As it was a matter of a solemn declaration, he would like the expression “declaring that” to be retained. The Committee decided by 3 votes to none, with 4 abstentions to retain the expression “declaring that”. Mr. AZKOUL (Lebanon) (Rapporteur) suggested that in the interest of clarity, the statements quoted in paragraphs 2 and 3 on pages 4 and 5 should be attributed to their authors by adding “according to him”, “in his opinion”, “in their opinion”, etc. Mr. ORDONNEAU (France) requested that the French delegation’s statement in the last paragraph on page 4 should be explicitly attributed to the French representative. Mr. LIN MOUSHENG (China) requested that it should be stated in the same paragraph that the formula of “a crime against mankind” had been adopted not in order to express “an idea that was not specifically

1094

E/AC.25/SR.27

legal” but to express a “popular idea” on which the whole world was in complete agreement. Mr. MOROZOV (Union of Soviet Socialist Republics) requested that the second paragraph on page 5 should be redrafted so as to road: “In addition the Committee rejected: a) a proposal by the USSR to indicate in the Preamble that genocide was a crime committed on national, racial or religious grounds; b) proposals made by delegations who wished the definition of the crime to be extended to include acts committed on political grounds. The majority of the Committee considered that this would be tantamount to repeating the articles of the Convention defining genocide. He also requested the inclusion in the report of the following statement, explaining why his delegation had voted against the Preamble of the Draft Convention: The Preamble to the Convention an adopted by the majority of the Committee, fails to give a comprehensive and correct definition of the crime of genocide. The following elements have been omitted: a) The statement that genocide aims at the extermination of certain groups of the population on account of their race or nationality (or religion); b) A reminder that genocide is indissolubly bound up with Fascism-Nazism and other similar race “theories” which preach racial and national hatred, the domination of the so-called “higher” races, and the extermination of so-called “lower” races; The statement that it is essential to take steps not only to prevent this crime but also to punish and prohibit the inciting of racial, national or religious hatred, and inflict severe punishment on persons guilty of inciting, preparing or perpetrating this crime. The representative of the Union of Soviet Socialist Republics considers it essential to amend the Preamble to the Convention in accordance with the text of the first part of the basic principles of a Convention for the prevention and punishment of genocide proposed by the Soviet Union.

Mr. RUDZINSKI (Poland) said it should be specified that finally it was thought by the majority of the Committee that the formula “having been profoundly shocked by many recent instances of genocide” was sufficient (fifth paragraph on page six). He pointed out that the report quoted an amendment submitted by the French delegation and rejected by the Committee, while it failed to mention a similar proposal submitted by his delegation. He requested that the text of that amendment should also appear in the report.

E/AC.25/SR.27

1095

Mr. ORDONNEAU (France) thought there was no need to include in the report these amendments which had not been adopted, and he requested the deletion of his delegation’s amendment. Mr. RUDZINSKI (Poland) maintained his request for the inclusion of the Polish amendment in the report. He suggested, moreover, some slight drafting amendments to the second sub-paragraph of paragraph 3 (page 6). Finally, he requested that the following statement should be incorporated in the report: The text of the Preamble as it now stands avoids any reference to the crimes committed on a horrible and unprecedented scale and manner under the Nazi Fascist regime, and to the connection between these crimes and the propaganda of the so-called race theories by said regimes. Such an omission being deliberate, is deeply disturbing and quite incomprehensible to the Polish Delegation and makes it impossible to support the Preamble and Convention until amended.

Preliminary Article (Now Article 1) Mr. ORDONNEAU (France) wished the report to mention the amendment which he had submitted. His delegation attached great importance to it, although it had not been accepted by the Committee. He therefore requested the inclusion in the report of the following statement: The representative of France had submitted a different text in which genocide was defined as a crime against humanity. That text was rejected by 6 votes to 1. The representative of France pointed out on that occasion that, in his Government’s opinion, genocide was the most characteristic of crimes against humanity. No doubt, being anxious to bring the work on the Draft Convention to a successful and more speedy conclusion, the French delegation had agreed to separate the question of genocide from the two more general problems submitted to the Commission on the Progressive Development of International Law and its Codification, and to submit it to a committee of the Economic and Social Council. This attitude, however, could on no account affect the general principle which, in the French delegation’s view, remained intact.

Mr. MOROZOV (Union of Soviet Socialist Republics) requested the deletion of the fifth paragraph of “Comments” on the preliminary article.

1096

E/AC.25/SR.27

He also requested the deletion of the explanation attributed to the representative of the Union of Soviet Socialist Republics in the penultimate paragraph, on page 8, and the insertion of the following statement explaining that negative vote of the delegation of the Union of Soviet Socialist Article I should be deleted, because the general definition of crimes of genocide should appear in the Preamble. We therefore consider that instead of the term. ‘international crime’ the Preamble should state that genocide constitutes one of the gravest categories of crimes against humanity aimed at the destruction of certain groups of human beings for racial or national (or religious) reasons. In regard to the considerations mentioned in article I part II the repreentative of the Union of Soviet Socialist Republics reserves his position on that point.

Mr. PEREZ-PEROZO (Venezuela) could not remember having voted for the Preliminary Article, and asked the Secretariat to check the result which was given as six votes to one. In any case, he wished it to be recorded in the report that his delegation was of the opinion that the definition of genocide should figure in the Preamble of the Convention, and that it had presented an amendment to that effect, which had been rejected. Mr. LIN MOUSHENG (China) suggested redrafting the second idea in the Preliminary Article (point 2 of the “Comments”) as follows: Genocide is a crime . . . whether committed in time of war or in time of peace.

PORTIONS OF REPORT ADOPTED IN FIRST READING (document E/AC.25/W.4). The CHAIRMAN asked the members of the Committee whether they wanted to give a second reading to the portions of the report adopted in the first reading (document E/AC.25/W.4). Mr. MOROZOV (Union of Soviet Socialist Republics) said that the text of the Russian translation of the portions of the report regarding the first six articles that had been discussed did not always correspond with the text which he himself had submitted for inclusion in the report. He therefore urged the necessity of a second reading of that document when the representatives had the complete text, together with the relevant translations, before them.

E/AC.25/SR.27

1097

Mr. PEREZ-PEROZO (Venezuela) draw [sic] the Committee’s attention to a correction which should be made to the part of the report entitled, “Determination of Procedure and Order of Business”, in which it was stated that the Committee decided not to take as a basis any of the drafts before it. The Venezuelan delegation had, however, suggested at the beginning of the general debate, that the draft Convention prepared by the Secretariat (document E/447) should be taken as a basis, and that had been decided upon by a formal vote. It was only later, when the actual drafting was commenced that the Committee reversed its decision. That should be noted in the report. Mr. ORDONNEAU (France) pointed out that if the second reading was to be fruitful the members of the Committee should not only be in possession of all the texts duly translated, but should also have had time to study them before-hand. The CHAIRMAN supported by Mr. AZKOUL (Lebanon) (Rapporteur) requested that all amendments to be proposed during the second reading should be submitted in writing in the two working languages. The Committee decided to meet on Friday 7 May at 10:30 a.m. to proceed with the second reading of the Draft Report. The meeting rose at 6:30 p.m.

1098

E/AC.25/SR.28

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/AC.25/SR.28 9 June 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE SUMMARY RECORD OF THE TWENTY-EIGHTH MEETING Lake Success, New York Monday, 10 May 1948, at 2 p.m. Chairman: Vice-Chairman:

Mr. MAKTOS Mr. MOROZOV

Rapporteur: Members:

Mr. Mr. Mr. Mr. Mr. Mr.

Secretariat:

AZKOUL LIN MOUSHENG ORDONNEAU RUDZINSKI PEREZ-PEROZO SCHWELB

Mr. GIRAUD

United States of America Union of Soviet Socialist Republics Lebanon China France Poland Venezuela Assistant Director, Human Rights Division Secretary of the Committee

Any corrections of this record should be submitted in writing, in either of the working languages (English or French), and within twenty-four hours, to Mr. E. Delavenay, Director, Official Records Division, Room CC-119, Lake Success. Corrections should be accompanied by or incorporated in a letter, on headed notepaper, bearing the appropriate symbol number and enclosed in an envelope marked “Urgent”. Corrections can be dealt with more speedily by the services concerned if delegations will be good enough also to incorporate them in a mimeographed copy of the record.

E/AC.25/SR.28

1099

ADOPTION ON FIRST AND SECOND READING OF THE REPORT ON THE FINAL CLAUSES (Articles XI to XIX inclusive). Article XI: On the proposal of Mr. LIN MOUSHENG (China), the second paragraph of the observations beginning with the words “A delegate said . . .” was deleted. The observations on Article XI were adopted. Article XII: The observations on Article XII were adopted without discussion. Article XIII: On the proposal of Mr. MOROZOV (Union of Soviet Socialist Republics), the following sentence was added after the words “some a higher”: The representative of the Union of Soviet Socialist Republics, in particular, submitted a proposal that the number of such ratifications and accessions should be twenty-nine.

The observations on Article XIII were adopted. Article XIV: The CHAIRMAN observed that the words “was seized with”, in the English text, should be replaced by the words “had before it”. The observations on Article XIV were adopted. Article XV: The observation on Article XV was adopted without discussion. Article XVI: In the last line of the second paragraph, the words “to seize” were replaced by the words “to bring the matter before”. The observations on Article XVI were adopted without discussion.

1100

E/AC.25/SR.28

Article XVII: The observation on Article XVII was adopted without discussion. Article XVIII: The words “Article XVI” in the second paragraph of article XVIII were amended to read “article XII”. The observations on Article XVIII were adopted without discussion. Article XIX: The observation on Article XIX was adopted without discussion. ADOPTION ON SECOND READING OF THE REPORT ON THE PREAMBLE AND ARTICLE I (Document E/AC.25/W.5) The first page was adopted without discussion. Preamble of the Draft Convention The words “in this convention”, in the last paragraph of the preamble, were deleted and the word “hereinafter” was inserted after the word “as”. Observations on paragraph 1. On the proposal of Mr. MOROZOV (Union of Soviet Socialist Republics), the following passage was inserted after the first sentence “The representative of the Union of Soviet Socialist Republics submitted a proposal to include in the preamble the following texts: ‘The High Contracting Parties declare that the crime of genocide is one of the gravest crimes against mankind’ and ‘This crime constitutes a rude violation and an insult to the principles and purposes of the United Nations’.

Observations on paragraph 2 The words “It was emphasized” on page 5, line 1, were replaced by the words “He emphasized”.

E/AC.25/SR.28

1101

Observations on paragraph 3: On the CHAIRMAN’s proposal, the sentence beginning: “Fearing that the crime of genocide . . .” was amended to read “Since it was feared that the crime of genocide . . .” [sic] Military Tribunal [sic], several amendment [sic] were made; among others, the words “under a different legal description” were added. The word “has” was deleted in two places on Page 7. The observations on the preamble were adopted. On the proposal of Mr. LIN MOUSHENG (China) it was decided to number the articles of the Convention with Roman numerals and the paragraphs with Arabic numerals. Article I After some slight changes in wording, the observations on Article I were adopted. ADOPTION ON SECOND READING OF DOCUMENT E/AC.25/ W.4 (Introduction and Articles II to VIX [sic] inclusive). The first page was adopted without discussion. The word “Present”, on page 2, was deleted. In the first paragraph under the heading “DETERMINATION OF PROCEDURE etc”, on page 2, the words “formulas proper” were replaced by the words “exact wording” and the words “if approved by the Committee” were inserted after the words “in the note”. The last paragraph on Page 2 was replaced by the following text: Although the Committee had previously decided on the proposal of the representative of Venezuela to take the Secretariat draft as the basis of the actual drafting of the Convention which followed the discussion of general principles, it eventually reversed its decision and it resolved not to take as a basis any of the drafts before it, namely, the Secretariat draft (document E/447), the draft of the United States of America (document E/623) and the French draft (document E/623/Add.1) but to take them into account

1102

E/AC.25/SR.28

in its work. The final clauses of the Secretariat draft were however kept as the basis of the Committee’s work.

The following text was inserted between the third and fourth paragraphs on page 3: The text of the Draft Convention as a whole was adopted by the Committee in its twenty-sixth meeting on 30 April 1948 by five votes to one, with one abstention.

(Some members of the Committee having expressed the opinion that it was unnecessary to mention the number of votes, the representative of the USSR pointed out that this would imply that the Draft Convention had been adopted unanimously, whereas he had voted against it for the reasons given in his statement. Moreover, the representative of Poland asked that explicit mention should be made of the fact that he had abstained from voting for the reasons he had stated). In accordance with sub-paragraph (a) of the Resolution of the Economic and Social Council dated 3 March 1948 (document E/734), this Draft Convention is herewith submitted to the Economic and Social Council. The text of the Draft Convention is given in an Annex to this report.

The last two paragraphs on page 3, beginning with the words “The report indicates . . .” were deleted. There was a discussion of some length on the advisability of including the note at the bottom of page 3, stating that the draft Report contained commentaries on the scope of the provisions unanimously adopted. Mr. MOROZOV (Union of Soviet Socialist Republics) maintained that the note was entirely unnecessary and could be dangerous. Mr. AZKOUL (Lebanon), Rapporteur, on the other hand, argued that the note was necessary as a guide for those who wished to refer to the sources of the debates. The Committee finally decided by two votes to one, to delete the note at the bottom of page 3. Mr. AZKOUL (Lebanon), Rapporteur, stated that he would include his reservations regarding this deletion in the report.

E/AC.25/SR.28

1103

Article II Mr. LIN MOUSHENG (China) asked that the first note at the bottom of page 6 should be replaced by the following text: The representative of China called the attention of the Commission to the fact that during the second World War the Japanese built a huge opium extraction plant in Mukden, which could process some 400 tons of opium annually, producing fifty tons of heroin – at least fifty times the legitimate world requirements. This quantity, according to medical authorities, would be enough to administer lethal doses to 200,000,000 to 400,000,000 persons. It is clear the representative of China stated, that the Japanese intended to commit, and did commit, genocide by narcotics. The plant in question was the most sinister and monstrous conspiracy known in history. He emphasized the fact that narcotic drugs could be used as an instrument of genocide, and he wished it to be understood that articles II (sub-paragraphs (2) and (3)), and article IV, (sub-paragraphs (b), (d), and (e)), should cover genocide by narcotics, if narcotic drugs were not specifically mentioned in the Convention. The representative of China further suggested that Article II (sub-paragraph (2)), might be amended to read, ‘impairing the physical integrity or mental capacity of members of the group’, or ‘impairing the health of members of the group’. Such an amendment would make it sure that narcotic drugs would be covered by the Convention.

Article III The observations on Article III were adopted. The meeting was suspended at 4.30 p.m., and resumed at 5.15 p.m. Article IV The CHAIRMAN, speaking as representative of the United States of America, recalled that his delegation was opposed to specific reference to direct incitement to genocide being made in the Convention. He therefore asked that the first note on page 12 of the Report should be replaced by the following text: The United States delegation believes that the Convention should establish the culpability of all who directly perform the physical acts comprehended in the crime of genocide, all who [p. 7-last para. – line 4] “conspire” together to achieve the end which is to be described by this Convention,

1104

E/AC.25/SR.28

the act of genocide, or who “attempt” to achieve this end. In this connection a “direct incitement” to the achievement of the prescribed and, if of a nature to create an imminent danger that it would result in the commission of the crime, would [p. 7-last para. – line 9] generally constitute part of an attempt thereto an or an overt act of conspiracy thereto. To outlaw such incitement, it is sufficient to outlaw the attempt and conspiracy without specifically enumerating the acts of direct incitement in the Convention.

Mr. AZKOUL (Lebanon), Rapporteur, thought that in the final text, paragraph 2 on page 13, concerning propaganda in favour of genocide, should be placed under “Rejected Proposals.” Mr. MOROZOV (Union of Soviet Socialist Republics) asked for the deletion of the word “indirect” from the heading of paragraph 2 mentioned above. The observations on Article IV were adopted. Article V The CHAIRMAN, speaking as representative of the United States, proposed the insertion of the following text immediately after the heading “Persons liable”: The Committee decided to insert in its report its opinion that the rules concerning diplomatic immunities and privileges are not affected by the Convention.

Mr. MOROZOV (Union of Soviet Socialist Republics) opposed that suggestion. After some explanations by Mr. SCHWELB (Secretariat), the proposal was rejected. With regard to page 14, Mr. MOROZOV (Union of Soviet Socialist Republics) recalled the statement he had previously made following the Committee’s rejection of the proposal to stipulate, in a special paragraph, that “Command of the law or superior orders shall not justify genocide.” Mr. PEREZ-PEROZO (Venezuela) presented the following text for inclusion in the report:

E/AC.25/SR.28

1105

In opposition to the Soviet proposal, the representative of Venezuela stated that that principle is a danger to the stability of the institutions of the State. The Charter of the Military Tribunal of Nürnberg admitted that principle having in mind the crimes of war; but to accept it in time of peace is to invite the armed forces to disobedience, when they are in themselves a non-political body, bound to obedience and non deliberative. He also said that as far as his country was concerned, the law exempted from penal responsibility those who acted by virtue of due and legitimate obedience while its sanction fell on those giving the illegal order.

With reference to the same point, Mr. RUDZINKSI (Poland) in turn asked that the following statement should be inserted in the final Report: The omission from the Convention of the provision stating that ‘Command of the law or superior orders shall not justify genocide’ represents a serious step back in the development of international law and endangers seriously the effective prevention and repression of genocide under this Convention. Therefore, the Polish Delegation cannot share any responsibility for the Convention in its present form and cannot support it until amended.

The observations on Article V were adopted. Article VI The heading: “Obligation for Contracting Parties to harmonize their domestic legislation with the Convention” was amended to read: “Domestic Legislation”. The text of the observations gave rise to a long discussion, in which Mr. MOROZOV (Union of Soviet Socialist Republics) Mr. AZKOUL (Lebanon), Rapporteur, the CHAIRMAN, as representative of the United State, Mr. LIN MOUSHENG (China) and Mr. PEREZ-PEROZO (Venezuela) took part. The Committee finally decided to amend the text of the report as follows: The observations would open with a brief preamble followed by the text of the USSR proposal contained in the note on page 17 of document E/AC.25/W.4. The first and third paragraphs on page 16 were retained. The whole passage from the beginning of the fourth paragraph on page 16 (“The answer was . . .”) to the end of the fourth line on page 17 (“In

1106

E/AC.25/SR.28

conformity with their constitutional procedure”) was deleted and replaced by another text giving the USSR and Polish delegations, which had been in the minority at the time of voting, an opportunity to make their point of view more fully in the report. The new text was as follows: To this effect the representatives of the Union of Soviet Socialist Republics and Poland stated that there already existed a number of conventions, providing for the obligation of States-signatories to envisage in their legislation the measure of criminal penalties for certain kinds of crimes. (Footnote: ‘For example: The Convention for the Prevention of Traffic in Women and Children, Geneva, 30 September 1921; Convention for the Repression of Counterfeiting Currency, Geneva, 20 April 1929, etc.’) They contended that the introduction in the national legislation of laws for the suppression and prevention of genocide, the suppression and prevention of racial, national and religious hatred and laws for criminal penalties for the culprits of such crimes, was an elementary condition, without which, in the opinion of these representatives, there can be no talk about any suppression of the abovementioned crimes. As regards the argument that such an obligation would be an obstacle to the ratification of the Convention by some States, the representative of the Union of Soviet Socialist Republics stated to this effect that in this case, the legislation required for the punishment of culprits of genocide should be evidently enacted first and only then the Convention ratified in conformity with the constitutional procedure. In other cases this can be obviously done simultaneously, for in his opinion one cannot imagine a situation when a State would join the Convention but would not enact in its legislation the laws for punishment of crimes, provided for by the Convention. This would be tantamount to refusal to become a party to the Convention.

Mr. RUDZINSKI (Poland) requested the inclusion of the following statement in the Report: The Polish Delegation is of the opinion that the present text of Article VI is ambiguous and insufficient. The text should at least be amended to read ‘The high contracting parties undertake to enact in accordance with their constitutional procedures the legislation necessary to give effect to the provisions of this Convention’ and be supplemented with a provision concerning the prevention of genocide as well as combatting any propaganda to racial, national and religious hatred.

The observations on Article VI, as amended, were adopted.

E/AC.25/SR.28

1107

Article VIII Mr. MOROZOV (Union of Soviet Specialist Republics) asked that the second and third paragraphs of the observations on Article VIII (document E/AC.25/W.5, page 16) should be redrafted as follows: The representative of the Union of Soviet Socialist Republics proposed the following text: The High Contracting Parties undertake to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter.

The observations on Article VIII were adopted with that amendment. The observations on the other Articles of the Convention were adopted with various drafting amendments. Before the report as a whole was put to the vote by the Chairman, Mr. AZKOUL (Lebanon) read out the following statement: In voting for the Report, the representative of Lebanon wishes to point out that the draft Report submitted by him as Rapporteur to the Committee (Document E/AC.25/W.1 and Add.1,2,3 and 4) contained comments or the scope of certain provisions of the Convention based on views expressed.

Mr. RUDZINSKI (Poland), who had abstained from voting on the draft convention as a whole, read out the following statement: The Delegation of Poland, a country which suffered so terribly from genocide committed by Hitlerite Germany, was and is one of the main supporters of an International Convention on Genocide as a matter of great international importance and urgency. During the General Assembly in 1946, in the Committee on Codification of International Law, as well as during the General Assembly in 1947, and in the last session of the Economic and Social Council, the Polish Delegation expressed with great emphasis and several times its opinion on this matter, and submitted proposals and suggestions. It is, therefore, with profound regret that the Polish Delegation abstained from voting on the draft adopted by the Ad Hoc Committee for the reasons explained in connection with certain articles. The Polish Delegation will do all in its power to achieve a text of the Convention on Genocide which would be both effective and acceptable to Members of the United Nations. Poland wishes to be one of the first signatories of the Convention on Genocide.

The report as a whole was put to the vote and adopted unanimously.

1108

E/AC.25/SR.28

Mr. LIN MOUSHENG (China) expressed his pleasure at having had the opportunity to collaborate with the Chairman, the Vice-Chairman, the Rapporteur, his colleagues on the Committee and the members of the Secretariat Mr. AZKOUL (Lebanon), Rapporteur, made a similar statement. Mr. MOROZOV (Union of Soviet Socialist Republics) thanked the Secretariat services. He hoped that his country’s views would find support when the text of the Convention was finally discussed. He hoped that his delegation would be able to vote in favour of the Convention, which should become an effective weapon against genocide. Mr. ORDONNEAU (France) endorsed the cordial sentiments of the previous speakers and expressed his wish for the views of the Draft Convention. Mr. PEREZ-PEROZO (Venezuela), after paying a tribute to the Chairman, especially thanked the interpreters, of whose services he had often been obliged to make use. The meeting rose at 7.30 p.m. The Chairman declared the session of the Committee closed.

E/AC.25/SR.28/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1109

UNRESTRICTED E/AC.25/SR.28/Corr.1 29 June 1948 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE CORRIGENDUM TO THE SUMMARY RECORD OF THE TWENTY-EIGHTH MEETING Lake Success, New York Monday, 10 May 1948, at 2 p.m. On page 7, line 4 of the last paragraph, substitute “proscribed” for “described”. On line 9 of the same paragraph, substitute “and/” for “an”, making the last four words read “and/or an overt”.

1110

E/794

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/794 24 May 1948 ENGLISH ORIGINAL: FRENCH

AD HOC COMMITTEE ON GENOCIDE (5 April – 10 May 1948) -–––––––––––––REPORT OF THE COMMITTEE AND DRAFT CONVENTION DRAWN UP BY THE COMMITTEE (Dr. Karim AZKOUL – Rapporteur)

TABLE OF CONTENTS REPORT OF THE COMMITTEE

Page SECTION I – Introduction ................................................... 1112 SECTION II – Observations concerning each Article of the Draft Convention ................................................................... 1115 Substantive Provisions PREAMBLE ARTICLE I ARTICLE II ARTICLE ARTICLE ARTICLE ARTICLE ARTICLE ARTICLE ARTICLE ARTICLE

III IV V VI VII VIII IX X

................................................... – Genocide: a crime under international law ...................... – “Physical” and “biological” genocide ................................... – “Cultural” genocide .................. – Punishable acts ......................... – Persons liable ............................ – Domestic legislation ................. – Jurisdiction ............................... – Action of the United Nations .. – Extradition ............................... – Settlement of the disputes by the International Court of Justice ............................................

1115 1120 1122 1126 1129 1132 1135 1137 1141 1143

1144

E/794

REJECTED ARTICLE

Final Clauses ARTICLE XI ARTICLE XII

ARTICLE XIII ARTICLE XIV ARTICLE XV ARTICLE XVI ARTICLE XVII ARTICLE XVIII

ARTICLE XIX

1111

– Disbanding of organizations having participated in genocide ................................... 1146

– Languages, date of the Convention .............................. – States eligible to become parties to the Convention – Means of becoming a party ..................... – Coming into force of the Convention .............................. – Duration of the Convention – Denunciation ........................... – Abrogarion of the Convention .............................. – Revision of the Convention ..... – Notification by the SecretaryGeneral .................................... – Deposit of the original of the Convention and transmission of copies to governments .............. – Registration of the Convention ..............................

1146

1147 1148 1149 1150 1150 1151

1151 1152

Vote on the Convention as a Whole ANNEX – Text of the Draft Convention ............................. 1155

1112

E/794

REPORT OF THE AD HOC COMMITTEE ON GENOCIDE SECTION I INTRODUCTION The Ad Hoc Committee on Genocide set up by virtue of the Economic and Social Council resolution dated 3 March 1948, met at Lake Success from 5 April to 10 May 1948. It held twenty-eight meetings. The Committee was composed of the following members: Chairman:

Mr. John MAKTOS

Vice-Chairman: Mr.

Rapporteur:

Mr. Mr. Mr. Mr. Mr.

(United States of America) Platon D. MOROZOV (Union of Soviet Socialist Republics) Karim AZKOUL (Lebonon) [sic] LIN Mousheng (China) Pierre ORDONNEAU (France) Aleksander RUDZINSKI (Poland) Victor M. PEREZ PEROZO (Venezuela)

During its first meeting the Committee elected the Chairman, the ViceChairman and the Rapporteur. The Assistant Secretary-General for the Department of Social Affairs was represented by Mr. E. Schwelb, Assistant Director of the Division of Human Rights. Professor Giraud, assisted by Mr. E. Gordon, fulfilled the duties of Secretary of the Committee. The Committee began its work by a general debate during which several delegations expressed their views on the question of genocide.

E/794

1113

DETERMINATION OF PROCEDURE AND ORDER OF BUSINESS The representative of the Union of Soviet Socialist Republics submitted to the Committee a ten-point note (document E/AC.25/7 – 7 April 1948 containing the essential provisions for a Convention on genocide. On the proposal of the Rapporteur the Committee decided that it would first discuss the Soviet note, it being understood that it would not retain the exact wording, but the principles included in the note, if approved by the Committee, and that secondly, it would proceed to draw up the text of a draft Convention. The discussion on principles occupied nine meetings (the third to the eleventh). The Committee then proceeded to the preparation of the articles of the Convention. Although the Committee had previously decided on the proposal of the representative of Venezuela to take the Secretariat draft as the basis of the actual drafting of the Convention which followed the discussion of general principles, it eventually reversed its decision and it resolved not to take as a basis any of the drafts before it, namely, the Secretariat draft (document E/447), the draft of the United States of America (document E/623), and the French draft (E/623/Add.1), but to take them into account in its work. The final clauses of the Secretariat draft were, however, kept as the basis of the Committee’s work. The members were invited to submit proposals to the Committee which could form the basis of articles on each point. Subsequently, however, the Committee considered it expedient to adopt as the basic text a proposal submitted by the representative of China (document E/AC.25/9), the other proposals submitted by members of the Committee being considered as amendments to that text. The members of the Committee also submitted texts of articles dealing with points which were not included in the text of the representative of China. The preparation of the draft Convention occupied twelve meetings (the twelfth to the twenty-third).

1114

E/794

At its twenty-fourth meeting the Committee undertook a second reading of the Preamble and Articles of the Convention with the exception of the final clauses which had been examined by a Sub-Committee composed of the representatives of the United States of America, Poland and the Union of Soviet Socialist Republics (document E/AC.25/10). Only formal amendments to the Convention were made at this second reading. The text of the draft Convention as a whole was adopted by the Committee in its twenty-sixth meeting on 30 April 1948 by five votes to one with one abstention. In accordance with sub-paragraph (a) of the Resolution of the Economic and Social Council dated 3 March 1948 (document E/734) this draft Convention is herewith submitted to the Economic and Social Council. The text of the draft Convention is given in an Annex to this report. At the twenty-fifth, twenty-sixth, twenty-seventh and twenty-eighth meetings, the Committee discussed and adopted the present report. For the sake of clarity and with a view to avoiding repetitions, the order followed in the debates is not adhered to in this report, which consists of observations appended to the Preamble and each of the Articles of the draft prepared by the Committee. The purpose of these observations is to indicate, whenever unanimity was not achieved, the reasons why certain provisions were adopted or rejected, and to give a summary of the different opinions expressed. Several delegations submitted statements to be included in the report. All these statements will be found in the report in the form of notes appended to the relevant articles of the draft Convention. The summary records (document E/AC.25/SR.1 to 28) moreover, give a detailed account of the debates. The report was adopted unanimously by the members of the Committee. The representative of Lebanon made, however, a declaration concerning the report.* * Declaration of the representative of Lebanon: In voting for the report, the representative of Lebanon wishes to point out that the draft report submitted by him as Rapporteur to the Committee (document E/AC.25/W.1 and Add.1,2,3 and 4) contained comments on the scope of certain provisions of the Convention based on views expressed by various members of the Committee. The Committee decided to eliminate all comments of this kind.

E/794

1115

SECTION II OBSERVATIONS CONCERNING EACH ARTICLE OF THE DRAFT CONVENTION PREAMBLE THE HIGH CONTRACTING PARTIES declaring that genocide is a grave crime against mankind which is contrary to the spirit and aims of the United Nations and which the civilized world condemns; having been profoundly shocked by many recent instances of genocide; having taken note of the fact that the International Military Tribunal at Nurnberg in its judgment of 30 September – 1 October 1946 has punished under a different legal description certain persons who had committed acts similar to those which the present Convention aims at punishing; and being convinced that the prevention and punishment of genocide requires international co-operation; HEREBY AGREE TO PREVENT AND PUNISH THE CRIME OF GENOCIDE AS HEREINAFTER PROVIDED:

Observations The Preamble contains a certain number of considerations of a general or historical nature. Paragraph 1 THE HIGH CONTRACTING PARTIES declaring that genocide is a grave crime against mankind which is contrary to the spirit and aims of the United Nations and which the civilized world condemns;

The members of the Committee reached agreement on the majority of the ideas expressed in this paragraph. The representative of the Union of Soviet Socialist Republics submitted a proposal to include in the Preamble the following texts: The High Contracting Parties declare that the crime of genocide is one of the gravest crimes against mankind. and This crime constitutes a rude violation of and an insult to the principles and purposes of the United Nations.

1116

E/794

It will be noticed that genocide is called “a crime against mankind”. The representative of France had requested that it should be stated that genocide, while possessing specific characteristics, was a crime against humanity. He stated that it was for practical reasons that a Convention was being drawn up on the crime of genocide which, in his opinion, came within the general category of crimes against humanity. According to him it was desired to organize without delay the prevention and punishment of this particularly grave crime until such time as the International Law Commission in developing and going beyond the Nürnberg principles, should organize the punishment of all crimes against humanity and sever the link by which they were bound to crimes against the peace and to war crimes under the Charter of the International Military Tribunal of 8 August 1945. The unity of the principle regarding crimes against humanity should, in his opinion, however, be preserved. Certain members of the Committee thought that it was not necessary to insert in the Preamble of the Convention doctrinal considerations of no practical utility. Other members of the Committee categorically opposed the expression “crime against humanity” because, in their opinion, it had acquired a well-defined legal meaning in the Charter of the International Military Tribunal and in its judgment pronounced at Nürnberg. They added that by the terms of its Resolution 180(II), the General Assembly itself had clearly separated genocide from the other crimes which the International Law Commission would be called upon to codify. The formula of “a crime against mankind ” was therefore adopted to express a popular idea on which everyone was in complete agreement. The Committee also rejected the following suggestions: (a) that of the representative of the Union of Soviet Socialist Republics to the effect that it should be noted in the Preamble that the aim of genocide is the destruction of separate human groups on racial, nationalistic or religious grounds and (b) the suggestion of other members of the Committee who considered that this definition should be supplemented by the addition of political motives. The majority of the Committee considered that this would be a duplication of the articles of the Convention in which such a definition was given. Paragraph 2 . . . having been profoundly shocked by many recent instances of genocide;

E/794

1117

Various proposals were submitted on this point. The representative of the Union of Soviet Socialist Republics proposed the following text: (The High Contracting Parties . . .) declare that the crime of genocide is organically bound up with fascismnazism and other similar race ‘theories’ which preach racial and national hatred, the domination of the so-called higher races and the extermination of the so-called lower races.

The representative of the Union of Soviet Socialist Republics pointed out that the idea of putting the question in this form was not only to place on record generally known historical facts, but also to give proper emphasis to the fact that genocide by the very nature of the crime was organically connected with fascism-nazism and similar racial “theories” about the so-called “higher” and “lower” races; and that a reference to this in the Preamble would eo ipso imply condemnation of such regimes and “theories” as instigating to the commission of genocide. He emphasized that, although genocide might also be committed from motives of religious fanaticism, nevertheless in actual practice crimes committed from such motives were at the same time committed from national motives also. It was stated in objection that while facism-nazism was undoubtedly responsible for the crimes of genocide committed before or during the second world war, it was nevertheless wrong to consider genocide as being an exclusive product of fascism-nazism. In fact, history revealed many previous cases of genocide. As regards the future, it was possible that crimes of genocide would be based on other motives. It would be dangerous to create the idea that genocide should only be punished if it were a product of fascism-nazism, and that the Convention was concerned only with that historical accident. Furthermore, this text was criticized as giving the impression that genocide was a result of racial hatred alone, whereas it could also be inspired by religious fanaticism. The paragraph proposed by the representative of the Union of Soviet Socialist Republics was rejected by five votes to two (Twenty-second meeting – Tuesday, 22 April 1948, afternoon).

1118

E/794

Certain delegates wished however that there should be some mention in the Preamble of the recent crimes committed by Hitlerite Germany and her fascist allies which were in fact the prime cause of the present Convention’s coming about. Various amendments to this effect were put forward, among others a Lebanese amendment reading as follows: Crimes of genocide have found fertile soil in the theories of nazism and fascism and other similar theories preaching racial and national hatred.

This amendment was rejected by four votes to three (Twenty-second meeting, Tuesday afternoon, 27 April 1948). Another amendment put forward by the Polish representative read as follows: That recently the crime of genocide has been committed with particularly hideous results by the nazi and fascist regimes.

Finally it was thought by the majority that the formula “having been profoundly shocked by many recent instances of genocide” was sufficient. Paragraph 3 having taken note of the fact that the International Military Tribunal at Nürnberg in its judgment of 30 September – 1 October 1946 has punished under a different legal description certain persons who had committed acts similar to those which the present Convention aims at punishing;

There was some discussion on this text, which recalls the part played by the International Military Tribunal. It was redrafted at the second reading. Since it was feared that the crime of genocide might be confused with the crimes against humanity which had been judged by the International Military Tribunal, several amendments were made; among others, the words “under a different legal description” were added. The revised paragraph was adopted by three votes to one with three abstentions. Paragraph 4 being convinced that the prevention and punishment of genocide requires international co-operation;

E/794

1119

The representative of the Union of Soviet Socialist Republics proposed the following text: That the campaign against genocide requires all civilized peoples to take decisive measures to prevent such crimes and also to suppress and prohibit the stimulation of racial, national (and religious) hatred and to insure that persons guilty of inciting, committing or encouraging the commission of such crimes shall be severely punished.

This text was rejected by four votes to three. (Twenty-third meeting, Tuesday afternoon, 27 April – second afternoon meeting). This text was rejected because objections were raised to the following passage: to suppress and prohibit the stimulation of racial, national and (religious) hatred.

The Committee wished, however, to retain one of the ideas contained in this text and adopted the paragraph given above. Vote on the Preamble as a Whole The Preamble as a whole was adopted by four votes to one with two abstentions (twenty-fourth meeting, 28 April 1948). The representative of the Union of Soviet Socialist Republics made a statement explaining his reasons for voting against the Preamble.*

* Declaration of the representative of the Union of Soviet Socialist Republics: The text of the Preamble of the Convention as adopted by the majority of the Committee does not give a complete and correct definition of the crime of genocide. As a matter of fact, the following elements are missing: a) The indication that the crime of genocide tends to exterminate certain groups of the population because of their race and nationality (religion). b) The indication that the crime of genocide is organically bound up with FascismNazism and other similar race “theories” which propagate racial and national hatred, the domination of the so-called “higher” races and the extermination of the so-called “lower” races. c) The indication that the struggle against genocide requires decisive measures aimed at the prevention of such crimes and also at the suppression and prohibition of the instigation of racial, national (and religious) hatred and at the severe punishment of the persons guilty of inciting, committing or preparing the commission of the crime mentioned above.

1120

E/794

The representative of Poland made a statement explaining his reasons for not supporting the Preamble.** (Genocide: a crime under international law)*

ARTICLE I Genocide is a crime under international law whether committed in time of peace or in time of war.

Observations This article is to some extent a preliminary one, as Articles 2 and 3 define the term “genocide”. Certain members of the Committee wondered whether any useful purpose would be served by adopting this Article and whether the ideas expressed therein ought not to be included in the Preamble. The majority of the members of the Committee decided on a separate Article in order to give more weight to the essential ideas to which it gives expression. This Article contains two ideas. 1. Genocide “is a crime under international law”. This statement already existed in General Assembly Resolution 96(I) of 11 December 1946.

The representative of the U.S.S.R. esteems that it would be indispensable to amend the Preamble of the Convention in accordance with the text of the first part of the ‘Basic Principles of the Convention on Genocide’, submitted by the U.S.S.R. ** Declaration of the representative of Poland: The text of the Preamble as it now stands avoids any reference to the crimes committed on a horrible and unprecedented scale and manner under the Nazi-Fascist regimes, and to the connection between those crimes and the propaganda of the so-called race theories by the said regimes. Such an omission being deliberate is deeply disturbing and quite incomprehensible to the Polish Delegation and makes it impossible to support the Preamble until amended. * The marginal notes placed before the Articles which indicate the subject dealt with therein are not intended to be part of the Convention. They may be of some use during the preparatory work concerning the Convention to help the reader to trace the origin of Articles to which in some cases a new number has been given.

E/794

1121

The first part of this Article was adopted by five votes to one with one abstention. (Twentieth meeting, Monday afternoon, 26 April 1948). 2. Genocide “is a crime . . . whether committed in time of peace or in time of war”. While not disputing the principle that genocide can be committed in time of war as well as in time of peace, certain representatives considered that this reference was definitely superfluous. The second part of this Article was adopted by three votes to one with three abstentions. Concerning the Article as a whole several delegations indicated their attitude as follows: The representative of France proposed a different wording according to which genocide would be described as a crime against humanity. This wording was rejected by six votes to one. The representative of France stated in this connection that in the opinion of his Government genocide was the most typical of the crimes against humanity. Though the French delegation has accepted, with a view to facilitating the speedy adoption of special draft Conventions, severing the problem of genocide from the two more general problems referred to the International Law Commission and submitting it to a committee of the Economic and Social Council, this attitude should nevertheless in no way prejudice the general principle which, according to the French delegation, remains unchanged. The representative of the USSR was opposed to the insertion of this Article in the Convention for the reason given in his declaration to explain his vote. The representative of Venezuela proposed the suppression of the second part of the Article and the transfer of the first part to the Preamble. Vote on the Article as a whole – The Article as a whole was adopted by five votes to two.

1122

E/794

The representative of the USSR made a statement explaining his reasons for voting against the Article.* (“Physical” and “biological” genocide)

ARTICLE II In this Convention genocide means any of the following deliberate acts committed with the intent to destroy a national, racial, religious or political group, on grounds of the national or racial origin, religious belief, or political opinion of its members; 1. killing members of the group; 2. impairing the physical integrity of members of the group; 3. inflicting on members of the group measures or conditions of life aimed at causing their deaths; 4. imposing measures intended to prevent births within the group.

Observations Article 2 is the basic Article defining genocide. It was the subject of long consideration by the Committee. A. General elements of the definition The definition contains four elements: 1. The notion of premeditation. This was accepted by the Committee as a whole.

* Declaration of the representative of the USSR: Article 1 should be excluded because the general nature of the crime of genocide should be specified in the Preamble. Furthermore, I consider that in place of the words “crimes under international law” the Preamble should state that the crime of genocide is one of the worst forms of crimes against humanity directed towards the destruction of individual human groups on racial, national (religious) grounds. With regard to the indication in the second part of Article 1 that genocide is a crime whether committed in time of peace or in time of war, the representative of the USSR considered that this provision could be included in the Preamble to the Convention.

E/794

1123

2. The intent to destroy a human group (accepted by four votes with three abstentions). 3. The third element is that of the human groups protected. The Committee was unanimously in favour of protecting national, racial and religious groups. The inclusion of political groups was accepted by four votes to three. The minority pointed out that political groups lack the stability of the other groups mentioned. They have not the same homogeneity and are less well defined. In particular the representatives of Poland and of the USSR said that the inclusion of political groups in the definition of genocide would give the notion an extension of meaning contrary to the fundamental conception of genocide as recognized by science. The perspective would be distorted and in practice it would end in abandoning the necessary struggle against the destruction of human groups on grounds of race, nationality (or religion) the prevention of which was the very purpose of the Convention. Another member of the minority expressed the opinion that the inclusion of political groups would have the effect of making the Convention inacceptable [sic] to certain governments. Such governments might fear that the Convention would hamper their action against domestic subversive movements by possibly exposing these governments to unjustified accusations. The inclusion of political groups and political opinions was accepted by four votes to three (Thirteenth meeting, Tuesday 20 April 1948). 4. The fourth element is that of the motive of genocide. In the opinion of some members of the Committee it was in the first place unnecessary to lay down the motives for genocide since it was indicated in the text that the intent to destroy the group must be present and in the second place, motives should not be mentioned since, in their view the destruction of a human group on any grounds should be forbidden. They accepted the mention of motives, but only by way of illustration. The text would have read “particularly on grounds of national or racial origin or religious belief ”. (The question of political groups and political opinions

1124

E/794

was at that time still reserved). This point of view was not accepted. The word “particularly” was rejected by four votes to three (Twelfth meeting, Monday 19 April 1948). The majority view was that the inclusion of specific motives (dolus specialis) was indispensable. In defining these motives the Committee agreed on the adoption of the following terms: instead of “grounds of nationality or race” it was decided to say “on grounds of national or racial origin”. As regards religion, the term “religious belief ” was agreed upon. Then, with regard to politics, the majority of the Committee decided by four votes to three to adopt the term “political opinion”. The representative of France who had pointed out that the formula “opinions” contained in the draft submitted by his delegation was wider than the expression preferred by the majority, accepted the majority decision. B. Enumeration of the types of acts constituting genocide The Committee thought that it would be unsound to list the very varied acts which may constitute genocide. In its opinion, however, in this new matter affecting criminal law, it was essential to know what was envisaged. The Committee therefore established the following four categories: 1. Killing members of the group This formula was accepted by five votes to two. 2. Impairing the physical integrity of members of the group (Accepted by five votes to one, with one abstention). 3. Inflicting on members of the group measures or conditions of life aimed at causing their deaths (Accepted by three votes to one with three abstentions). 4. Imposing measures intended to prevent births within the group. (Accepted by four votes with three abstentions).

E/794

1125

The representative of France requested that his abstention be noted. Vote for the Article as a whole The Article as a whole was accepted in second reading by five votes to two. The representative of China who voted for the Article as a whole but abstained from voting on the four sub-paragraphs, requested the inclusion of a statement in the report.* The representative of the USSR has made a statement explaining his reasons for voting against the Article.*

* The representative of China called the attention of the Commission to the fact that during the second World War the Japanese built a huge opium extraction plant in Mukden, which could process some 400 tons of opium annually, producing fifty tons of heroin – at least fifty times the legitimate world requirements. This quantity, according to medical authorities, would be enough to administer lethal doses to 200,000,000 to 400,000,000 persons. It is clear, the representative of China stated, that the Japanese intended to commit, and did commit, genocide by narcotics. The plant in question was the most sinister and monstrous conspiracy known in history. He emphasized the fact that narcotic drugs could be used as an instrument of genocide, and he wished it to be understood that Article II (sub-paragraphs (2) and (3)), and Article IV (sub-paragraphs (b), (d), and (e)), should cover genocide by narcotics, if narcotic drugs were not specifically mentioned in the Convention. The representative of China further suggested that Article II (sub-paragraph (2)), might be amended to read, “impairing the physical integrity or mental capacity of members of the group”, or “impairing the health of members of the group”. Such an amendment would make it sure that narcotic drugs would be covered by the Convention. * The representative of the USSR stated that he voted against Article II of the Convention as a whole for the following reasons: It is a mistake to include political groups among the groups protected by the Convention on genocide, just as it is a mistake to include political opinions among the grounds for perpetrating the crime of genocide. Crimes committed for political motives are crimes of a special kind and have nothing in common with crimes of genocide. The very word “genocide” derived from the word “genus” – race, people – shows that it concerns the destruction of nations or races as such, for reasons of racial or national persecution and not for the particular political opinions of such human groups. Crimes committed for political motives are not connected to propaganda of racial and national hatred and cannot therefore be included in the category of crimes covered by the notion of genocide. Crimes committed for reasons of racial and national hatred may, in certain cases, also include motives of a religious kind, but motives of this kind are closely linked, in the crime of genocide, to motives of nationality.

1126

E/794

The representative of Poland made a statement explaining his vote.** (“Cultural” genocide)

ARTICLE III In this Convention genocide also means any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief such as: 1. prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; 2. destroying, or preventing the use of, libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.

Observations The question of cultural genocide gave rise to a fairly full discussion.

The inclusion in the definition of genocide of political groups as groups protected by the Convention and of political opinions among the motives for the perpetration of this crime gives the words an extension of meaning contrary to the fundamental notion of genocide recognized by science. The extension of the notion of genocide to this degree will in practice end in the distortion of the perspective and consequently in the abandoning of the necessary struggle against the destruction of human groups on grounds of race, nationality (or religion) the prevention of which is the very purpose of this Convention On the other hand the enumeration of specific acts of genocide included in paragraphs 1 to 4 of Article II is not exhaustive; moreover, any enumeration of possible acts of genocide will necessarily be incomplete; the representative of the USSR therefore considers that Article II of the Convention should be drafted as follows: In this Convention genocide means any of the following acts aimed at the physical destruction of racial, national and religious groups and committed on grounds of racial, national or religious persecutions: 1. The physical destruction in whole or in part of such groups; 2. The deliberate creation of conditions of life aimed at the physical destruction in whole or in part of such groups. ** The Polish delegation objects to the inclusion of political groups and opinions in the present Convention. This matter has nothing in common with genocide and does not come within the scope of the present Convention.

E/794

1127

Those who supported the inclusion in the Convention of “cultural” genocide emphasized that there were two ways of suppressing a human group, the first by causing its members to disappear, and the second by abolishing, without making any attempts on the lives of the members of the group, their specific traits. According to this opinion, the Convention would fail fully to achieve its object if it left out “cultural” genocide. Those who opposed the inclusion of “cultural” genocide emphasized that there was a considerable difference between so called “physical” genocide (including “biological” genocide) and “cultural” genocide. It was particularly “physical” genocide which presented those exceptionally horrifying aspects which had shocked the conscience of mankind. They also pointed to the difficulty of fixing the limits of “cultural” genocide, which impinged upon the violation of human rights and the rights of minorities. It was therefore through the protection of human rights, the prevention of discrimination and the protection of minorities that acts which would be improperly introduced into the notion of “cultural” genocide should be prevented. Finally, it was said that from the practical point of view, the inclusion of cultural genocide in the Convention might prevent many countries from becoming parties to the Convention and jeopardize its success. In this connection the United States delegation made a declaration for entry in the record.* During the discussion of principles, the Committee decided by six votes to one to retain the idea of “cultural” genocide (Fifth meeting – 8 April 1948) The Lebanese representative proposed a more restricted definition of “cultural” genocide, as follows:

* Declaration of the United States Delegation: The prohibition of the use of language, systematic destruction of books, and destruction and dispersion of documents and objects of historical or artistic value, commonly known in this Convention to those who wish to include it, as “cultural genocide” is a matter which certainly should not be included in this Convention. The act of creating the new international crime of genocide is one of extreme gravity and the United States feels that it should be confined to those barbarous acts directed against individuals which form the basic concept of public opinion on this subject. The acts provided for in these paragraphs are acts which should appropriately be dealt with in connection with the protection of minorities.

1128

E/794

According to the terms of the Convention, it is also understood that genocide includes all acts and measures which are directed against a national, racial or religious group on ground of the national or racial origin or religious beliefs of its members, and which aim at the systematic destruction by oppressive or violent means of the language, religion or culture of that group.

It had been intended to insert the definition of cultural genocide in Article I of the Convention, but subsequently it was decided by three votes to one with two abstentions to make it the subject of a separate Article (Tenth meeting – 15 April 1948). The reasons for this decision were as follows: In the first place it was thought that it would be difficult to arrive at a definition the general terms of which would in every instance be applicable both to “cultural” genocide and to other forms of genocide, owing to the fact that the idea of “cultural” genocide could not be applied in practice to political groups. It was also thought that governments would find it easier to make known their views on the inclusion of cultural genocide if the matter were treated in a separate Article. The Lebanese representative proposed to add a third sub-paragraph reading as follows: (3) Placing the members of the group in conditions calculated to make them renounce their language, religion or culture.

This proposal was rejected by three votes to two with two abstentions (Fourteenth meeting – 21 April 1948). The text of the entire Article was adopted in the first reading by five votes to two (United States of America and France). In the second reading the entire Article was adopted by four votes with three abstentions. The representative of Venezuela asked to place on record a declaration.*

* The representative of Venezuela expressed the fear that sub-paragraph 1 of Article III does not protect the parties against accusations when they take measures with a view to protecting their own language.

E/794

(Punishable acts)

1129

ARTICLE IV The following acts shall be punishable: (a) genocide as defined in Articles II and III; (b) conspiracy to commit genocide; (c) direct incitement in public or in private to commit genocide whether such incitement be successful or not; (d) attempt to commit genocide; (e) complicity in any of the acts enumerated in this Article.

Observations Article IV enumerates all the acts connected with genocide which should be punishable. It gave rise to prolonged debate. Principles included in the enumeration in Article IV – (a) Genocide as defined in Articles II and III It seemed to the Committee that as the purpose of Article IV was to mention all the acts connected with genocide that should be punishable, the list should, to be complete, begin by referring to the principal act of génocide [sic] as defined in Articles II and III. (b) Conspiracy to commit genocide Conspiracy which is translated in French by the words “entente en vue de l’accomplissement de génocide” is a crime under Anglo-American law. The Committee considered that conspiracy to commit genocide must be punished both in view of the gravity of the crime of genocide and of the fact that in practice genocide is a collective crime, presupposing the collaboration of a greater or smaller number of persons. (c) Direct incitement in public or in private to commit genocide whether such incitement be successful or not The qualification “direct” in conjunction with the word “incitement” was adopted by three votes to two with two abstentions (Fifteenth meeting – Thursday afternoon, 22 April 1948).

1130

E/794

The qualification “in public or in private” was adopted by five votes with two abstentions (Fifteenth meeting – Thursday afternoon, 22 April 1948). Certain members of the Committee considered the final words “whether such incitement be successful or not” to be superfluous. Nevertheless, the Committee decided to insert them by four votes with three abstentions (Fifteenth meeting – Thursday afternoon – 22 April 1948). The United States representative, in voting against this paragraph, made a declaration, stating that he did so because he was opposed to the concept of direct incitement.* (d) Attempt to commit genocide The [sic] was no debate on this clause. (e) Complicity in any of the acts enumerated in this Article The Committee was unanimous on this point. The United States representative stated that in agreeing to the inclusion of “complicity” in this Article, he understood it to refer to accessoryship [sic] before and after the fact and to aiding and abetting in the commission of crimes enumerated in this article. The Article as a whole was adopted by six votes to one.

* The statement of the United States representative was as follows: The United States Delegation believes that the Convention should establish the culpability of all who directly perform the physical acts comprehended in the crime of genocide, all who “conspire” together to [p. 21-footnote-line 5] achieve the end which is to be described by this Convention, the act of genocide, or who “attempt” to achieve this end. In this connection [p. 21-footnote-line 7] a “direct incitement” to the achievement of the prescribed end, if of a nature to create an imminent danger that it would result in the commission of the crime, would generally constitute part of an attempt thereto and or an overt act of conspiracy thereto. To outlaw such incitement, it is sufficient to outlaw the attempt and conspiracy without specifically enumerating the acts of direct incitement in the Convention.

E/794

1131

REJECTED PROPOSALS 1. Preparatory Acts The question of “preparatory acts” gave rise to lengthy controversy. At a first vote the Committee had decided, by four votes to three, to include preparatory acts in the enumeration in Article IV (Fifteenth meeting – Thursday morning, 22 April 1948). At a later vote the Committee decided by four votes to three, to omit them. The representative of the Union of Soviet Socialist Republics, who supported the inclusion of preparatory acts in the enumeration of punishable acts, said that according to the penal law of various countries the preparatory acts of a crime were not punishable, unless the law expressly provided that they were. The preparation of genocide should not be left unpunished. However, the representative of the Union of Soviet Socialist Republics stated that the notion of preparatory acts should be defined exactly and that it was necessary to recognize as such only definite acts which by themselves represented crimes defined as follows:* (a) studies and research for the purpose of developing the technique of genocide; (b) setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; (c) issuing instructions or orders, and distributing tasks with a view to committing genocide. This proposal was rejected by four votes to two with one abstention. (Sixteenth meeting, Thursday, 22 April 1948). The members of the Committee who did not support the inclusion of preparatory acts stressed the difficulty in defining the notion of preparatory acts and the disadvantage of enumerating them if that difficulty were

* These formulas are taken verbatim from the Secretariat’s draft (Article II 2(a), (b) and (c), document E/447 – 26 June 1947).

1132

E/794

to be avoided. Furthermore, in the most serious cases where it would be desirable to punish the authors of preparatory acts, that could be effected either under the clause “conspiracy to commit genocide” or the clause “complicity”. If the construction of crematory ovens or the adaptation of motor-cars to the purpose of killing the occupants with noxious gases were at issue, such acts requiring the co-operation of a certain number of persons, would accordingly come under the heading of “conspiracy to commit genocide” even if genocide were not finally committed, and under the heading of “complicity” if genocide were committed. 2. PROPAGANDA IN FAVOUR OF GENOCIDE As the representative of the Union of Soviet Socialist Republics considered the text adopted on direct incitement in public or in private to commit genocide inadequate (see above), he proposed that the following additional paragraph be inserted in the enumeration of punishable acts: All forms of public propaganda (press, radio, cinema, etc. . . .) aimed at inciting racial, national or religious enmities or hatreds or at provoking the commission of acts of genocide.

In opposition to this proposal certain members of the Committee said that the repression of propaganda termed as hateful propaganda would be outside the scope of the Convention. It might be misinterpreted in such a way that it would prove injurious to freedom of information and therefore might jeopardize the Convention’s success. Other members added that in their opinion the repression of such propaganda was covered in so far as it came under paragraph (c) of the article under discussion. The Soviet proposal was rejected by five votes to two (Sixteenth meeting – Thursday afternoon, 22 April 1948). (Persons liable)

ARTICLE V Those committing genocide or any of the other acts enumerated in Article IV shall be punished, whether they are Heads of State, public officials or private individuals.

E/794

1133

Observations The Committee agreed unanimously that the authors of genocide should be punished, whatever their status. The discussion dealt with the terminology to be used. Invoking the principles of national constitutions, certain members of the Committee said that the expression “ruler” used in the English text in the absence of a term corresponding exactly to the French word “gouvernant”, was not the right term to apply to the head of the State. The expression “ruler” was replaced in the English text by “heads of State” (chefs de l’Etat), whilst the word “gouvernant”, which in French public law covers the Head of the State and the ministers was retained in the French text. The text of Article V was adopted by seven votes, that is to say by a unanimous vote of all the members of the Committee (Eighteenth meeting, Friday evening, 23 April 1948).

REJECTED PROPOSAL Command of the Law and Superior Orders The representative of the Union of Soviet Socialist Republics proposed the following text: Command of the law or superior orders shall not justify genocide.

In support of this proposal the representatives of Poland and of the Union of Soviet Socialist Republics advanced the following argument: The Convention on genocide must include this principle which has already been recognized in international law (especially by the Charter of Nürnberg). A rejection of this principle would mean from the practical point of view that all individuals who could put forward the excuse that they acted according to the command of the law or superior orders were proclaimed in advance as exempt from all punishment. On the other hand the acceptance of this principle would signify that the Convention on genocide would have a considerable educative influence by warning those who might be led to commit the crime of genocide. References to military or any other kind of discipline cannot justify acts of genocide even when committed merely by subordinates.

1134

E/794

In opposition to the Soviet proposal, the representative of Venezuela stated that that principle is a danger to the stability of the institutions of the State. The Charter of the Military Tribunal of Nürnberg admitted that principle having in mind the crimes of war; but to accept it in time of peace is to invite the armed forces to disobedience, when they are in themselves a non-political body, bound to obedience and non-deliberative. He also said that as far as his country was concerned, the law exempted from penal responsibility those who acted by virtue of due and legitimate obedience while its sanction fell on those giving the illegal order. The representative of Lebanon observed that Article II of the Convention only punished the authors of acts of genocide in cases where they had acted because of racial or national reasons, religious beliefs or political opinions. Thus an individual who committed genocide solely in obedience to the command of the law or to superior orders and was not inspired by any of those motives could not be punished under the rules laid down in Articles II and III of the Convention. The only exception would be in the case where the crime of genocide accorded with the personal sentiments of the individual in which case he would be considered as a principal author even if he acted on superior orders. In reply to this argument the representative of Poland stated that the judge would have to determine in each case whether an individual was guilty or not. The Soviet proposal was rejected by two votes to four with one abstention (Fifteenth meeting – Friday evening, 23 April). The representatives of Poland* and of the Union of Soviet Socialist Republics** made statements.

* Statement by the representative of Poland: The omission from the Convention of the provision stating that “Command of the law or superior order shall not justify genocide” represents a serious step back in the development of international law and endangers seriously the effective prevention and repression of genocide under this Convention. Therefore, the Polish Delegation cannot share any responsibility for the Convention in its present form and cannot support it until amended. ** Statement by the representative of the Union of Soviet Socialist Republics: The delegation of the Union of Soviet Socialist Republics considers that Article V should be completed by the addition of a second sub-paragraph reading as follows:

E/794

(Domestic Legislation)

1135

ARTICLE VI The High Contracting Parties undertake to enact the necessary legislation in accordance with their constitutional procedures to give effect to the provisions of this Convention.

Observations The representative of the Union of Soviet Socialist Republics had submitted for the Committee’s consideration the following text: The High Contracting Parties pledge themselves to make provision in their criminal legislation for measures aimed at the prevention and suppression of genocide and also at the prevention and suppression of incitement of racial, national and religious hatred in accordance with the provisions of this Convention and to provide criminal penalties for the authors of such crimes.

The question was raised by some members of the necessity in general of a special provision in the Convention on the legislative measures for the fulfilment of the Convention. It was contended that States were under the obvious obligation to take every measure for the proper performance of the obligations to which they subscribe. Moreover, the facts constituting genocide are already dealt with by domestic criminal laws (murder, etc.). It was contended that the provisions of such an article might prevent certain countries from becoming parties to the Convention owing to the difficulty of obtaining the passing of the necessary legislation. This obstacle is particularly serious in federal States where criminal law is principally in the province of legislation, by the individual States which form the federation. Sub-paragraph 2. Command of the law or superior orders shall not justify genocide. The exclusion of this paragraph by the majority of the Committee is contrary to the principles proclaimed at Nürnberg; It will constitute a renunciation of principles that are recognized by the United Nations and there is a risk that the fight against genocide will be considerably weakened. It is incorrect to assert that this provision is already included in Article IV, paragraph (a) of the present Convention in view of the fact that Article V deals with all the persons who will be responsible for the crime of genocide, a crime which in very many cases was committed systematically and on superior orders, after which the authors of these crimes attempted to exculpate themselves by pleading the command of their superiors or the command of the law.

1136

E/794

To this effect the representatives of the Union of Soviet Socialist Republics and Poland stated that there already existed a number of conventions, providing for the obligation of States-signatories to envisage in their legislation the measures of criminal penalties for certain kinds of crimes.* They contended that the introduction in the national legislation of laws for the suppression and prevention of genocide, the suppression and prevention of racial, national and religious hatred and laws for criminal penalties for the culprits of such crimes, was an elementary condition, without which, in the opinion of these representatives, there can be no talk about any suppression of the above-mentioned crimes. As regards the argument that such an obligation would be an obstacle to the ratification of the convention by some States, the representative of the Union of Soviet Socialist Republics stated to this effect that in this case, the legislation required for the punishment of culprits of genocide should be evidently enacted first and only then the Convention ratified in conformity with the constitutional procedure. In other cases this can be obviously done simultaneously, for in his opinion one cannot imagine a situation when a state would join the Convention but would not enact in its legislation the laws for punishment of crimes, provided for by the Convention. This would be tantamount to refusal to become a party to the Convention. During the discussion on the particular purpose of the measures under consideration, it was debated whether the text should read “for the prevention and repression of genocide” or “to give effect to the provisions of the Convention”. The second wording was deemed preferable because it dealt with all the obligations of the States under the Convention and not merely with penal measures. The amendment was adopted by four votes against three. The Article as a whole was adopted by five votes to one with one abstention.

* For example: The Convention for the Prevention of Traffic in Women and Children, Geneva, 30 September 1921; Convention for the Repression of Counterfeiting Currency, Geneva, 20 April 1929, etc.

E/794

1137

The representative of the Union of Soviet Socialist Republics made a statement in support of his votes against the Article.* The representative of Poland made a statement with regard to this Article.** (Jurisdiction)

ARTICLE VII Persons charged with genocide or any of the other acts enumerated in Article IV shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal.

Observations Several problems were solved directly or indirectly by this Article which deals with repression by national courts and by an international court. A. Repression by National Courts All members of the Committee agreed to recognize the jurisdiction of the Courts of the State on the territory of which the offence was committed. The first part of the Article, up to “. . . on the territory of which the offence was committed . . .” was voted by all seven members of the Committee.

* Statement by the representative of the Union of Soviet Socialist Republics: The text adopted by the majority of the Committee for Article VI is not satisfactory as regards the organisation of a genuine campaign against genocide since it does not include an obligation for the signatories of the Convention to introduce in their legislation measures for the prevention and suppression of genocide and the prevention and suppression of incitement to racial, national and religious hatred and the obligation to provide criminal penalties for the authors of such crimes. The expression “necessary legislative measures” may in fact be interpreted in various ways because of its vagueness. ** Statement by the representative of Poland: The Polish delegation is of the opinion that the present text of Article VI is ambiguous and insufficient. The text should at least be amended to read “The High Contracting Parties undertake to enact in accordance with their constitutional procedures the legislation necessary to give effect to the provision of this Convention” and be supplemented with a provision concerning the prevention of genocide as well as combatting any propaganda to racial, national and religious hatred.

1138

E/794

B. Repression by an International Court The establishment of international jurisdiction gave rise to a lengthy discussion. For some representatives the granting of jurisdiction to an international court was an essential element of the Convention. They claimed that in almost every serious case of genocide it would be impossible to rely on the Courts of the States where genocide had been committed to exercise effective repression because the government itself would have been guilty, unless it had been, in fact, powerless. The principle of universal repression having been set aside for the reasons indicated below the absence of an international court would result in fact in impunity for the offenders. The supporters of an international court merely requested that the international jurisdiction be expressly provided for by the Convention without the latter setting up the actual organization of the Court. The members opposing this proposal first declared that the intervention of an international court would defeat the principle of the sovereignty of the State because this court would be substituted for a national court. Secondly, they claimed that mere reference in the Convention to an international court would have no practical value. What would this court be? There is for the moment no international court with criminal jurisdiction. It would be necessary either to create a new court or to add a new criminal chamber to the International Court of Justice and all the members of the Committee had agreed that they had neither the authority nor the time necessary for settling these problems. During the discussion of principles, the Committee adopted by four votes (China, France, Lebanon, United States of America) against two (Poland, Union of Soviet Socialist Republics) with one abstention (Venezuela), the principle of an international criminal jurisdiction. (Eighth meeting – Tuesday, 13 April 1948). The Committee voted by four votes (China, France, Lebanon, United States of America) against three (Twentieth meeting – Monday, 26 April 1948) the final provision of Article VII “or by a competent international tribunal.’ The United States representative proposed the following additional paragraph to Article VII:

E/794

1139

Assumption of jurisdiction by the international tribunal shall be subject to a finding by the tribunal that the State in which the crime was committed has failed to take adequate measures to punish the crime.

The Committee decided by four votes and three abstentions in favour of this principle (Eighth meeting – Tuesday, 13 April 1948). However, the inclusion of this principle in the Convention was rejected by five votes against one (United States of America) with one abstention (Union of Soviet Socialist Republics) on the ground that the inclusion of this paragraph in the Convention might prejudice the question of the court’s jurisdiction. The Article as a whole was voted by four votes to three. The representatives of Poland,* of the Union of Soviet Socialist Republics** and of Venezuela*** respectively, made declarations with regard to their negative vote. * Declaration of the representative of Poland: (Concerning Articles VII and X) The inclusion in the Convention of the principle of an International Criminal Tribunal constitutes an obligation of the parties to this Convention, the contents of which are wholly unknown to them. The creation of an International Criminal Court whose jurisdiction could only be compulsory and not optional, is contrary to the principles on which the International Court of Justice and its Statute are based. ** Declaration of the representative of the Union of Soviet Socialist Republics: The representative of the Union of Soviet Socialist Republics considers that the decision of a majority of the Committee to place cases of Genocide under the jurisdiction of a competent international court is wrong, since the establishment of an international court would constitute intervention in the internal affairs of States and a violation of their sovereignty, an important element of which is the right to try all crimes without exception, committed in the territory of the State concerned. The representative of the Union of Soviet Socialist Republics considers that Article VII of the Convention should be drafted as follows: ‘The High Contracting Parties pledge themselves to punish any offender under this Convention within any territory under their jurisdiction, the case to be heard by the national courts in accordance with the domestic legislation of the country’. *** Declaration of the representative of Venezuela: The representative of Venezuela has opposed the inclusion in Article VII of the sentence ‘or by a competent international tribunal’, because he considered that therein was a vague allusion to a possible international jurisdiction the constitutive elements of which are not known to the signatories of the Convention. He has made a similar objection to the sentence ‘by a competent international criminal tribunal’, contained in Article X.

1140

E/794

REJECTED PROPOSAL THE PRINCIPLE OF UNIVERSAL REPRESSION The principle of universal repression by a national court in respect to individuals who had committed genocide abroad was discussed when the Committee considered the fundamental principles of the Convention. Those in favour of the principle of universal repression held that genocide would be committed mostly by the State authorities themselves or that these authorities would have aided and abetted the crime. Obviously in this case the national courts of that State would not enforce repression of genocide. Therefore, whenever the authorities of another State had occasion to arrest the offenders they should turn them over to their own Courts. The supporters of the principle of universal repression added that, since genocide was a crime in international law, it was natural to apply the principle of universal repression. They quoted conventions on the repression of international offences such as traffic in women and children, counterfeiting currency, etc. The opposite view held that universal repression was against the traditional principles of international law and that permitting the courts of one State to punish crimes committed abroad by foreigners was against the sovereignty of the State. They added, that, as genocide generally implied the responsibility of the State on the territory of which it was committed, the principle of universal repression would lead national courts to judge the acts of foreign governments. Dangerous international tension might result. A member of the Committee, while he agreed that the right to prosecute should not be left exclusively to the courts of the country where genocide had been committed, declared himself opposed to the principle of universal repression in the case of genocide. It is a fact, he said, that the Courts of the various countries of the world do not offer the same guarantee. Moreover, genocide is distinguished from other crimes under International Conventions (traffic in women, traffic in narcotic drugs, counterfeiting currency) by the fact that, though in itself it is not a political crime, as stated in Article IX of the Draft Convention, it nevertheless has or may have political implications. Therefore, there is a danger that the principle of universal repression might lead national courts to exercise a biased and

E/794

1141

arbitrary authority over foreigners. This representative therefore proposed that jurisdiction be given to an international court to which States would surrender the authors of genocide committed abroad whom they had arrested and whom they would be unwilling to extradite. The principle of universal repression was rejected by the Committee by four votes (among which France, the United States of America and the Union of Soviet Socialist Republics) against two with one abstention. (Eighth meeting – Tuesday, 13 April 1948). During the discussion of Article VII the proposal to reverse the foregoing decision was rejected by four votes against two with one abstention. (Twentieth meeting – Monday, 26 April 1948). ARTICLE VIII (Action of the United Nations) 1. A party to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide. 2. A party to this Convention may bring to the attention of any competent organ of the United Nations any case of violation of this Convention.

Observations This Article was discussed at length when the Committee considered questions of principle, and it was discussed again when the Articles of the Convention were being drafted. The representative of the Union of Soviet Socialist Republics proposed the following text: The High Contracting Parties undertake to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter.

In this connection there was disagreement on two main points: 1. Should provision be made for the intervention of a specific organ of the United Nations, in this case the Security Council, or should no organ be mentioned?

1142

E/794

It was urged in favour of naming the Security Council that the commission of genocide was a grave matter likely to endanger world peace and therefore one which justified intervention by the Security Council, and that only the Security Council was capable of taking effective action to remedy the situation, that is to say to stop the commission of genocide. It was argued against this point of view that, although the Security Council appeared to be the organ to which governments would most frequently wish to apply, it was undesirably to rule out the General Assembly, the Economic and Social Council or the Trusteeship Council. In some cases it would be of advantage to call on the General Assembly because it directly expressed the opinion of all Members of the United Nations, and because its decisions were taken by a majority vote with no risk of the right of veto preventing a decision. The advocates of naming the Security Council replied that they did not exclude the possibility of referring the question to the General Assembly or adopting any other measures which the Security Council may deem necessary. 2. Should it be made compulsory for parties to the Convention to lay the matter before the organs of the United Nations or should they be merely given the right to do so? It was argued in favour of compulsion that the gravity of genocide justified compulsory reference to the Security Council which organ would be free to assess the importance of the cases submitted to it and to take the necessary steps for the prevention and suppression of genocide. It was further pointed out that in accordance with the Charter, Members of the United Nations were already entitled to refer questions to that Organization and that nothing would be gained by mentioning this right in Article VIII of the Convention. It was argued against this view that if a serious case of genocide occurred, it would certainly be submitted to the United Nations and that it was unnecessary to make into an obligation a right the exercise of which should be left to the judgment of governments. The principle of compulsory notification was rejected by three votes to two with two abstentions. (Twentieth meeting – Monday, 26 April 1948 – afternoon).

E/794

1143

Having rejected by five votes to two (Twentieth meeting – Monday, 26 April 1948 – afternoon) the text submitted by the representative of the Union of Soviet Socialist Republics, the Committee had to consider the text submitted by the representative of China which had been adopted as the basis of discussion. This text with some amendments was adopted by five votes to one with one abstention. (Twentieth meeting – Monday, 26 April 1948 – afternoon) and became the first paragraph of the Article. A second paragraph, adopted by six votes with one abstention was added. (Twentieth meeting – Monday, 26 April 1948 – afternoon). The Article as a whole was adopted by five votes to one with one abstention. The representative of the Union of Soviet Socialist Republics made a declaration with regard to his negative vote.* (Extradition)

ARTICLE IX 1. Genocide and the other acts enumerated in Article IV shall not be considered as political crimes and therefore shall be grounds for extradition. 2. Each party to this Convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force.

Observations This Article was included in the Convention, at the request of the representative of Poland. * Declaration of the representative of the Union of Soviet Socialist Republics: In order really to combat genocide it is essential that the signatories to the Convention should undertake the obligation to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention, so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter. An appeal precisely to the Security Council would be fully in accordance with the gravity of the question of genocide. The representative of the Union of Soviet Socialist Republics considers that Article VIII should read as follows in the Convention: ‘The High Contracting Parties undertake to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter.’

1144

E/794

There was no opposition and it was unanimously adopted by the members of the Committee. However, the United States representative made a declaration concerning this Article.* (Settlement of disputes by the International Court of Justice)

ARTICLE X Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice, provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international criminal tribunal.

Observations A member of the Committee requested that Article XIV of the Secretariat’s draft* regarding the settlement of disputes relating to the interpretation or application of the Convention be re-inserted. The representative of the Union of Soviet Socialist Republics opposed this proposal, recalling his opposition in principle to the establishing of an international court which, in his opinion, would be an infringement of the sovereignty of States and would amount to intervention in the internal affairs of the State.

* Declaration of the United States representative: With respect to the Article on extradition, the representative of the United States desires 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. Moreover, the provision in the Constitution of the United States regarding ex post facto laws would preclude the government from granting extradition of any person charged with the commission of the offence prior to the enactment of legislation defining the new crime. * This Article read as follows: Disputes relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice.

E/794

1145

Another representative, supporting the conferring of such competence on the International Court of Justice, pointed out that since the Convention elsewhere conferred competence on an international criminal tribunal (Article VII, last sentence), it was desirable to avoid any concurrent or conflicting jurisdiction. He therefore proposed, in order to avoid disputes regarding competence, that the following formula be added to that proposed by the Secretariat: . . . provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by a competent international tribunal.

The first part of the Article conferring competence on the International Court of Justice was accepted by five votes to two. The second part, including the proviso quoted, was accepted by four votes to one with two abstentions. The Article as a whole was adopted by four votes to three. The representative of Poland* and the representative of the Union of Soviet Socialist Republics** made a declaration with regard to their negative vote.

* Declaration of the representative of Poland: The inclusion in the Convention of the principle of an international criminal tribunal constitutes an obligation of the parties to this Convention, the contents of which are wholly unknown to them. The creation of an international criminal court whose jurisdiction could only be compulsory and not optional, is contrary to the principles on which the International Court of Justice and its Statute are based. ** Declaration of the representative of the Union of Soviet Socialist Republics: Establishment of the system contemplated by Article X must inevitably lead to intervention by an international court in the trial of cases of genocide which should be heard by the national courts in accordance with their jurisdiction. The representative of the Union of Soviet Socialist Republics bases his argument on the fact that the establishment of international jurisdiction for cases of genocide would constitute intervention in the internal affairs of States and be a violation of their sovereignty. Consequently, in the opinion of the representative of the Union of Soviet Socialist Republics, Article X should be excluded.

1146

E/794

REJECTED ARTICLE DISRANDING OF ORGANIZATIONS HAVING PARTICIPATED IN GENOCIDE The representative of Poland made the following proposal which if adopted would have constituted a separate Article: The High Contracting Parties pledge themselves to disband any group or organization which have participated in any act of genocide.

This question was mentioned in the Soviet Note concerning the principles, which was discussed by the Committee during the first stage of its work. It was decided not to adopt the proposal by four votes to three. (Sixth meeting – Friday 9 April 1948). A proposal to reconsider the question was then rejected by three votes to two with two abstentions. (Twentieth meeting – Monday 26 April 1948 – afternoon). It was considered by the majority that this was a question to be considered by the domestic authorities. The representative of Poland made a declaration in this regard.* Final clauses

(Language, date of the Convention)

ARTICLE XI The present Convention of which the Chinese, English, French, Russian and Spanish texts are equally authentic shall bear the date of. . . .

* Declaration of the representative of Poland: The Committee declined to include in the Convention any provision concerning disbanding of groups and organizations which have participated in acts of genocide. The lack of such a provision (having the result that such organizations would be permitted to carry on their criminal activities) makes it impossible for the Polish Delegation to support the Convention until amended.

E/794

1147

Observations 1. Languages – The drafting of the Convention in the five official languages of the United Nations conforms to the practice followed up to the present by the United Nations in most cases. 2. Date of the Convention – The date of the Convention would be that of its adoption by the General Assembly. This Article was adopted by all seven members of the Committee. (States eligible to become parties to the Convention. Means of becoming a party.)

ARTICLE XII 1. The present Convention shall be open until 31. . . 194 . .* for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. 2. After 1 . . . 194 . . . * the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Observations 1. The Committee decided in favour of the second alternative wording in the Secretariat draft, that is, the wording providing for signature followed by ratification. The other alternative foresaw that in every case the States would become parties to the Convention by depositing an instrument of ratification.

* The dates for the time limits will have to be filled in according to the date of the adoption of the Convention by the General Assembly.

1148

E/794

2. With regard to the question as to what organ of the United Nations would have to decide to whom invitations should be sent, a divergence of opinion was expressed in the Committee. The representative of the Union of Soviet Socialist Republics proposed the Economic and Social Council in view of the fact that the Council met more frequently than the General Assembly. The Committee decided by four votes against three that this invitation would be sent by the General Assembly and not by the Economic and Social Council (Twenty-second meeting – Tuesday, 27 April 1948 – afternoon). 3. The whole of the Article was adopted on second reading by six votes to one. The U.S.S.R. representative made a comment with regard to his negative vote.** (Coming into force of the Convention)

ARTICLE XIII 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of not less than twenty instruments of ratification or accession. 2. Ratification or accession received after the Convention has come into force shall become effective as from the ninetieth day following the date of deposit with the Secretary-General of the United Nations.

Observations The Committee put at twenty the number of ratifications and accessions necessary to bring the Convention into operation. Some members would

** The statement of the representative of the Union of Soviet Socialist Republics reads as follows: The U.S.S.R. representative said he was in favour of the second version of this Article, which provides that invitations to sign the Convention will be issued by the Economic and Social Council and not by the General Assembly, as this will expedite the accession to the Convention of States desiring to do so.”

E/794

1149

have preferred a lower figure, some a higher. The representative of the Union of Soviet Socialist Republics, in particular, submitted a proposal that the number of such ratifications and accessious [sic] should be twentynine. Finally unanimous consent was reached on the number of twenty. (Twenty-second meeting – Tuesday, 27 April 1948, afternoon). ARTICLE XIV (Duration of the Convention – 1. The present Convention shall remain in Denunciation) effect for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.”

Observations The Committee had before it two draft wordings proposed in the Secretariat Draft (Article XIX).* The majority considered that the first wording providing for the renewal of the Convention for successive five-year periods and permitting States to denounce the Convention only at the end of such periods created a more stable situation than the second wording which allows for denunciation of the Convention at any time with one year notice. Article 14 was adopted on second reading by five votes against two. The representative of the Union of Soviet Socialist Republics made a statement with regard to his negative vote.**

* Second Draft (Secretariat Draft): The present Convention may be denounced by a written notification addressed to the Secretary-General of the United Nations. Such notification shall take effect one year after the date of its receipt. ** The statement of the representative of the Union of Soviet Socialist Republics reads as follows: The period of validity of a Convention, which aims at combatting genocide, should not be limited. Therefore the following text would be preferable:

1150

E/794

(Abrogation of the Convention)

ARTICLE XV Should the number of parties to this Convention become less than sixteen as a result of denunciations the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative.

Observations This Article was adopted by all seven members of the Committee (Twentysecond meeting – Tuesday, 27 April 1948, afternoon). (Revision of the Convention)

ARTICLE XVI 1. Upon receipt by the Secretary-General of the United Nations of written communications from one-fourth of the number of High Contracting Parties, requesting consideration of the revision of the present Convention and the transmission of the respective requests to the General Assembly, the Secretary-General shall transmit such communications to the General Assembly. 2. The General Assembly shall decide upon the steps, if any, to be taken in respect of such requests.

Observations This Article gave rise to a discussion. The representative of the United States declared in support of the wording finally adopted that a request for revision would have chances of success only if it met with the views of several parties. The representative of the Union of Soviet Socialist Republics pointed out that the wording was not customary and that it put obstacles in the way of possible improvement by means of revision. In any case it was impossible to deprive member States of the right to bring the matter before the United Nations. Article XVI was adopted on second reading by five votes against two.

The present Convention may be denounced by a notification in writing addressed to the Secretary-General of the United Nations. Such notification will come into force one year after it has been received.

E/794

1151

The representative of the Union of Soviet Socialist Republics made a statement with regard to his negative vote.* (Notifications by the SecretaryGeneral)

ARTICLE XVII The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XII of all signatures, ratifications and accessions received in accordance with Articles XII and XIII, of the date upon which the present Convention has come into force, of denunciations received in accordance with Article XIV, of the abrogation of the Convention effected as provided by Article XV, and of requests for revision of the Convention made in accordance with Article XVI.

Observations This Article was adopted by all seven members of the Committee (Twentysecond meeting – Tuesday, 27 April 1948, afternoon). ARTICLE XVIII (Deposit of the original of the 1. The original of this Convention shall be Convention and transmission of deposited in the Archives of the United copies to governments) Nations. 2. A certified copy thereof shall be transmitted to all Members of the United Nations and to the non-member States referred to under Article XII.

* The statement of the representative of the Union of Soviet Socialist Republics reads as follows: To limit the right of a State to apply to the United Nations for revision of the Convention would not be in accordance with the Charter. The following wording would be preferable: ‘A request for the revision of the present Convention may be made at any time by any State signatory to the Convention by means of a notification in writing addressed to the Secretary-General. The Economic and Social Council will decide what action should be taken regarding such a request’.

1152

E/794

Observations This Article was adopted by all seven members of the Committee. (Twentysecond meeting – Tuesday, 27 April 1948, afternoon). ARTICLE XIX (Registration of the Convention) The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

Observations This Article was adopted by all seven members of the Committee (Twentysecond meeting – Tuesday, 27 April 1948 – afternoon).

VOTE ON THE CONVENTION AS A WHOLE The vote on the Convention as a whole was five (China, France, Lebanon, United States of America, Venezuela) against, [sic] one (Union of Soviet Socialist Republics) with one abstention (Poland). (Twenty-sixth Meeting, 30 April 1948 – afternoon). It was agreed that the votes recorded were subject to the reservations made by the Members of the Committee concerning the various provisions of the Convention. At this point the representative of the Union of Soviet Socialist Republics made a statement concerning the Convention as a whole.*

* The statement of the U.S.S.R. representative reads as follows: The U.S.S.R. Representative states that a number of important provisions which were proposed by the Soviet Union in “The Fundamental provisions of the draft Convention” submitted to the Committee and adopted as a basis for the discussion of the principles of the Convention, which the Union of Soviet Socialist Republics considers to be of vital importance, have found sufficient reflection in separate articles of the draft Convention. The following are among them: (a) Establishing that genocide means also premeditated acts committed with the intention of destroying the language, relegion [sic] or culture of a national, racial or religious group on grounds of national or racial origin or religious belief. (Article III of the Convention).

E/794

1153

(b) Definition in the Article IV of the acts punishable under the present Convention, punishment of the conspiracy, instigation, attempts and complicity (except the reservations made by us regarding Article II). (c) Imposition of responsibility for committing genocide regardless of the fact whether the guilty are rulers, public officials or private individuals. (Article V). (d) Providing that genocide should not be considered a political crime and consequently the guilty are subject to extradition. (e) Inclusion into the definition of genocide (Article II) as the qualifying indications of genocide: physical extermination of these or those human groups both directly and by means of creating conditions aimed at their extinction; these or those motives of committing the crimes of genocide. (f ) Inclusion into the preamble on genocide the statement that genocide is the gravest crime against humanity; indication in the preamble to the effect that these crimes are the violation of the spirit and purposes of the United Nations Organization. Noting this positive aspect of the Committee’s activities in the working out of the Convention, the U.S.S.R. representative states that, as a result of the adoption by the majority in the Committee of some profoundly wrong decisions the opposition to which was voted by the Union of Soviet Socialist Republics and some other states, this Convention as a whole and as it was prepared by the majority in the Committee is not a sufficiently effective instrument for the suppression of genocide and does not therefore respond to the aim which was set forth before the Committee by the General Assembly and then by the Economic and Social Council. The preamble of the Convention does not give a complete and correct definition of the character of the crimes of genocide and an important indication that they are organically bound up with fascism-nazism and other similar race “theories” which propagate racial and national hatred, the domination of the so-called “higher” races and the extermination of the so-called “lower” races. The inclusion of political groups into the number of objects of genocide, having nothing in common with its scientific definition, will practically lead to the loss of perspective and to the absence of the suppression of the destruction of human groups on national, racial and religious grounds which actually takes place, and the punishment of which must be aimed at by this Convention. The inclusion of such a proposal into the Convention weakens this document considerably and minimizes the importance of the tasks of the suppression of genocide and violations of the Convention. By doing so the blow to instigators and sponsors of genocide is averted. This is also manifested in the refusal of the majority in the Committee to establish punishability [sic] of a number of dangerous crimes of genocide which are the following: 1. All kinds of public propaganda (the press, radio and cinema) aimed at the instigation of racial, national and religious hatred and at the provoking [sic] of genocide, which create the conditions encouraging the crimes of genocide and provoking these crimes.

1154

E/794

The representative of Poland made a declaration to explain his abstention.*

2. Preparatory actions for the perpetration of genocide in cases when they by themselves do not constitute a crime such as: (a) studying and research aimed at the elaboration of the technique of genocide; (b) making of installations and manufacturing, acquisition, storage, and delivery of materials or products, known to be intended for perpetration of genocide; (c) instructions, orders, assignments, and distribution of tasks aimed at perpetration of genocide. 3. The refusal of the majority in the Committee to agree that the parties to the Convention pledge themselves to disband and not to allow in future the existence of the organizations, the purpose of which is to aim at the instigation of racial, national and religious hatred as well as at the commission of the crime of genocide. 4. The refusal of the majority in the Committee to include into the Convention a principle already established in Nürnberg that genocide cannot be justified by the command of the law or superior order, the refusal to formulate specifically and exactly the obligations of parties to the Convention to introduce into the national legislation measures directed towards the prevention and suppression of genocide as well as towards the prevention and suppression of the instigation of racial, national and religious hatred and to ensure effective measures of criminal punishment and together with this the attempts of an interference into the internal affairs of states, and violation of their sovereignty by the establishment of the principle of cognizance of cases of genocide by an International Court – all this had made the U.S.S.R. representative unable to consider that the document prepared by the majority in the Committee corresponds to its purpose. While this document was being prepared the U.S.S.R. delegation repeatedly sought to convince the Committee of the necessity to act in such a way as to work out a draft Convention on the basis of which an effective suppression of the crimes of genocide could be organized in the future. The U.S.S.R. representative has introduced elaborately worked out proposals on all the above-mentioned questions. For reasons, however, beyond the control of the U.S.S.R. delegation the necessary decisions have not been adopted by the majority in the Committee. That is why the U.S.S.R. representative voted against the draft of the Convention as a whole in its present wording. * The statement of the representative of Poland reads as follows: The delegation of Poland, a country which suffered so terribly from genocide committed by Hitlerite Germany, was and is one of the main supporters of an International Convention on Genocide as a matter of great international importance and urgency. During the General Assembly in 1946, in the Committee on Codification of International Law, as well as during the General Assembly in 1947, and in the last session of the Economic and Social Council, the Polish delegation expressed with great emphasis and several times its opinion on this matter, and submitted proposals and suggestions. It is, therefore, with profound regret that the Polish delegation abstained from voting on the draft adopted by the Ad Hoc Committee for the reasons explained in connection with certain articles. The Polish delegation will do all in its power to

E/794

1155

ANNEX DRAFT CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE* PREAMBLE THE HIGH CONTRACTING PARTIES declaring that genocide is a grave crime against mankind which is contrary to the spirit and aims of the United Nations and which the civilized world condemns; having been profoundly shocked by many recent instances of genocide; having taken note of the fact that the International Military Tribunal at Nürnberg in its judgment of 30 September – 1 October 1946 has punished under a different legal description certain persons who have committed acts similar to those which the present Convention aims at punishing, and being convinced that the prevention and punishment of genocide requires international co-operation, HEREBY AGREE TO PREVENT AND PUNISH THE CRIME AS HEREINAFTER PROVIDED: Substantive Articles ARTICLE I (Genocide: a crime under international law)

Genocide is a crime under international law whether committed in time of peace or in time of war. ARTICLE II

(“Physical” and “biological” genocide)

In this Convention genocide means any of the following deliberate acts committed with the intent to destroy a national, racial, religious or political group, on grounds of the national or racial origin, religious belief, or political opinion of its members:

achieve a text of the Convention on Genocide which would be both effective and acceptable to Members of the United Nations. Poland wishes to be one of the first signatories of the Convention on Genocide. * The marginal notes placed before the articles which indicate the subject dealt with therein are not intended to be part of the Convention. They may be of some use, during the preparatory work concerning the Convention, to help the reader to trace the origin of articles to which, in some cases, a new number has been given.

1156

E/794

(1) killing members of the group; (2) impairing the physical integrity of members of the group; (3) inflicting on members of the group measures or conditions of life aimed at causing their deaths; (4) imposing measures intended to prevent births within the group. ARTICLE III (“Cultural” genocide)

In this Convention genocide also means any deliberate act committed with the intent to destroy the language, religion, or culture of a national, racial or religious group on grounds of the national or racial origin or religious belief of its members such as: (1) prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; (2) destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group. ARTICLE IV

(Punishable acts)

The following acts shall be punishable: (a) genocide as defined in Articles II and III; (b) conspiracy to commit genocide; (c) direct incitement in public or in private to commit genocide whether such incitement be successful or not; (d) attempt to commit genocide; (e) complicity in any of the acts enumerated in this article. ARTICLE V

(Persons liable)

Those committing genocide or any of the other acts enumerated in Article IV shall be punished whether they are Heads of State, public officials or private individuals. ARTICLE VI

(Domestic legislation)

The High Contracting Parties undertake to enact the necessary legislation in accordance with their constitutional procedures to give effect to the provisions of this Convention.

E/794

1157

ARTICLE VII (Jurisdiction)

Persons charged with genocide or any of the other acts enumerated in Article IV shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal. ARTICLE VIII

(Action of the United Nations)

1. A party to this Convention may call upon any competent Organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide. 2. A party to this Convention may bring to the attention of any competent Organ of the United Nations any case of violation of this Convention. ARTICLE IX

(Extradition)

1. Genocide and the other acts enumerated in Article IV shall not be considered as political crimes and therefore shall be grounds for extradiction [sic]. 2. Each party to this Convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force. ARTICLE X

(Settlement of disputes by the International Court of Justice)

Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by competent international criminal tribunal.

Final Clauses ARTICLE XI (Language, date of the Convention)

The present Convention of which the Chinese, English, French, Russian and Spanish texts are equally authentic shall bear the date of . . .

1158

E/794

ARTICLE XII (States eligible to become parties to the Convention. Means of becoming a party.)

1. The present Convention shall be open until 31 . . . 194 . . .* for signature on behalf of any Member of the United Nations and of any nonmember State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. 2. After 1 . . . 194 . . .* the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. ARTICLE XIII

(Coming into force of the Convention)

1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of not less than twenty instruments of ratification or accession. 2. Ratification or accession received after the Convention has come into force shall become effective as from the ninetieth day following the date of deposit with the Secretary-General of the United Nations. ARTICLE XIV

(Duration of the Convention 1. The present Convention shall remain in effect – Denunciation) for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.

* The dates for the time limits will have to be filled in according to the date of the adoption of the Convention by the General Assembly.

E/794

1159

ARTICLE XV (Abrogation of the Convention)

Should the number of Parties to this Convention become less than sixteen as a result of denunciations, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative. ARTICLE XVI

(Revision of the Convention) 1. Upon receipt by the Secretary-General of the United Nations of written communications from one-fourth of the number of High Contracting Parties, requesting consideration of the revision of the present Convention and the transmission of the respective requests to the General Assembly, the Secretary-General shall transmit such communications to the General Assembly. 2. The General Assembly shall decide upon the steps, if any, to be taken in respect of such requests. ARTICLE XVII (Notification by the Secretary-General)

The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XII of all signatures, ratifications and accessions received in accordance with Articles XII and XIII, of the date upon which the present Convention has come into force, of denunciations received in accordance with Article XIV, of the abrogation of the Convention effected as provided by Article XV, and of requests for revision of the Convention made in accordance with Article XVI. ARTICLE XVIII

(Deposit of the original of the Convention and transmission of copies to Governments)

The original of this Convention shall be deposited in the Archives of the United Nations. A certified copy thereof shall be transmitted to all Members of the United Nations and to the nonmember States referred to under Article XII. ARTICLE XIX

(Registration of the Convention)

The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

1160

E/794/Corr.1

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/794/Corr.1 10 June 1940 ORIGINAL: ENGLISH

AD HOC COMMITTEE ON GENOCIDE 5 April – 10 May 1948 CORRIGENDUM TO THE REPORT OF THE COMMITTEE 1. The word “described” which appears at the fifth line of the footnote on page 21 of the English version of document E/794 (Statement of the United States representative) should read: “proscribed ”. 2. The word “prescribed” which appears at the seventh line of the same footnote should read “proscribed ”. The footnote should therefore read as follows: The statement of the United States representative was as follows: The United States Delegation believes that the Convention should establish the culpability of all who directly perform the physical acts comprehended in the crime of genocide, all who “conspire” together to achieve the end which is to be proscribed by this Convention, the act of genocide, or who “attempt” to achieve this end. In this connection a “direct incitement” to the achievement of the proscribed end, if of a nature to create an imminent danger that it would result in the commission of the crime, would generally constitute part of an attempt thereto and or an overt act of conspiracy thereto. To outlaw such incitement, it is sufficient to outlaw the attempt and conspiracy without specifically enumerating the acts of direct incitement in the Convention.

Ad Hoc Committee Draft E/AC.25/12

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1161

UNRESTRICTED E/AC.25/12 19 May 1948 ORIGINAL: ENGLISH FRENCH

AD HOC COMMITTEE ON GENOCIDE (5 April – 10 May 1948) DRAFT CONVENTION ON PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE* (Drawn up by the Committee) PREAMBLE THE HIGH CONTRACTING PARTIES, declaring that genocide is a grave crime against mankind which is contrary to the spirit and aim of the United Nations and which the civilized world condemns; having been profoundly shocked by many recent instances of genocide; having taken note of the fact that the International Military Tribunal at Nurnberg in its judgment of 30 September – 1 October 1946 has punished under a different legal description certain persons who have committed acts similar to those which the present Convention aims at punishing, and being convinced that the prevention and punishment of genocide requires international co-operation, HEREBY AGREE TO PREVENT AND PUNISH THE CRIME AS HEREINAFTER PROVIDED: SUBSTANTIVE ARTICLES: Article I (Genocide: a crime under international law)

Genocide is a crime under international law whether committed in time of peace or in time of war.

* The marginal notes placed before the articles which indicate the subject dealt with therein are not intended to be part of the Convention. They may be of some use, during the preparatory work concerning the Convention, to help the reader to trace the origin of articles to which, in some cases, a new number has been given.

1162

Ad Hoc Committee Draft E/AC.25/12

Article II (“Physical” and “biological” In this Convention genocide means any of the following deliberate acts committed with the intent genocide) to destroy a national, racial, religious or political group, on grounds of the national or racial origin, religious belief, or political opinion of its members: (1) killing members of the group; (2) impairing the physical integrity of members of the group; (3) inflicting on members of the group measures or conditions of life aimed at causing their deaths; (4) imposing measures intended to prevent births within the group. Article III (“Cultural” genocide)

In this Convention genocide also means any deliberate act comm itted with the intent to destroy the language, religion, or culture of a national, racial or religious group on grounds of the national or racial origin or religious belief of its members such as: (1) prohibiting the use of the language of the group in daily intercourse or in schools, or the printing a nd circulation of publications in the language of the group; (2) destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group. Article IV

(Punishable acts)

The following acts shall be punishable: (a) genocide as defined in Articles II and III; (b) conspiracy to commit genocide; (c) direct incitement in public or in private to commit genocide whether such incitement be successful or not; (d) attempt to commit genocide; (e) complicity in any of the acts enumerated in this article. Article V

(Persons liable)

Those committing genocide or any of the other acts enumerated in Article IV shall be punished whether they are Heads of State, public officials or private individuals.

Ad Hoc Committee Draft E/AC.25/12

1163

Article VI (Domestic legislation)

The High Contracting Parties undertake to enact the necessary legislation in accordance with their constitutional procedures to give effect to the provisions of this Convention. Article VII

(Jurisdiction)

Persons charged with genocide or any of the other acts enumerated in Article IV shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal. Article VIII

(Action of the United Nations)

1. A party to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter for the prevention and suppression of genocide. 2. A party to this Convention may bring to the attention of any competent organ of the United Nations any case of violation of this Convention. Article IX

(Extradition)

1. Genocide and the other acts enumerated in Article IV shall not be considered as political crimes and therefore shall be grounds for extradition. 2. Each party to this Convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force. Article X

(Settlement of the disputes by the International Court of Justice)

Disputes between the High Contracting Parties relating to the interpretation or application of this Convention shall be submitted to the International Court of Justice provided that no dispute shall be submitted to the International Court of Justice involving an issue which has been referred to and is pending before or has been passed upon by competent international criminal tribunal.

1164

Ad Hoc Committee Draft E/AC.25/12

FINAL CLAUSES – Article XI (Language, date of the Convention)

The present Convention of which the Chinese, English, French, Russian and Spanish texts are equally authentic shall beer the date of . . . Article XII

(States eligible to become 1. The present Convention shall be open until parties to the Convention. 31 . . . 194 . . .* for signature on behalf of any Means of becoming a party.) Member of the United Nations and of any nonmember State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. 2. After 1 . . . 194 . . .* the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Article XIII (Coming into force)

1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of not less than twenty instruments of ratification or accession. 2. Ratification or accession received after the Convention has come into force shall become effective as from the ninetieth day following the date of deposit with the Secretary-General of the United Nations.

* The dates for the time limits will have to be filled in according to the date of the adoption of the Convention by the General Assembly.

Ad Hoc Committee Draft E/AC.25/12

1165

Article XIV (Duration of the 1. The present Convention shall remain in effect Convention – Denunciation) for a period of five years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Article XV (Abrogation of the Convention)

Should the number of Parties to this Convention become less than sixteen as a result of denunciation, the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative. Article XVI

(Revision of the Convention) 1. Upon receipt by the Secretary-General of the United Nations of written communications from one-fourth of the number of High Contracting Parties, requesting consideration of the revision of the present Convention and the transmission of the respective requests to the General Assembly, the Secretary-General shall transmit such communications to the General Assembly. 2. The General Assembly shall decide upon the steps, if any, to be taken in respect of such requests. Article XVII (Notification by the Secretary-General.)

The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XII of all signatures, ratifications and accessions received in accordance with Articles XII and XIII of the date upon which the present Convention has come into force, of denunciations received in accordance with Article XIV of the abrogation of the Convention effected as provided by Article XV and of requests for revision of the Convention made in accordance with Article XVI.

1166

Ad Hoc Committee Draft E/AC.25/12

Article XVIII (Deposit of the original of the Convention and transmission of copies to Governments)

The original of this Convention shall be deposited in the Archives of the United Nations A certified copy thereof shall be transmitted to all Members of the United Nations and to the nonmember States referred to under Article XII. Article XIX

(Registration of the Convention)

The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

E/CN.4/94

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

1167

UNRESTRICTED E/CN.4/94 21 May 1948 ORIGINAL: ENGLISH

COMMISSION ON HUMAN RIGHTS Third session Item 8 of the Provisional Agenda GENOCIDE (Memorandum submitted by the Secretary-General) I. By its resolution 117(VI), the Economic and Social Council established an Ad Hoc Committee composed of seven Members and instructed it to meet in order to prepare the draft Convention on the Crime of Genocide in accordance with resolution 180(II) of the General Assembly and to submit this draft Convention together with the recommendations of the Commission on Human Rights to the next session of the Economic and Social Council. II. The Ad Hoc Committee on Genocide met at Lake Success from 5 April to 10 May 1948. It prepared a draft Convention, which will be found in the Annex to the Report of the Ad Hoc Committee to the Economic and Social Council (document E/794 and also in document E/AC.25/12). III. The Commission on Human Rights has been invited to make recommendations on the draft Convention to the Economic and Social Council. In examining the draft Convention, the Commission on Human Rights may wish to refer (a) to the resolutions 96(I) and 180(II) of the General Assembly; (b) to the resolution 117(II) of the Economic and Social Council; (c) to the summary records of the Ad Hoc Committee on Genocide (documents E/AC.25/SR.1–28); (d) to the Historical Summary prepared by the Secretariat (document E/621 and addendum 1) – in this document the resolutions mentioned under (a) and (b) are reproduced; (e) to the memorandum on the Comments of Governments on the Draft Convention prepared by the Secretariat (document E/623 and addenda 1, 2, 3). For further reference, attention is also drawn to the original Secretariat draft (document E/447).

1168

E/CN.4/136

United Nations ECONOMIC AND SOCIAL COUNCIL

Nations Unies CONSEIL ECONOMIQUE ET SOCIAL

UNRESTRICTED E/CN.4/136 15 June 1948 ORIGINAL: ENGLISH FRENCH

COMMISSION ON HUMAN RIGHTS Third session _____ DRAFT CONVENTION ON THE PREVENTION AND THE PUNISHMENT OF GENOCIDE The Economic and Social Council, in its resolution of 3 March 1948 concerning genocide, set up an Ad Hoc Committee to prepare a draft Convention to be presented to the Council “together with the recommendation of the Commission on Human Rights thereon.” The Commission on Human Rights appointed a Sub-Committee composed of Messrs. Loutfi (Egypt), Cassin (France), and Azkoul (Lebanon), to deal with this question and to draw up a draft resolution on the draft Convention prepared by the Ad Hoc Committee on Genocide (document E/794, 26 May 1948). The Sub-Committee presents to the Commission on Human Rights the following draft resolution: The Commission on Human Rights has taken note of the draft Convention on the Prevention and Punishment of Genocide prepared by the Ad Hoc Committee on Genocide, and of the report attached to it (document E/794, 26 May 1948). Due to lack of time, the Commission was not able during its third session to study the draft Convention thoroughly and therefore is not in a position to make any observations concerning its substance. However, the Commission considers that the draft Convention represents a sound basis which will enable the General Assembly to reach a decision during its next session.

E/800

1169

UNITED NATIONS NATIONS UNIES ECONOMIC AND SOCIAL COUNCIL OFFICIAL RECORDS THIRD YEAR: SEVENTH SESSION SUPPLEMENT No. 2 Report of the third session of the Commission on Human Rights 24 MAY – 18 JUNE 1948 Lake Success, New York 1948 Genocide1 24. Due to lack of time the Commission was not able to consider thoroughly the draft convention on the prevention and punishment of 1

The representative of the Union of Soviet Socialist Republics requested that the following statement made by him appear in this report: The Union of Soviet Socialist Republics delegation is unable to agree with the statements of the Sub-Committee of the Commission on Human Rights and of the Chinese representative, that the draft convention on genocide prepared by the ad hoc Committee on Genocide “represents a sound basis” for measures to combat such crimes and for the adoption of appropriate resolutions by the Economic and Social Council and the General Assembly of the United Nations. The Commission on Human Rights did not study or discuss the draft convention on genocide, and did not therefore possess sufficient data to appraise that document in substance. The decision of the majority of the Commission on this question is incorrect also in substance, however, since the draft convention in fact contains a number of clauses which are unacceptable in principle, and the convention as a whole, as prepared by the majority of the ad hoc Committee on Genocide, consequently does not and cannot provide a sufficiently effective instrument to combat genocide, and therefore does not fulfil the task set the Committee by the General Assembly and the Economic and Social Council. During the preparation of the convention on genocide the Union of Soviet Socialist Republics delegation, which attaches great importance to effective measures for combating this heinous crime, submitted its own concrete proposals, which are enumerated in detail in the “Basic Principles of a Convention on Genocide” prepared by the Union of Soviet Socialist Republics (document E/AC.25/7, 7 April 1948) and in the Union of Soviet Socialist Republics representative’s statement in the ad hoc Committee on Genocide (document E/794, 24 May 1948). Several important proposals made in these documents were rejected by the majority of the ad hoc Committee on Genocide without the slightest justification and will be raised again (if this cannot be done in the Commission) and developed at greater length during later stages of the discussion on the convention in the Economic and Social Council.

1170

E/800

genocide and therefore was not in a position to make any observations concerning its substance. However, the Commission expressed the opinion that the draft convention represents an appropriate basis for urgent consideration and decisive action by the Economic and Social Council and by the General Assembly during their coming sessions.

In view of the fact that the Commission on Genocide decided at its third session not to have any discussion on the substance of the draft convention on genocide the Union of Soviet Socialist Republics delegation considers that the following resolution should be adopted in place of that submitted by the Sub-Committee: 1. The Commission on Human Rights has taken note of the draft convention on the prevention and punishment of genocide prepared by the ad hoc Committee on Genocide and of the report attached to it. Due to lack of time the Commission was not able during its third session to study the draft convention thoroughly and is therefore unable to make any recommendations of substance to the Economic and Social Council. (This item corresponds to the resolution submitted to the Commission by the Sub-Committee.) 2. Notwithstanding this, the Commission, however, considers it desirable in principle and a matter of vital importance for millions of human beings: (a) That effective measures be taken to deal with genocide – one of the most heinous crimes against humanity, and (b) That the question of an appropriate convention be considered at the earliest possible moment by the Economic and Social Council and the General Assembly.

E/C.2/104

UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL

NATIONS UNIES CONSEIL ECONOMIQUE ET SOCIAL

1171

UNRESTRICTED E/C.2/104 19 July 1948 ENGLISH Original: FRENCH

Dual distribution for Council Members COMMITTEE ON ARRANGEMENTS FOR CONSULTATION WITH NON-GOVERNMENTAL ORGANIZATIONS Communication received from the World Federation of Trade Unions (Fédération syndicale mondiale) dated 12 July 1948. Circulated to members of the Council for their information in pursuance of paragraph 2 of Chapter IV of the Report of the Committee on Arrangements for Consultation with Non-Governmental Organizations approved by the Council on 21 June, 1946 (Resolution 2/3 of 21 June, 1946, Official Records of the Economic and Social Council, First Year, Second Session, pp. 360–365). PROPOSAL submitted by the WORLD FEDERATION OF TRADE UNIONS to the Seventh Session of the ECONOMIC AND SOCIAL COUNCIL concerning the United Nations Draft Convention on Genocide. To the President of the Economic and Social Council, Palais des Nations, Geneva. Paris, 12 July, 1948. Sir, The General Assembly, the Economic and Social Council and the Commission on Human Rights have for some time been considering a United Nations draft convention on Genocide. The Economic and Social Council at its Seventh Session is called upon to approve this draft and to submit it to the next session of the General Assembly.

1172

E/C.2/104

The World Federation of Trade Unions would like to see effective measures taken on an international scale, so that the collective murders and destruction witnessed during the Second World War may be avoided in future. Hence the World Federation of Trade Unions strongly urges the Economic and Social Council to adopt the International Convention on Genocide in the course of its Seventh Session. I have the honour to be, etc. (Signed) LOUIS SAILLANT Secretary-General

E/C.2/105

UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL

NATIONS UNIES CONSEIL ECONOMIQUE ET SOCIAL

1173

UNRESTRICTED E/C.2/105 23 July 1948 ORIGINAL: ENGLISH

Dual distribution for Council Members COMMITTEE ON ARRANGEMENTS FOR CONSULTATION WITH NON-GOVERNMENTAL ORGANIZATIONS Communication received from the World Federation of United Nations Associations (Fédération mondiale des associations pour les Nations Unies) dated 15 July 1948. Circulated to the members of Council for information in accordance with the report (Section 4, paragraph 2) of the Committee on Arrangements for Consultation with Non-Governmental Organizations, approved by the Council on 21 June 1946 (Resolution No. 2/3 of 21 June 1946. Official Records of the Economic and Social Council. First Year, Second Session, pages 360–365). TELEGRAM ON GENOCIDE FROM THE WORLD FEDERATION OF UNITED NATIONS ASSOCIATIONS FROM NEWYORK (NEWYORK) SENT 15 JULY 417P (NEWYORK) RECD 16 JULY 48 0951 EDST TRYGVE LIE WE HAVE RECEIVED LETTERS FROM NUMEROUS INTERNATIONAL ORGANIZATIONS EXPRESSING DESIRE FOR SPEEDY ADOPTION GENOCIDE CONVENTION AMONG THEM INTERNATIONAL LEAGUE OF CATHOLIC WOMEN ACTING IN NAME OF 36 MILLION MEMBERS. ALSO FROM INTERNATIONAL TRANSPORT WORKERS FEDERATION REPRESENTING 4 MILLION WORKERS IN 45 COUNTRIES. 46 ORGANIZATIONS MET JUNE 17 1948 IN NEWYORK FOR STRENGTHENING UN THROUGH RELIGION AND ADOPTED STRONG RESOLUTION CONDEMNING GENOCIDE CONVENTION [sic] OF BUSINESS AND PROFESSIONAL WOMEN IN TEXAS DID LIKEWISE LAST

1174

E/C.2/105

WEEK IN VIEW OF THIS GROWING MOVEMENT TO OUTLAW CRIME OF GENOCIDE AND SINCE ECONOMIC AND SOCIAL COUNCIL BEGINS WORK SOON A PUBLIC STATEMENT BY YOU STRESSING IMPORTANCE OF THIS ISSUE TO UN AND WORLD WOULD HELP INESTIMABLY. WE WOULD ALSO APPRECIATE HAVING SUCH A MESSAGE CONVEYED TO ECONOMIC AND SOCIAL COUNCIL JULIA STUART WORLD FED OF UN ASSNS

E/AC.27/1

UNITED NATIONS ECONOMIC AND SOCIAL COUNCIL

NATIONS UNIES CONSEIL ECONOMIQUE ET SOCIAL

1175

UNRESTRICTED E/AC.27/1 16 July 1948 ENGLISH ORIGINAL: FRENCH

Dual distribution for Council Members HUMAN RIGHTS COMMITTEE Draft Convention on the Prevention and Punishment of Genocide (Item 19) (Secretariat Memorandum) 1. By its Resolution No. 117(VI) dated 3 March 1948, the Economic and Social Council established an ad hoc Committee composed of the following members of the Economic and Social Council: China, France, Lebanon, Poland, the United States of America, the Union of Soviet Socialist Republics and Venezuela, and instructed the Committee: (a) To meet at the Headquarters of the United Nations, in order to prepare the draft Convention on the crime of genocide . . . and to submit this draft Convention, together with the recommendation of the Commission on Human Rights thereon to the next session of the Economic and Social Council; and (b) To take into consideration in the preparation of the draft Convention, the draft Convention prepared by the Secretary-General, the comments of the Member Governments on this draft Convention, and other drafts on the matter submitted by any Member Government;

2. The ad hoc Committee met at Lake Success, New York, from 5 April to 10 May 1948 and prepared a draft Convention and Report (Document E/794, 24 May 1948). 3. In accordance with the above-mentioned Resolution of the Economic and Social Council, the draft Convention was submitted to the Commission on Human Rights at its third session at Lake Success from 24 May to 18 June 1948. The Commission made the following recommendation on the subject (Document E/800, 28 June 1948 paragraph 24):

1176

E/AC.27/1

24. Due to lack of time the Commission was not able to consider thoroughly the Draft Convention on the Prevention and Punishment of Genocide and therefore was not in a position to make any observations concerning its substance. However, the Commission expressed the opinion that the Draft Convention represents an appropriate basis for urgent consideration and decisive action by the Economic and Social Council and by the General Assembly during their coming Sessions.

The representative of the Union of Soviet Socialist Republics made a statement which, at his request, is included in the Commission’s Report. 4. Furthermore, the Commission on Narcotic Drugs, meeting at Lake Success, New York, for its third session from 3 to 22 May 1948, examined the question of Genocide and adopted the following Resolution (Document E/799, page. 22): THE COMMISSION ON NARCOTIC DRUGS HAVING considered document E/CN.7/W.28, submitted by the representative of he United States, giving details of the factory for the manufacture of narcotic drugs built by the Japanese authorities in Mukden during the Japanese occupation of Manchuria, and taking particularly into account the manufacturing capacity of that factory which in the opinion of an expert consulted by the United States representative was 50,000 kilos of heroin annually, an amount which represents 50 times the amount the annual legitimate needs of the world for this drug; HAVING been profoundly shocked by the fact that the Japanese occupation authorities in North Eastern China utilized narcotic drugs during the recent war for the purpose of undermining the resistance and impairing the physical and mental well-being of the Chinese people; CONSIDERING that narcotic drugs constituted and may constitute in the future, a powerful instrument of the most hideous crimes against mankind; RECOMMENDS that the Economic and Social Council ensure that the use of narcotics as an instrument of committing a crime of this nature be covered by the proposed Convention on the Prevention and Punishment of Genocide.

E/SR.201

1177

ONE HUNDRED AND EIGHTIETH MEETING Held at the Palais des Nations, Geneva, on Wednesday, 21 July 1948, at 3 p.m. President: Dr. Charles Malik Item 19 Mr. Arutiunian (Union of Soviet Socialist Republics) reminded the Council, and in particular the representative of China, that item 19 (draft Convention on the Crime of Genocide) appeared before the Council for the first time. A preliminary discussion in plenary was therefore essential in order that adequate directives might be given to the committee to which the Council might later wish to refer the draft Convention for detailed examination. The Council decided, by 13 votes to 4, to refer item 19 directly to the Human Rights Committee.

TWO HUNDRED AND FIRST MEETING Held at the Palais des Nations, Geneva, on Tuesday, 17 August 1948, at 9.30 a.m. President: Dr. Charles Malik 47. Continuation of the discussion on working arrangements for the session1 (E/965 and E/979) The President drew attention to certain errors in document E/979,2 and said that in that document he had put before the Council the exact position of the business of the session as of the previous day. In paragraph 1 he had listed all the items of the agenda on which work was not finished; those which had not been discussed either in plenary or committee were marked with an asterisk. There followed an estimate of the number of meetings required to deal with those items. Twenty-five to thirty more

1 2

Resumed from the 199th meeting. See document E/979/Corr.1.

1178

E/SR.201

plenary meetings were needed, as well as three more meetings of the Economic Committee and three to five meetings of the Social Committee. The estimate for the Human Rights Committee was thirty to thirty-five meetings; that was a conservative estimate, based on the progress made by the Committee so far. Five more meetings of the Co-ordination Committee and two more meetings of the Procedure Committee were needed. In paragraph 2 he had laid down the basic limitations on the business of the present session. They were: that only six meetings a day could be serviced, and that continuation of the session beyond 27 August would mean that the Council’s Report would probably not be available before the opening of the General Assembly. In paragraph 3 he had pointed out that it seemed fairly clear that all the items on which discussion had not yet been opened could not be fully discussed if both limitations were accepted; and the Council had no alternative but to accept them. He had then suggested three possible courses. Course A was the shortest way of dealing with the remaining items on the agenda. On the three assumptions listed in the relevant paragraph the session might end about 25 August. Course C consisted of full treatment, and course B was an intermediate arrangement between A and C. The last sentence of paragraph 3 would also apply if course A were chosen. Paragraph 4 contained a list of items which would have to be deferred if course A were adopted. In the case of some of those items, some limited action would be desirable, and it was therefore suggested that discussion on them should be limited to half an hour, after which any relevant proposals before the Council would be put to the vote. The items concerned were 3, 10, 32, 33, 35, 38, 48 and 50. If course C were adopted, the need for deferment would be wholly or mainly eliminated since most of the items concerned could be discussed in plenary during the later stages of the work of the Human Rights Committee. That was the position, and the decision which the Council must shortly take was of the utmost importance, since it not only affected the work of the Council, but would directly affect the work of the General Assembly. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) said that he would comment on the work of the Human Rights Committee at a later stage in the debate, but as a preliminary observation he would point out that the matter under discussion should have been discussed at the beginning of the session. The Council was now approaching the close of the session

E/SR.201

1179

and it would be very difficult, in taking the decision requested by the President, to reconcile the necessity for observing the date fixed in order that documentation might be ready in time for the General Assembly, with the necessity for dealing adequately with the work. Under rule 41 of the General Assembly’s rules of procedure, the SecretaryGeneral must communicate to Members of the United Nations, at least 45 days before the opening of the session, a report which should, as one of its main subjects, cover the work of the Council. If the Council’s session was not concluded before 27 August, the Secretary-General’s report could not fully cover its work. The Council must therefore subordinate the business of the session to the necessity for preparing documentation in time for the General Assembly. In view of that necessity he doubted whether the session should continue until 27 August. The President pointed out that the Secretary-General’s report had been issued approximately two weeks previously, and thus would not be affected by the date on which the session closed. The only directive concerning the Council’s report to the General Assembly was contained in Article 15 of the Charter; no time limit was specified therein. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) replied that he was making an impartial approach to the subject; the essential requirement was that the relevant documentation for the General Assembly should be submitted sufficiently early. The Secretary-General’s report could not give a true picture of the Council’s work, since it did not cover the current session; an account of the work done by the Council during the whole year should be presented to the General Assembly. Mr. Phillips (United Kingdom) said he had been considering what shape the intermediate arrangement envisaged as course B might take. There would be some difficulty in adopting course A, since the Human Rights Committee was already fairly advanced in its consideration of the Convention on the Gathering and International Transmission of News. He hoped that the work on the other two conventions on freedom of information could be completed, provided that the whole of the Council’s work for the session was finished by a date which would permit the relevant documentation to be prepared in time for the General Assembly. He proposed that a date near 27 August be fixed for the close of the session. He also suggested that the Human Rights Committee should

1180

E/SR.201

be requested to work with somewhat greater urgency, by holding three meetings a day, so that the Council would at least have held a complete discussion in committee on one of the three important items referred to the Human Rights Committee. When that discussion was completed, he proposed that the item should be transmitted direct to the Assembly, without being discussed in plenary. That would be an unusual procedure, but the Council was faced with an unusual situation. He could agree to items 17 and 19 being discussed in plenary forthwith, and to general statements being made on them, but no firm decisions should be taken other than a decision to transmit the documents and general statements to the General Assembly. Mr. van der Mandele (Netherlands) said that he reluctantly supported the proposal of the United Kingdom representative. He thought that the Committee’s work on the Final Act of the Conference on Freedom of Information should be completed. One resolution, No. 39,1 related to the work of the Sub-Commission on Freedom of Information and of the Press, and it could only be acted upon if the General Assembly took a decision. He therefore proposed that the United Kingdom proposal be amended to include immediate discussion in plenary of resolution No. 39 on freedom of information, as well as items 17 and 19 of the agenda. Mr. Phillips (United Kingdom) accepted the Netherlands amendment to his proposal. Mr. P.C.C. Chang (China) said that the procedure to be followed by the Human Rights Committee had been discussed by the Committee itself, but that had not resulted in any reduction of the numerous amendments and copious comments on the conventions under consideration. There was no chance of finishing the work by 20 August, which was still the scheduled date for closing the session. In view of the large number of amendments already submitted, he greatly doubted whether the Committee would be able to finish its work on items 17, 18 and 19 by 27 August, even if three meetings a day were held. He wished to see the Council’s work

1

See Final Act of the United Nations Conference on Freedom of Information, chapter IV, page 39.

E/SR.201

1181

properly carried out, not spoiled by over-hasty action, and it could not be completed properly in the limited time available. He was not formally proposing that there should be another session, but he pointed out that the Council could well hold one, as there had only been two sessions during the current year. He could not pass over, without comment, the suggestion that Committees of the Council should transmit documents directly to the Assembly. While appreciating the reasons for which the United Kingdom representative had made that suggestion, he hesitated to accept it, both on constitutional grounds and because its adoption would lower the dignity of the Council. Since it did not seem possible to complete the work adequately by 27 August, the Council could only adopt course A. Many members wished to see the conventions on matters relating to human rights submitted to the forthcoming session of the General Assembly, and course A did not preclude that possibility. Although course A was unsatisfactory, it seemed the most desirable and practicable one. He agreed with the Netherlands representative’s suggestion regarding resolution No. 39 on freedom of information. The Council should take a decision on resolutions concerning the draft conventions which it submitted to the General Assembly. Mr. Monge (Peru) pointed out that, after four weeks of work, the Council was having to hurry through the examination of problems which needed ample time. Certain countries were deeply interested in some of those problems. The President suggested eight items for deferment, including items 10 and 50, which were of the greatest interest to Lebanon and Peru respectively. Many countries were collaborating with the Council in order to maintain a spirit of international co-operation within the framework of the United Nations. Peru could solve some problems without assistance, but the intervention of the United Nations gave a certain sense of unity to international co-operation. He must point out that the President’s proposal amounted either to deferring or to limiting the study of item 50, in which Peru was vitally interested. Mr. van der Mandele (Netherlands) recalled that the United Nations Conference on Freedom of Information, which had been attended by

1182

E/SR.201

representatives of approximately fifty governments, whereas only eighteen governments were represented on the Council, had asked the Council to carry out a certain task. The Council should not be deterred from doing its duty by considerations of expense or of time. He had supported the proposal of the United Kingdom representative reluctantly, and had been impressed by the comments of the representative of China on holding an extra session and on the question of the Council’s dignity; but as the Human Rights Committee was a Committee of the Whole, it was not likely that its opinion would be very different from that of the Council itself. He suggested tentatively that the Human Rights Committee should continue its work, not for an unreasonably long period, but if necessary after 27 August, and that the results of that work should be considered at an extra session of the Council to be held in Paris concurrently with the General Assembly. Mr. Lange (Poland) accepted the President’s proposals for deferment of items, with the one exception of item 32, which ought to be dealt with, so that the Council’s decision on it could be referred to the General Assembly. It would not require much discussion by the Council, and could be adequately dealt with by applying the half-hour rule suggested by the President. The essential requirement was that the Council should complete its work on items which were urgent, and on which it was necessary to submit decisions and recommendations so that they would be acted upon by the General Assembly. In addition to the items which the President had suggested should be deferred, he proposed the deferment of items 11, 26, 31 and 45. He did not minimize the importance of those four items, but thought that in view of the position in which the Council found itself, they could be deferred until the next session. With regard to the work of the Human Rights Committee, the Polish delegation had already expressed the view, in that Committee, that its work could be shortened considerably, if it deferred consideration of the two remaining draft conventions on freedom of information until the eighth session, and passed on to the discussion of human rights and genocide. The Declaration on Human Rights and the Convention on the Crime of Genocide were well drafted and had reached an advanced stage, whereas

E/SR.201

1183

the three draft conventions concerning freedom of information were less advanced. Even the first of them, which was of a technical nature, had taken up an inordinate amount of the Committee’s time. The President pointed out that he had not made formal proposals to the Council regarding its business, but had merely suggested the alternative procedures open to it. Mr. Lange (Poland) said that of the procedures suggested by the President, course A was the most practicable. His own proposal was that the two remaining draft conventions concerning freedom of information should be deferred until the next session, and that the discussions on human rights and genocide at the current session should follow the lines suggested in course A. Mr. Thorp (United States of America) said that he would limit his comments to the items which had been referred to the Human Rights Committee. It was clear that action would have to be taken by the General Assembly on all of them. The Council should bear in mind both its obligations to the General Assembly and the undesirability of according priority to any one of the items, since it seemed that all three were equally important. The Council should not restrict the General Assembly’s action in respect of the three items; it should not withhold any one item from the General Assembly in order first to deal with it itself. It was for the General Assembly itself to decide how the items should be dealt with in the Assembly; the Council should make it possible for the Assembly to do so. The United Kingdom representative’s proposal would permit all three items to be submitted to the forthcoming General Assembly, and although the Council had devoted more time to freedom of information, the three items would be submitted with its formal approval and have the same degree of importance. It would be simpler if the Human Rights Committee remained responsible for considering all three items; it should set as its target for the current session the completion of the work on the Final Act of the Conference on Freedom of Information. With regard to resolution No. 39, the Council itself was empowered to take the final decision on the future work of the Sub-Commission on Freedom of Information. The Council could best perform its duty of serving the General Assembly by transmitting all the draft conventions to it.

1184

E/SR.201

Mr. Kaminsky (Byelorussian Soviet Socialist Republic), speaking as Chairman of the Human Rights Committee, said that many representatives were evidently labouring under a delusion concerning that Committee’s work. Some had spoken as if there were only three draft conventions before it, one on each of the three items; in fact, it had before it twice that number of conventions, and in addition, numerous amendments and alternative texts thereto, submitted not only by members of the Council, but also by other Members of the United Nations. The Committee was very hard pressed. It had dealt somewhat unceremoniously with some of the amendments, but, even so, progress was slow. That, however, was not the fault of the Committee, which was in no position to deal adequately with the huge task it had been set. He doubted the physical possibility of accelerating the tempo or of increasing the number of meetings of the Committee to three a day, as had been suggested; for both representatives and Secretariat staff were already working to the utmost of their capacity. A third daily meeting would in no way advance the work of the Committee, since little progress could be expected if representatives were too tired to grasp the meaning of the complex documents before them. Should the Council decide to transmit the documents on all three items to the Assembly, it should pay special attention to the draft Convention on the Crime of Genocide and the draft Declaration on Human Rights. He could not agree that all the draft conventions referred to the Committee were equally important. Perhaps the Assembly would understand the difficulties with which the Committee had been faced. He appealed to the Council to reject the proposal that the Committee should finish its work on the conventions concerning freedom of information in a state of complete exhaustion. Work on the draft Convention on the Crime of Genocide had been in progress for some time, but the Committee had not been criticized for failing to complete it, for everyone recognized the scope and importance of that item. It was unreasonable to expect the Committee, in the limited span of five weeks, to bring that work to a stage at which it could be presented to the General Assembly. He urged that further consideration of the draft conventions should be deferred until the next session and that the Council should not take a decision on the erroneous assumption that

E/SR.201

1185

the Committee could finish its work even on the first draft convention concerning freedom of information. Mr. Muniz (Brazil) supported the proposal of the United Kingdom representative. He agreed that items 17 and 19 should be returned to plenary, and that there should be general statements of position by representatives, without other debate or decisions, except a decision to transmit the documents and statements to the General Assembly. That would enable the Council to carry out its duties within the time available. To facilitate the work of the Council, he agreed to the postponement of item 33, which had been proposed by his delegation. Mr. Mikaoui (Lebanon) thanked the representative of Peru for emphasizing the importance of items 10 and 50. He had observed, during the discussion on the note by the representative of Canada (E/965),1 that the general sense of the Council had been to defer items which were not important or urgent. In his proposals, the President had taken that wish into consideration, and he was sorry he had not been able to impress upon him the extreme urgency of item 10. He would be grateful if the Council would take up the question; that wish was shared by all the peoples of the Middle East. At the invitation of the President, Mr. Safwat, Egyptian observer, took a seat at the Council table. Mr. Safwat (Egypt) confirmed that the views expressed by the representative of Lebanon exactly coincided with those of the Egyptian Government. Mr. Borberg (Denmark) said that he preferred course A. The Council was under an obligation to submit a draft convention on the crime of genocide to the forthcoming General Assembly. That draft should be submitted by the Council, not by one of its Committees; otherwise the General Assembly would be justified in rebuking the Council. He urged that the general statements of position should be limited to one short general statement by each representative. The draft conventions on freedom of information had already been discussed at a general conference and

1

See supra, 199th meeting.

1186

E/SR.201

would again be discussed in the General Assembly by the representatives of almost all governments, including those represented on the Council. He suggested that a report on the Council’s work, for discussion by the General Assembly, should be prepared immediately, and that a supplementary report should be issued later on the remainder of the work at the current session. Governments should have more than a few days to study the report before the opening of the General Assembly. That would not be possible if it were prepared after 27 August. The President said that he would bear the Danish representative’s suggestion in mind. Mr. Thorn (New Zealand) said that the President’s note bore out the opinion expressed by the New Zealand delegation in the Agenda Committee, that something drastic would have to be done to enable the Council to complete the agenda for the session. It was now apparent that the steps suggested to that end by the New Zealand delegation1 had been inadequate. The Secretariat must be allowed sufficient time to prepare the relevant documentation for submission to the Assembly. That would be impossible if the session were unduly prolonged, and it was essential that the Council’s report should be available early, since the representatives of the many countries not represented on the Council would want to know what action had been taken. It was impossible, in the time scheduled for the current session, to give all the items on the agenda the attention they deserved. No harm would be done if the Council were candid enough to state that it was beyond the powers of the eighteen delegations to reach well-considered decisions on all the items in so short a time. Such a statement should be issued before the Council took any fundamental action. He was inclined to favour course A, which entailed deferment of more items than had been suggested by the New Zealand representative in the Agenda Committee. He did not favour the half-hour rule proposed by the

1

See document E/C.3/10.

E/SR.201

1187

President, since he doubted whether proper decisions could be reached in so short a time. To make hurried decisions would only lower the Council’s prestige; such decisions, in particular on item 10, would satisfy no one. It was better to defer the consideration of items altogether than to take rush decisions on them. He could accept the proposals of the United Kingdom representative provided that it was not intended that the Human Rights Committee should continue its work after 27 August and pass on the results direct to the General Assembly. Such a procedure would be wrong in principle and would entail further financial difficulties. He agreed that items 17 and 19 should be returned to plenary, that representatives should make general statements of position on them, and that there should be no other debate or decisions, except a decision to transmit the documents and statements to the General Assembly. That would ensure that the Assembly was seized of the Council’s views on those items. Mr. Santa Cruz (Chile) recalled that he had opposed the setting up of a Committee on Human Rights when the Council had discussed that point.2 His experience in the Commission on Human Rights had taught him that the Council and its Committees would not be able to study in detail, in five weeks, either the draft Convention on the Crime of Genocide or the draft Declaration on Human Rights. The Council should take note of the work of the Conference on Freedom of Information, of the Commission on Human Rights and of the Ad Hoc Committee on Genocide, make a general statement on them, and transmit it, together with any reservations made by delegations, to the General Assembly, which would discuss the documents in detail before adopting them. But his previous suggestions had been rejected. He agreed with the representative of the Byelorussian Soviet Socialist Republic that the Human Rights Committee would not be able to complete its examination of the three conventions before 27 August. He thought that the Council should adopt course A, as outlined by the President. If that were done he suggested that human rights should be dealt with first. Some representatives believed that all the items referred to the Human Rights Committee were equally important, but the promotion

2

See supra, 179th and 180th meetings.

1188

E/SR.201

of respect for human rights was one of the basic purposes of the United Nations laid down by the Charter. Mr. Arutiunian (Union of Soviet Socialist Republics) said that the debate had so far rightly centred on the work of the Human Rights Committee; but the most important issue, which had to be decided first, was the date of adjournment of the Council as a whole. Other delegations, for special reasons, might wish the session to be prolonged after 25 or 27 August, the dates suggested by the President; it [sic] that were so, he wished to make it perfectly clear, so that there could be no possible misunderstanding, that the Soviet Union delegation would agree to prolongation of the session. But in order that a reasonable number of days might be devoted to preparatory work for the General Assembly, his delegation did consider that it would be more rational to fix 25 or 27 August as the date for adjournment. The Council would then be left with eight or ten days at its disposal. From experience gained during the current session and at previous sessions, it could be stated that completion of the agenda, even on the lines of course A suggested by the President, would demand very great efforts on the part of all representatives, since it would still be necessary to consider a number of the most important items on the Council’s original agenda. The United Kingdom delegation, supported by the United States delegation, had made an alternative suggestion whereby the draft conventions on freedom of information would be sent direct from the Committee to the General Assembly, without formal recommendations by the Council. The United Kingdom and United States representatives had tacitly admitted that the Council would be unable to devote enough attention to those three draft conventions, either to approve or to disapprove them. But if no decision was reached, the seven or nine days to be devoted to consideration of them in the Human Rights Committee would be entirely wasted. He could only believe that the suggestion of such farcical procedure by the United Kingdom representative was prompted by disinclination to submit the draft conventions on freedom of information to the General Assembly with the recommendations of the Council. The same disinclination accounted for the attempts, in the Human Rights Committee to replace the draft Conventions on freedom of information by other documents.

E/SR.201

1189

When the Council had decided that the Human Rights Committee would deal with four items of the agenda, it had been understood that it would consider them in a certain order – namely: first, Report of the Commission on the Status of Women (item 21); secondly, Report of the Commission on Human Rights (item 17); then, draft Convention on the Crime of Genocide (item 19); and last of all, Final Act of the United Nations Conference on Freedom of Information (item 18). That logical order, which paid due regard to the fundamental and comprehensive nature of the question of human rights, had been changed in the Committee on the initiative of the United States representative, and, once item 21 had been disposed of, the Committee had gone on to consider the draft conventions on freedom of information. Not only did those draft conventions bear evident signs of inadequate preparation, but the French, United States and United Kingdom representatives had submitted new texts intended to replace them. The Committee had therefore to deal with a peculiar mixture of poor, but agreed, texts and still poorer amendments, which had only been submitted at the last minute. The confusion to which its meetings had been reduced had been particularly evident during the discussion on article 10 of the draft Convention on the Gathering and International Transmission of News, when the French, United Kingdom and United States representatives had been unable to repeat the text of the amendment they were proposing. The insistence with which the proposers of the new texts were pressing for completion of their examination within a week, so that they could be submitted to the General Assembly, would make it impossible for other delegations to examine them as fully as they would otherwise be prepared to do. The United Kingdom representative did not seem embarrassed at asking the Council to adopt what he admitted to be “unusual” procedure, simply because his delegation and that of the United States wished it to do so. The Netherlands representative, when supporting the United Kingdom proposal, had suggested that there was no objection to the Council being by-passed, as the opinions of the Committee and the Council would be the same. That was a point of view which he thought the Council could not accept. Adoption of the United Kingdom proposal would be tantamount to smuggling recommendations of the Committee through the Council; but the rights of the Council must be defended.

1190

E/SR.201

It could not be denied that the main responsibility for the difficulties which had arisen in the Human Rights Committee rested with the representatives of the United States, the United Kingdom and France. It would be recalled that consideration of the Report of the Commission on the Status of Women had been extended to three weeks owing to the insistence of the United States representative that the Committee should take as a basis for discussion not the original recommendations,1 but a new and far inferior text2 which, after two weeks’ unnecessary waste of time, had been rejected in favour of the original recommendations, slightly amended. Moreover, it could not be taken for granted that the recommendations of the Human Rights Committee would not be challenged in plenary by the United States representative. A similar situation had arisen in the discussion on freedom of information. The United Kingdom, United States and French representatives had placed before the Committee a new version of the draft Convention on the Gathering and International Transmission of News,3 which was radically different from that submitted by the Conference on Freedom of Information. He repeated that his delegation was prepared to consider any proposal, provided that it was not contrary to normal procedure and did not entail undue haste. The Netherlands delegation, with the support of other delegations, proposed that only resolution No. 39 should be examined in plenary; but all the resolutions of the Conference on Freedom of Information were important. If any were to be singled out for special treatment, then it would only be fair to hear the views of other delegations on which resolutions they felt to be of special importance. The Soviet Union delegation supported the President’s suggestion that a number of items be deferred and the Polish proposal to defer items 11, 26, 31 and 45 but not item 32. That was not because it considered any

1 2 3 4

See document E/AC.7/W.24. See document E/AC.7/W.25. See document E/AC.27/W.21. See supra, 199th meeting.

E/SR.201

1191

items unimportant, but because of the practical impossibility of dealing with them all before 27 August. Mr. Davidson (Canada) recalled that during the discussion on his note (E/965) on the business of the session,4 the view had been expressed by a number of representatives that presentation of that note was premature. He hoped no representative would still maintain that point of view. His note contained suggestions which were both simple and consistent, and more feasible, he still felt, than those since circulated by the President (E/979). Despite the original lack of support for them, the fact that many of the Canadian delegation’s arguments had been taken up at the current meeting by other delegations led him to believe that opposition to them had been based on misunderstanding. The Byelorussian representative, for example, had stated that he was opposed to the Human Rights Committee meeting three times daily. It was clear from the wording of document E/965 that the Canadian delegation only intended the Human Rights Committee to meet once a day until shortly before the adjournment of the Council. At that point, a decision would have to be taken on what was to be done with the items referred to the Human Rights Committee. The basis of the Canadian proposal was that no abnormal priority in the arrangement of meetings should be given to the Human Rights Committee. That would enable the Council to deal more satisfactorily with the other items on its agenda by the holding of two plenary meetings daily, and perhaps adopting part of the President’s suggestions for limitation of debate. In a spirit of irresponsibility, Canada might well agree to the deferment of this or that item until the next session, at which she would no longer be represented. The items which involved the Council in the greatest difficulties, however, were not those it was proposed to defer, but the three or four items referred to the Human Rights Committee. At the sixth session, the Council had decided to defer three items, despite the opposition of the Canadian delegation.1 Now it was proposed to defer eight items. If the practice of piling up items to be deferred were continued, the agenda of the minth [sic] or tenth session of the Council would consist almost

1

See Official Records of the Economic and Social Council, third year, sixth session, 155th meeting.

1192

E/SR.201

entirely of items postponed from the previous sessions. The Council should retain all the items on its agenda and attempt to deal with them; if two plenary meetings were held daily, he thought that by 27 August all items would have been disposed of except those referred to the Human Rights Committee. A decision could then be taken on those items. The Council might decide at that stage to adopt the United Kingdom proposal and transmit to the General Assembly a half-digested mass of draft conventions and resolutions, neither examined nor approved by the Council in plenary. That proposal did not commend itself to the Canadian delegation. It would only complicate the work of the General Assembly. Alternatively, as the Byelorussian representative had suggested, any items referred to the Human Rights Committee which had not been disposed of by the date of adjournment could be deferred till the next session. He was not altogether happy about that proposal, but agreed that if any items were to be deferred, they should be those which had been discussed but found impossible to deal with quickly, not those which had not been considered at all. The third course, suggested in the Canadian note, was for the Human Rights Committee to continue, after disposal of the other items of the agenda, until its work was completed, when it could act as a plenary meeting of the Council and approve the decisions reached. He still felt that would be the best procedure, but the decision could be held over until 27 August. The President agreed with the representative of Canada that the Council’s decisions on its programme of work would have a crucial effect on the work of the General Assembly, and he asked all representatives to bear that fact in mind. Mr. d’Ascoli (Venezuela) repeated what he had pointed out at the beginning of the session: the Council could do no useful work with such a heavy agenda.1 The Agenda Committee ought to have submitted a much shorter agenda. He himself had supported the French proposal to defer some item.2 The length of the agenda was the first cause of the Council’s 1 2

See supra, 176th meeting. See document E/C.3/5.

E/SR.201

1193

embarrassment; the second was the manner in which the Human Rights Committee had dealt with its work. In view of the circumstances he saw no alternative but to adopt course A. The Council ought to adopt a method of work enabling it to deal more fittingly with freedom of information, human rights and genocide. Henceforth it would be most important for the Agenda Committee to place no more than a reasonable number of items on the agenda. The President’s assumption that the session might end on 25 August was unrealistic, for if it adopted course A the Council could not finish its business before the end of the month. If that were made the deadline, the Council would be able to reach a solution that would be more satisfactory to some of its members. Some representatives were concerned at the idea that the competent committee would not be able to give due attention to such problems as freedom of information, and that documents would have to be submitted to the General Assembly, on which the Council had merely made general statements of principle. In reply to Mr. Hodgson (Australia), the President said that he had understood the United Kingdom representative to propose that the date for adjournment of the session should be fixed as 27 August; that the Human Rights Committee should be instructed to attempt to complete consideration of the three draft conventions on Freedom of Information before that date, and transmit them directly to the General Assembly, whether completed or not, without discussion in plenary; and finally, that the other items still on the agenda of the Human Rights Committee – namely items 17 and 19 – should be returned to plenary for general initial discussion. Mr. Phillips (United Kingdom) stated that he wished to make a further clarification in view of a point raised by the New Zealand representative. His proposal involved no unconstitutional procedure; the Council would formally decide to take no action on item 18, but to transmit the Human Rights Committee’s report to the General Assembly, whether examination of the three draft conventions on freedom of information had been completed or not. Mr. Hodgson (Australia) recalled that in the discussion which had taken place in the Human Rights Committee the previous afternoon, it had been argued that the Council was under a specific obligation to examine the

1194

E/SR.201

three draft conventions on freedom of information. He thought there was no need to remind the Council that it had a similar, but prior, obligation in respect of the Declaration on Human Rights. The Australian delegation was deeply interested in the Declaration on Human Rights and in the draft Convention on the Crime of Genocide, and was perturbed at the proposal to transmit them to the General Assembly after only general statements in plenary by individual representatives. His delegation was opposed to the irregular discrimination against two such important items which was clearly involved in the United Kingdom proposal. He shared the President’s doubts as to whether examination of the three draft conventions on freedom of information could be completed by 27 August. He supported the course proposed by the representative of Poland as the most practical and efficacious; and provided that there was hard work and a spirit of co-operation, it would ensure that examination of at least one document in each of the three fields of freedom of information, human rights and genocide would be concluded. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) felt that it would be difficult to reconcile the Canadian proposal that the Human Rights Committee should act as a plenary meeting of the Council with the Council’s rules of procedure relating to the convening of sessions. The United Kingdom proposal was contrary to normal procedure. The General Assembly would be seized not of draft conventions on freedom of information approved by the Council, but of new drafts of those conventions forced on the Committee by three representatives. Conventions drawn up by representatives of almost 60 countries ought not to be replaced, without Council approval, by a document submitted by three representatives. Replying to Mr. Phillips (United Kingdom), Mr. Hodgson (Australia) said that he agreed with the suggestion that certain items should be deferred. The Council should direct the Human Rights Committee to complete examination of the draft Convention on the Gathering and International Transmission of Information, then to pass on at once to the Declaration on Human Rights, and finally to the draft Convention on the Crime of Genocide; all that work should be completed by 27 August.

E/SR.201

1195

Mr. Phillips (United Kingdom) pointed out that the whole value of the Australian proposal rested on the assumption that it would be possible to conclude examination of the three documents mentioned by 27 August. But freedom of information was a subject that was already under discussion; the Committee should concentrate on disposing of it before embarking on the other two items. The representative of Poland had pointed out that the three draft conventions on freedom of information needed more careful examination and redrafting than the documents relating to human rights and genocide. He would not take up the Council’s time in replying in detail to the Soviet Union representative. It was obvious, however, that the United Kingdom proposal was designed only to speed up the work of the Human Rights Committee and to place before the General Assembly the best results that could be obtained in the circumstances. Mr. Mendès-France (France) thanked the President for his constructive work in presenting to the Council as accurate an account as possible of the state of its business and of proposed methods of organizing the work for the remainder of the session. His delegation had always been concerned about the dangers likely to beset the current session and had said how important it considered the Canadian representative’s note (E/965). The Council could obviously not go on arranging its business as it had done hitherto; it could not go on placing on its agenda countless heterogeneous problems suggested indiscriminately by various sponsors, for, by doing so, it would achieve nothing useful. His delegation was anxious to empower the Council to make a selection, and had therefore proposed a series of amendments to the rules of procedure.1 He was sorry that several of his colleagues had not attached the same importance to these proposals as he had himself. Presumably, they had not understood that his motive was to remove some undeniable defects. He was surprised to find the French proposal included among matters for which the President was proposing a summary procedure. So long as the Council omitted to take steps to fix the order of priority of proposed items, it would continue to be faced with the same difficulties. 1

See document E/751.

1196

E/SR.201

He supported the President’s proposals but suggested that a study of rules of procedure enabling the Council to work more satisfactorily in future should form part of the plans. He could not ignore the remarks of the Byelorussian and Soviet Union representatives who had implied that the difficulties encountered were caused by the working methods of the Human Rights Committee. They had said that the representatives of the United Kingdom, the United States and France had complicated the Human Rights Committee’s business by submitting joint amendments. He vigorously protested against that interpretation of the facts. The amendments had merely presented some previously known texts in orderly form with a view to facilitating discussion. The proposals they contained were much closer to the texts prepared by the Conference on Freedom of Information than were the numerous amendments submitted by the Soviet Union representative. He was not reproaching the Soviet Union representative for submitting – as was his indisputable right – a large number of amendments, some of them quite remote from the texts adopted by the Conference. But he would venture to say that those amendments had obstructed the proceedings in the Committee far more than the so-called “tripartite” proposals. Obstructionist tactics had been used in the Human Rights Committee against the texts under discussion; hence the delay. That stubborn resistance, which had been evident in the discussion of article after article and paragraph after paragraph, had been encouraged by the fact that in more than one case the drafts had been hastily improvised. The Committee had also yielded to the temptation to proceed too quickly. There was no doubt that the poor quality of the texts submitted had facilitated the opposition of those who wished to block progress. There was not a single one of his colleagues who was not aware of the truth of that statement. The Council had heard several suggestions concerning items on which there was no doubt. For example, if the Council, and the United Nations generally, wished to continue the work that had been started on freedom of information and of the Press, it must surely be agreed that resolution 39 should be adopted at the current session. If the Council failed to reach a decision thereon, the Sub-Commission on Freedom of Information and of the Press, which was due to meet in January 1949, would, under its

E/SR.201

1197

existing terms of reference, have to consider problems previously discussed at Geneva, with a consequent waste of time and money. Hence it was essential that the Council should take a decision during the current session on the terms of reference to be given to the Sub-Commission. The suggestions made by the President and by members of the Council could be divided into two groups: one comprising freedom of information, human rights and genocide, the other including the remaining suggestions. The President had submitted an objective and impartial paper, complete enough to permit conclusions to be drawn from it. Like certain other representatives, he (Mr. Mendès-France) favoured course A. The representative of the United Kingdom had proposed amending it in a way which he supported, subject to the following comments: First, the United Kingdom representative had proposed 27 August as the closing date. Members of the Council knew by experience that if that was to be the deadline, the session would continue until 30 August. It would be better to choose 24 August, with the knowledge that work would be likely to continue until 26 August. It was essential that all delegations should know what business was still before the Council and the date on which they could return home; 27 August was a week later than the date originally fixed. He thought it was a little too late. He asked the United Kingdom representative whether he did not consider it possible to close the session on 25 rather than 27 August. Secondly, he noted that the United Kingdom representative had suggested – and he approved that suggestion – that the Human Rights Committee should continue the study of the three conventions on freedom of information and carry it as far as possible before the end of the session. The three conventions should receive the same treatment, and if the Council transmitted them to the General Assembly, it should send them on all together. Several members of the Council had seemed disturbed at the idea of sending unfinished work to the General Assembly. Would it not be possible for the Council to consider the progress made by the Human Rights Committee at the end of the session, when it had examined the conventions before it as fully as possible in the time available, and then decide

1198

E/SR.201

what action to take? The documents could either be sent to the General Assembly by themselves or accompanied by certain recommendations. Thirdly, the United Kingdom representative had proposed that the draft Declaration on Human Rights and the draft Convention on the Crime of Genocide should be transmitted to the General Assembly as they stood. The French delegation accepted that proposal for the reasons given by the representative of Poland – namely, that the texts on human rights and genocide had been fully studied and were satisfactory in form. He fully agreed with the United Kingdom representative that the texts should be transmitted to the General Assembly in the hope that it would be able to reach a decision. Mr. P.C. Chang (China) agreed with the French representative that the session should be adjourned not later than 25 August, and said that several other representatives also appeared to have indicated their preference for an earlier date than that suggested by the President. It would be a dangerous precedent if extensions of Council sessions were to be reckoned in weeks rather than days. He was in general agreement with what had been suggested by the Canadian representative, except for the proposal to keep the Human Rights Committee in session after the completion of other business. It would certainly be desirable to hold two plenary meetings daily, and he agreed that it would be dangerous to go on piling up items to be deferred. The French representative and, he thought, all other representatives were beginning to realize the damage that might be done to the Council by such undignified last-minute deferment of items on the agenda, and to appreciate the urgent need to decide how many sessions should be held each year and how long they should last. The United States representative had said that the action of the General Assembly should not be restricted and that the different items referred to the Human Rights Committee should be treated with equal respect. Those principles were not contravened by course A suggested by the President, which would have the effect of returning to the plenary Council the three items relating to freedom of information, human rights and genocide, perhaps in different degrees of unpreparedness [sic] but none of them fully prepared. But the degree of unpreparedness [sic] did not affect the status of the texts. If the Human Rights Committee were instructed to

E/SR.201

1199

consider the three draft conventions on freedom of information, the draft Declaration of Human Rights and the draft Convention on the Crime of Genocide over the next ten days, their state of preparedness might be improved; but it could not be hoped that, within ten days, the five documents could be fully examined and recommendations made on them. He agreed with the representative of Chile that human rights was the most important question before the Committee. The implications of the Charter, and especially of Article 55, could not be clearly and comprehensively brought out without a declaration on human rights. Genocide and freedom of information were subjects of great importance, but they had not the same close connexion with the Charter. If course A were adopted, the Council should deal first with human rights, then with genocide, and finally with freedom of information, however far that item had advanced in the Human Rights Committee. In that connexion, he felt that it would be unwise to limit the Human Rights Committee too strictly to one meeting per day. Mr. Eren (Turkey) said that it was generally agreed that none of the items before the Human Rights Committee was of greater importance than the others. But in view of the shortage of time it was inevitable that the Council should single out one of those items for treatment, without prejudice to the importance of the other two. As freedom of information was already under discussion in the Committee on Human Rights, he supported the United Kingdom proposal. Mr. Arutiunian (Union of Soviet Socialist Republics) stated that his delegation fully supported the right of all representatives to make, and to defend against criticism, any amendments they wished. But if the delay in the work of the Human Rights Committee was to be ascribed to obstruction, as it had been by the French representative, then the responsibility lay with the French, United Kingdom and United States delegations, which had introduced basic amendments to the recommendations of the Commission on the Status of Women and to the draft Convention on the Gathering and International Transmission of News. In the case of article 5 of that draft Convention, for example, the Soviet Union amendments had not related to the original text, but to the joint amendment submitted by the delegations of France, the United Kingdom and the United States. The purpose of the Soviet Union amendments had usually been to restore the original text. The tendency of those delegations was

1200

E/SR.201

to regard any opposition to their views as obstruction; that attitude was inconsistent and provocative. He repeated that the Soviet Union delegation was interested in any proposal to speed up the work of the Council. It agreed that that work should be completed by 25 or 27 August. But it could not agree to freedom of information being given priority over genocide and human rights. It was only natural that the human Rights Committee should deal first and foremost with human rights. Mr. Phillips (United Kingdom) accepted the French amendment to his proposal. The President asked whether the Council wished the Human Rights Committee to resume work before a decision had been reached on the Council’s business in plenary. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) felt that there was no point in the Human Rights Committee meeting before the Council had reached a decision on a question which might fundamentally alter it [sic] existing programme of work. Mr. Thorp (United States of America) felt that the Council’s decision would be unlikely to alter the immediate programme of work of the Human Rights Committee. There seemed to be general agreement that examination of the draft Convention on the Gathering and International Transmission of News, which was then under consideration in the Committee, should be completed. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) said that he had raised no objection when, contrary to normal procedure, items under consideration in the Human Rights Committee had been discussed in plenary at a time when no members of the Committee could be present. He did feel it necessary, however, to object to the argument advanced by the United States representative. Until a decision had been reached by the Council on whether the Committee should continue its examination of the draft Convention on the Gathering and International Transmission of News, the Committee would not know what to discuss and might well enter into a debate that would duplicate the discussion in plenary.

E/SR.201

1201

The President put to the vote the proposal that the Human Rights Committee should continue its work during plenary meetings devoted to consideration of working arrangements for the session. The proposal was adopted by 12 votes to 2, with 4 abstentions. The meeting rose at 1.30 p.m.

1

Resumed from the 201st meeting.

1202

E/SR.202

TWO HUNDRED AND SECOND MEETING Held at the Palais des Nations, Geneva, on Tuesday, 17 August 1948, at 3 p.m. President: Dr. Charles Malik. 49. Continuation of the discussion on working arrangements for the session1 (E/979, E/984, E/985 and E/Conf.6/79) The President proposed taking as the basic document the Canadian draft resolution (E/984) which came nearest to the procedure normally followed by the Council – namely, to continue to work until its business was completed. Other proposals would be considered as amendments to that resolution. Mr. P.C. Chang (China) explained that he had made two informal proposals: (1) to examine in plenary, and not in the Human Rights Committee, first the draft Declaration on Human Rights and then the draft Convention on the Crime of Genocide; (2) to decide that the Human Rights Committee should work at a normal pace, holding one or two meetings a day. After the two items he had mentioned had been withdrawn from its agenda, the Committee should endeavour to complete its examination of the first draft convention contained in the Final Act of the Conference on Freedom of Information; if it succeeded in so doing, it should then proceed to the second and third draft conventions and should transmit them to the Council two days, or at least one day, before the end of the session, irrespective of the stage reached. That would be on 23 or 24 August. The Council, in plenary, would then deal with those draft conventions in the same way as with the draft Convention on the Crime of Genocide and the draft Declaration on Human Rights, and transmit them to the General Assembly. The Council should not sit later than 26 August. Mr. Arutiunian (Union of Soviet Socialist Republics) did not consider that the Chinese representative’s proposals were in conformity with course A as outlined in the President’s note, which implied that the three subjects of freedom of information, human rights and genocide would receive the same amount of consideration. If human rights and genocide were to be removed from the agenda of the Human Rights Committee, that Committee should be renamed, so that public opinion would not be misled. A Committee on Human Rights should consider matters pertaining to

E/SR.202

1203

human rights; the Soviet Union delegation did not consider it proper for those items to be taken out of the hands of the Committee. Mr. P.C. Chang (China) observed that he was mainly concerned to see the Committee finish the first draft convention which it had undertaken to examine. He would not object to a ruling that it might consider the other questions if it had time to do so. Mr. Arutiunian (Union of Soviet Socialist Republics) suggested that document E/979 should be taken as the basic document for discussion and that each of the courses A, B and C described therein should be voted on in turn. Mr. Thorp (United States of America) said that the proposals before the Council could be divided into three general categories: (1) the proposal to complete the work by giving each item the customary amount of consideration, and then transmitting it to the General Assembly; (2) the proposal to transmit certain items to the General Assembly in incomplete form; and (3) the most radical proposal, to refrain from considering certain items and not to transmit them to the General Assembly at all. There was also the question how far the items should be reviewed in committee. The Council should determine what the Human Rights Committee must do by the end of the session. The President thought that the proposals made by the United States and Soviet Union representatives were very similar, and that the categories 1, 2 and 3, to which the United States representative had just referred, closely resembled the courses A, B and C described in document E/979. M. Davidson (Canada) had no objection to the proposal that document E/979 should be taken as the basis of discussion. He wished to point out, however, that the Canadian proposal (E/984) differed from course C as outlined in that document. The Canadian delegation proposed that the Human Rights Committee should meet once daily, and that the Council should hold two plenary meetings daily, until 25 August. On that date the Council would review the position and decide on the items to be postponed and on the final method of disposing of the items referred to the Human Rights Committee. Since the Canadian proposal was not in conformity with course C or either of the other courses described in document E/979, he asked that it should be put to the vote first as an amendment to that document if the latter was to be taken as the basis of discussion.

1204

E/SR.202

Mr. Arutiunian (Union of Soviet Socialist Republics) approved of the procedure proposed by the procedure proposed by the representative of Canada. The question of procedure was very important since it would influence not only the Council’s future work, but also that of the General Assembly. Mr. Phillips (United Kingdom) said that he would not press for any particular order of voting; but he thought the Council should comply with the Canadian representative’s request and vote on his proposal first. He wished to propose that the Council should end its session on 25 August, instructing the Human Rights Committee to do its utmost to complete its work on the three draft conventions on freedom of information by that date. The Council would transmit to the General Assembly the results of the deliberations of the Human Rights Committee at whatever stage they might have reached, and without formal recommendation. Mr. P.C. Chang (China) wondered whether the Canadian proposal should not be considered as an amendment to course C described in document E/979 rather than an amendment to the whole of the document. He had comments to make on the substance of the Canadian proposal. It left some matters to a rather late hour; indeed it implied that the Council might decide, on the morning of 25 August, to revert to the original Canadian suggestion (E/965) and prolong the meetings of the Human Rights Committee. The Council could not work by such methods of work, nor could the Secretariat. The closing date of the session must be determined forthwith. A week or more could not be allowed to pass without any decision. Moreover, the Canadian representative had suggested that the Human Rights Committee should continue to work at its previous pace; he (Mr. Chang) did not think it would be likely to accomplish anything by following that method. It was clear that the difficulties which had arisen were due to the slow progress so far achieved. He suggested that a vote should be taken first on course A, then on course B, then on the new Canadian proposal (E/984), to be considered as an amendment to course C, and, finally, on course C itself. The President observed that the purpose of the debate was to reach a decision at that meeting on working arrangements. To postpone the decision until one week later would cause difficulties both to himself, in the preparation of the Report, and also to the Secretariat. He then put the Canadian draft resolution (E/984) to the vote.

E/SR.202

1205

The Canadian draft resolution was rejected by 12 votes to 3, with 3 abstentions. Mr. Mendès-France (France) explained that he had abstained from voting on the Canadian proposal because its adoption would only have resulted in the postponement of a number of decisions which urgently needed to be taken. On the other hand, he could not vote against the Canadian proposal because it provided, in paragraph 3, that certain other decisions should be postponed until 25 August, and the French delegation had already agreed that it would be better to wait till the end of the session before deciding whether certain items should be transmitted to the General Assembly and, if so, in what form. The President re-opened the discussion on courses A, B and C (E/979). Mr. Davidson (Canada) enquired whether the adoption of course A would mean that the first draft convention on freedom of information would be returned to the Council so that some decision could be reached in plenary, or that the Human Rights Committee would be able to complete its discussion of that convention. The President replied that, if course A were adopted, that question would remain open. It might be settled by vote after the adoption of a solution on the lines of course A. However, if the Council adopted course A, the Human Rights Committee would not be able to examine the other two conventions. Mr. Borberg (Denmark) hoped that each representative would have an opportunity of making a final statement in plenary on the items referred to the Human Rights Committee; such statements need not take more than five minutes. The President put courses A, B and C to the vote in turn, counting only votes cast in favour of each course; he explained that only the principle was to be decided at that stage, details being arranged later. The result of the vote was as follows: Course A, 11; Course B, 3; Course C, 4. There being no objection, the President announced that the Council would adopt a method of work conforming to the principle laid down in course A (E/979).

1206

E/SR.202

He then put to the Council the Danish representative’s suggestion that each delegation should be given an opportunity to state its final position on items 17, 18 and 19, in one short statement in plenary. The suggestion was adopted. Mr. Thorp (United States of America) pointed out that all interested countries would have a clearer idea not only on the first draft convention on freedom of information, but also on the others, if the discussion on the first convention could be brought to a conclusion by the Human Rights Committee. If that were done, the results of the Committee’s deliberations should be dealt with summarily by the Council and transmitted to the General Assembly for consideration, together with items still on the agenda of the Human Rights Committee. He felt that it would be best to apply the same principle to all those items – namely, transmission without formal recommendation. The President stated that the three items in question would be transmitted to the General Assembly with a statement explaining that each delegation had been permitted to speak only once to define its general position on each item, and with a record of the views thus expressed. Mr. Arutiunian (Union of Soviet Socialist Republics) thought that the principle of making no formal recommendation on the first draft convention on freedom of information was implicit in the adoption of course A. That course was to send items 17, 18 and 19 to the General Assembly without debate or decision other than a decision to transmit them together with a statement of the position taken by each delegation. Hence the three items would not be discussed in plenary in any case. If any decision was needed on the substance of the items referred to the Committee, it was needed primarily on matters relating to human rights. Since such matters were not to be discussed, it was quite unnecessary to spend time in discussing the conventions on freedom of information, the more so since those conventions were so far from being adequately prepared that if the Council discussed the texts as they stood, it might never reach a conclusion. Mr. Mendès-France (France) pointed out that all delegations seemed to agree that the three draft conventions on freedom of information should be dealt with in a similar way, that the same decision should apply to all

E/SR.202

1207

of them and that they should not be separated by procedure at any point. But item 18 of the agenda included a great many resolutions, apart from the draft conventions, and he did not think that they could all be dealt with by a single vote. The Council should in any case examine resolution No. 39 of the Conference on Freedom of Information within the framework of the decision it had just adopted. He asked the President when the vote on that resolution was to take place and whether it would be in Committee or in plenary. The Council would also have to adopt resolutions transmitting to the General Assembly the documents relating to human rights, genocide and freedom of information, after each delegation had defined its position in plenary. It would thus have to vote on three resolutions – one would be sufficient for the three draft conventions on freedom of information. The French delegation reserved the right to make proposals on the wording of those resolutions at the appropriate time. Finally, the Council must know the date on which its session was to end. The President’s note stated that if course A were adopted, the session might end about 25 August. It would be desirable for the Council to express its opinion, in order to determine the closing date more definitely. The President said that it would be for the Council to decide whether the resolutions of the Conference on the Freedom of Information should be considered as well as the conventions. With regard to the resolutions transmitting items 17, 18 and 19 to the General Assembly, he said that he would suggest appropriate wording when they were dealt with in plenary. He felt that if the Council co-operated fully the session might close on 25 August. Mr. Walker (Australia) suggested amending the second line of paragraph 2 of the United Kingdom proposal (E/985) by inserting the words “first of the” before the word “conventions”; that proposal could then be taken as a basis for discussion. Mr. Phillips (United Kingdom) said that he wished to maintain his proposal that all three conventions should be dealt with by 25 August. The President, replying to Mr. Arutiunian (Union of Soviet Socialist Republics) said that the United Kingdom proposal was not before the

1208

E/SR.202

Council, as course A in document E/979 had been adopted. The wording of the United Kingdom proposal, as amended by the Australian representative, conveyed the meaning of the proposal made by the United States representative. Mr. Phillips (United Kingdom), replying to Mr. P.C. Chang (China), said that if the Human Rights Committee could finish discussing only one of the conventions on freedom of information, he would, of course, agree to that procedure rather than that all three conventions should be transmitted to the General Assembly without any further examination by the Committee. He would prefer, however, that all three conventions should be dealt with. Mr. Arutiunian (Union of Soviet Socialist Republics) proposed that paragraph 2 of the United Kingdom proposal (E/985) should be amended to read: “The Human Rights Committee is instructed to proceed to the examination of the Report of the Commission on Human Rights and of the Report of the ad hoc Committee on Genocide.” Mr. van der Mandele (Netherlands) thought that the Human Rights Committee should not change the order of items on its agenda at that stage in its work. In the Report of the Commission on Human Rights,1 five pages were devoted to amendments to the draft Declaration on Human Rights; there were also a large number of amendments to the Convention on the Crime of Genocide. It would be impossible for the Human Rights Committee to finish its work if all the documents had to be considered. The Netherlands delegation supported the United States proposal, although it felt that the Human Rights Committee might consider further items when it had finished discussing the draft Convention on the Gathering and International Transmission of News. The President ruled that the amendment submitted by the Soviet Union representative and the suggestion by the Netherlands representative were out of order, as they went beyond the scope of course A, which had already been adopted by the Council. Mr. Arutiunian (Union of Soviet Socialist Republics) considered that the three draft conventions on freedom of information could not be dealt

1

See Supplement No. 2 (E/800).

E/SR.202

1209

with separately. To examine one of them only would be going against the Council’s decision. All three should receive equal treatment, and rather than continue the discussion of one of the conventions, the Human Rights Committee should discuss the Report of the Commission on Human Rights. His delegation would vote against the United States proposal. Mr. Thorn (New Zealand) said that his delegation would vote in favour of the United States proposal. The President, replying to Mr. P.C. Chang (China), said that after the Human Rights Committee had finished discussing the draft Convention on the Gathering and International Transmission of News it would take up one or two remaining questions relating to the status of women. Mr. Smoliar (Byelorussian Soviet Socialist Republic) felt that the three conventions on freedom of information should receive equal treatment. It would not be in order for the Human Rights Committee to consider only one of them. He considered that the decision of the Council had not been correctly interpreted by the President. Mr. Thorp (United States of America) said that if all three conventions on freedom of information were to receive equal treatment at the current session it would be necessary to undo all the work already done by the Human Rights Committee and to transmit the first draft convention to the General Assembly as originally drafted, together with the other two. He felt that that would be a most wasteful procedure and hoped that his proposal would be adopted. Mr. P.C. Chang (China) suggested that the items returned to plenary from the Human Rights Committee should be considered in the following order: (1) human rights; (2) genocide; (3) the three draft conventions on freedom of information. He proposed that the directive to the Human Rights Committee should be worded as follows: “The Human Rights Committee should do its utmost to finish consideration of the draft Convention on the Gathering and International Transmission of News within three four [sic] meetings”. Mr. Thorp (United States of America) suggested that the words “by the end of this week” should replace the words “within three to four meetings”. The President put to the vote the directive to the Human Rights Committee proposed by the Chinese representative, as amended by the United

1210

E/SR.202

States representative, with the informal understanding that he would arrange an appropriate schedule of meetings. The proposal was adopted by 15 votes to none, with 3 abstentions. Mr. Arutiunian (Union of Soviet Socialist Republics) requested that meetings of the Human Rights Committee should be scheduled so as not to coincide with the consideration in plenary of questions concerning human rights and genocide. He also asked that the remarks of the Chairman of the Human Rights Committee and the Canadian proposals (E/965) regarding the number of meetings to be held by that Committee should be taken into account. Mr. Thorp (United States of America) said that if each delegation was to have the opportunity of speaking only once on any one item in plenary, the representative speaking last would have an advantage over the others. He therefore suggested that lots should be drawn for position on the President’s list of speakers, or some similar system be adopted. Mr. Arutiunian (Union of Soviet Socialist Republics) did not agree with the United States proposal and considered that the usual practice should be followed when representatives wished to speak. He proposed that the Council should pass on to paragraph 4 of document E/979, concerning postponements. Mr. Mendès-France (France) asked when resolution No. 39 of the Conference on Freedom of Information would be discussed in plenary. Mr. Arutiunian (Union of Soviet Socialist Republics) said that his delegation considered that resolutions Nos. 2 and 3 were even more important than resolution No. 39, and suggested that the matter should be discussed at the following plenary meeting or left to the Human Rights Committee to decide. Mr. Santa Cruz (Chile) supported the proposal that the question of the resolutions of the Conference on Freedom of Information should be left to the Human Rights Committee to decide. Mr. Mendès-France (France) felt that it would be illogical to ask the Human Rights Committee to deal with the question of the resolutions, when the Council had already decided to relieve it of the greater part of its task. He submitted a formal proposal that as soon as the plenary

E/SR.202

1211

debate on the draft conventions on freedom of information was finished, the Council should examine resolution No. 39. The French delegation thought that the other resolutions might also be examined by the Committee or the Council. Mr. Arutiunian (Union of Soviet Socialist Republics) said that if it were not left to the Human Rights Committee to decide what should be done with the resolutions, he would suggest that the French proposal be amended to include resolutions Nos. 2 and 3. Mr. Phillips (United Kingdom) supported the French proposal, as resolution No. 39 concerned the terms of reference of the Sub-Commission on Freedom of Information. The President put to the vote the Soviet Union proposal that the question of the resolutions of the Conference on Freedom of Information should be referred to the Human Rights Committee for its decision and recommendations to the Council. The proposal was rejected by 11 votes to 3, with 3 abstentions. The President then put to the vote the Soviet Union proposal that resolutions Nos. 2 and 3 should be discussed in plenary. The proposal was rejected by 7 votes to 2, with 7 abstentions. The President then put to the vote the French proposal that immediately after the three draft conventions on the freedom of information had been disposed of by the Council in plenary in the manner decided upon, the plenary meeting should consider resolution No. 39. The proposal was adopted by 13 votes to 2, with 3 abstentions. The President passed on to the question of postponements, outlined in paragraph 4 of document E/979. He suggested that the items listed for postponement could be put to the vote separately. Mr. Monge (Peru) opposed that suggestion, as it would be difficult for delegations to vote for the postponement of items without previously having heard the objections. The President replied that the postponement of certain items was implicit in course A, which had been adopted by the Council, and that the Polish

1212

E/SR.202

amendments regarding postponements submitted at the previous meeting were in keeping with that decision. Mr. Mendès-France (France) thought that as the half-hour rule outlined in the President’s note was only an emergency measure for rapid consideration of items, the stipulated half-hour should be equitably shared by all speakers. The President replied that he thought it would be reasonable if three members were allowed to speak for a maximum time of 10 minutes each. Mr. Arutiunian (Union of Soviet Socialist Republics) thought that the half-hour rule should not be adopted as it would create a dangerous precedent. Moreover, it would hardly be possible to allow only three views to be expressed on the items listed. Each representative had a right to speak before the Council, and there was no rule under which that right could be denied. Such a proposal was contrary to the democratic principle of freedom of speech in the Council. If items were placed on the agenda they should be discussed in the normal manner with no time-limit. He could agree to the proposed postponements, with the Polish amendment deleting item 32 from the President’s list and adding items 11, 26, 31 and 45. The President replied that the Council could not finish its work unless some time-limit were established for certain items which could be quickly disposed of by the Council. Mr. Thorp (United States of America) said that the dignity of the Council was not enhanced by the length of the speeches made, and that if some method could be found of limiting statements on the items listed, he would support it. He suggested the retention of item 48, which could be disposed of without definite action by the Council. Similarly, item 11 should also be retained, as it merely entailed the approval by the Council of the preparatory work for the United Nations Scientific Conference on the Conservation and Utilization of Resources. Such approval was essential if the Conference was to be held on the date planned.

E/SR.202

1213

Mr. Kaminsky (Byelorussian Soviet Socialist Republic) wished to know on what rule of procedure the so-called half-hour rule was based. Under rule 57, the time allowed to speakers could be limited but there was no rule limiting the number of speakers on a given item. If necessary, the closure of the debate could be moved during discussion of any of the items listed by the President. He agreed with the Soviet Union representative that adoption of the half-hour rule would be unwise and would lower the dignity of the Council. He disagreed with the United States view that item 11 could be quickly dealt with by the Council. On the contrary, it was a most controversial item which would require much time to discuss. Similarly, item 48 could be postponed and more conveniently dealt with when the International Refugee Organization was constituted as a specialized agency and its relationship with the United Nations clearly defined. The President reminded the Council that by adopting course A, it had agreed that some time-limit was necessary for the items listed. That requirement did not, however, apply to other items. Mr. Monge (Peru) thought item 50 should be retained on the Council’s agenda. The countries of the Amazon Basin – an area of 2 million square kilometres and probably the greatest reserve of unexplored territory in the world – could, of course, convene a Conference independently of the United Nations; but that would mean that they would be deprived of both the experience and the prestige of that organization. It was, moreover, a question that could be discussed within the half-hour time limit. After 31 December 1948, Peru would no longer be represented on the Council and would therefore be unable to speak on the question at the next session. He felt it his duty, therefore, to urge that item 50 be considered by the Council during the current session. Mr. Lange (Poland) agreed with the representatives of the United States and Peru that items 11 and 50 should be retained. He therefore modified his original proposal, and suggested deferment of items 26, 31 and 45, together with all the items listed by the President, except items 32 and 50. Mr. Mikaoui (Lebanon) could not agree to the deferment of item 10, since the establishment of an Economic Commission for the Middle East was earnestly desired by his country and its neighbours.

1214

E/SR.202

Mr. Davidson (Canada) thought there was little to be gained from deferring item 26, as suggested by the Polish representative; it was difficult to separate it from items 28 and 29, which, in any case, would not give rise to prolonged discussion in the Council. Mr. Phillips (United Kingdom) said that his position would be made clear by his vote on the various items; in his opinion neither item 11 nor item 48 would require lengthy discussion in the Council. He was in favour of the half-hour rule, which was not undemocratic and would be extremely salutary. It would, moreover, only have to be adopted for the current session, as an emergency measure. Mr. Santa Cruz (Chile) opposed the postponement of item 10 for the reasons his delegation had advanced in the Agenda Committee,1 and also for those put forward by the Lebanese representative. He also opposed the postponement of item 11, and the Polish proposal to defer item 45, since revision of the rules of procedure would facilitate the work of the Council at its next session. He endorsed the arguments advanced by the Peruvian representative for the retention of item 50. Mr. Mendès-France (France), while approving the suggestions for shortening the Council’s programme of work, agreed with the representative of Chile in opposing the Polish proposal to defer item 45. Revision of the rules of procedure applying to the Agenda Committee was most urgently required. Such revision would facilitate the handling of the Council’s agenda at its next session. He shared the view that item 48 should also be retained, as the further delay of six months which would result from its deferment until the next session would cause undue hardship to families which the International Refugee Organization was seeking to assist. Mr. Arutiunian (Union of Soviet Socialist Republics) thought that the Council must adopt a realistic attitude towards the remaining items on its agenda if it were to conclude its work by 25 August. The remaining time was hardly sufficient to deal with items other than those which the President thought could be disposed of under the half-hour rule. For example, it would be impossible to conclude consideration of the Report of the Economic Commission for Latin America in less than two meetings.

1

See document E/C.3/SR.8.

E/SR.202

1215

Some limitation was therefore necessary if the Council was to finish its work; but it should be understood that in international conferences accredited representatives of sovereign States could not be restricted in the expression of their views. He objected strongly, in principle, to any measure tending to limit statements on the remaining items of the agenda. The Soviet Union delegation was not afraid of discussing those items at length. He reminded the Peruvian representative that his country could be elected as a member of the Council a second time; hence there was every possibility of his being able to speak on item 50 at the next session. The Soviet Union delegation favoured postponement of the items listed by the President and supported the Polish amendment to that list, but opposed any application of the half-hour rule. Mr. d’Ascoli (Venezuela) agreed with the Lebanese representative that the establishment of an Economic Commission for the Middle East should be discussed at the current session; he also agreed with the United States representative that item 11 should be retained, as its postponement would mean retarding the preparatory work for the United Nations Scientific Conference on the Conservation and Utilization of Resources. Item 32 should also be retained, and he shared the French representative’s views on the urgency of item 45. He would not add to the reasons already stated by the Peruvian representative for retaining item 50. It would be impossible for the Council to complete its work by 25 August, and he thought it preferable to continue after that date in order to consider the items he had mentioned. Mr. Borberg (Denmark) agreed with the Soviet Union and Byelorussian criticisms of the half-hour rule; there was nothing in the rules of procedure which warranted its adoption. In order to curtail discussion of the items in question, he suggested that the Council should invoke rule 57, under which the time allowed to speakers could be limited. He also proposed that statements on those items be limited to five minutes, and that if the debate continued too long, the closure should be moved under rule 58. That proposal should replace the half-hour rule suggestion. The President said that he was prepared to withdraw his proposal to adopt a half-hour rule in favour of the Danish proposal, since the objective was the same.

1216

E/SR.202

Mr. Thorn (New Zealand) agreed with the Soviet Union representative that it would be impossible to deal with the rest of the agenda without postponing certain items. His attitude to the various items to be postponed would be made clear during the voting; but he wished to support the views of the various delegations which favoured postponement of item 10. That item could not be disposed of in less than three or four plenary meetings and under those conditions it would be ridiculous to consider it at the current session. He was satisfied that no harm would be done in postponing it, particularly as circumstances in the Middle East were not favourable to its discussion at that time. The President suggested that the various items of which postponement had been proposed should be dealt with in the following way : an initial vote would be taken on whether postponement was necessary, it being understood that if the decision was negative, the items would be disposed of in plenary at the current session in accordance with the Danish proposal. Mr. Thorp (United States of America) said that he would sponsor the items on the President’s list. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) thought this procedure too complex and suggested the Council should first merely vote on whether the items in question were to be postponed or not. The President replied that that would not allow for dealing with those items which could be disposed of at the current session by imposing a time-limit. A simple vote on postponement was not enough. Mr. Arutiunian (Union of Soviet Socialist Republics) stated that if the Council decided to postpone certain items to the next session, it did not necessarily follow that they would in fact be considered at that session. He thought that the Polish amendment should be voted on first. The President put the postponement of item 3 to the vote, on the understanding that if it were not postponed a further vote would be taken on whether to apply rule 57 of the rules of procedure or to retain the item for disposal in the normal manner. It was decided, by 15 votes to 3, with 2 abstentions, not to defer item 3.

E/SR.202

1217

Mr. Arutiunian (Union of Soviet Socialist Republics) objected to the general application of rule 57 before items were discussed. That rule could only be applied during the discussion of specific items. Mr. Borberg (Denmark) stated that if there was nothing in the rules of procedure to justify application of the half-hour rule, neither was there any indication as to whether rule 57 could be applied before, as well as during, a discussion. Moreover, it had not been his intention that the rule should be applied to all items. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) requested the Danish representative to reconsider his proposal, as it would be incorrect to adopt the principle of limiting the time allowed to speakers before it was known on what questions they would be speaking. Mr. Arutiunian (Union of Soviet Socialist Republics) supported that view, since the Danish proposal was based on rule 57, taken out of its context. It would be perfectly in order for the Danish representative to move the limitation of time allowed to speakers during the discussion of an item, but any formal decision in advance would be out of order, and not be in keeping with the spirit of the rules of procedure. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) said that a similar proposal had been made in the Human Rights Committee of which he was Chairman. He had ruled such a proposal out of order and suggested that the President do likewise. Mr. Santa Cruz (Chile) thought the Soviet Union interpretation of rule 57 was correct, and that it should only be applied in individual cases. The problem could be solved if the President ruled, on each particular item, whether the Council was to treat that item briefly or in the normal manner. Mr. Borberg (Denmark) said that there was no rule of procedure which gave any reason why he should withdraw his proposal. He could not accept the Chilean suggestion, as there was nothing in the rules of procedure which defined what was a normal debate and what was a brief one. If such a suggestion were adopted it might lead to further discussions of procedure when each item came up for consideration. The President made it clear that the half-hour rule did not constitute a formal proposal, but merely an indication to the Council that some

1218

E/SR.202

limitation of discussion on the items listed for postponement in document E/979 was necessary. Mr. van der Mandele (Netherlands) supported the Danish proposal, and agreed that the half-hour rule was impracticable. Certain items obviously had to be discussed in a limited time and if the limitation suggested by the Danish representative was to be applied only during the discussions themselves, the result would be further arguments regarding procedure. The President explained that the half-hour rule in fact meant that, after the stipulated half-hour, the President would be empowered to propose the closure of the debate. Such a proposal need not of course be adopted. Mr. Davidson (Canada) was convinced that rule 57 should only be applied when individual items were under discussion and not in advance. However, the common-sense procedure would be to decide forthwith which items should be retained and which postponed, and leave it to any member of the Council to propose the application of rule 57 when he considered it necessary. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) thought the President should make a definite ruling as to whether the Danish proposal was in order or not. The President replied that he agreed with the Canadian, Soviet Union and Byelorussian interpretations of rule 57 and that, in this sense, he ruled the Danish proposal out of order. If his ruling were challenged, it could be decided by a vote. Mr. Mendès-France (France) could not agree with the President’s ruling since all the Danish proposal meant was that rule 57 would be applied to certain specific items before they were discussed. There was nothing in the rules of procedure to prevent such a decision. Mr. Arutiunian (Union of Soviet Socialist Republics) formally moved the adjournment of the meeting. The President put the proposal for adjourment [sic] to the vote. The proposal was adopted by 9 votes to 7, with 2 abstentions. The meeting rose at 8.15 p.m.

E/SR.218

1219

TWO HUNDRED AND EIGHTEENTH MEETING Held at the Palais des Nations, Geneva, on Thursday, 26 August 1948, at 3 p.m. President: Dr. Charles Malik Acting President: Mr. Hernán Santa Cruz 76. Draft Convention on the Crime of Genocide (E/794,1 E/794/Corr.1 and E/AC.27/1) The President called for general statements on the draft Convention on the Crime of Genocide (E/794, annex). Mr. Evatt (Australia) said that the Council had before it a draft Convention declaring genocide to be a crime under international law. Genocide was a deliberate act committed with the intent of destroying a group to which exception was taken because of its national or racial origins, or religious beliefs. History provided many instances of genocide, but after the First World War many had come to regard it as an uncivilized action which the world had grown out of. Unfortunately, some of the worst acts of mass destruction in history had subsequently been perpetrated by the Hitler regime of Nazi Germany, upon grounds of racial or national origin. The United Nations should do everything in its power to prevent a recurrence of such crimes and to punish the perpetrators. The first action taken by the United Nations in regard to genocide had been the adoption of General Assembly resolution 96(I) in December 1946, in which it had been affirmed that genocide was a crime under international law, and the Council had been requested to undertake the necessary studies with a view to drawing up a draft convention to be submitted to the regular session of the General Assembly in 1947. A draft convention had been prepared by the Secretariat and considered briefly by the Council. In November 1947, the General Assembly had adopted resolution 180(II) requesting the Council to continue its work, including the study of the draft convention prepared by the Secretariat, and to proceed with the completion of a convention. At its sixth session

1

See Supplement No. 6.

1220

E/SR.218

the Council had appointed an ad hoc Committee1 which had examined the Secretariat’s draft and prepared a new draft convention. At the current session, the Council had found itself unable, owing to lack of time, to consider that draft convention in any detail. He strongly urged that such a situation should not be permitted to continue. It was two years since the General Assembly had first asked for a convention on genocide. When it met in Paris in a month’s time, it should examine in detail the draft Convention prepared by the. ad hoc Committee, and adopt a final convention which could be submitted to Members for ratification. Genocide was separate from the general question of human rights, and the adoption of a convention on the subject should not necessarily be dependent upon work which the United Nations was doing in the field of human rights. The draft Convention on Genocide was far more specific than the draft Declaration of Human Rights; it contained provisions for the implementation of general principles. For example, it provided that genocide should not be considered as a political crime and that it should constitute grounds for extradition. The work of the Nuremberg Tribunal had not been sufficient to release the United Nations from the duty of adopting a convention. He desired an instrument which was not merely a dictate of conquerors to a defeated people, but an agreement freely entered into by sovereign peoples, and which declared genocide to be a crime even if committed in time of peace. There were controversial clauses in the draft Convention; some Governments had objected to political groups being included in it. Others felt that it would be going too far to lay down that minorities should be allowed in all circumstances to use their own language in schools, since that might prevent the assimilation of immigrants. There was some substance in the objections that had been raised; he suggested that it was the function of the General Assembly to examine each of them and to try to secure agreement on a draft that would satisfy all the points of view expressed. It might not be possible at that stage to obtain agreement on all points, but that should not prevent the United Nations from adopting a convention including everything upon which general agreement had been reached; at a later stage, a supplementary convention could be drafted 1

See Economic and Social Council Resolutions, sixth session, resolution 117(VI).

E/SR.218

1221

to cover any questions left open. Such a method had been adopted, for example, by the International Labour Organisation, which over the years had established agreement on an increasingly wide range of industrial and labour problems. He therefore appealed to Members of the United Nations to endeavour to secure approval of the Convention on the Crime of Genocide at the next session of the General Assembly. If the Convention were approved, the United Nations would have taken a notable step towards fulfilling one of the obligations laid down in Article 13 of the Charter – namely, “encouraging the progressive development of international law and its codification”. Mr. Santa Cruz took the Chair. Mr. Perez Perozo (Venezuela) said that as long ago as 1946 when the General Assembly had recommended that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide,1 the Venezuelan delegation, both in the General Assembly and in the Council, had co-operated in the endeavours to achieve that worthy aim. Venezuela had also been appointed a member of the drafting committee which had prepared the draft Convention before the Council. His delegation considered the Convention as the most efficient means of attaining the aim set by the General Assembly. A strict application of the Convention would make genocide impossible; but his delegation felt that it should contain only those provisions acceptable to the largest possible number of Governments so that their ratification might be secured. Hence, he would prefer that, to begin with, the Convention should be on less ambitious lines than those adopted by the Committee in preparing its draft. He did not approve of the establishment of international criminal jurisdiction contemplated in the draft Convention. Contracting States should merely undertake to adopt domestic legislation to prevent and punish genocide as a criminal offence. The United Nations, or its Members, should not be able to intervene except in cases of non-performance of 1

See General Assembly Resolutions, first session, second part, resolution 96(I).

1222

E/SR.218

the obligations thus contracted. That was his interpretation of the General Asembly’s [sic] intentions and he thought that the establishment of international jurisdiction went beyond them. If an international tribunal were established as planned, States would be relinquishing their domestic criminal jurisdiction, and would be undertaking to hand over their own nationals to external jurisdiction; that was inconsistent with the classic principles of sovereignty. Sovereignty had, of course, been undergoing limitations in recent times, but such limitations were voluntarily accepted. Many States might quite possibly refuse to sign the Convention as it stood, and that would mean failure on the part of the General Assembly in its campaign against the scourge of genocide. His Government also had objections to the establishment of the proposed tribunal on the grounds that it might give rise to disputes and differences and thus endanger peace. It should be remembered that the draft Convention referred not only to ordinary individuals but also to members of governments as authors of the crime; that was in conformity with General Assembly resolution 96(I). Thus the ad hoc Committee had had to contemplate the possibility of international police action; there was therefore a danger that the United Nations might jeopardize peace in order to punish a crime which might be prevented and punished by other means. Moreover, it was easy to picture the difficulty of bringing to judgment the corporate bodies which, as a general rule, were the perpetrators of the crime of genocide. The Venezuelan Government did not approve of the inclusion of political groups among human groups to be protected by the Convention. The choice of groups protected should, he felt, be based on permanent and easily recognizable criteria : that of blood for racial groups and that of the Mother Church for religious groups. Political groups lacked permanence; their inclusion in the Convention would be tantamount to the protection of conspiracies and plots and thus place certain governments under the constant threat of being accused of criminal acts. Moreover, the fear of impairing their power to take defensive action against domestic disorders might prevent many States from signing the Convention. He recognized the necessity of protecting political groups, but thought that protection should be ensured by other means, in particular by absolute respect for guarantees of individual rights, as recognized in the Constitutions of all countries.

E/SR.218

1223

Turning to the question of “cultural” genocide, he supported the inclusion of that crime in the Convention. Although not presenting the horrifying aspects of mass murder, acts of brutality against the spirit and culture of a human group were one of the surest ways of exterminating it. Nor should it be forgotten that the General Assembly had wished not only to punish genocide, but to prevent it. However, certain other considerations impelled him to disapprove of the form in which cultural genocide was defined in the draft. Article III introduced elements which could easily lead to confusion: languages, publications, museums, etc., were all jumbled together. The general public would find it difficult to understand how, under the concept of genocide, massacres of human groups and denial of the right to teach a particular language in schools could be put on the same plane. Moreover, several of the matters listed in the article were already covered by other conventions or domestic legislation. For those reasons, he wished article III to be reduced to its proper proportions and the concept of cultural genocide limited to brutal acts of collective violence against the culture or religion of a specific group. He was convinced that the Members of the United Nations would be unable to close their ears to the universal demand for the suppression of genocide by international co-operation. The Convention seemed the most appropriate means to achieve that end, but the draft should be revised with full realization of the value attached by many States to certain principles. In reply to the sceptics, it could be pointed out that the conclusion of a convention was but one of the means of international action, which would be supplemented by other means tending indirectly to the same end, such as measures to protect minorities. It might even be conceded that the campaign against genocide would become unnecessary as soon as States adopted energetic measures to prevent discrimination within their territories, since every act of genocide was based on discrimination. In his view, the Council should decide to transmit the draft Convention to the General Assembly, possibly pointing out that it had been prepared by the ad hoc Committee which the Council had set up to fulfil the task entrusted to it. He reserved the right of his delegation to submit further observations during discussion in the General Assembly.

1224

E/SR.218

Mr. Stephens (Canada) recalled that the Canadian delegation had already given some evidence of the importance it attached to the question of genocide by supporting the view that the draft Convention should be the first of the human rights items to be discussed in committee after the Report of the Commission on the Status of Women. The Council would also recollect that, during the discussion on the working arrangements for the session, the Canadian delegation had argued with some insistence that all items on the agenda should be fully and conscientiously discussed in the Council, and should not be summarily transmitted to the General Assembly. No one would therefore be surprised at his regret that the draft Convention on Genocide would not be the subject of detailed criticism and debate in the Council and that such an important question, which for two years had been passed back and forth between various bodies of the United Nations, would once again reach the General Assembly without having undergone the thorough examination by the Council which it both deserved and required. The time had come, however, for the establishment of a clearly and closely defined rule of law in respect of genocide, and he hoped that the General Assembly would have time to undertake the necessary consideration and action. It was his belief that the Canadian Government, convinced of the necessity of preventing and punishing that most detestable mass crime, would be prepared to support the Convention on Genocide, with suitable amendments. His Government raised a major objection to only one of the 19 articles contained in the draft – namely, article. III, relating to “cultural” genocide. He wished to state categorically that the Canadian Government and people would regard with the utmost abhorrence “any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief ”. Canada was a country with two main and abiding cultural traditions, and with a great variety of minority groups. He knew of no country where the government, and the people generally, were more concerned to ensure the preservation of the culture, language or religion of minority groups. Nevertheless, his Government was opposed to inclusion under the term “genocide”, and within the framework of the Convention, of a form of

E/SR.218

1225

cultural destruction which appeared to it to be wholly and essentially a matter of minority rights and would, as such, best be dealt with in the Covenant on Human Rights. It was a far cry from the unspeakable crimes which had been perpetrated at the Nazi crematoria, and which had so fundamentally shocked mankind, to the prohibition of the use of a museum cherished by some particular cultural group or other acts of cultural repression, deplorable and revolting though they might be. He felt, therefore, that the Convention on Genocide would be weakened if “physical” and “cultural” genocide were placed on the same level by the retention of article III. The Convention would enjoy the overwhelming popular support of decent people throughout the world, if they understood that it was intended to prevent and punish the slaughter of whole racial, national, religious or political groups. They would then understand what was meant by “genocide” and would support its eradication. But if the term were broadened to include the suppression of a minority-language newspaper or the closing of a school, confusion would inevitably ensue. He stressed, however, that his Government would welcome early action to outlaw such discrimination or persecution by means of a suitable instrument. He also wished to point out that “cultural” genocide was not included in the terms of reference given to the Council by the General Assembly in resolution 96(I), which defined genocide as follows: “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 analogy made by the General Assembly between genocide and homicide was clear; no one would suggest that to prevent an individual from speaking his native language could possibly constitute homicide. The Canadian delegation trusted that the General Assembly would adopt the draft Convention on Genocide, amended by the deletion of article III; its adoption would mark a great advance in the development of public and international morals and in the means to ensure respect for moral standards. Finally he expressed his appreciation to those responsible for drawing up the Report and the draft Convention. Mr. Cha (China) said that the preamble to the draft Convention laid unnecessary and undesirable emphasis on the International Military

1226

E/SR.218

Tribunal at Nuremberg. He did not need to tell the Council that, during her long history, China had witnessed many instances of genocide, in peace-time as well as in war-time. The Chinese people had been deeply shocked by the revelations made at Nuremberg. But specific mention of the Nuremberg Tribunal alone might create the false impression that genocide was a new crime, and one confined to Europe. The Chinese delegation welcomed the resolution of the Commission on Narcotic Drugs (E/AC.27/1) which recommended “that the Economic and Social Council ensure that the use of narcotics as an instrument for committing a crime of this nature be covered by the proposed Convention on the Prevention and Punishment of Genocide”. For almost a year, the Chinese delegation had cherished the hope that the proposed Convention would cover the use of narcotic drugs as an instrument of genocide. He himself, ever since childhood, had had ample opportunity of seeing the effects of addiction to opium, morphine and heroin. He had been in North China shortly before the Sino-Japanese war and from his observation of the large number of heroin and morphine addicts and the ease with which those drugs could be obtained, he had deduced that a heroin factory was operating across the frontier in Manchuria, or as it then was, the puppet state of Manchukuo. The Japanese imperialists had realized that it would be impossible to exterminate the 400 million people of China by fire, sword or bullet, and had accordingly planned that they should destroy themselves by mass addiction to narcotic drugs. The Japanese had achieved a large measure of success in that aim; no people had suffered more from the use of narcotic drugs than the people of China. The Chinese delegation sincerely hoped that the General Assembly would accept its proposal that the use of narcotic drugs as a means of genocide be included in the Convention, especially since that proposal was supported by the expert testimony of the Commission on Narcotic Drugs. The Chinese delegation also attached great importance to the principle of universal repression in respect of the crime of genocide. The Chinese criminal code included seven offences the perpetrators of which, whether Chinese nationals or not, were liable to prosecution and punishment under Chinese law as soon as they came within the territorial jurisdiction of China, even if those offences had been committed outside the country. Those seven offences were: offences against the internal security of the State; offences against the external security of the State; counterfeiting of

E/SR.218

1227

currency; counterfeiting of other valuable securities; forgery of documents or seals; offences against personal liberty (slavery), and piracy. The terrible crime of genocide should certainly be added to that list. He hoped the draft Convention on Genocide would be thoroughly discussed during the third session of the General Assembly, when the Chinese delegation would propose certain new provisions, and that it would be finally adopted and ratified by all Members of the United Nations. Mr. Ordonneau (France) explained that the reason why the ad hoc Committee had included no mention of the International Tribunal at Tokyo was that the latter had not yet given its verdict. The Committee had recognized that it would be fitting to mention it in the preamble, along with the Nuremberg Tribunal, when its verdict had been delivered. The President appreciated the usefulness of the French representative’s remarks, but maintained that they did not raise a point of order, and were therefore out of order in a discussion limited to general statements of position. Mr. Katz-Suchy (Poland) recalled that more than eighteen months had passed since the General Assembly had unanimously adopted a resolution1 condemning the crime of genocide. That resolution affirmed that the punishment of genocide was a matter of international concern and that principals and accomplices, whether private individuals, public officials or statesmen, were punishable; it invited Member States to enact the necessary legislation for prevention and punishment. Although the problem had been discussed by many organs of the United Nations, it was only at its seventh session that the Council had received the draft Convention, and then in circumstances which made full discussion impossible. The efforts of certain States to prevent early adoption of a convention on genocide, from narrow nationalist and imperialist motives, had been successful. None the less, the Polish delegation would support transmission of the present draft Convention to the General Assembly, and would limit itself to general remarks at that stage, reserving its right to submit full and detailed amendments to the General Assembly.

1

See General Assembly Resolutions, first session, second part, resolution 96(I).

1228

E/SR.218

Poland was the first country in which an organized attempt had been made to exterminate a large part of the population by modern technical methods. Every form of genocide – cultural, physical and racial – had been attempted on various groups of the Polish population as well as on the nation as a whole. Having been a witness in its own country to that enormous and unprecedented crime, the Polish delegation had taken a most active part in the discussion of genocide in the General Assembly and in every other United Nations organ in which it had been discussed. The Polish delegation had actively, supported the idea of preparing an effective convention which would outlaw that most terrible crime once and for all. With great regret, however, it had found it necessary to abstain from voting on the draft Convention adopted by the ad hoc Committee. It must be realized from the outset that the effectiveness of a convention on genocide would depend on its being drafted in such a way as to secure the greatest possible number of accessions and to leave no loopholes of escape for perpetrators of the crime. At the same time, it must be impossible for any State to use the Convention for purposes other than those underlying General Assembly resolution 96(I) of 11 December 1946. The Convention could only be effective in so far as it was inspired by a desire to prevent a new disaster and to destroy the roots of the crime. In the modern state of social evolution, the most generally accepted principle was the right of every nation, and of every national or racial group, to free existence and development. Physical or biological extermination of nations or racial groups, being the denial of that principle, was a crime under international law, the perpetrators of which, whether private individuals or heads of States, should be punished regardless of whether they had acted on their own initiative or had been fulfilling orders. Unlike domestic legislation, international law did not form a unified whole. The accepted norms of international law derived from the limited number of common principles shared by the different countries, each with its own Weltanschauung resulting from its particular social and economic order. Any convention which was to become a part of international law ought therefore to contain the greatest possible proportion of generally accepted principles. It was with profound regret that he had to state that the draft Convention on Genocide was full of controversial provisions which could not possibly find general acceptance; but at the same time it

E/SR.218

1229

omitted many important provisions, without which it was automatically invalidated, even before it came into force. Even the preamble deliberately avoided any reference to the terrible and unprecedented crimes of genocide committed under the fascist regimes, and to the close connexion between genocide and those regimes. That disturbing and quite incomprehensible deliberate omission made it impossible for the Polish delegation to support the preamble. It was common knowledge that the total destruction of national and racial groups had been adopted in the nazi and fascist systems not only as a means to an end, but as an end in itself. The fascist regimes had, for the first time, undertaken full-scale genocide and had attempted to carry it out first within their own States and then by means of war on other States. Reference to the close connexion between fascism and genocide had been deliberately omitted at the insistence of the United States representative, who had been of the opinion that such a reference would make it impossible or at least uncomfortable for Germany or Italy to become parties to the Convention. Far from intending to exclude either Italy or Germany from international conventions, the Polish Government would fully support their accession, provided that certain conditions were fulfilled. The most important condition was that Italy and Germany should recognize the close connexion between the terrible crime of genocide and what had been their official ideology for many years. The Polish representative in the ad hoc Committee had proposed, as a compromise, the addition to the preamble of the following words: “Bearing in mind that recently the crime of genocide has been committed with particularly hideous results by the nazi and fascist regimes.”1 But his efforts, as well as the conciliating efforts of the Lebanese representative, had been frustrated by the majority of the members of the Committee. Yet it was imperative that the preamble should draw attention to the essential connexion between the racial theories of fascism and the crime of genocide. It followed logically from the recognition of that connexion that the most effective measures that could be taken against genocide lay not in nebulous formulas, but in practical measures to prohibit the instigation 1

See document E/794, section II.

1230

E/SR.218

of national, racial or religious hatred and to ensure severe punishment of persons guilty of incitement to genocide as well as of genocide itself. Genocide could only be effectively prevented by eradicating the ideological theories of fascism which underlay it and by overcoming the economic and social forces favourable to its perpetration. It could not escape notice that although only three years had passed since the end of the war, certain Powers were displaying a manifest tendency towards leniency to war criminals. More and more frequently, persons who had committed the crime of genocide, either directly, or indirectly by helping to build up or organize the German war machine, were released and placed in administrative positions or else given purely nominal punishment. The suffering peoples of Europe observed that tendency with great indignation and uneasiness and could not overcome their doubts as to the effectiveness of the Convention under discussion or the sincerity of some of its authors. The struggle against genocide would not be concluded with the formulation of certain principles. It was known by all that fascism, in its various forms, was attempting to prepare a new onslaught against mankind; leniency towards its supporters was only an encouragment to new and greater crimes. Owing to the reversal of its position by the Chinese delegation, the draft Convention adopted by the ad hoc Committee included provisions relating to the so-called protection of political groups. Without entering into full details of the procedural manœuvres adopted by the United States representative and the Chairman of the ad hoc Committee to ensure inclusion of such provisions, he wished to point out that their inclusion would not only provide a very convenient pretext for interference in the internal affairs of States, but would also make it impossible for a number of States to accede to the Convention. The protection of political groups had no connexion with the universally recognized right of the individual to certain political beliefs. The inclusion of provisions relating to political groups, which because of their mutability and lack of distinguishing characteristics did not lend themselves to definition, would weaken and blur the whole Convention; such provisions would, at the same time, make it an instrument for interference in individual States and retardation of their development. The provisions in question were really intended only to distort the meaning of genocide and the aims of the Convention, which had been designed for the protection of

E/SR.218

1231

national, racial and religious groups only; he was not completely convinced that it was not a desire to prevent general acceptance of the Convention which had motivated the authors of those provisions. He recalled, in that connexion, that the General Assembly’s resolution, which had been the first step towards a convention on genocide, had been opposed on a number of occasions by those who were now ardent supporters of the provisions relating to political groups. The ad hoc Committee had adopted a special article (article III) condemning “cultural” genocide; that article read: In this Convention, genocide also means any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of the national or racial origin or religious belief of its members, such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; 2. Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group. During the general debate in the Committee the Polish delegation had expressed its opinion that acts of “cultural genocide”, which were essentially connected with the destruction of national groups, should be regarded as preliminaries to the crime of physical genocide and be punishable as such. Article III should be redrafted so as to make it impossible for it to be used for any other ends than those of the Convention; in particular the analogy introduced by the words “such as” should be eliminated. Inclusion in the Convention of an article relating to cultural genocide, thus amended, would have a far-reaching beneficial effect especially in so far as colonial and dependent peoples were concerned. The ad hoc Committee had rejected the Soviet Union proposal to include article V of the Secretariat draft (E/447) which read: “Command of the law or superior orders shall not justify genocide.” The Polish representative had then stated emphatically that his delegation could share no responsibility in respect of a convention on genocide which did not contain that provision. Since the Charter of the International Military Tribunal at Nuremberg and other military statutes of a number of States already

1232

E/SR.218

contained that provision, its omission was a serious retrograde step in international law. In particular, it invalidated article V of the draft Convention which provided that heads of States, public officials and private individuals should all be punishable for genocide; for heads of State would be able to invoke in their defence the law of their countries, and public officials and private individuals would be able to plead superior orders. The Convention would thus have no practical effect at all, only a few individuals of lesser importance being punishable, while the main perpetrators of the crime went free. In that connexion, he recalled the verdict returned on 10 July 1948 by the Supreme National Tribunal of Poland against Josef Bieler, the deputy of Frank, the German Governor-General of Poland. Bieler, who was accused of causing the death of many hundreds of thousands of Polish citizens, had pleaded not guilty, on the grounds that he had been acting on superior orders. The Tribunal, however, had sentenced that office-chair murderer to death. The Polish delegation would insist in the strongest possible terms on inclusion in the Convention of provisions establishing responsibility for genocide when acting under command of the law or superior orders. The ad hoc Committee had adopted the principle that persons charged with genocide be tried by competent tribunals of the State in which the crime had been committed, or “by a competent international criminal tribunal” (articles VII and X). That provision implied acceptance in principle of an international criminal tribunal, without the establishment of such a tribunal under the terms of the Convention itself. It had been intended as a compromise, but committed States ratifying the Convention to accept the creation, at a future date, of an international tribunal, the period of existence and competence of which were left entirely vague. Nothing had been laid down regarding its jurisdiction, in particular whether it would supersede or only supplement national tribunals. States were therefore being asked to sign a blank cheque. An international criminal tribunal was only practicable when an international executive power already existed, having at its disposal substantial means of enforcement. Creation of an international criminal tribunal, submission to the jurisdiction of which would be compulsory and not optional, was contrary to the principles of the Statute of the International Court of Justice and might result in violation of the national sovereignty of States, an important element of which was the right to try all crimes committed in their territory.

E/SR.218

1233

The principle of universal repression by national courts, in respect of persons who had committed genocide abroad, had been rejected by the ad hoc Committee. The text of article VIII, as proposed by the United States delegation and adopted by the ad hoc Committee, was too general and too nebulous, since it did not state which organ of the United Nations was competent to deal with the prevention and suppression of genocide and with violations of the Convention. The Polish Government considered that that responsibility should rest with the Security Council as the most important organ of the United Nations and the one charged with the duty of maintaining world peace and security. The Security Council would, of course, remain free to refer such questions to other organs of the United Nations if it thought fit. But, in view of the gravity of the crime, reference should be [sic] to the Security Council in the first instance, and the Polish delegation would submit an amendment to that effect during the General Assembly. Article VI of the draft Convention contained a deliberate ambiguity; it read: “The High Contracting Parties undertake to enact the necessary legislation . . . to give effect to the provisions of this Convention”. That wording, which had been adopted on the initiative of the United States delegation, was intended to mean that legislation would be enacted only if necessary. During the discussion, the Polish representative had insisted that the article should read: “The High Contracting Parties undertake to enact . . . the legislation necessary to give effect to the provisions of this Convention”. It was, however, important to provide that legislation should also be enacted for the purpose of punishing any propaganda for racial, national or religious hatred, as a method of forestalling outbreaks of genocide. In a number of conventions, such as the 1921 Convention for the Suppression of the Traffic in Women and Children, and the 1929 Convention for the Suppression of Counterfeiting Currency, an obligation had been laid on signatory States to enact legislation prescribing criminal penalties for certain types of crimes. If no similar provision were included in the Convention on Genocide, article VI would be completely unsatisfactory and might undermine the effectiveness of the whole Convention. He pointed out that the Polish Penal Code already contained provisions which could be considered as prescribing penalties for the crimes covered by the Convention on Genocide. To make the Convention effective it would be necessary to include preparatory acts in the list of punishable acts given in article IV, since, in many

1234

E/SR.218

countries, the preparatory acts of a crime were not regarded as punishable unless the law expressly so provided. Incitement to racial, national or religious hatred and provocation or conspiracy to commit genocide should be made punishable as preparatory acts of genocide. The draft Convention should also include a definite undertaking by contracting parties to disband any groups or organizations which had participated, or were likely to participate, in any act of genocide or whose activities might lead to the perpetration of such an act. The Polish delegation would submit amendments in the sense of those comments. Article IX, which had been included at the instance of the Polish delegation, provided that genocide should not be considered as a political crime, and should therefore be grounds for extradition. That article had special importance in view of the fact that war criminals, whose extradition had been requested, were still being given protection, especially in the United States zone of Germany, but also in a number of other countries. He would only quote the case of a doctor named Dering, formerly at Oswiecim Concentration Camp, who was guilty of experimenting with human lives and responsible for the murder of many hundreds; despite a number of requests by the Polish Government, he still enjoyed the full protection of the United Kingdom Government. The Polish delegation considered that the draft Convention on Genocide, incomplete and unsatisfactory though it was, represented a great step forward. He had emphasized on many occasions the great interest of his Government in the early adoption of a convention which would make impossible any recurrence of the crime of genocide. That problem was only part of the great struggle for human dignity and for the protection of human rights, the most important of which was the right to exist, regardless of race, nationality, language or religion. The victory over nazism and fascism would not be complete until provisions had been adopted which would eliminate the terrible crime of genocide once and for all. The General Assembly should therefore adopt a convention so framed that it would find general acceptance and should avoid anything that might be considered an attempt to make general application impossible. Mr. Thorn (New Zealand) stated that his Government was still examining the draft Convention on Genocide and the part it could play in preventing any repetition of those abominable acts of inhumanity with which the word genocide was associated.

E/SR.218

1235

There was the same deep and continuing anxiety in New Zealand as elsewhere that the world should be spared anything in the nature of the persecutions and pogroms characteristic of the Hitler regime. It was against such things that New Zealand had gone to war in 1939; and in signing the Charter of the United Nations, she had re-affirmed her faith in the dignity and worth of the human person. The problem of genocide could not be isolated from the historical backgrounds of the countries in which acts of genocide had taken place. A realistic and fundamental approach to the problem required a study of the reasons which had led to the destruction of human groups on grounds of their national or racial origin or religious beliefs. He believed that the remedy would be found in the removal of the insecurities which bred fear and hate and finally led to complete disregard for human life and achievement, and that it would be the work of the Council and of specialized agencies such as the United Nations Educational, Scientific and Cultural Organization and the Food and Agriculture Organization, which would eventually lead to the disappearance of genocide. As they grappled with the problem, those bodies would have as their goal the realization of the human rights and freedoms proclaimed in the Declaration of Human Rights. The great interest shown in the Convention on Genocide indicated how world public opinion could be aroused by a document proclaiming genocide an international crime. The mobilization of world public opinion against genocide was one of the primary aims of the Council; but public opinion could not, in the long run, be effective unless it looked beyond the formal document to the real causes of the crime. He did not wish at that stage to discuss the complex legal issues arising out of the Convention. There appeared to be some real advantage in having a generally accepted definition of genocide and a clear recognition of it as an international crime. Moreover, there might be instances in which extension of the existing extradition practice would facilitate the punishment of offenders. There was a possible weakness in that section of the Convention dealing with the trial of persons charged with genocide. Since large-scale acts of genocide could hardly take place under modern conditions without at least the complicity of a government, it might not be sufficient to rely on the jurisdiction of national courts, and some form of international

1236

E/SR.218

tribunal working in conjunction with the United Nations would appear to be necessary. For those reasons, the New Zealand Government felt that it would be an advantage to give the draft Convention further study before it was finally adopted. He recalled that the Commission on Human Rights had been unable to find time to examine the draft in detail. It had therefore only been discussed, so far, by the seven members of the ad hoc Committee on Genocide. Further opportunity for the remaining Members of the United Nations to study and comment on the draft Convention would ensure that all issues were adequately examined. Nevertheless, his Government appreciated the reasons why some members of the Council wished to see the Convention adopted at the third session of the General Assembly. If that view found general support in the Assembly, the New Zealand delegation would certainly do all it could to assist in making the Convention as effective a document as possible for the great purpose it was designed to serve. Mr. Friis (Denmark) stated that he considered the draft Convention on Genocide very satisfactory, and saw no fundamental objection to its being submitted to the General Assembly in its present form. A great fund of expert knowledge had been available to the drafters, and further examination of the problems involved could add very little to the views already considered during the very careful preparation of the document. The few questions on which it had not been possible to reach unanimous agreement in the ad hoc Committee were predominantly of a political character, and might logically be left for solution by the organ ultimately responsible for political questions – namely, the General Assembly. He would not at present declare his preference for any of the alternative solutions proposed. His main concern was that no disagreement on those residual points be allowed to defeat the chief aim, which was to prevent recurrence of the terrible human suffering and humiliation that had prompted the United Nations to take up the problem. The Council was dealing with a subject on which it was imperative to reach unanimous agreement as to the basic principle – namely, that genocide was a crime under international law – in order that no one could in future evade responsibility for such abominable acts. The Convention need not necessarily contain detailed rules on jurisdiction, prosecution, trial or punish-

E/SR.218

1237

ment. Such rules might be adopted as need arose, and to leave them in abeyance would not defeat the main purpose of the Convention. In further considering the problem of genocide, the United Nations should not fail to give due weight to the impressive degree of support for the Convention shown by the communications received by the Council Committee on Non-Governmental Organizations1 from bodies reflecting public opinion in many parts of the world. Mr. Monge (Peru) recalled that the eighth International Conference of American States at Lima in 1938 had adopted a resolution declaring that any persecution on account of racial or religious motives was contrary to the political and juridical systems of America.1 In Peru, and elsewhere, it was thought that the General Assembly should approve the Convention on Genocide at its next session. Winners of the Nobel prize for literature, and parliamentary leaders, had signed a manifesto in support of the Convention; some parliaments had adopted resolutions supporting it. Hence, there was reason to believe that ratification would not be long delayed. The reason for such great interest was that genocide was part of a tragic aspect of human history, a drama which was unfortunately still being played out. Nothing so shocked the conscience of the peoples as the organized and collective destruction of countless human beings, whose only offence was to belong to a certain race, religion, or nationality. The Peruvian people believed, in conformity with the principles of the United Nations Charter, that each nation, each religion and each race had a right to exist. Diversity of cultures and races actually contributed to the advancement of civilization and enriched its spiritual values. Peru had experienced a case of genocide in the very early days of her history – the destruction of the Inca civilization. History showed how many and how shocking were the repeated instances of genocide on record. The crime always began with the destruction of the spiritual and cultural symbols of the persecuted group, and then took as a pretext its alleged mental inferiority. It was natural that a racial group deprived of

1 1

See document E/C.2/120. See Final Act of the Eighth International Conference of American States, section XXXVI.

1238

E/SR.218

spiritual life should appear inferior. The law should intervene in time to protect human groups against persecution and destruction. The crime of genocide should be prevented, not merely punished; that need had been seen during the last war. Since the Council had not had time to discuss the draft Convention thoroughly, he thought that it should adopt a resolution urging the General Assembly to discuss and adopt it during its session in Paris. On the basis of the existing draft, the Assembly’s Committees would be able to submit to it a well-drafted text, which would help civilization to defend itself against the abuse of force. He supported the representative of Venezuela in urging realistic consideration of the legal machinery to secure prevention and punishment of a crime which had caused so much suffering to humanity. Mr. Guerreiro (Brazil) expressed his satisfaction at the appearance, in a form that could be discussed by the General Assembly, of the ideas and proposals inspired by Assembly resolution 96(I). Nevertheless, he felt bound to make his attitude clear on certain points. He thought that the crime of genocide should be defined strictly. It should be considered as a crime against human groups committed by reason of their race, nationality or religion; the crime consisted in the total or partial destruction of such groups. In his opinion, there were legitimate objections to including political groups properly so-called among the human groups to be protected; for, generally speaking, political groups lacked cohesion and stability, hence a precise definition of the crime, and consequently its punishment, was difficult. If it was decided to include “cultural” genocide, it would be necessary to define it closely and to show that it meant the destruction of a human group by brutal methods. But great care would have to be exercised lest, in the desire to punish such a crime, encouragement were given to the formation of minorities in new nations which had been formed and developed by immigration; such minorities might make use of the Convention to resist their adoptive countries’ legitimate desire that they should assimilate.

E/SR.218

1239

To avoid misunderstanding it would be advisable to deal only with the crime as it had been described by the General Assembly,1 which had considered that genocide was to human groups what homicide was to the individual. The principles of the Declaration of Human Rights to be adopted by the United Nations should protect certain human groups against acts harmful to them, apart from acts considered as odious by the average human conscience. While desiring to retain the principle of national competence, he thought that the possibility of referring violations of the Convention to an international tribunal should be provided for. He approved the ad hoc Committee’s action in confining itself to a mere mention of such a tribunal. The future development of international relations would indicate the best solution to the problem, which required further study. At the General Assembly, his Government would vote in favour of the Convention on Genocide. The meeting rose at 6.20 p.m.

1

See General Assembly Resolutions, first session, second part, resolution 96(I).

1240

E/SR.219

TWO HUNDRED AND NINETEENTH MEETING Held at the Palais des Nations, Geneva, on Thursday, 26 August 1948, at 9 p.m. President: Dr. Charles Malik 77. Continuation of the discussion on the draft Convention on the Crime of Genocide1 (E/794, E/794/Corr.1 and E/AC.27/1) The President announced that the Council would continue to hear general statements of position on the draft Convention on the Crime of Genocide. Mr. Pavlov (Union of Soviet Socialist Republics) said that his delegation attached great importance to the prevention of genocide, which was a grave crime against humanity, the purpose of which was to annihilate racial, national and religious groups. The perpetration of that crime violated the principles of the United Nations, and was condemmed [sic] by the whole democratic world. When the ad hoc Committee on Genocide had met in April 1948, the Soviet Union delegation had submitted a number of important fundamental principles.2 Those principles had been taken by the Committee as a basis for discussion and had found adequate expression in the draft Convention (E/794) in the following instances: (1) The definition in article III, whereby genocide included any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief. (2) The list of punishable acts in article IV, which included conspiracy, incitement, attempt and complicity. (In that connexion his delegation had made reservations in respect of article II.) (3) The provision in article V that all those committing genocide should be punished, whether they were heads of States, public officials or private individuals.

1 2

See Supplement No. 6 (E/794). See document E/AC.25/7.

E/SR.219

1241

(4) The definition in article II, which included both direct acts of genocide and measures or conditions aimed at causing the destruction of a group. (5) The statement in the preamble that genocide was a grave crime against mankind which was contrary to the spirit and aims of the United Nations. (6) The provision in article IX that genocide should not be considered as a political crime, and should therefore be grounds for extradition. That was the positive aspect of the draft Convention; certain provisions to which his delegation was opposed had, however, been included, and some of the proposals submitted by his delegation had been rejected by a majority of the Committee. The draft Convention contained the following basic defects: (1) The preamble did not give a complete and correct definition of the character of crimes of genocide, and omitted to state the important fact that such crimes were essentially bound up with fascism, nazism and other similar racial and national hatred, the domination of the so-called “superior races” and the extermination of the so-called “inferior races”. (2) Political groups were included in the list of entities against which the crime of genocide could be committed; that was not in conformity with the scientific definition of genocide and would, in practice, distort the perspective in which the crime should be viewed and impair the efficacy of the Convention. (3) By the decision of the majority of the Committee, the following dangerous crimes were not included as punishable offences: (a) Any form of propaganda aimed at inciting racial, national or religious hatred and at provoking acts of genocide; (b) Preparatory acts for the commission of genocide which did not constitute a crime in themselves, such as study and research aimed at perfecting the technique of genocide; the building of installations and the manufacture, acquisition, storage or delivery of materials or products known to be intended for the commission of genocide; the issuing of orders aimed at the commission of genocide.

1242

E/SR.219

(4) By the decision of the majority of the Committee, the Convention contained no undertaking by the contracting parties to disband, and ban henceforth, organizations the purpose of which was to incite racial, national or religious hatred and the commission of genocide. (5) By the decision of the majority of the Committee, the Convention did not include the principle established at Nuremberg, that genocide could not be justified by command of law or superior orders. (6) By the decision of the majority of the Committee, there was no specific and precise formulation of the obligations of the contracting parties, first, to introduce into their national legislation measures for the prevention of genocide and of incitement to racial, national or religious hatred; and secondly, to introduce effective measures for the punishment of such acts. (7) Article VII provided for trial of persons charged with genocide by an international tribunal; in the opinion of his delegation, that provision constituted a violation of national sovereignty. In view of those defects, his delegation was unable to support the draft Convention as a whole. It was not a sufficiently effective instrument for the suppression of genocide and did not, therefore, fulfil the task entrusted to the Committee by the General Assembly and the Council. He reserved the right of his delegation to submit concrete amendments to the draft Convention when it was discussed by the General Assembly. Some representatives had mentioned historic crimes which might be classified as genocide. Such examples were interesting, but had no modern application. If instances were to be cited, it would be better to draw them from the contemporary world. The Prime Minister of Kashmir, for example, had stated that aerial bombardments were being carried out in that area in an attempt to annihilate whole villages and tribes. The Soviet Union delegation was also informed that Dyak warriors had been imported to fight against the national liberation movement in Malaya. The Dyaks were still in a primitive stage of development and practised cannibalism and head-hunting. He suggested that those two examples were closely related to the question of genocide. In conclusion, he stressed the close relationship between racial hatred, such as had been witnessed during the Second World War, and the crime of genocide.

E/SR.219

1243

Mr. Ordonneau (France) said that the French delegation had accepted, although reluctantly, the President’s ruling1 on the Council’s decisions on working arrangements. It particularly regretted that such a procedure should be applied to the three most important questions which the Council had had to examine since it came into being. He noted with satisfaction, however, that the work done over the last two years was beginning to bear fruit, since the Council now had some very important draft conventions before it. The Convention on Genocide was a first step towards the development of international criminal law, which had hitherto been mainly concerned with the more effective punishment of offences committed by individuals in their private capacity. In his delegation’s view, the Convention on Genocide applied to new types of offence, such as crimes committed by rulers as such and, through them, by the State itself. That represented very considerable progress in both theory and practice. It was not, of course, surprising that that new step was being taken at such a time; for, though crimes of “genocide” had been committed down the centuries, it could not be denied that the world had recently witnessed particularly odious crimes, committed with unparalleled cynicism by the Nazi and Fascist regimes. The relationship between those crimes and the concept of genocide was not an established historical fact; but his delegation wished to establish a close legal connexion between the idea of a “crime against mankind” as it had emerged at Nuremberg, and the current concept of genocide. It considered that the idea of a crime against mankind should no longer be confined to wartime law, but should be extended to peacetime law and should embrace crimes against humanity committed by the State. In the draft before the Council, a single sentence established that connexion. That sentence was, perhaps, not entirely satisfactory, and his delegation reserved the right to suggest improvements later; but it attached particular value to the idea expressed in the sentence, since it established an essential connexion between the narrow concept of genocide and the very broad idea of a crime against mankind. In its physical aspect, genocide consisted of a series of crimes which were enumerated in article II of the draft Convention. His delegation found that 1

See supra, 218th and 215th meetings.

1244

E/SR.219

list acceptable, but would have preferred the more general term atteinte à la vie (attack on life), which summed up its conception of genocide. On the other hand, it did not accept the idea of “cultural” genocide presented in article III. It considered such an idea too vague, and thought that the Council should not confuse two extremely different concepts and risk going beyond the purpose of the Convention by transforming a minor infringement of human rights into an international crime. It was, indeed, advisable to restrict a criminal offence, which involved solemn indictment and severe penalties, to a narrow field strictly corresponding to that degree of severity. All the physical acts of “genocide” constituted common crimes (murder, assault and battery, abortion). What distinguished them from those crimes was the intent to destroy an entire human group on grounds of race, nationality, religion or political opinion. His delegation was prepared to accept those four motives, but considered it especially necessary to protect political groups, since, whereas in the past crimes of genocide had been committed on racial or religious grounds, it was clear that in the future they would be committed mainly on political grounds. Furthermore, his delegation regarded genocide as a crime committed, encouraged or tolerated by the government of a State, and hence as an international crime which should be subject to international jurisdiction. Various objections had been raised to that idea, but his delegation considered that it would be unwise to have recourse to national courts and requested that reference to them be deleted from the draft Convention. Only an international tribunal could try a crime of genocide committed by a government. He did not understand how some representatives could still speak of national sovereignty at that stage of the Council’s work. It was obvious that international law could not progress, and that the peoples could not advance towards a better future through international organization, unless the ancient rule of national sovereignty was progressively abandoned to an ever-increasing extent. It had also been said that an international tribunal would not be effective, because it would be difficult for it to impose penalties. His delegation thought that the judgments of such a tribunal would have very great moral value. For all those reasons, it considered that the establishment of an international tribunal was absolutely essential; moreover, it was the

E/SR.219

1245

French delegation that had been the first to raise the question, and it had submitted a detailed study thereof in its draft of the Convention.1 In conclusion, his delegation considered that the draft Convention on Genocide should be submitted to the General Assembly in such a form that a decision on the final text could be taken at its next session. The President, replying to the representative of France, thought that there could be no room for regret about his ruling on the formula for transmitting the documents in question to the General Assembly. The Council had decided, at its 202nd meeting, to do so without taking any decision; the formula used was the only possible one, as any other might imply that the item had been discussed in substance, and that the Council had taken a decision on it. Mr. Ordonneau (France) said that he had not intended to criticize the position taken by the President, or to re-open discussion on the subject. He had merely wished to point out that his delegation, while accepting the ruling, did not entirely share the view it represented. Mr. Phillips (United Kingdom), on a point of order, appealed to representatives to support the rulings of the President, especially when they were based on decisions taken by the Council. His delegation had not been in favour of the decision taken by the Council, but they would have to abide by it. Mr. Thorp (United States of America) said that the fundamental objective – that of outlawing genocide – had been generally accepted; the problem had been to formulate that objective in specific, workable terms. He congratulated the ad hoc Committee on Genocide on the speedy despatch of its work, and on the general excellence of the draft Convention it had submitted. He regretted that it had not been possible for the Council to consider the draft Convention in detail, but hoped that the current discussion would facilitate consideration of the problem by Member Governments and make it possible for the General Assembly to take final action at its third session. He emphasized the urgent need for drafting an international convention on genocide before public memory of the barbarous acts committed by nazi and fascist forces during the last fifteen years had faded. 1

See document E/623/Add.1.

1246

E/SR.219

His Government was in general agreement with the draft submitted by the ad hoc Committee, but reserved its right to propose certain amendments at the forthcoming session of the General Assembly. There were three major problems in connexion with the crime of genocide. The first was the definition of the term “genocide”, which had only recently come into existence. His Government believed that the meaning of the word should be restricted, and he agreed with the representatives of Canada and France that the inclusion of the notion of “cultural” genocide was a dilution of the purpose of the Convention which might render it much less effective. It was obvious that such fundamental rights as those envisaged in the article on “cultural” genocide must be safe-guarded, but he did not think that that end would best be achieved by including them in a convention on genocide. If cultural issues were included in the Convention, they would only detract from the major issue, which was the prevention and punishment of physical acts of violence against national, racial, religious or political groups. He urged the inclusion of political groups as, contrary to the opinions expressed by the representatives of Poland and the Soviet Union, his delegation believed that the right to live could not be challenged, even on grounds of political belief. The second problem was to define the nature of acts constituting the crime of genocide. His delegation had grave misgivings regarding article IV, paragraph (c), which read: “Direct incitement in public or in private to commit genocide whether such incitement be successful or not”. He thought that such “direct incitement” would be covered by paragraphs (b) and (d ) of article IV, in which conspiracy or attempt to commit genocide were included as punishable acts. It would be very difficult to decide when direct incitement to commit genocide had in fact taken place, if such incitement had not proved successful. Consequently, his delegation did not approve of the inclusion of the clause concerning direct incitement, which would open the way for irresponsible and reckless charges. The third important problem was that of the appropriate jurisdiction for application of the Convention. His delegation attached considerable importance to article VII, which provided that “persons charged with genocide . . . shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal.” He stressed the last part of that provision and said that the establishment of a competent international tribunal would constitute

E/SR.219

1247

a new and significant step in international law. The conscience of the world would no longer allow massacres to take place without calling the perpetrators, whether they were high officials or private individuals, before the bar of international justice. Some representatives might feel that the wording of article VII was too vague, but he thought that at that stage such vagueness was desirable; it would permit the establishment of competent international tribunals by the United Nations, while States which were not members of the United Nations, but were parties to the Convention, would be able to agree among themselves to establish an ad hoc tribunal for the punishment of genocide. Such a tribunal might, of course, take the form of a criminal chamber of the International Court of Justice, or alternatively a permanent international tribunal might be established, with general jurisdiction over genocide and other international crimes. It would not be necessary to settle those details at that stage, although it was important to provide for international jurisdiction in respect of genocide. He did not wish any of his remarks to be interpreted as modifying his delegation’s strong and wholehearted support of the essential parts of the draft Convention. His Government would do everything in its power to obtain final action on the Convention at the forthcoming session of the General Assembly. Mr. Santa Cruz (Chile) recalled that from the outset his Government had always wholeheartedly supported the idea of a convention on genocide and added that his delegation was prepared to accept the draft prepared by the ad hoc Committee. It would certainly have preferred to make some minor amendments and add further provisions, but felt that it was absolutely essential that the General Assembly should be able to take a decision on the Convention at its next session. Neither in his country nor in any part of Latin America was there any religious, racial or class hatred, and the Latin-American countries were all prepared to take part in any work relating to the draft Convention. Mr. Phillips (United Kingdom) stated that his Government shared the abhorrence of the crime of genocide expressed by other members of the Council. The British people had seen the effects of nazi policy, and could sympathize with the feelings of those who had had experience of it at even closer range.

1248

E/SR.219

However, the point at issue was the practical treatment of the problem; it was a question of ways and means. Genocide had already been declared an international crime by the Nuremberg Tribunal and by General Assembly resolutions 96(I), of 11 December 1946, and 180(II), of 21 November 1947, and his Government was doubtful whether a convention on genocide in the strict sense of the word would be of value. Legal definition of the term would best be left to the International Law Commission and to the lawyers responsible for the codification of the new principles of international law enunciated during the Nuremberg trials. Other forms of genocide, such as those broadly described as “cultural”, which were listed in article III of the draft Convention, should be dealt with by the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The Council should beware of condoning too wide a definition of genocide, which would render the whole concept meaningless and result in a highly controversial convention. The inclusion of such indefinite concepts as cultural genocide would have precisely that effect. The Soviet Union representative had illustrated that danger in his interpretation of contemporary events in Malaya, whereby any measures for the maintenance of law and order were branded as a form of genocide. He would also add, in connexion with those remarks, that the Dyaks were being used as guides, and not for the purpose suggested by the Soviet Union representative. His Government, although doubtful whether a convention was necessary, sympathized with the views of those who wished to take more positive steps in the matter, as had already been stated on its behalf by the Attorney-General, in the General Assembly. It would therefore not oppose, but would abstain from voting on, the resolution transmitting the draft Convention to the General Assembly. Mr. van der Mandele (Netherlands) said that his delegation would not remain silent on the subject. During the last war the Netherlands had lost more than 200,000 of its citizens, and about half of those deaths could be classified as death by genocide. The figures were not, of course, comparable to those for Poland or the Soviet Union, but they were a measure of his Government’s interest in the question. Already on a previous occasion his delegation had supported the United Kingdom view that the definition of genocide should be referred to the International Law Commission, in

E/SR.219

1249

connexion with its studies on the Nuremberg verdicts and the competence of the International Court of Justice. His Government still hoped that at a later stage there would be an opportunity to consult the International Law Commission on the subject. He would not go into the details of the draft Convention as his Government’s comments had already been circulated in document E/623/Add.3. Nevertheless, he stressed that his Government was in complete agreement with what had been said by the French and United States representatives regarding international jurisdiction. He joined the Canadian and United Kingdom representatives in their approval of the work of the ad hoc Committee and of its rapporteur, the representative of Lebanon. The draft Convention submitted by the Committee was a great improvement on former texts and the accompanying report (E/794) considerably facilitated its study. Mr. Eren (Turkey) said that his Government found the draft Convention generally satisfactory, but agreed that it went further, in certain respects, than General Assembly resolution 96(I). The ad hoc Committee was to be commended on the clear and unambiguous wording of the text. As his Government had not been represented on that Committee, and the Turkish delegation had not yet had an opportunity to state its views in detail, he reserved the right to do so at the appropriate time. Mr. Kaminsky (Byelorussian Soviet Socialist Republic) stated that the views of his Government had been fully reflected in the Soviet Union representative’s statement. The Byelorussian Government considered that special attention should be given to the prevention of “cultural” genocide. The people of the Byelorussian Soviet Socialist Republic, which had recently won its freedom after centuries of national persecution, had special reason to understand the importance of combating that form of genocide. The lessons of the Second World War also served to emphasize the importance of the struggle. Unhappily, racial persecution continued, and he could not agree with those representatives who denied that the destruction of racial cultures was a form of genocide. Any attempt to interfere, through the Convention, in domestic jurisdiction should be strongly resisted. That principle needed to be fully recognized in the Convention, which, as it stood, was extremely unsatisfactory.

1250

E/SR.219

No account had been taken of the positive criticisms submitted by the Soviet Union delegation, and the Convention required detailed consideration to eliminate inaccurate definitions. The President informed the Council that the draft Convention on Genocide would be transmitted to the General Assembly accompanied by the following draft resolution: The Economic and Social Council Decides to transmit ot [sic] the General Assembly the draft Convention on the Prevention and Punishment of the Crime of Genocide submitted to the Council in the Report of the ad hoc Committee on Genocide; together with the remainder of this report and the records of the proceedings of the Council at its seventh session on this subject.

The inclusion of the Report of the ad hoc Committee would enable the General Assembly to consider the comments of governments on the Convention. Mr. Friis (Denmark) enquired whether it was also intended to forward comments from non-governmental organizations, such as those received from the World Federation of Trade Unions (E/C.2/104) and of the World Federation of United Nations Associations (E/C.2/105), which were submitted in accordance with Council resolution 3(II) of June 1946, and whether all the relevant documentation would be available to the General Assembly in printed form. The President replied that in accordance with the decision of the Council at its 202nd meeting the comments of non-governmental organizations would not be forwarded to the General Assembly. He could give no definite answer to the Danish representative’s second point, as the form of the Council’s Report to the General Assembly was still under consideration by himself and the two Vice-Presidents. He pointed out, however, that any documents submitted by a United Nations body were available to the General Assembly, and could be brought to its notice by any representative. Mr. Phillips (United Kingdom) said that as no formal vote was being taken on the resolution transmitting the draft Convention on Genocide to the General Assembly he wished it to be recorded that he would have

E/SR.219

1251

abstained had such a vote been taken, for the reasons given in his previous intervention. Mr. van der Mandele (Netherlands) stated that he also would have abstained from voting on the resolution.

1252

E/1049

153(VII). Genocide Resolution of 26 August 1948 (document E/1049) The Economic and Social Council Decides to transmit to the General Assembly the draft Convention on the Prevention and Punishment of the Crime of Genocide submitted to the Council in the report of the ad hoc Committee on Genocide1; together with the remainder of this report and the records of the proceedings of the Council at its seventh session on this subject.2

1 2

For text of Convention, see document E/794, Annex, pages 54–59. See documents E/SR.180, 201, 202, 218 and 219.

The Genocide Convention

The Travaux Préparatoires of Multilateral Treaties

VOLUME 2

The Genocide Convention The Travaux Préparatoires

By

Hirad Abtahi and Philippa Webb

Volume Two

LEIDEN • BOSTON 2008

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Abtahi, Hirad. The genocide convention : the travaux preparatoires / by Hirad Abtahi and Philippa Webb. p. cm. — (The travaux preparatoires of multilateral treaties volume 2) Includes bibliographical references and index. ISBN 978-90-04-16418-5 (set : hardback : alk. paper)—ISBN 978-90-04-17399-6 (v. 1 : hardback : alk. paper)—ISBN 978-90-04-17400-9 (v. 2 : hardback : alk. paper) 1. Convention on the Prevention and Punishment of the Crime of Genocide (1948) 2. Genocide. I. Webb, Philippa. II. Title. K5302.A92 2009 345’.02510261—dc22 2008042417

ISSN 1875-9807 ISBN 978 90 04 17399 6 (Volume One) 978 90 04 17400 9 (Volume Two) 978 90 04 16418 5 (Set) Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

For my parents, Homa and Homayoun. H.A. For my parents, Steve and Annabelle. P.W.

Contents Volume One Foreword by President Rosalyn Higgins ...................................

xvii

Foreword by President Philippe Kirsch .....................................

xxi

Preface .......................................................................................

xxiii

Acknowledgments .....................................................................

xxxi

Reader’s Guide ..........................................................................

xxxiii

From the Secretariat Draft to the Ad Hoc Committee on Genocide ...................................... A/BUR/50 ................................................................................ A/C.6/64 ................................................................................... A/C.6/83 ................................................................................... A/C.6/86 ................................................................................... A/C.6/84 ................................................................................... A/C.6/91 ................................................................................... A/C.6/95 ................................................................................... A/C.6/94 ................................................................................... A/C.6/96 ................................................................................... A/C.6/120 ................................................................................. A/C.6/127 ................................................................................. A/231 ........................................................................................ United Nations General Assembly Resolution 96(I) ................. E/330 ........................................................................................ E/421 ........................................................................................ E/342 ........................................................................................ E/AC.7/8 .................................................................................. E/AC.7/W.7 .............................................................................. E/AC.7/W.14 ............................................................................ E/AC.7/15 ................................................................................ E/AC.7/15/Add.2 ......................................................................

1 3 4 5 6 8 13 16 17 18 25 28 31 34 35 38 43 44 49 50 53 57

viii

Contents

E/396/Rev.1 ................................................................................. E/325 ........................................................................................... A/AC.10/41 ................................................................................. A/AC.10/42 ................................................................................. A/AC.10/42/Rev.1 ....................................................................... A/AC.10/42/Add.1 ...................................................................... A/AC.10/15 ................................................................................. A/AC.10/29 ................................................................................. A/AC.10/43 ................................................................................. A/AC.10/44 ................................................................................. A/AC.10/46 ................................................................................. A/AC.10/46/Corr.1 ...................................................................... A/AC.10/SR.28 ............................................................................ A/AC.10/SR.29 ............................................................................ A/AC.10/SR.29/Corr.1 ................................................................ A/AC.10/SR.30 ............................................................................ A/AC.10/55 ................................................................................. Secretariat Draft E/447 ................................................................ E/476 ........................................................................................... E/SR.86 ......................................................................................... E/AC.7/22 ................................................................................... E/AC.7/23 ................................................................................... E/AC.7/SR.15 .............................................................................. E/AC.7/31 ................................................................................... E/AC.7/SR.17 .............................................................................. E/SR.107 ..................................................................................... E/522 ........................................................................................... E/573 ........................................................................................... A/362 ........................................................................................... A/C.6/147 .................................................................................... A/401 ........................................................................................... A/C.6/149 .................................................................................... A/C.6/SR.39 ................................................................................ A/C.6/151 .................................................................................... A/C.6/SR.40 ................................................................................ A/C.6/155 .................................................................................... A/C.6/SR.41 ................................................................................ A/C.6/159 ....................................................................................

58 60 61 115 124 133 134 137 143 145 146 148 150 171 197 198 208 209 283 285 287 288 289 295 297 300 301 302 331 363 366 385 387 391 392 394 395 400

Contents

ix

A/C.6/160 .................................................................................... A/C.6/SR.42 ................................................................................ A/C.6/177 .................................................................................... A/C.6/SC.5/W.23 ........................................................................ A/C.6/190 .................................................................................... A/C.6/190/Corr.1 ........................................................................ A/C.6/190/Rev.1 .......................................................................... A/C.6/192 .................................................................................... A/C.6/198 .................................................................................... A/C.6/201 .................................................................................... A/C.6/204 .................................................................................... A/C.6/SR.59 ................................................................................ A/510 ........................................................................................... A/512 ........................................................................................... A/513 ........................................................................................... A/514 ........................................................................................... A/PV.123 ..................................................................................... United Nations General Assembly Resolution 180(II) ................ E/C.2/49 ...................................................................................... E/C.2/52 ...................................................................................... E/C.2/63 ...................................................................................... E/C.2/64 ...................................................................................... E/621 ........................................................................................... E/623 ........................................................................................... E/622 ........................................................................................... E/623/Add.1 ................................................................................ E/C.2/78 ...................................................................................... E/662 ........................................................................................... E/662/Add.1 ................................................................................ E/663 ........................................................................................... E/SR.139 ..................................................................................... E/SR.140 ..................................................................................... E/622/Add.1 ................................................................................ E/AC.7/65 ................................................................................... E/AC.7/SR.37 .............................................................................. E/690 ........................................................................................... E/690/Add.1 ................................................................................ E/734 ...........................................................................................

401 402 407 408 412 417 418 422 423 424 425 426 431 436 437 438 439 467 469 471 473 475 478 529 572 577 580 583 584 585 586 592 599 600 601 616 617 619

x

Contents

E/621/Add.1 E/623/Add.2 E/623/Add.3 E/623/Add.4

................................................................................ ................................................................................ ................................................................................ ................................................................................

620 633 635 639

From the Ad Hoc Committee Draft to the Sixth Committee ..... E/AC.25/2 ................................................................................... E/AC.25/1 ................................................................................... E/AC.25/3 ................................................................................... E/AC.25/3/Rev.1 .......................................................................... E/AC.25/4 ................................................................................... E/AC.25/5 ................................................................................... E/AC.25/6 ................................................................................... E/AC.25/SR.1 .............................................................................. E/AC.25/SR.2 .............................................................................. E/AC.25/SR.2/Corr.2 .................................................................. E/AC.25/7 ................................................................................... E/AC.25/SR.3 .............................................................................. E/AC.25/SR.3/Corr.1 .................................................................. E/AC.25/SR.4 .............................................................................. E/AC.25/SR.4/Corr.1 .................................................................. E/AC.25/SR.4/Corr.2 .................................................................. E/AC.25/SR.5 .............................................................................. E/AC.25/SR.5/Corr.1 .................................................................. E/AC.25/SR.5/Corr.2 .................................................................. E/AC.25/SR.6 .............................................................................. E/AC.25/SR.6/Corr.1 .................................................................. E/AC.25/SR.6/Corr.2 .................................................................. E/AC.25/SR.6/Corr.3 .................................................................. E/AC.25/10 ................................................................................. E/AC.25/SR.7 .............................................................................. E/AC.25/SR.7/Corr.1 .................................................................. E/AC.25/SR.7/Corr.2 .................................................................. E/AC.25/SR.7/Corr.3 .................................................................. E/AC.25/SR.8 .............................................................................. E/AC.25/SR.8/Corr.1 .................................................................. E/AC.25/SR.8/Corr.2 .................................................................. E/AC.25/SR.9 .............................................................................. E/AC.25/8 ...................................................................................

641 643 649 657 667 677 678 681 682 688 695 696 699 709 710 723 724 725 738 739 740 757 758 759 760 777 793 794 795 796 817 818 819 829

Contents

xi

E/AC.25/9 ................................................................................... E/AC.25/SR.10 ............................................................................ E/AC.25/SR.10/Corr.1 ................................................................ E/AC.25/SR.10/Corr.2 ................................................................ E/AC.25/SR.10/Corr.3 ................................................................ E/AC.25/SR.11 ............................................................................ E/AC.25/SR.11/Corr.1 ................................................................ E/AC.25/SR.11/Corr.2 ................................................................ E/AC.25/11 ................................................................................. E/AC.25/SR.12 ............................................................................ E/AC.25/SR.12/Corr.1 ................................................................ E/AC.25/SR.13 ............................................................................ E/AC.25/SR.13/Corr.1 ................................................................ E/AC.25/SR.13/Corr.2 ................................................................ E/AC.25/SR.14 ............................................................................ E/AC.25/SR.14/Corr.1 ................................................................ E/AC.25/SR.15 ............................................................................ E/AC.25/SR.16 ............................................................................ E/AC.25/SR.17 ............................................................................ E/AC.25/SR.17/Corr.1 ................................................................ E/AC.25/SR.17/Corr.2 ................................................................ E/AC.25/SR.18 ............................................................................ E/AC.25/SR.18/Corr.2 ................................................................ E/AC.25/SR.18/Corr.3 ................................................................ E/AC.25/SR.19 ............................................................................ E/AC.25/SR.19/Corr.1 ................................................................ E/AC.25/SR.20 ............................................................................ E/AC.25/SR.20/Corr.1 ................................................................ E/AC.25/SR.20/Corr.2 ................................................................ E/AC.25/SR.20/Corr.3 ................................................................ E/AC.25/SR.21 ............................................................................ E/AC.25/SR.21/Corr.1 ................................................................ E/AC.25/SR.22 ............................................................................ E/AC.25/SR.22/Corr.1 ................................................................ E/AC.25/SR.23 ............................................................................ E/AC.25/W.1 ............................................................................... E/AC.25/W.1/Add.1 .................................................................... E/AC.25/W.1/Add.2 .................................................................... E/AC.25/W.1/Add.3 ....................................................................

833 834 845 846 847 848 855 856 857 860 869 871 882 883 884 894 895 899 909 916 917 918 931 932 933 940 941 950 951 952 953 960 961 969 970 979 985 991 996

xii

Contents

E/AC.25/W.1/Add.4 ................................................................. E/AC.25/W.2 ............................................................................ E/AC.25/W.2/Add.1 ................................................................. E/AC.25/SR.24 ......................................................................... E/AC.25/SR.24/Corr.1 ............................................................. E/AC.25/SR.25 ......................................................................... E/AC.25/SR.25/Corr.1 ............................................................. E/AC.25/SR.26 ......................................................................... E/AC.25/SR.26/Corr.1 ............................................................. E/AC.25/W.3 ............................................................................ E/AC.25/W.4 ............................................................................ E/AC.25/W.5 ............................................................................ E/AC.25/SR.27 ......................................................................... E/AC.25/SR.28 ......................................................................... E/AC.25/SR.28/Corr.1 ............................................................. E/794 ........................................................................................ E/794/Corr.1 ............................................................................ Ad Hoc Committee Draft E/AC.25/12 .................................... E/CN.4/94 ................................................................................ E/CN.4/136 .............................................................................. E/800 ........................................................................................ E/C.2/104 ................................................................................. E/C.2/105 ................................................................................. E/AC.27/1 ................................................................................ E/SR.180 .................................................................................. E/SR.201 .................................................................................. E/SR.202 .................................................................................. E/SR.218 .................................................................................. E/SR.219 .................................................................................. E/1049 ......................................................................................

1005 1009 1012 1013 1027 1028 1036 1037 1050 1051 1054 1071 1088 1098 1109 1110 1160 1161 1167 1168 1169 1171 1173 1175 1177 1177 1202 1219 1240 1252

Volume Two From the Sixth Committee to the Genocide Convention ........ Official Records of the Third Session of the General Assembly, Part I, Legal Questions, Sixth Committee ................................ Sixth Committee, Third Session, Table of Contents ................. Members of the Sixth Committee ............................................

1253 1255 1256 1272

Contents

Agenda for the Third Session .................................................... A/C.6/SR.61 ............................................................................. A/C.6/SR.62 ............................................................................. A/C.6/SR.63 ............................................................................. A/C.6/SR.64 ............................................................................. A/C.6/SR.65 ............................................................................. A/C.6/SR.66 ............................................................................. A/C.6/SR.67 ............................................................................. A/C.6/SR.68 ............................................................................. A/C.6/SR.69 ............................................................................. A/C.6/SR.71 ............................................................................. A/C.6/SR.72 ............................................................................. A/C.6/SR.73 ............................................................................. A/C.6/SR.74 ............................................................................. A/C.6/SR.75 ............................................................................. A/C.6/SR.76 ............................................................................. A/C.6/SR.77 ............................................................................. A/C.6/SR.78 ............................................................................. A/C.6/SR.79 ............................................................................. A/C.6/SR.80 ............................................................................. A/C.6/SR.81 ............................................................................. A/C.6/SR.82 ............................................................................. A/C.6/SR.83 ............................................................................. A/C.6/SR.84 ............................................................................. A/C.6/SR.85 ............................................................................. A/C.6/SR.86 ............................................................................. A/C.6/SR.87 ............................................................................. A/C.6/SR.91 ............................................................................. A/C.6/SR.92 ............................................................................. A/C.6/SR.93 ............................................................................. A/C.6/SR.94 ............................................................................. A/C.6/SR.95 ............................................................................. A/C.6/SR.96 ............................................................................. A/C.6/SR.97 ............................................................................. A/C.6/SR.98 ............................................................................. A/C.6/SR.99 ............................................................................. A/C.6/SR.100 ........................................................................... A/C.6/SR.101 ........................................................................... A/C.6/SR.102 ...........................................................................

xiii 1284 1285 1285 1289 1300 1310 1322 1332 1342 1354 1362 1367 1378 1390 1405 1420 1430 1443 1455 1465 1473 1487 1499 1519 1536 1553 1572 1588 1591 1609 1625 1639 1654 1669 1687 1702 1714 1732 1745

xiv

Contents

A/C.6/SR.103 ........................................................................... A/C.6/SR.104 ........................................................................... A/C.6/SR.105 ........................................................................... A/C.6/SR.106 ........................................................................... A/C.6/SR.107 ........................................................................... A/C.6/SR.108 ........................................................................... A/C.6/SR.109 ........................................................................... A/C.6/SR.110 ........................................................................... A/C.6/SR.128 ........................................................................... A/C.6/SR.129 ........................................................................... A/C.6/SR.130 ........................................................................... A/C.6/SR.131 ........................................................................... A/C.6/SR.132 ........................................................................... A/C.6/SR.133 ........................................................................... A/C.6/SR.134 ........................................................................... Table of Contents: Annexes ...................................................... A/C.6/206 ................................................................................. A/C.6/209 ................................................................................. A/C.6/211 ................................................................................. A/C.6/213 ................................................................................. A/C.6/214 ................................................................................. A/C.6/215/Rev.1 ....................................................................... A/C.6/217 ................................................................................. A/C.6/218 ................................................................................. A/C.6/221 ................................................................................. A/C.6/222 ................................................................................. A/C.6/223 & Corr.1 ................................................................. A/C.6/224 & Corr.1 ................................................................. A/C.6/225 ................................................................................. A/C.6/227 ................................................................................. A/C.6/229 ................................................................................. A/C.6/230 & Corr.1 ................................................................. A/C.6/231 ................................................................................. A/C.6/232/Rev.1 ....................................................................... A/C.6/235 ................................................................................. A/C.6/236 & Corr.1 ................................................................. A/C.6/238 ................................................................................. A/C.6/241 .................................................................................

1759 1775 1786 1802 1812 1824 1835 1849 1864 1871 1882 1898 1910 1922 1937 1943 1962 1963 1964 1967 1968 1968 1972 1975 1976 1977 1977 1978 1979 1983 1983 1984 1984 1985 1985 1986 1988 1991

Contents

xv

A/C.6/245 ................................................................................. A/C.6/248 ................................................................................. A/C.6/248/Rev.1 ....................................................................... A/C.6/249 ................................................................................. A/C.6/251 ................................................................................. A/C.6/252 ................................................................................. A/C.6/256 ................................................................................. A/C.6/257 ................................................................................. A/C.6/258 ................................................................................. A/C.6/261 ................................................................................. A/C.6/264 ................................................................................. A/C.6/267 ................................................................................. A/C.6/269 ................................................................................. A/C.6/270 ................................................................................. A/C.6/273 ................................................................................. A/C.6/288 ................................................................................. A/C.6/289 & Corr.1 ................................................................. A/C.6/295 ................................................................................. A/C.6/299 ................................................................................. A/C.6/305 ................................................................................. A/C.6/310 ................................................................................. A/C.6/312 ................................................................................. A/760 ........................................................................................ A/760/Corr.2 ............................................................................ A/766 ........................................................................................ A/770 ........................................................................................ A/PV.178 .................................................................................. A/PV.179 ..................................................................................

1992 1993 1994 1994 1995 1996 1997 1999 2004 2004 2005 2005 2006 2008 2009 2010 2011 2017 2018 2019 2020 2021 2022 2038 2039 2041 2042 2063

Convention on the Prevention and Punishment of the Crime of Genocide ..............................................................................

2086

Complete List of Documents with Full Titles ..........................

2093

Index of Names ........................................................................

2121

General Index ...........................................................................

2132

From the Sixth Committee to the Genocide Convention

Official Records of the Third Session

1255

UNITED NATIONS / NATIONS UNIES OFFICIAL RECORDS OF THE THIRD SESSION OF THE GENERAL ASSEMBLY, PART I LEGAL QUESTIONS SIXTH COMMITTEE SUMMARY RECORDS OF MEETINGS 21 SEPTEMBER–10 DECEMBER 1948 1948 PALAIS DE CHAILLOT, PARIS

INTRODUCTORY NOTE These Official Records include the corrections to the provisional summary records, as requested by the delegations, and such drafting and editorial modifications as were necessary. All United Nastions documents are designated by symbols, i.e. capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations Document. Relevant documents not reproduced in full in the texts of the meetings of the Sixth Committee are published in a separate annex to these Official Records.

1256

Sixth Committee, Third Session, Table of Contents

TABLE OF CONTENTS

Members of the Sixth Committee Agenda for the Third Session

Page 1272 1284

Sixty-first meeting Tuesday, 21 September 1948, at 7 p.m. 1. Election of the Chairman

1285

Sixty-second meeting Wednesday, 29 September 1948, at 3 p.m. 2. Election of the Vice-Chairman 3. Election of the Rapporteur 4. Adoption of the agenda

1285 1286 1286

Sixty-third meeting Thursday, 30 September 1948, at 10.30 a.m. 5. Consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1289

Sixty-fourth meeting Friday, 1 October 1948, at 10.30 a.m. 6. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1300

Sixty-fifth meeting Saturday, 2 October 1948, at 10.40 a.m. 7. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1310

Sixty-sixth meeting Monday, 4 October 1948, at 10.45 a.m. 8. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1322

Sixth Committee, Third Session, Table of Contents

1257

Sixty-seventh meeting Tuesday, 5 October 1948, at 10.50 a.m. 9. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1332

Article I Sixty-eighth meeting Wednesday, 6 October 1948, at 3.30 p.m. 10. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1342

Article I (conclusion) Sixty-ninth meeting Thursday, 7 October 1948, at 3.30 p.m. 11. Permanent invitation to the Director-General of the Organization of American States to be present at the sessions of the General Assembly [A/594 ] 12. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

...

1354

Article II Seventieth meeting Saturday, 9 October 1948, at 10.45 a.m. 13. Discussion on the permanent invitation to the SecretaryGeneral of the Organization of American States to be present at the sessions of the General Assembly [A/594 ]

...

Seventy-first meeting Monday, 11 October 1948, at 3.15 p.m. 14. Continuation of the discussion on the permanent invitation to the Secretary-General of the Organization of American States to be present at the sessions of the General Assembly [A/594 ] ... 15. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] 1362

1258

Sixth Committee, Third Session, Table of Contents

Article II (continued ) Seventy-second meeting Tuesday, 12 October 1948, at 3.10 p.m. 16. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1367

Article II (continued ) Seventy-third meeting Wednesday, 13 October 1948, at 3.15 p.m. 17. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1378

Article II (continued ) Seventy-fourth meeting Thursday, 14 October 1948, at 3.25 p.m. 18. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1390

Article II (continued ) Seventy-fifth meeting Friday, 15 October 1948, at 3.20 p.m. 19. Date for the consideration of item 7 on the agenda 20. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

...

1405

Article II (continued ) Seventy-sixth meeting Saturday, 16 October 1948, at 4 p.m. 21. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1420

Sixth Committee, Third Session, Table of Contents

1259

Article II (continued ) Seventy-seventh meeting Monday, 18 October 1948, at 10.45 a.m. 22. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1430

Article II (continued ) Seventy-eighth meeting Tuesday, 19 October 1948, at 10.50 a.m. 23. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1443

Proposal to set up a working group Article II (continued ) Seventy-ninth meeting Wednesday, 20 October 1948, at 10.30 a.m. 24. Registration and publication of treaties and international agreements [A/613] 25. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

...

1455

Article II (continued ) Eightieth meeting Thursday, 21 October 1948, at 10.45 a.m. 26. Continuation of the discussion on registration and publication of registration and publication of treaties and international agreements [A/613] 27. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

...

1465

1260

Sixth Committee, Third Session, Table of Contents

Article II (continued ) Eighty-first meeting Friday, 22 October 1948, at 3.15 p.m. 28. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1473

Time limit on speeches Article II (continued ) Eighty-second meeting Saturday, 23 October 1948, at 10.30 a.m. 29. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1487

Article II (continued ) Eighty-third meeting Monday, 25 October 1948, at 3 p.m. 30. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1499

Article II (conclusion) Article III Eighty-fourth meeting Tuesday, 26 October 1948, at 3.15 p.m. 31. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1519

Article IV Eighty-fifth meeting Wednesday, 27 October 1948, at 3.20 p.m. 32. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1536

Sixth Committee, Third Session, Table of Contents

1261

Article IV (continued ) 33. Date for the discussion of item 3 of the agenda Eighty-sixth meeting Thursday, 28 October 1948, at 3 p.m. 34. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

...

1553

Article IV (continued ) Eighty-seventh meeting Friday, 29 October 1948, at 3.15 p.m. 35. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1572

Article IV (continued ) Eighty-eighth meeting Saturday, 30 October 1948, at 3.15 p.m. 36. Discussion on the transfer to the United Nations of the functions and powers previously exercised by the League of Nations under the International Convention relating to economic statistics, signed at Geneva on 14 December 1928

...

Eighty-ninth meeting Tuesday, 2 November 1948, at 10.40 a.m. 37. Continuation of the discussion on the transfer to the United Nations of the functions and powers previously exercised by the League of Nations under the International Convention relating to economic statistics, signed at Geneva on 14 December 1928

...

Ninetieth meeting Wednesday, 3 November 1948, at 4 p.m. 38. Continuation of the discussion on the transfer to the United Nations of the functions and powers previously exercised by the League of Nations under the International Convention relating to economic statistics, signed at Geneva on 14 December 1928

...

1262

Sixth Committee, Third Session, Table of Contentss

Ninety-first meeting Thursday, 4 November 1948, at 10.50 a.m. 39. Continuation of the discussion on the transfer to the United Nations of the functions and powers previously exercised by the League of Nations under the International Convention relating to economic statistics, signed at Geneva on 14 December 1928 40. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

...

1588

Article IV (conclusion) Ninety-second meeting Friday, 5 November 1948, at 10.45 a.m. 41. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1591

Article V Ninety-third meeting Saturday, 6 November 1948, at 10.45 a.m. 42. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1609

Article V (continued ) Article VI Ninety-fourth meeting Monday, 8 November 1948, at 11 a.m. 43. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1625

Sixth Committee, Third Session, Table of Contents

1263

Article VIII and IX Ninety-fifth meeting Monday, 8 November 1948, at 3.15 p.m. 44. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1639

Article IX (conclusion) Article V (continued ) Ninety-sixth meeting Tuesday, 9 November 1948, at 11 a.m. 45. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1654

Article V (conclusion) Ninety-seventh meeting Tuesday, 9 November 1948, at 3.15 p.m. 46. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1669

Article VI (conclusion) Article VII Ninety-eighth meeting Wednesday, 10 November 1948, at 10.30 a.m. 47. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1687

Article VII (continued ) Ninety-ninth meeting Wednesday, 10 November 1948, at 3.15 p.m. 48. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1702

1264

Sixth Committee, Third Session, Table of Contents

Article VII (continued ) Hundredth meeting Thursday, 11 November 1948, at 3.15 p.m. 49. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1714

Article VII (continued ) Hundred and first meeting Thursday, 11 November 1948, at 8.30 p.m. 50. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1732

Article VIII (continued ) Hundred and second meeting Friday, 12 November 1948, at 10.45 a.m. 51. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1743

Article VIII (conclusion) Hundred and third meeting Friday, 12 November 1948, at 3.15 p.m. 52. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1759

Article X Hundred and fourth meeting Saturday, 13 November 1948, at 10.50 a.m. 53. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1775

Sixth Committee, Third Session, Table of Contents

1265

Appointment of a drafting committee Article X (continued ) Hundred and fifth meeting Saturday, 13 November 1948, at 3.25 p.m. 54. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Composition of the Drafting Committee

1786

Article X (conclusion) New article submitted by the USSR delegation Hundred and sixth meeting Monday, 15 November 1948, at 11.45 a.m. 55. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1802

New article submitted by the USSR delegation (continued ) Hundred and seventh meeting Monday, 15 November 1948, at 3 p.m. 56. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1812

New article submitted by the USSR delegation (conclusion) Article XI Article XII New article submitted by the United Kingdom delegation Article XIII 57. Order of discussion of the remaining items on the agenda Hundred and eighth meeting Tuesday, 16 November 1948, at 10.50 a.m.

...

1266

Sixth Committee, Third Session, Table of Contents

58. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633]

1824

Iranian draft resolution Article XIV Article XV Article XVI Articles XVII, XVIII and XIX Composition of the Drafting Committee (conclusion) Hundred and ninth meeting Wednesday, 17 November 1948, at 11.50 a.m. 59. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Preamble Hundred and tenth meeting Thursday, 18 November 1948, at 3 p.m. 60. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Preamble (conclusion) Hundred and eleventh meeting Friday, 19 November 1948, at 10.30 a.m. 61. Transfer to the United Nations of the functions exercised by the French Government under the International Agreement of 18 May 1904 and the International Convention of 4 May 1910 for Suppression of the White Slave Traffic, and under the International Agreement of 4 May 1910 for the Suppression of Obscene Publications

1835

1849

...

Sixth Committee, Third Session, Table of Contents

1267

Hundred and twelfth meeting Friday, 19 November 1948, at 3.30 p.m. 62. Consideration of the memorandum of the SecretaryGeneral relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and thirteenth meeting Saturday, 20 November 1948, at 10.50 a.m. 63. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and fourteenth meeting Saturday, 20 November 1948, at 3.30 p.m. 64. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and fifteenth meeting Monday, 22 November 1948, at 10.50 a.m. 65. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and sixteenth meeting Monday, 22 November 1948, at 4.15 p.m. 66. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and seventeenth meeting Tuesday, 23 November 1948, at 10.55 a.m. 67. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and eighteenth meeting Tuesday, 23 November 1948, at 3.25 p.m. 68. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

1268

Sixth Committee, Third Session, Table of Contents

Hundred and nineteenth meeting Wednesday, 24 November 1948, at 10.30 a.m. 69. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and twentieth meeting Wednesday, 24 November 1948, at 3.30 p.m. 70. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and twenty-first meeting Thursday, 25 November 1948, at 10.30 a.m. 71. Continuation of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations

...

Hundred and twenty-second meeting Thursday, 25 November 1948, at 5 p.m. 72. Postponement of the meeting on account of nonavailability of Spanish interpretation

...

Hundred and twenty-third meeting Friday, 26 November 1948, at 3.30 p.m. 73. Postponement of the meeting on account of nonavailability of Spanish interpretation

...

Hundred and twenty-fourth meeting Friday, 26 November 1948, at 8.30 p.m. 74. Conclusion of the consideration of the memorandum of the Secretary-General relating to reparation for injuries incurred in the service of the United Nations 75. Discussion on the question of permanent missions to the United Nations Hundred and twenty-fifth meeting Saturday, 27 November 1948, at 11 a.m. 76. Continuation of the discussion on the question of permanent missions to the United Nations

... ...

...

Sixth Committee, Third Session, Table of Contents

Hundred and twenty-sixth meeting Saturday, 27 November 1948, at 4 p.m. 77. Continuation of the discussion on the question of permanent missions to the United Nations Hundred and twenty-seventh meeting Monday, 29 November 1948, at 10.30 a.m. 78. Conclusion of the discussion on the question of permanent missions to the United Nations 79. Consideration of the report of the Secretary-General on the privileges and immunities of the United Nations Hundred and twenty-eighth meeting Monday, 29 November 1948, at 8.50 p.m. 80. Continuation of the consideration of the report of the Secretary-General on the privileges and immunities of the United Nations 81. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Hundred and twenty-ninth meeting Tuesday, 30 November 1948, at 10.30 a.m. 82. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Hundred and thirtieth meeting Tuesday, 30 November 1948, at 3.30 p.m. 83. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Hundred and thirty-first meeting Wednesday, 1 December 1948, at 11 a.m. 84. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee

1269

...

... ...

...

1864

1871

1882

1898

1270

Sixth Committee, Third Session, Table of Contents

Hundred and thirty-second meeting Wednesday, 1 December 1948, at 3.30 p.m. 85. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Hundred and thirty-third meeting Thursday, 2 December 1948, at 11 a.m. 86. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Hundred and thirty-fourth meeting Thursday, 2 December 1948, at 3.30 p.m. 87. Conclusion of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee (conclusion) 88. Discussion on the question of the violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter

1910

1922

1937

...

Hundred and thirty-fifth meeting Friday, 3 December 1948, at 10.45 a.m. 89. Continuation of the discussion on the question of the violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter

...

Hundred and thirty-sixth meeting Monday, 6 December 1948, at 3.30 p.m. 90. Continuation of the discussion on the question of the violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter

...

Sixth Committee, Third Session, Table of Contents

1271

Hundred and thirty-seventh meeting Monday, 6 December 1948, at 9 p.m. 91. Continuation of the discussion on the question of the violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter

...

Hundred and thirty-eighth meeting Tuesday, 7 December 1948, at 11 a.m. 92. Continuation of the discussion on the question of the violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter

...

Hundred and thirty-ninth meeting Tuesday, 7 December 1948, at 3.30 p.m. 93. Conclusion of the discussion on the question of the violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter 94. Approval of supplementary agreements with specialized agencies concerning the use of the United Nations laissez-passer

...

Hundred and fortieth meeting Friday, 10 December 1948, at 3.50 p.m. 95. Modification of rule 44 of the rules of procedure of the General Assembly

...

...

1272

Members of the Sixth Committee

MEMBERS OF THE SIXTH COMMITTEE

Chairman Dr. Ricardo J. Alfaro (Panama) Vice-Chairman H.R.H. Prince Wan Waithayakon (Siam) Rapporteur Mr. Jean Spiropoulos (Greece) Afghanistan Representative Mr. Nadjmouddine Bammate Argentina Representative Dr. Raúl Bustos Fierro Alternate Dr. Adolfo Serrano Australia Representative Mr. W.J. Dignam Alternate Mr. J.E. Oldham Adviser Mr. T.G. Glasheen Belgium Representative M. Georges Kaeckenbeeck Alternate M. Joseph Nisot

Members of the Sixth Committee

Bolivia Representative Sr. Gustavo Medeiros Querejazu Adviser Sr. Adrian Urriolagoitia Brazil Representative Dr. Raul Fernandes Alternate M. Gilberto Amado Adviser M. Ramiro Saraiva Guerreiro Burma Representative H.E. U So Nyun Alternate H.E. U Pe Khin Advisers U Ba Maung U Ba Thaung U Soe Tin Byelorussian Soviet Socialist Republic Representative Mr. N.M. Khomussko Canada Representative Mr. Hugues Lapointe Advisers Mr. H.F. Feaver Mr. J. Léger

1273

1274

Members of the Sixth Committee

Chile Representative H.E. Sr. Hector Arancibia Lazo Alternate Sr. Luis D. Cruz Ocampo Adviser Sr. Fernando Maquieira China Representatives H.E. Dr. Tsien Tai H.E. Dr. Ti-tsun Li Dr. Shuhsi Hsu Advisers Dr. H.C. Kiang Dr. Lin Mousheng Dr. Ton-fa Scie Mr. Te Tseng Dr. H. Cha Colombia Representatives H.E. Sr. Camilo de Brigard Silva H.E. Dr. Augusto Ramirez Moreno H.E. Dr. Abelardo Forero Bernavides H.E. Dr. Francisco Umana Bernal Costa Rica Representative H.E. Sr. Gonzalo J. Facio Alternate H.E. Dr. Alberto F. Canas Adviser Sr. Luis Dobles Sánchez

Members of the Sixth Committee

Cuba Representative Dr. Ernesto Dihigo Alternates Dr. Carlos Blanco Dr. Guy Pérez Cisneros Czechoslovakia Representative Professor Vladimir Prochazka Alternates Dr. Vavre Hajdu Professor G. Zourek Advisers Professor Vladimir Vochoc Dr. Frantisek Gottlieb Denmark Representative Mr. Per Federspiel Alternate Mr. Hermod Lannung Adviser Mr. J. Rechendorff Dominican Republic Representative Dr. Temistocles Messina Alternate Dr. Enrique de Marchena Dujarric Ecuador Representative Dr. José A. Correa

1275

1276

Members of the Sixth Committee

Egypt Representative Dr. Wahid Fikry Raafat Alternate Dr. Hassan Boghdadi El Salvador Representative Dr. Luis Ernesto Guillén Alternate Dr. Manuel Gutiérrez Serrano Ethiopia Representative Ato Zelleka Gashaou Alternates Ato Kifle Egzi Gabremaskal Mr. H. Spencer France Representative H.E.M. Alexandre Parodi Alternates M. René Cassin M. Charles Chaumont Advisers M. Edgar Faure M. Samuel Spanien Greece Representative Mr. Jean Spiropoulos Alternate Mr. Alexandre Contoumas Adviser Mr. Pierre Valindas

Members of the Sixth Committee

Guatemala Representative Sr. Julio Camey Herrera Sr. Carlos García Bauer Alternate Sr. Frederico Rolz Bennett Haiti Representatives M. Castel Demesmin M. Emile Saint-Lot Alternate M.S. Wesner Apollon Honduras Representative H.E. Dr. Tiburcio Carias Castillo Junior Iceland Representative Mr. Hermann Jonasson India Representative Mr. M.C. Setalvad Alternate Sir Benegal Narsinga Rau Adviser Mr. K.V.K. Sundaram Iran Representative Dr. Djalal Abdoh Alternate Mr. Reza Safinia

1277

1278

Members of the Sixth Committee

Iraq Representative Mr. Abdull Jabar Jormerd Alternate Mr. M. Rashid Lebanon Representative Mr. Anis Saleh Alternate Mr. Mohammed Sabra Liberia Representative Mr. Edwin A. Morgan Alternate Mr. J. Carney Johnson Luxembourg Representative M. Albert Wehrer Alternate M. Pierre Pescatore Mexico Representative H.E. Dr. Pablo Campos Ortiz Alternate H.E. Dr. Pedro de Alba Adviser Dr. Raúl Noriega Netherlands Representative Professor J.P.A. François

Members of the Sixth Committee

Alternate Dr. J.C. de Beus Adviser Dr. R.H. Pos New Zealand Representative Mr. J.S. Reid Adviser Mr. C.C. Aikman Nicaragua Representatives H.E. Dr. Luis Manuel Debayle H.E. Dr. Guillermo Sevilla Sacasa Major Anastasio Somoza Junior Dr. Mariano Arguello Vargas Dr. Alfonso Arguello Cervantes Alternate Dr. Tomas Francisco Medina Norway Representative M. Terje Wold Alternates Mr. Erling Wikborg Mr. Frede Castberg Mr. Gustav Sjaastad Mr. Ivar Lunde Mr. Einar Ansteensen Pakistan Representative Sardar Bahadur Khan Alternate Lieutenant-Colonel Abdur Rahim Khan

1279

1280

Members of the Sixth Committee

Advisers Khan Bahadur S.I. Hussein Mr. Agha Shahi Panama Representative H.E. Dr. Ricardo J. Alfaro Alternate Sr. Roberto Alemán Paraguay Representative H.E. Dr. Domingo Montanaro Alternate Sr. José Rifa Peru Representative H.E. Dr. Enrique Goytisolo Alternate Sr. Manuel Félix Maúrtua Adviser Sr. Carlos Arevalo y Carreno Philippines Representative Mr. Quintin Paredes Alternate Judge José D. Inglés Adviser Mr. Melchor P. Aquino Poland Representative Mr. Manfred Lachs

Members of the Sixth Committee

Saudi Arabia Representative Mr. Abdel Rahman al-Rassam Alternate Dr. Rachad Pharoum Siam Representative H.R.H. Prince Wan Waithayakon Sweden Representative Mr. Karl Ivan Westman Alternate Mr. B.A.S. Petren Syria Representative Mr. Khaled el-Azem Alternate Mr. Issam Inglizi Advisers Dr. Ahmad El-Aadly Dr. Salaheddine Tarazi Turkey Representative H.E. Mr. Numan Menemencioglu Mr. Sinasi Devrin Alternate Mr. Settar Iksel Ukrainian Soviet Socialist Republic Representative Mr. Vadim P. Kovalenko

1281

1282

Members of the Sixth Committee

Union of South Africa Representatives Mr. Leif Egeland Mr. H.T. Andrews Alternates Dr. L.C. Steyn Mr. G.P. Jooste Adviser Mr. L.B. Gorber Union of Soviet Socialist Republics Representative H.E. Mr. Alexandre Bogomolov Alternate Mr. Platon D. Morozov Adviser Mr. Alexandre G. Abramov United Kingdom Representative The Rt. Hon. Sir Hartley Shawcross Alternates Mrs. F. Corbet Mr. Ernest Davies Advisers Mr. G.G. Fitzmaurice Mr. J.E.S. Fawcett United States of America Representative Mr. Ernest A. Gross Advisers H.E. Mr. Frank P. Corrigan Mr. John Maktos Mr. John K. Emmerson Mr. Joseph E. Jacobs

Members of the Sixth Committee

Mr. Samuel K.C. Kopper Miss Marcia Maylott Mr. Leonard C. Meeker Mr. Harry Clinton Reed Uruguay Representatives Dr. Carlos Manini y Rios Dr. Gilberto Pratt de María Dr. Emilio N. Oribe Venezuela Representatives Dr. Eduardo Plaza Dr. V.M. Pérez Perozo Alternates Dr. Carlos Rodríguez Jiménez Dr. Adolfo Nass Yemen Representative El Khadi Mohammed Abdullah Al-Amri Yugoslavia Representative Mr. Milan Bartos Alternate Mr. Ljuba Radevanovic Adviser Mr. Ratko Plejic

1283

1284

Agenda for the Third Session

SIXTH COMMITTEE Agenda The General Assembly, at its 142nd plenary meeting held on 24 September 1948, decided to allocate the following items of the agenda of the third session to the Sixth Committee for consideration and report: 1. Transfer to the United Nations of the functions and powers exercised by the League of Nations under the International Convention relating to economic statistics signed at Geneva on 14 December 1928: item proposed by the Economic and Social Council. 2. Transfer to the United Nations of functions exercised by the French Government under the Agreement of 18 May 1904 and the Convention of 4 May 1910 for the suppression of the white slave traffic, and under the Agreement of 4 May 1910 for the suppression of obscene publications: item proposed by the Economic and Social Council. 3. Approval of supplementary agreements with specialized agencies concerning the use of United Nations laissez-passer: report of the Secretary-General. 4. Genocide: draft Convention and report of the Economic and Social Council. 5. Permanent missions to the United Nations: item proposed by Bolivia. 6. Registration and publication of treaties and international agreements: report of the Secretary-General. 7. Privileges and immunities of the United Nations: report of the SecretaryGeneral. (a) Headquarters Agreement; (b) Convention on the Privileges and Immunities of the United Nations. 8. Violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter: item proposed by Chile. 9. Permanent invitation to the Director-General of the Organization of American States to assist at the sessions of the General Assembly: item proposed by Argentina. 10. Reparation for injuries incurred in the service of the United Nations: item proposed by the Secretary-General.

A/C.6/SR.61

1285

SIXTH COMMITTEE Legal Questions SIXTY-FIRST MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 21 September 1948, at 7 p.m. Acting Chairman: Mr. H.V. Evatt (Australia). 1. Election of the Chairman Mr. Katz-Suchy (Poland) nominated Mr. Prochazka (Czechoslovakia). The representatives of Chile and Peru nominated Mr. Alfaro (Panama). A vote was taken by secret ballot. As a result of the vote, Mr. Alfaro (Panama) was elected Chairman. The meeting rose at 7.30 p.m.

SIXTYSECOND MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 29 September 1948, at 3 p.m. Chairman: Mr. R.J. Alfaro (Panama). 2. Election of the Vice-Chairman Mr. Tsien Tai (China) nominated Prince Wan Waithayakon (Siam). Mr. Raafat (Eygpt) [sic] nominated Mr. Egeland (Union of South Africa), as the African continent was not represented on the General Committee of the Assembly. As Mr. Egeland (Union of South Africa) did not wish to stand, and there were no other nominations, Prince Wan Waithayakon (Siam) was unanimously elected Vice-Chairman. Prince Wan Waithayakon (Siam) expressed his thanks to the Committee.

1286

A/C.6/SR.62

3. Election of the Rapporteur Mr. Gross (United States of America) nominated Mr. Spiropoulos (Greece). Mr. Prochazka (Czechoslovakia) nominated Mr. Lachs (Poland). Mr. Federspiel (Denmark) supported the nomination of Mr. Lachs. Mr. Raafat (Egypt) nominated Mr. Kaeckenbeeck (Belgium). Mr. Kaeckenbeeck (Belgium) stated he did not desire to stand. A vote was taken by secret ballot, as follows: Number of votes cast: 52 Blank vote: 1 Invalid vote: 1 Valid votes: 50 Absolute majority: 26 Number of votes obtained: Mr. Spiropoulos (Greece) 35, Mr. Lachs (Poland) 15. Number of votes obtained: Mr. Spiropoulos (Greece), having obtained an absolute majority, was elected Rapporteur. Mr. Spiropoulos (Greece) thanked the Committee for the confidence shown in him. 4. Adoption of the agenda Mr. Yuen-li Liang (Secretary of the Committee) read a letter from the President of the General Assembly containing the Committee’s agenda [A/C.6/206]. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) suggested that the Committee should examine the order of priority to be accorded to the various items on the agenda. He reminded the Committee that the question of genocide had been outstanding for a long time and should be discussed immediately. The Chairman opened the general discussion on the order of priority to be accorded to various items on the agenda. Mr. Correa (Ecuador) suggested that the Committee should begin with item 9 of the agenda (Permanent invitation to the Director-General of the Organization of American States to be present at the sessions of the General Assembly: item proposed by Argentina). If that proposal were adopted, the Director-General could take part in the current session.

A/C.6/SR.62

1287

Mr. Gross (United States of America) supported the proposal of the representative of Ecuador. He considered that the examination of the draft convention on genocide should come second in view of the time it would take up and of its urgent character. Sardar Bahadur Khan (Pakistan) believed the problem of genocide deserved immediate attention in view of its urgency and of the fact that the future of the United Nations depended to a great extent on its solution. Mr. Dignam (Australia) also felt that the final settlement of that question should be one of the positive achievements of the third session of the Assembly, in accordance with the provisions of Article 13, paragraph 1 of the Charter. Mr. Chaumont (France) thought a general discussion by a plenary meeting of the Committee could serve no useful purpose, as the position of all the delegations had been known for a long time past. A sub-committee should be set up immediately to examine the question and report to the Committee. Mr. Federspiel (Denmark) argued that there was no need to refer to a sub-committee a question that had already been thoroughly examined. On the other hand he felt that items 1, 2, 3, 5 and 7 should be referred to a sub-committee. Mr. Raafat (Egypt) pointed out that the agenda was not overloaded and that there was no need, therefore, to alter the order of items, except in the case of genocide, which would probably have to be referred to a sub-committee. Sir Hartley Shawcross (United Kingdom) supported the proposal to discuss the question of genocide first since, despite the arguments put forward by his delegation, it was still felt that a convention was essential for the suppression of that crime. The draft convention would no doubt have to be referred to a sub-committee, as in its present form it could not gain the unanimous approval which was necessary for its implementation. Mr. de Brigard Silva (Colombia) felt that item 9 should be discussed first so that the Director-General of the Organization of American States could, if necessary, take part in the current session of the Assembly. Genocide should be the second item on the agenda.

1288

A/C.6/SR.62

Mr. Reid (New Zealand) drew the Chairman’s attention to the difficulties which a simultaneous discussion of the question of genocide in the Sixth Committee and of the question of human rights in the Third Committee would entail for certain delegations, and requested the Chairman to come to some arrangement on that point with the Chairman of the Third Committee. The Chairman promised to do so. Mr. Ortiz (Mexico) noted that all members were unanimous in recognizing the urgency of the problem of genocide. He felt, however, that it would be advisable to come to a quick decision on item 9, out of courtesy to the Organization of American States, which had already, on two occasions, invited representatives of the United Nations to its conferences. He would formally propose that a vote should be taken on the proposal of the representative of Ecuador. The Chairman put to the vote the question of according first priority on the agenda to the problem of genocide. The resolution was adopted by 29 votes to 18, with 8 abstentions. By 35 votes to none, with 5 abstentions, the Committee decided to insert item 9 as the second item on the agenda. Mr. Yuen-li Liang (Secretary of the Committee) read a memorandum by the Secretary-General urging the delegations to limit to the strict minimum their requirements in documents. Budget considerations made it impossible to exceed the amounts provided for in circular A/INF/19. He also drew attention to circular A/INF/19/Add.1 of 10 September 1948 which gave the time and place of the distribution of most of the General Assembly’s documents. The meeting rose at 4:30 p.m.

A/C.6/SR.63

1289

SIXTYTHIRD MEETING Held at the Palais de Chaillot, Paris, on Thursday, 30 September 1948, at 10.30 a.m. Chairman: Mr. R.J. Alfaro (Panama). 5. Consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Mr. Gross (United States of America) reminded the Committee that the principle of outlawing genocide had been unanimously accepted by all members of the United Nations, and stated that the adoption of the draft convention drawn up by the Ad Hoc Committee on Genocide [E/794 ]1 would mark an epoch in the history of civilization. 1

See Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6.

The delegation of the United States of America congratulated the Ad Hoc Committee on its excellent work on that subject, but reserved the right to introduce certain amendments to the draft convention submitted by it to the Economic and Social Council. In view of the special urgency of the question, Mr. Gross was not in favour of referring it to the International Law Commission, as had been proposed at the seventh session of the Economic and Social Council. Mr. Gross did not agree with the view expressed by the representative of the United Kingdom, who thought there was no need for a convention, since genocide was already illegal. It was, however, essential to give a precise definition of genocide and make provision for outlawing it; for that reason a convention was desirable. As regards the view that genocide had been illegal since the Nürnberg trials, it was to be noted that the Nürnberg decision did not cover genocide committed in time of peace, but only acts committed during, or in connexion with, war. Some people were doubtful as to the number of ratifications which could be obtained for such a convention. The Government of the United States, for its part, considered the subject sufficiently important to justify further efforts.

1290

A/C.6/SR.63

The Assembly resolution 180(II) of 21 November 1947 requested the Economic and Social Council to draw up a convention, taking into account the fact that the International Law Commission had been charged with the formulation of the Nürnberg principles as well as with the preparation of a draft code bearing on offences against peace and security. Mr. Gross thought it did not follow that the convention must necessarily be referred to the International Law Commission. The draft dealt, indeed, only with genocide. It could always be referred, at a later date, to the International Law Commission for incorporation in a general code of offences against peace and security. The opinion was sometimes expressed that the body best qualified to prepare a final draft of the convention was the International Law Commission, since it was composed of experts. The United States delegation did not share that view but believed that the existing draft afforded an excellent working basis. Having regard to the troubled state of the world, it was essential that the convention should be adopted as soon as possible, before the memory of the barbarous crimes which had been committed faded from the minds of men. It was for that reason that the United States was eager to see the convention adopted at the current session of the Assembly, and opposed the idea of referring the matter to the International Law Commission. The first matter before the Sixth Committee was therefore to decide whether or not to refer the question to the International Law Commission. Mr. Gross also opposed the establishment of a sub-committee for the study of the convention. That would, in his opinion, be a sheer waste of time, since the arguments advanced in the sub-committee would certainly be duplicated in the full Committee. He proposed, therefore, that the Committee should proceed at once to an examination of the draft text and should establish a sub-committee only if that proved absolutely necessary. Since only a limited number of members had taken part in the work of the Ad Hoc Committee, certain Governments would doubtless desire to make general statements of principle. He requested members, however, not to embark on the discussion of general issues until such time as those issues came up during the consideration of the draft article by article; and he asked that any proposals should be submitted in the form of written amendments.

A/C.6/SR.63

1291

In conclusion, Mr. Gross made the following formal proposal [A/ C.6/208]: The Committee decides not to refer to the International Law Commission the preparation of the final text of the convention on genocide, but to proceed with the preparation of such final text for submission to this session of the Assembly.

This proposal was not, of course, intended to prejudge the question of the desirability of the establishment of the sub-committee. The Chairman reminded the Committee that it had been instructed to examine the draft convention prepared by the Ad Hoc Committee on Genocide and to submit a final draft to the General Assembly. He considered that the draft provided an excellent working basis, and asked the members of the Committee to express their general views on the subject. He added that the Committee would be at liberty to establish a drafting committee should the necessity for that become evident in the course of the discussion. Mr. Amado (Brazil) favoured discussion of the draft convention article by article. His delegation noted with satisfaction that all the ideas and suggestions put forward at earlier sessions of the Assembly had now been embodied in a very acceptable draft. While reserving the right to participate in the detailed discussion, Mr. Amado drew attention to the following points: 1. Genocide should be defined stricto sensu, that is, it should be considered as a specific crime against groups of human beings for reasons of race, nationality or religion; 2. The crime in question consisted in the partial or total extermination of such groups; 3. Political groups should not be included in the groups to be protected, since they lacked the necessary homogeneity and stability; 4. Cultural genocide should be taken to denote the destruction by violence of the cultural and social characteristics of a group of human beings; care should be taken, when dealing with new countries, not to favour minority movements which would tend to oppose the legitimate efforts made to assimilate the minorities by the countries in which they were living;

1292

A/C.6/SR.63

5. In order to avoid misunderstanding, it was important to adhere strictly to the definition of genocide given by the General Assembly, namely, homicide committed against a group of human beings; 6. Acts of a reprehensible, but not especially heinous, character should be examined in relation to the protection of the rights of man in general; 7. Whilst approving the principle of suppressing genocide by national penal jurisdiction, the delegation of Brazil considered that provision should be made for trial by an international court of cases of violation of the future convention. In that connexion, he approved the wise provision made by the Ad Hoc Committee on Genocide; future events would indicate the desirability of establishing either a permanent international tribunal or special tribunals. Speaking of the connexion between genocide and the principles formulated at Nürnberg, Mr. Amado warned the Committee against a confusion of terms. Resolution 180(II) of the General Assembly made a careful distinction between genocide and the crimes against humanity enumerated in article 6(c), of the Charter of the International Military Tribunal at Nürnberg. If the Assembly had asked the Economic and Social Council to take into account the terms of reference given to the International Law Commission in connexion with formulation of the Nürnberg principles, it was in order to draw the attention of the Council to the basic distinction to be drawn between those various related concepts. While it was true that article 6(c) of the Nürnberg Charter enumerated acts which, by their nature, constituted genocide, such acts were covered by the article only in so far as they came under the jurisdiction of the Tribunal, that is, in so far as they had been committed either during, or in connexion with the preparation for, war. Genocide, however, was an international crime which could also be committed in time of peace, and the Assembly had been careful to make that important distinction. Mr. Amado considered that the clarification of the concept of crimes against humanity, which was evolved at Nürnberg, was one of the most intricate problems which legal experts had to solve. The confusion of ideas at Nürnberg was well known, and that confusion had been reflected by Sir Hartley Shawcross in his speeches before the Tribunal. In view of the vagueness about the concept of crimes against humanity, it would be well to define genocide as a separate crime committed against certain groups of human beings as such.

A/C.6/SR.63

1293

Mr. Dignam (Australia) supported the view of the representative of the United States of America and of the Chairman, namely, that the Sixth Committee should proceed immediately to an examination of the draft convention, article by article. The delegation of Australia was anxious to see a convention on genocide adopted during the current session and therefore deprecated referring the draft in question to the International Law Commission. Mr. Raafat (Egypt) recalled that, at the second session of the General Assembly, the Egyptian delegation had supported the proposal [A/512]1 of the delegations of Panama and Cuba that a draft convention should be submitted at the third session. Despite the fact that the Sixth Committee had voted against that proposal, the General Assembly had accepted it. 1

See Official Records of the second session of the General Assembly, Plenary Meetings, Volume II, Annex 32a, page 1628.

The Egyptian delegation welcomed the draft convention prepared by the Ad Hoc Committee on Genocide, and congratulated the Committee on its work. Hospitable and tolerant by tradition, Egypt would certainly adhere to any convention on genocide which the General Assembly approved. Egypt wished, however, to make various observations on the draft now before the Sixth Committee. The Egyptian delegation had drawn the attention of the members of the Committee during the second session to the dubious application of the term genocide to acts committed against political groups. The Egyptian delegation had also expressed the fear that the concept of cultural genocide might hamper a reasonable policy of assimilation which no State aiming at national unity could be expected to renounce. The delegation was now inclined to accept such a concept, as it had become convinced that the convention could not fulfill its purpose satisfactorily if the factor of cultural genocide were completely ignored. It considered, however, that in order to secure the greatest possible number of adherences, a narrower definition of cultural genocide should be adopted.

1294

A/C.6/SR.63

The Egyptian delegation was still of the opinion that it would be dangerous, in view of the frequent and inevitable changes of political opinion, to include political groups amongst the groups of human beings to be protected against genocide. That did not, however, mean that such groups were to be left without any international protection whatsoever; the Egyptian delegation recognized the right of such groups to protection, but considered that such protection should be ensured under the heading of human rights. With regard to the tribunals empowered to suppress genocide, Mr. Raafat congratulated the authors of the draft on providing for an international tribunal in addition to the national tribunals of the countries on whose territories the crime of genocide was committed. If questions were to be judged by national tribunals only, many crimes of genocide would long remain unpunished. The Egyptian delegation would prefer that authority to deal with questions of genocide should be vested in the International Court of Justice rather than in a special court of justice set up for the purpose; such a court would constitute merely an additional cog in the international machinery. With regard to the validity of the proposed convention, Mr. Raafat pointed out that article XIV of the draft provided for a duration of five years. His delegation associated itself fully with the remarks made in the Ad Hoc Committee on Genocide by the representative of the Union of Soviet Socialist Republics, who had rightly pointed out that there should be no time limit to the validity of a convention of that kind. Mr. Raafat hoped that the Sixth Committee would be able to arrive at a more satisfactory formula. The Egyptian delegation was opposed to referring the draft convention to the International Law Commission, on the ground that that would lead to indefinite delay in the drawing up of a convention. The Egyptian delegation considered, however, that the careful and detailed examination of the draft prepared by the Ad Hoc Committee on Genocide should not be carried out by the Sixth Committee itself but by a drafting committee. Mr. Chaumont (France) said that he was glad to see that work on the draft convention on the crime of genocide had entered its final stages. The Committee had before it a definite text, which represented a real effort towards the punishment of genocide. Nevertheless, it was still

A/C.6/SR.63

1295

defective and faulty. The French representative recalled that his delegation had submitted to the Ad Hoc Committee a draft [A/C.6/211] differing considerably from the one now before them. He asked that the French draft should be examined together with the other one when the final text was being prepared. Mr. Chaumont then went on to define the two principles which determined the French concept of genocide. First, genocide was an international crime; its punishment should therefore be on an international scale. Genocide implied, in fact, the complicity, or at least the toleration of Governments. It would not therefore be sufficient to provide for its punishment in domestic legislation, because such measures might not be carried out. It might therefore be desirable to set up an international penal court to punish the crime. Secondly, the idea of physical genocide should be distinguished from that of cultural genocide. The definitions should be as precise as possible. Although physical genocide could be defined in exact legal terms, the same was not true of cultural genocide, for the conception of the latter was less precise. If that concept were broadened, it would soon lead to intervention in the domestic affairs of states. The punishment of cultural genocide was logically related to the protection of human rights. It therefore came within the province of the Third Committee. With regard to procedure, Mr. Chaumont agreed with the representative of the United States of America that it would not be advisable to refer the draft convention to the International Law Commission. That would considerably delay the completion of the draft, which the Sixth Committee ought to study immediately. After the general discussion, it could be sent to a drafting committee which could put the text in its final form. Mr. Bartos (Yugoslavia) said he was surprised at the new procedure which the Sixth Committee had adopted for the first time. That procedure consisted in discussing a draft, article by article, without permitting the delegations which had not been able to do so in the Ad Hoc Committee – on which they had not been represented – to express their general views and policies on the question as a whole. He asked permission to express his Government’s views on the draft convention.

1296

A/C.6/SR.63

The fact that the General Assembly had taken cognizance of the problem of genocide proved that all civilized peoples condemned that crime which was unworthy of modern civilization. That crime, however, was still being committed, on the pretext of “police measures”, in colonial wars against oppressed peoples fighting for their freedom. The question was therefore one of great importance at the present time. It was essential to draw up as soon as possible a convention which would constitute a real code of international law forbidding genocide in general, not a text with loopholes which would prevent the punishment of many acts of genocide on the principle nullum crimen sine lege. The representative of Yugoslavia then listed the serious defects of substance in the draft before the Committee. First, the text under discussion made no mention of the crimes of nazism and fascism. That almost gave the impression that they were purposely excluded from direct condemnation so as to permit of their rehabilitation at some future date. Genocide had been arbitrarily dissociated from fascist and nazi ideologies, of which, nevertheless, it was the direct result. The majority in the Ad Hoc Committee and in the Economic and Social Council had intended by so doing to defend freedom of opinion and democracy. But, in order to suppress genocide, its real causes must be destroyed, namely, those doctrines of racial and national superiority which had caused the terrible massacres of the Second World War. The Preamble and Article 1 of the Charter imposed on the United Nations an obligation to declare itself openly as against all fascist theories without distinction. Genocide was usually preceded by a propaganda campaign to stir up national, racial or religious hatred. The delegations of Poland, the Union of Soviet Socialist Republics and Yugoslavia had therefore already requested that the convention on the crime of genocide should provide for the punishment of all propaganda for aggressive war. The draft, however, made no mention of that. Neither the preamble nor article 1 of the draft convention defined the group of human beings, the genus, to which the concept of genocide should apply. Yet the General Assembly had made it clear that genocide was a crime against national, racial or religious groups. The draft referred, however, to political groups. That, surely, implied passing from genocide to the field of human rights.

A/C.6/SR.63

1297

The draft convention contained no provision to ensure that an order given by a superior could not be invoked in defence of the crime of genocide. Yet that provision appeared in the Charter of the Nürnberg and Tokyo Tribunals referred to in General Assembly resolution 180(II). There was in the draft convention no provision designed to prevent genocide; the whole text dealt only with punishment of the crime. The first duty of penal legislation, however, was to prevent crime before punishing it. The majority of the Ad Hoc Committee and of the Economic and Social Council had consistently rejected all proposals to consider as crimes actions which preceded and prepared for genocide; such as, preliminary research, the construction of equipment and the preparation of materials for committing the crime. How could that hesitation be explained except on the supposition that genocide was an integral part of future military plans? It seemed to the Yugoslav representative that many of the provisions of the draft convention lacked sincerity, as if the draft were merely a blind to persuade the masses that the Governments detested the crime of genocide, while at the same time those Governments reserved the right to organize, or at least to tolerate, in their respective territories the preparations for that crime and the propaganda which preceded it. The draft convention modified the intentions of the General Assembly on another point, since it provided for parallel action by national and international courts, whereas the States alone should assume responsibility for prevention and punishment within the limits of their own territories. In many cases, genocide committed against national groups which had ties of kinship with other countries might create a situation liable to disturb international peace and security. In accordance with the United Nations Charter, such action should be brought before the Security Council. But the general tendency to paralyse the activities of the Security Council had been shown once again when the matter had been referred to the Economic and Social Council as the competent body. Mr. Bartos concluded that the text of the draft did not fulfil its essential object, namely, the prevention of genocide. He was certain that many States desired to combat that crime effectively and requested that a fresh draft should be prepared providing for the prevention as well as for the punishment of genocide.

1298

A/C.6/SR.63

Mrs. Ikramullah (Pakistan) said that her country took a special interest in the question. It was not a merely academic interest; it had been aroused by acts of genocide directed against a particular group of the Indian population, the Muslims. The representative of Pakistan quoted extracts from speeches made by Sikh leaders on 4 March 1947. It was not a question, she said, of conflicts between communities but rather of acts of genocide deliberately prepared and carefully carried out by the rulers and part of the population of certain Indian States. Tara Singh, a Sikh leader, had stated: “Our Mother Country demands blood and we shall quench her thirst with blood. We destroyed the Mogul empire and we shall crush Pakistan”. Giani Kartar Singh, another Sikh leader, had declared: “Our kirpans (battle-axes) will decide whether the Muslims are to rule”. The representative of Pakistan also quoted an extract from the newspaper Hindu Outlook, published in Delhi, 9 September 1947, reporting a call “to prepare the country for war against Pakistan, to treat all Muslims as fifth columnists and to declare the professing of Islam as unlawful”. As a result of such incitement, some hundreds of thousands of Muslims had been exterminated in various States. The Rashtriya Sevah Sangh, a Hindu fascist terrorist organization, set up with the avowed object of exterminating the Muslims, was still continuing its deadly activities. In India, thirty-five million Muslims were currently living under conditions of terror. Their existence as a separate cultural group was threatened. Although the use of Urdu, a language of Muslim origin, had not been prohibited by law, it was under heavy attack. Muslim cultural and religous [sic] monuments had been burned down or destroyed. In such circumstances it was not surprising that the Pakistan delegation believed it essential to include cultural genocide among the acts to which the convention applied. Pakistan was most anxious that the draft convention should be adopted during the current session of the General Assembly and that an international court should be empowered to punish the crime of genocide.

A/C.6/SR.63

1299

The delegation of Pakistan would not oppose any decision which the Committee might make to set up a drafting committee to study the terms of the convention, but would request that members directly interested in genocide should have the opportunity of putting their views before it. Mr. Spiropoulos (Greece) Rapporteur, pointed out that the various statements the Committee had heard dealt with the substance of the problem. From a procedural point of view, it would be desirable to decide first of all whether the Committee should hold a general debate on the draft convention or whether it should resolve, before that, to refer the draft convention to the International Law Commission or to a sub-committee. Speaking as representative of Greece, Mr. Spiropoulos said that he agreed with the representatives of the United States of America and France that the draft convention should be considered by the Committee itself and not by a sub-committee. He recapitulated the stages of the work carried out by many United Nations organs on the question of genocide since the adoption, by the General Assembly, of resolution 96(I). He pointed out that the substantive questions had already been discussed at length and that the Ad Hoc Committee on Genocide, when drafting the convention now before the Sixth Committee, had taken into account the text previously prepared by the Secretariat [E/447 ] and all aspects of the problem. The draft convention, therefore, could well be used as a basis for discussion in plenary session. The Greek delegation saw no reason to send the draft to a new ad hoc committee, be it the International Law Commission or a sub-committee of the Sixth Committee. It would always be possible, however, to set up a drafting committee, should certain articles in the draft convention give rise to technical difficulties. The meeting rose at 1 p.m.

1300

A/C.6/SR.64

SIXTYFOURTH MEETING Held at the Palais de Chaillot, Paris, on Friday, 1 October 1948, at 10.30 a.m. Chairman: Mr. R.J. Alfaro (Panama). 6. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] The Chairman summarized the concrete points resulting from the discussion at the 63rd meeting. So far only one written proposal, from the United States delegation [A/C.6/208], had been received. That proposal was to the effect that the Committee should not refer the draft convention to the International Law Commission. He reopened the general discussion, requesting members to restrict themselves to concrete points bearing on methods of work. Mr. Egeland (Union of South Africa) stated that he had been impressed by the divergence of views expressed at the previous meeting. Two points of view regarding procedure had been put forward: the first was that the draft convention was sufficiently advanced for the Committee to consider it clause by clause. He could not agree with that view, because a number of provisions could not, despite painstaking drafting, be accepted by all countries unconditionally. Apart from such imperfections in the draft, which might be more appropriately dealt with elsewhere, he doubted whether a convention such as was contemplated would be practicable and effective, a view which he had previously maintained in 1947 at the International Conference on the Codification of Penal Law in Brussels. His country was amongst those which abhorred genocide and wished to see it punished. Punishment should, however, be effected in accordance with the domestic laws of the various individual countries. A formulation and definition of genocide by the United Nations would be useful, but the draft convention was inadequate: in the first place genocide was nearly always committed by Governments themselves and the application of national laws would therefore be of little avail. Existing legislation in most countries, including the Union of South Africa, provided for the punishment of individuals guilty of genocide. The

A/C.6/SR.64

1301

Union of South Africa would not, therefore, be taking any new effective measures in adhering to the convention; nor would it thereby aid other States in combating that crime. With regard to cultural genocide, Mr. Egeland felt that the definition contained in article III broadened the meaning of the term and went too far in respect to the protection of minorities. In Mr. Egeland’s opinion, the divergencies of views expressed were so great that the draft could not yet be considered sufficiently advanced to render useful a clause-by-clause study. He agreed with the Egyptian representative that the draft was too ambitious. He wondered how many Governments were likely to ratify the convention, even if the draft were endorsed by the Committee, embodying, as it did, such vague concepts of international jurisdiction. The second point of view already expressed in previous speeches, was that the Committee might be well advised to refer the matter to an expert body such as, for instance, the International Law Commission. By adopting that method, the Committee would avoid protracted discussion on specific provisions and, in the long run, save time. Mr. Demesmin (Haiti) moved that, before the general discussion on the substance of the matter was opened, a decision should be taken as to whether it should be referred to a sub-committee for detailed study and whether it should be referred to the International Law Commission. Mr. Morozov (Union of Soviet Socialist Republics) said that the question of procedure could not be considered without taking into account the substance of the draft convention. His country attached great importance to a convention on genocide, which it felt was indissolubly linked with fascism, nazism and other systems propagating theories of racial hatred. A convention was necessary for the prevention of future crimes of that type and to provide a sound foundation for the peace of the world. In April 1948 the delegation of the Soviet Union had submitted the essential provisions [E/AC.25/7 ] for such a convention, and its proposal had been adopted as a basis for study. Some of the definitions in the draft convention were in accordance with that proposal: article III, for example, relating to cultural genocide, and the references in article IV to conspiracy, incitement, attempt and complicity. His country welcomed those positive elements.

1302

A/C.6/SR.64

As a whole, however, the draft convention did not achieve the aims of resolution 180(II) adopted by the General Assembly during its second session, and important changes were necessary. The delegation of the Soviet Union had pointed out its defects in the Economic and Social Council.1 1

See Official Records of the Economic and Social Council, Third Year, Seventh Session, 219th meeting.

The preamble did not give a correct definition of genocide, nor did it mention the relation between genocide and fascist racial theories. The majority of the members of the Ad Hoc Committee had also included political groups among those mentioned in the definition. Such groups were entirely out of place in a scientific definition of genocide and their inclusion would weaken the convention and hinder the fight against genocide. It was essential that provision for the prevention and suppression of genocide and manifestations of racial hatred should be made within the domestic penal legislation of States. Article VI was vague in form and did not provide for effective means of prevention or suppression, such as the USSR had advocated. The establishment of an international tribunal, as provided for in article VII, was an infringement of the principle of sovereignty. The article did not even consider the terms of reference or the composition of such an international tribunal. The USSR delegation had suggested a provision in article V to the effect that neither the command of law nor superior orders could justify genocide.2 That provision had been rejected; consequently those guilty of the crime would, in future, be able to invoke superior orders. The refusal to include that provision was tantamount to refusing to continue the fight against genocide. 2

Ibid., Supplement No. 6, pages 9 and 10.

The proposal made by the delegation of the Soviet Union, to the effect that organizations which encouraged racial hatred should be prohibited,

A/C.6/SR.64

1303

had also been rejected,2 although it seemed evident to Mr. Morozov that any propaganda in favour of racial superiority should be forbidden. 2

Ibid., Supplement No. 6, pages 9 and 10.

There was no provision in the draft convention for the punishment of measures in preparation for the crime. Article VIII was unsatisfactory. Every signatory to the convention should be under an obligation to report the existence of the crime of genocide. That report should be made to the Security Council, which was the only body competent to take immediate steps against the crime, so that action could be taken under Article 6 of the Charter. Mr. Morozov would reserve the submission of more detailed remarks for the clause-by-clause consideration of the draft convention. It was his country’s desire to make the convention an effective and realistic contribution to the peace of the world. Referring to the question of procedure, Mr. Morozov considered that the best course to follow would be to deal first with the fundamental questions of principle raised by the draft convention; that would define a general area of agreement and expedite the work. There was no need to appoint a sub-committee; if there were divergences of opinion in the Committee with regard to the main problems, such divergences would also exist in the sub-committee, with the result that the same discussions would be repeated all over again. There should therefore be a general debate on the fundamental problems and thereafter a clause-by-clause consideration of the draft convention in the Committee itself. Mr. Sundaram (India) said that his country, together with Cuba and Panama, had made a proposal in November 19461 that genocide should be made a punishable crime. There had been great constitutional changes in his country since then, but his Government’s attitude remained the same. He considered that the draft convention, although requiring revision, did help to clarify ideas and focus attention on the main points at issue in a difficult subject. 1

See Official Records of the second part of the first session of the General Assembly, Sixth Committee, Annex 15, page 242.

1304

A/C.6/SR.64

It seemed to him, however, that the vague concept of cultural genocide as defined in article III was on an entirely different plane from physical or biological genocide, as was obvious from the two illustrative examples which had been given. His country, with its mixture of races and cultures, had fully safeguarded the rights of groups and minorities in the draft constitution which was before the Constituent Assembly; there was no discrimination against any minority in matters of education, language, religion, or culture, and any law violating such fundamental rights was automatically invalidated. Cultural genocide, which was explicitly forbidden by the constitutional laws of his country, was doubtless reprehensible but could not be linked with genocide proper and, as had been pointed out in the Economic and Social Council and in the Committee, went beyond the terms of General Assembly resolution 96(I). It should properly be dealt with in the draft international covenant on human rights. The proposal in article VII to confer jurisdiction on an international tribunal did not mention how or where such a tribunal could be set up. Its composition would require the prior agreement of the signatories, since no international body existed which was competent to exercise such criminal jurisdiction. It was not proper for the signatory States to agree without fuller knowledge of the implications involved in the establishment of such a body. As in the case of article VIII, article VII might lead to international interference in the domestic jurisdiction of States and thus to action contrary to the Charter. Mr. Sundaram said that, in his country’s view, States should declare genocide a crime and should be allowed to implement the convention in the same manner as they would any other international agreement or convention; in that way, the greatest possible measure of agreement would be achieved. He agreed with the Egyptian representative that, in any case, the time limit of five years laid down in article XIV was too short. In conclusion, Mr. Sundaram repudiated the charge of genocide brought against his country by Pakistan. That charge had been made on several occasions before and fully answered; it was an attempt to divert attention from Pakistan’s own guilt in Kashmir, where it was admitted that Pakistan troops were fighting. The present allegations against his country were not based on any fresh occurrences. They amounted merely to tendentious and

A/C.6/SR.64

1305

exaggerated propaganda. There had been trouble both in his country and in Pakistan during the first two months after the partition, but Pakistan could not deny that communal troubles were equally widespread on its side of the frontier, or that the Sikhs and Hindus had been driven with violence from West Pakistan. Many Muslims had now returned to India, but no Hindus or Sikhs had as yet gone back to Pakistan. In India all communities enjoyed equal rights; there were two Muslims in the Cabinet, as well as Christians and members of the depressed classes. There had been incitement to violence on the Muslim side, and when violence had occurred Hindus and Sikhs had retaliated. But there was no question of genocide. The allegation of cultural genocide was likewise unfounded. The Chairman read rule 104 of the rules of procedure concerning the closing of the list of speakers who had submitted their names, and declared the list closed. In reply to a point of order made by the United States representative, he explained that rule 104 authorized the Chairman to accord the right of reply when that seemed desirable. Mr. Manini y Rios (Uruguay) stated that, although genocide was unknown within his country, Uruguay shared the horror felt by other States for that crime, and thought that a convention should be drafted as soon as possible. It was advisable for the full Committee to study the draft convention. As the desire to suppress and prevent genocide was only one particular aspect of the universal desire to protect the human person, the convention should restrict itself to the crime of physical genocide and not deal with other aspects of the problem; those parts dealing with cultural and political genocide should be dealt with in the field of human rights. The word “group” in article II should be defined more precisely and that article should also take into account acts which inflicted on a group living conditions conducive to death, sickness or physical weakening, including the use of narcotics; thus effect would be given to the recommendations of the Commission on Narcotic Drugs. In the matter of genocide, Mr. Manini y Rios agreed that there should be an international tribunal. If it was not possible for national courts to take effective action, the matter should be submitted to the legislation of an international tribunal.

1306

A/C.6/SR.64

As a matter of interest, Mr. Manini y Rios pointed out that the death penalty was unknown in the penal code of his country. He proposed that articles XIV and XV should be deleted, because no time limit should be set to a convention concerning a crime so universally denounced. With regard to the use of the term “nazifascist” as typifying genocide, he said that it was generally known that the nazi and fascist parties went to extremes of genocidal crime, but that there was no need to include such a qualification in the convention. Sir Hartley Shawcross (United Kingdom) said that the representative of the USSR had referred to the expectations of the peoples of the world on the question of genocide. It was important not to build up hopes and expectations unless they could be fulfilled. That was also the case in other important questions, such as atomic energy and general disarmament. The question of genocide should be dealt with on a basis of real and practical possibilities. While considering with sympathy the idea that the countries of the world should enter into a convention on genocide, Sir Hartley Shawcross did not feel particularly enthusiastic about the draft convention before the Committee. It was a complete delusion to suppose that the adoption of a convention of the type proposed, even if generally adhered to, would give people a greater sense of security or would diminish existing dangers of persecution on racial, religious, or national grounds. He did not underestimate those dangers, as he was aware that such persecution existed and continued to exist at that time. Recalling the Nürnberg trials, the representative of the United Kingdom pointed out that nobody believed that the existence of a convention, such as was proposed, would have deterred the nazis or fascists from committing the atrocious crimes of which they had been guilty. Those crimes were largely the crimes of totalitarian States, which would not change their methods because of the existence of a convention to which a number of nations had adhered. The world knew that there were certain countries where people who expressed political views differing from those of the Government were liable to persecution; in other countries there was persecution on racial or religious grounds. Physical genocide was already generally recognized as a crime punishable by law and was simply a new world to describe a particular form of murder.

A/C.6/SR.64

1307

Cultural genocide, however, as the representative of Uruguay had stated, was simply one aspect of the general problem of protecting the fundamental rights of man. He did not think it could appropriately be dealt with in the present convention. When a man was accused of conspiring, inciting, or committing a crime, perpetrated for political, racial or national reasons, he was punishable under the laws of any country. Genocide, as was generally understood, was a crime committed not by individuals but by States. No one believed, however, that a State committing those crimes would be restrained by the existence of a convention, or would surrender itself for trial to an international tribunal. He could not agree with the views expressed by the representative of the Soviet Union that the crime of genocide should be left to the jurisdiction of national courts. If genocide was essentially committed by or with the connivance of States and Governments, it seemed unlikely that the courts of those States would take effective measures for its suppression. The obvious truth was that individual genocide was already punishable by the laws of all countries, whereas genocide committed by States was punishable only by war. While making no significant contribution to international law, the convention might set forth more clearly the detestation with which genocide should be regarded. The Government of the United Kingdom would therefore be prepared to adhere to a convention which stated clearly and simply those propositions on which general agreement could be reached in the Committee. It felt, however, that to go beyond that, to deal in vague and general terms with abstract conceptions and to embody in the convention conditions which would not be adhered to, would do more harm than good. The Committee should not take measures which might delude people into thinking that some great step forward had been taken whereas in reality nothing at all had been changed. Sir Hartley Shawcross agreed with the Chairman’s ruling that after the general discussion had been concluded, the draft convention should be studied article by article and consideration given to certain specific proposals. Several questions would require careful examination, such as the inclusion of cultural genocide and the establishment of a new international court. In the opinion of the United Kingdom representative, the Committee should limit itself to embodying in the convention matters on which there was common agreement and not try to obtain other results.

1308

A/C.6/SR.64

Mr. Lachs (Poland) pointed out that the question of genocide had been on the agenda of the United Nations for over two years, and recalled General Assembly resolution 96(I) of 11 December 1946. That resolution recognized that genocide was a crime under international law, which the civilized world condemned; it invited Member States to enact legislation for the prevention and punishment of that crime and it recommended the establishment of international co-operation between States and the drawing up of a convention to be submitted to the General Assembly. The Polish representative wished to make known what steps had been taken in his country to follow the recommendations of the General Assembly. By legislation adopted in 1944, 1945 and 1946, the Government of Poland had made adequate provision for the punishment of all those responsible for crimes of genocide and other crimes committed in Poland during the last war. In doing so, it had adopted the principles of the Declaration on Atrocities, signed at Moscow in 1943, of the Agreement for the establishment of an International Military Tribunal, signed in London in August 1945, and of the judgment of the Nürnberg Tribunal. Legislation had also been enacted to protect the community in the future. Mr. Lachs quoted several acts of the Polish legislature to show the punishments meted out to those who committed an offence against a group of the population, or an individual, on religious or racial grounds. The legislature had also established the full equality of all Polish citizens. He would be interested to hear how other Member States had implemented resolution 96(I). Genocide was not a theoretical and remote issue to Poland, which had been left with deep scars as a result of bitter years of Nazi occupation. The Nürnberg tribunal had dealt with only very few nazis and fascists; there were still many criminals of that type to whom justice had not been meted out, and it was becoming doubtful whether justice would ever be done. With regard to the convention, the drafting committee which had drawn up the text deserved the thanks of every member for its work, but Mr. Lachs regretted that, in the opinion of his delegation, the draft was entirely inadequate. In some issues it went too far, while it fell short in others. The definition of the term “genocide” was one of the questions which had to be solved. While it was true that definitions had a certain elasticity, there were certain essential features which formed part of an entity to which a label was attached. Genocide was basically a crime committed

A/C.6/SR.64

1309

against a group of people who had certain stable and characteristic features in common. The convention, however, had extended the definition of genocide in an artificial manner by including political groups; those groups did not have stability or similar characteristics and therefore did not come within the province of a convention such as was being discussed. In no similar treaties concluded in the past were such stipulations to be found, and Mr. Lachs was surprised at their inclusion in the convention as they would only create confusion. The extermination or persecution of human beings, for whatever reason, was the concern of the United Nations, and the Polish delegation had therefore protested and would continue to protest against mass shooting and killing of hostages in Spain, Greece and elsewhere. But the problem was not linked with, and did not form part of, genocide proper. The defence and protection of man lay within the sphere of human rights and did not come within the framework of the convention before the Committee. If the inclusion of the protection of man in the political field was being considered, he asked why the protection of man in the economic field should not also be included. Poor working conditions, starvation wages, or lack of labour legislation, were also ways of annihilating people. Mr. Lachs referred to the proposal to include in the convention, in the list of punishable acts, “direct incitement in public or in private to commit genocide whether such incitement be successful or not”. He felt that when dealing with crimes of such a dangerous character, the law should intervene before the crime could be committed. The instigators of hatred were numerous at the present time and should be prevented from carrying out their dangerous work. The argument used was that such a limitation would be injurious to freedom of information, but it seemed to Mr. Lachs that spreading hatred was a strange form of conveying information. Members should keep in mind how powerful a weapon was Hitler’s propaganda. Hatred was likely to breed crime and war. Mr. Lachs drew attention to the question of superior orders which had been inadequately dealt with in the convention, in spite of the fact that article 8 of the Charter of the International Military Tribunal laid down that the plea of superior command should not free a defendant from criminal responsibility. Mr. Lachs concluded by stating that his delegation had, from the very beginning, attached great importance to the question of genocide. From his

1310

A/C.6/SR.65

statement it was clear that the proposed convention would not add much to the measures already taken by the Polish legislature. His Government, however, wished to see the convention concluded so that genocide should be embodied in an international instrument, and that other States should proceed with the implementation of the principles set forth. The meeting rose at 1 p.m.

SIXTYFIFTH MEETING Held at the Palais de Chaillot, Paris, on Saturday, 2 October 1948, at 10.40 a.m. Chairman: Mr. R.J. Alfaro (Panama). 7. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Mr. Pérez Perozo (Venezuela), after recalling that his delegation had taken an active part in the work of the Economic and Social Council and of the Ad Hoc Committee on Genocide, said that only by a convention could humanity be saved from the atrocious crime of genocide. He thought the Assembly should adopt such a convention at the current session. He did not share the opinion of those who felt the convention should be referred to the International Law Commission, since the latter was a body of experts, whereas the Ad Hoc Committee had consisted of Government representatives. That point was of particular importance, since the political significance of the future convention would be greater than its juridical significance. Hence the weakness of the Secretariat’s initial draft [E/447 ], which had been prepared by experts and of which the General Assembly had taken no account. Moreover, reference of the matter to the International Law Commission, whose members had not yet been elected, would cause unjustifiable delay. The peoples of the world were looking to the United Nations and hoping for the adoption of such a convention at the earliest possible moment.

A/C.6/SR.65

1311

He was also opposed to the establishment of a sub-committee, since the arguments which would be submitted in the sub-committee would only be repeated in the full Committee. The Venezuelan delegation considered the draft convention a very sound basis for study; any objections to it might be political but not juridical in nature as, for example, the problem of the protection of political groups, which was purely political in its scope. Mr. Pérez Perozo congratulated the Ad Hoc Committee and its Rapporteur on having accomplished the particularly difficult task of defining the juridical character of an entirely new principle of law, which involved the thorny problem of sovereignty. While reserving his right to speak again later during the discussion, the representative of Venezuela drew the Committee’s attention to the establishment of an international criminal court, the protection of political groups, and the concept of cultural genocide. A convention such as the one under consideration should be drawn up in a manner to obtain the greatest possible number of votes, but the proposal to set up an international criminal court would undoubtedly give rise to serious differences of opinion. The Venezuelan delegation thought the States themselves should ensure that their laws did not conflict with the provisions of the Convention, in pursuance of General Assembly resolution 96(I) which contained no provision for the establishment of an international tribunal, but merely invited the Economic and Social Council to undertake the studies necessary for drafting a convention. Mr. Pérez Perozo recognized that the traditional concept of sovereignty was gradually giving way before the ever-growing necessity for international collaboration but, in each specific case, the limitations of sovereignty which States were prepared to accept would have to be ascertained. In the case of genocide, it would be too much to ask that, if the necessity arose, States should hand over their own nationals to foreign courts. That was absolutely contrary to the fundamental principles in force in Venezuela. Moreover, the acceptance of such a principle could not fail to lead to friction and even disputes among States. Obviously, an international court could not impose effective sanctions against powerful States. In addition, article VII of the text was drafted in an extremely vague manner. Very few States would be willing to agree to the international tribunal

1312

A/C.6/SR.65

mentioned in the article unless they first knew what its composition and powers were to be. Mr. Pérez Perozo pointed out that other international offences, such as slavery, were covered by the principle of universal repression. It was quite possible to accept a formula recognizing the principle of universal suppression of genocide, such as the one contained in the Convention for the prevention and punishment of terrorism of 17 November 1937. With regard to political groups, they had neither the stability nor the cohesion characteristic of ethnic or racial groups to warrant their inclusion among protected groups. An individual’s membership in a given political group was in fact largely a matter of his own free will. Many States would not accept such limitations to their right to suppress internal disturbances. The protection of political groups should be ensured by other means, but could not be provided for in a convention on genocide. With regard to cultural genocide, the Venezuelan delegation felt, in principle, that it should be suppressed, since it was possible to destroy a human group ethnically without exterminating it physically. Resolution 96(I) itself stated that such destruction resulted in great losses to humanity in the form of cultural contributions. Care should be taken, however, to use the term cultural genocide with great accuracy; it should be used with reference only to violent and brutal acts which were repugnant to the human conscience, and which caused losses of particular importance to humanity, such as the destruction of religious sanctuaries, libraries, etc. In conclusion, Mr. Pérez Perozo expressed the hope that the General Assembly would adopt the draft convention at the current session after making the necessary changes. Mr. Kaeckenbeeck (Belgium) pointed out that in its resolution 96(I), adopted in December 1946, the General Assembly had called upon States to introduce in their respective legislations measures for the prevention and punishment of genocide. Why had that not been done? Because certain organs of the United Nations had been instructed, on the mistaken assumption that a convention was necessary, to act in the matter. Certainly there could be no objection to the principle of a universal convention which could be ratified with all speed; but if such a convention could not be concluded, it would still be possible to sign a declaration.

A/C.6/SR.65

1313

Resolution 96(I) of the Assembly was of a declaratory character; it specified what the Assembly considered to be the law, but it did not create law. What was necessary was to introduce the principle into national legislations and ensure its application. The Committee should therefore have two main objectives in view: to define the concept of genocide, and to call upon States to provide for its prevention and punishment in their national legislations. In the first place, genocide should be defined with greater accuracy. Once that was done, it was for States to judge what modifications should be made in their legislations. The Belgian Constitution and penal law contained all the necessary provisions for the suppression of genocide. That crime was not mentioned by name, but it was an aggravated form of crimes already defined. There was no likelihood that the draft convention, it its present form, would be approved by the Belgian Parliament. The provisions of article IX of the draft, for example, could not legally be applied to the offences referred to in article IV. Furthermore, Belgian law did not recognize the concept of entente1 but did recognize the concept of complot,2 and did not provide for the punishment of an abortive attempt at incitement to crime. The main defect of the draft was, however, that it visualized two types of jurisdiction, only one of which already existed. 1 2

Implying complicity. Implying conspiracy.

Genocide could not be committed without the collaboration or the connivance of Governments, hence the need for an international tribunal. There was, however, no such tribunal in existence, nor was its establishment provided for in the convention. Moreover, punishment at the national level, which did not require a convention, could hardly be enforced against crimes other than those committed by individuals. One other danger about a convention was that States could accede to it or denounce it as it suited them. Mr. Kaeckenbeeck was therefore of the opinion that it would be preferable to draw up a detailed declaration based on articles II and IV of the draft; such a declaration should give Governments all the indications they required to bring their domestic legislation into line with the 1946

1314

A/C.6/SR.65

resolution; and it should call upon them to regard the crime of genocide as an extraditable offence and to report on the measures they had taken before the next session of the General Assembly. Thus the risk of nonratification of the convention would be avoided. The problem of setting up an international tribunal would remain open and would have to be given further study. In conclusion, Mr. Kaeckenbeeck proposed that the Committee, after first discussing the draft, article by article, should refer it to a drafting committee which could produce from it either a declaration or a convention, according to the likelihood of agreement or ratification. There seemed to be no justification for referring the draft to the International Law Commission. Mr. Blanco (Cuba), after recalling that his delegation had been one of the first to submit a draft resolution on genocide,1 noted with satisfaction that the majority of the members favoured the adoption of a convention. He did not think the question should be referred to the International Law Commission on the pretext that it needed improvement. 1

See Official Records of the second part of the first session of the General Assembly, Sixth Committee, Annex 15, page 242.

History revealed innumerable examples of genocide in which the political motives had been concealed under the pretext of racial or religious persecutions. The idea of considering genocide as an international crime was, however, entirely new, and the Committee owed it to itself to complete the work it had begun. It was not enough that the crime should be punishable under all national laws. Government agents guilty of genocide should be punished, and that made the setting up of an international tribunal necessary. Obviously, a convention which was not to be ratified by all would not be effective. Moreover, the amendment of national legislations, which were certainly not immutable, would be insufficient, and a compromise solution was therefore desirable. The adoption of a declaration or an agreement on the definition of genocide was not incompatible with the adoption of a convention. Such a declaration would, in fact, supplement the convention by establishing a juridical norm to be invoked in respect of States which might not have ratified the convention.

A/C.6/SR.65

1315

Mr. Blanco once more asked the members of the Committee not to stop half-way but to complete the work they had undertaken. Mr. Paredes (Philippines) said that a draft law on genocide had been submitted to the legislative authorities of his country. He was opposed to referring the draft convention to the International Law Commission, since that would be equivalent to an indefinite postponement of the matter. He was also opposed to referring the draft to a sub-committee, since any discussions which took place there would inevitably be repeated at a full meeting of the Committee. It was unnecessary, for the time being, to prepare a draft, since such a draft already existed. Once the Committee had expressed its views on all the details of the draft, it might be expedient to establish a sub-committee and, in order to avoid further discussion, to give it definite instructions as to the points to be drafted. After agreement had been reached on questions of principle and on the various articles, it would be logical to entrust the task of drafting the text to a small group of legal experts, who would be able to carry out their work more easily than would be possible at a full meeting of the Committee. The representative of the Philippines recognized the need for making certain improvements in the draft submitted to the Committee. Thus, the definition of physical and biological genocide in article II could give rise to abuses on the part of government majorities against political minorities or, on the other hand, serve to protect insurrectionary movements. Article III, which referred to cultural genocide, could be interpreted as depriving nations of the right to integrate the different elements of which they were composed into a homogeneous whole as, for instance, in the case of language. As regards article VII and those which followed, they should specify the cases in which the tribunals mentioned therein were to exercise their powers. Mr. Paredes deprecated the pessimism of certain representatives who seemed to have lost faith in the Charter itself. He recalled that the General Assembly had clearly declared itself in favour of a convention on genocide; and even if the Committee or the Assembly found it impossible to reach a definite decision during the current session, sufficient progress should be made in the work on the convention to prove that the United Nations had at least the will to fight genocide effectively.

1316

A/C.6/SR.65

The representative of the Philippines proposed, therefore, that the Committee should discuss the draft convention at a full meeting and that, once agreement had been reached on the substance of the various articles, the draft should be referred to a sub-committee for the preparation of a final text. The Chairman requested the representative of the Philippines to submit his proposal in writing. Mr. Tsien Tai (China) said that his country ardently desired the adoption of a convention on genocide. He reserved the right to speak again during the discussion of the articles, and would confine himself at present to suggesting that the reference to the Nürnberg trials should be deleted from the preamble. He preferred that no mention should be made of past events; otherwise it would be necessary to cite all parallel cases and, in particular, those which involved Japan. The representative of China urged the necessity for mentioning the use of narcotic drugs as a method of perpetrating genocide. Finally, he was of the opinion that the duration of the convention, as laid down in article XIV, was too short, and proposed that it should be increased to ten or even twenty years. He was in favour of an immediate consideration of the draft, article by article, in order to save time. The final text could subsequently be drafted by the International Law Commission within a time limit to be fixed by the General Assembly. Mr. Raafat (Egypt) said that there appeared to be two trends of opinion in the Committee unfavourable to the draft convention. One group of delegations maintained that a convention would be useless and futile, evidently forgetting that the General Assembly had twice, in its resolutions 96(I) and 180(II), expressed itself in favour of the principle of establishing a convention, and that there was therefore no ground for reconsidering that point. Was there any reason why those countries which, having been victims of genocide, had already included that crime in their national penal codes, should not unite with the others to ensure a system of international suppression, which would be the only effective method? No document could, in fact, prevent a Government from exterminating a minority; only a supra-national tribunal could have jurisdiction over members of Governments.

A/C.6/SR.65

1317

Another group of delegations objected that the draft was incomplete. The representative of Yugoslavia, in particular, could see in it only a partial implementation of resolution 96(I) of the General Assembly, because it completely disregarded the prevention of crime (63rd meeting). Mr. Raafat thought that a partial implementation of a resolution was better than no implementation at all or than indefinite postponement. In any case paragraphs (c) and (d ) of article IV, dealing with incitement and attempt to commit genocide, partially met the need for prevention. If it were true that the fear of sanctions was the beginning of wisdom, there was hope that a well-organized system of suppression on an international scale would prove very effective as a preventive measure. Apart from those two groups, the general tendency appeared to be in favour of the draft. There was disagreement on three important points only: the recognition of the concept of cultural genocide, the inclusion of political groups together with national, racial and religious groups, and an international tribunal for the suppression of genocide. The Egyptian representative believed that those difficulties could be overcome and an agreement reached. He would not press the question of referring the draft convention to a sub-committee, since the draft was comparatively short and contained only ten articles of legal significance, the remaining nine articles being rather of a procedural character. The important thing, in his opinion, was that agreement should be reached during the current session. The adoption of a convention on genocide, coinciding with a declaration on human rights, would greatly enhance the Assembly’s prestige. Mr. Demesmin (Haiti) pointed out that the question under discussion was whether the draft convention should be referred to the International Law Commission or to a sub-committee. In order to save time and to accelerate the study of the draft itself, he proposed the closure of the discussion. After an exchange of views with Mr. Arancibia Lazo (Chile) and Mr. Amado (Brazil), Mr. Demesmin (Haiti) withdrew his proposal. Mr. Arancibia Lazo (Chile) recalled the constant support which his delegation had given to the preparatory work on the convention on genocide. The question, however, was so important and far-reaching that it should not be submitted to the Assembly until an exhaustive study had been made by legal experts.

1318

A/C.6/SR.65

Only a convention could serve as an effective instrument to fight genocide. While the convention could not be imposed, there was hope that it might be universally accepted. To that end, the draft should first be referred to a committee of experts, a step which had not yet been taken. The representative of Chile thought that the International Law Commission was the only body competent to revise the draft. It would be useful to refer it to that Commission since the work of the legal experts would greatly facilitate the subsequent task of Governments in the ratification of the convention, and it was the adoption of the convention which mattered. If the Commission decided to adopt a different procedure, the Chilean delegation would discuss the various articles of the draft. Mr. Arancibia Lazo pointed out, however, that if the draft were adopted without amendment, certain of its provisions would make it difficult for Chile to ratify the convention. Mr. Lapointe (Canada) said that, in order to speed up the work of the Committee, he would submit his Government’s observations on the draft convention during the discussion of various articles of the draft. The Canadian delegation, feeling that the draft convention would raise only technical difficulties, was in favour of setting up a sub-committee. However, in view of the differences of opinion on the principles themselves which had arisen during the course of the general discussion, and which could not be settled by a sub-committee, the Canadian delegation proposed that the Committee should pass immediately to the examination of the draft, article by article. Mr. Kovalenko (Ukrainian Soviet Socialist Republic) stressed the undeniable link which existed between crimes of genocide and the nazi and fascist racial theories, and expressed surprise that the draft convention now before the Committee had not stressed that relationship. His delegation was of the opinion that the preamble of the draft should be amended so as to include an express condemnation of those theories. The task of the United Nations was to draw up a document which would be a real instrument in the fight against genocide, and Mr. Kovalenko regretted the tendency of certain members of the Committee not to include in the draft convention provisions which alone would ensure the success of that fight. Thus, the delegations of France and the United Kingdom had declared themselves against the inclusion in the convention of the concept of cultural genocide. The Ukrainian SSR had itself been a victim

A/C.6/SR.65

1319

of cultural genocide; the nazis had systematically destroyed its libraries, schools, technical institutes, churches and monasteries. Such acts, which aimed at the complete destruction of Ukrainian culture, were only the prelude to physical genocide. It was generally recognized that genocide aimed at the extermination of a group of people. That aim could be attained either by exterminating all the members of the group or by destroying its characteristics. In the opinion of the Ukrainian delegation, no country which was genuinely anxious to combat the crime of genocide and to prevent it as well as punish it, could oppose the inclusion of cultural genocide among the acts to which the convention applied. The Ukrainian delegation supported the observations made on the subject by the representative of the USSR, and reserved the right to state its views in greater detail during the consideration of the articles of the convention. Mr. Kovalenko objected to the doubts expressed by the United Kingdom delegation as to the effectiveness of an international convention on genocide to assure mankind the security to which it aspired. International treaties were not scraps of paper; a convention on genocide, like all international conventions, would have great legal and moral force for, on the one hand, it would lay down the concrete measures which the signatory States would have to take and, on the other hand, the States would be in duty bound to observe rigorously the obligations they had undertaken. The representative of the United Kingdom had compared the convention on genocide with the proposal of the Soviet Union on disarmament, which he said was an invitation to disarm without control. Mr. Kovalenko pointed out that the head of the Soviet Union delegation had specifically stated that his proposal aimed at setting up international control in the Security Council; he was therefore astonished at the attitude adopted by the United Kingdom delegation. With regard to the procedure which should be followed, the delegation of the Ukrainian SSR favoured the proposal that the Committee itself should examine the draft convention, article by article, as soon as the general discussion was over. Mr. Reid (New Zealand) congratulated the Ad Hoc Committee on its excellent report, but pointed out that neither the Commission on Human Rights nor the Economic and Social Council, nor most of the Governments, had as yet had time to study the draft convention.

1320

A/C.6/SR.65

Because of the importance of the question, and in order to avoid difficulties in the application of the convention, the New Zealand delegation was of the opinion that the Sixth Committee should only carry out a preliminary study of the draft, and that the Commission on Human Rights and the Economic and Social Council, as well as the Member States, should be asked to study the text in detail. If the Committee did not share that point of view, the New Zealand delegation would support the proposal of the representative of the Philippines. The Committee was in fact too large to be able to deal effectively with work of a drafting nature. It should limit itself to important decisions of principle, and should entrust to a sub-committee the task of preparing a text based on the decisions already taken. In accordance with the provisions of rule 104 of the rules of procedure, the Chairman called upon the members of the Committee to reply to the speeches which had been made. Sardar Bahadur Khan (Pakistan) said that his delegation would waive its right to reply in order to avoid any discussion of a controversial nature. Mr. Bustos Fierro (Argentina) reiterated his delegation’s wish to see the Committee draw up, at the earliest possible moment, a legal instrument to suppress a crime which, although it had always been known to exist, had only recently been defined. By its Constitution and its laws. Argentina had always proclaimed and defended the equality of all men, on a national as well as on an international plane. It was opposed to all doctrines and all practices directed against any group of people. The draft convention drawn up by the Ad Hoc Committee had been subjected to considerable criticism. It had been censured for not faithfully expressing the intentions of the General Assembly, which had wished to prevent as well as punish genocide. The argument had also been put forward that the establishment of an international tribunal competent to suppress genocide would infringe on the principle of the national sovereignty of States. Several suggestions had been made which could usefully be studied by a small committee. For that reason the Argentine delegation supported the proposal to entrust to a sub-committee the examination of the draft convention.

A/C.6/SR.65

1321

Mr. Messina (Dominican Republic) pointed out that the differences of opinion had existed mainly in the case of articles II, III and VII of the draft convention dealing with the definition of genocide and a competent tribunal to deal with the crime. Since the disputed points were essentially of a technical nature, the delegation of the Dominican Republic thought that a sub-committee should be entrusted with the task of re-drafting the controversial passages. If it was not possible to prepare the final text of a draft convention, he would support the Belgian representative’s suggestion that a declaration denouncing genocide should be drawn up. Mr. de Alba (Mexico) recalled that some delegations had opposed the draft convention and that others had advocated the adoption of a declaration on genocide. He was convinced, nevertheless, that a common ground of agreement could be found. He suggested that before reaching a decision on questions of substance, the Committee should take a vote to decide whether it would use the draft convention prepared by the Ad Hoc Committee as a basis for discussion or whether it preferred to adopt a declaration on genocide. Mr. Chaumont (France) wished to clarify the position of his delegation. From the legal stand-point, the views of the French Government concurred with those of the United Kingdom delegation. Cultural genocide should be excluded from the draft convention because, on the one hand, that concept was not sufficiently well-defined and, on the other hand, that type of genocide came within the sphere of the protection of human rights. As for physical genocide, it was, broadly speaking, an international crime. It was a crime committed by members of Governments themselves, or with their connivance or collusion. Though starting from the same principles as the delegation of the United Kingdom, the French delegation had reached conclusions which were diametrically opposed. The international character of genocide made it imperative that the suppression of the crime should be entrusted to an international penal court so that the guilty should not escape punishment. Mr. Chaumont drew the attention of the members of the Committee to the draft convention prepared by the French delegation [A/C.6/211]. He emphasized the importance of the decision which the Committee was about to take. It was essential that an international convention on the

1322

A/C.6/SR.66

prevention and punishment of genocide should be adopted. The General Assembly had twice expressed itself in favour of such a convention. The hopes of the peoples of the world would be frustrated if the Committee were now to go back on that decision. The meeting rose at 1.15 p.m.

SIXTYSIXTH MEETING Held at the Palais de Chaillot, Paris, on Monday, 4 October 1948, at 10.45 a.m. Chairman: Mr. R.J. Alfaro (Panama). 8. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Mr. Prochazka (Czechoslovakia) recalled that the Czech and Slovak peoples had been the first victims of nazi persecution, and stressed the importance which his delegation ascribed to the question of genocide. While he noted with satisfaction that the crime would be the subject of an international convention concluded under United Nations auspices, he supported the criticisms made against the draft convention, especially by the representatives of the USSR and Poland (64th meeting) and of the Ukrainian SSR (65th meeting). Such a convention, if it were to be really effective, should not be based on abstractions nor drafted in vague and general terms, but should include express provisions asserting the peoples’ desire to punish all those who, in the future, might be tempted to repeat the appalling crimes which had been committed. It was therefore necessary to contemplate effective preventive measures; for example, the prohibition of preparations, attempts, incitement and particularly propaganda for racial or religious hatred, or propaganda deriving from the theory of so-called racial superiority; such propaganda led directly to genocide. In spite of the defeat of nazism, racial discrimination and attempts at oppression still persisted in various parts of the world.

A/C.6/SR.66

1323

Mr. Prochazka emphasized the harm done by racial propaganda, and recalled that it was Hitler’s Mein Kampf which had inspired all the shocking crimes of recent years, including genocide and the war of aggression. The Czechoslovak representative felt that the doubts expressed by the United Kingdom representative with regard to the usefulness of the convention (64th meeting) were a kind of defeatism which was not in keeping with the spirit of the Charter and would destroy the value of international agreements and conventions. While the existence of a convention on genocide would not have deterred Hitler, it would at least have prevented the attitude of tolerance which was shown towards him, and would have made difficult the reaching of agreements such as the one concluded at Munich. Apart from specific amendments which he reserved the right to submit in due time, Mr. Prochazka stressed the particular necessity of the following points: First, to connect the convention directly with the historical events which had proved the necessity for its existence, and to stress the relationship between genocide and the doctrines of nazism, fascism and Japanese imperialism; Secondly, to call upon States acceding thereto to introduce into their legislation the necessary provisions not only for the suppression of the crime but also for its prevention, emphasizing the illegal character of propaganda and of all preliminary measures which might lead to genocide; Thirdly, to state explicitly that signatory States were responsible to the United Nations and, in that particular case, to the Security Council for implementing the convention. Mr. Prochazka considered that agreement should be reached on those basic principles before a detailed study was made of the draft, which he did not think should be referred to the International Law Commission or to a sub-committee. Mr. Abdoh (Iran) stated that his delegation hoped to see the draft convention adopted at the current session of the Assembly and was against referring it to the International Law Commission. He suggested that it should be discussed forthwith, article by article, and then referred to a drafting committee.

1324

A/C.6/SR.66

Emphasizing the urgency of the question, Mr. Abdoh recalled Mr. Evatt’s words in the Economic and Social Council.1 Perhaps, for the moment, agreement could not be reached on all points, but that should not prevent the United Nations from adopting a convention embodying all the points on which agreement was possible; at some later time, an additional convention might settle those which remained outstanding. The International Labour Organisation, for instance, which had in the course of years achieved agreement on an ever-increasing number of problems connected with industry and trade, had proceeded along those lines. 1

See Official Records of the Economic and Social Council, Third Year, Seventh Session, 218th meeting.

In addition to the amendments which he proposed to submit in due course, the representative of Iran drew particular attention to the following considerations bearing on the definition of genocide, on cultural genocide and on the setting up of an international criminal court. With regard to the first item, Mr. Abdoh pointed out that the definition of genocide must be extremely specific. The crime consisted in the destruction or the attempt at destruction of a group of human beings possessing permanent characteristics such as race, nationality or religion; that definition excluded groups, as for example political groups, membership of which was optional. In his opinion it would be inadvisable to include political groups, because that would prevent some Governments, which were rightly desirous of maintaining the freedom to suppress internal disturbances, from ratifying the convention. To include cultural genocide would be to go far beyond the aims of the convention. It was certainly necessary to protect the spiritual and cultural activities of an ethnic group, but the Iranian delegation advocated the adoption of a supplementary convention on the subject. With regard to the principle of an international criminal tribunal, as provided for in article VII of the draft, Mr. Abdoh felt that, however desirable it might be to achieve that ideal, considerations of national sovereignty would currently prevent States from agreeing to its establishment. It was well known, moreover, that up to the present time, acceptance of the jurisdiction of the International Court of Justice was optional. The findings of a criminal court, however, could not be optional. The Iranian

A/C.6/SR.66

1325

delegation did not want the idea of the establishment of an international criminal court to be entirely dismissed, but felt that there might be an additional resolution on the subject recommending the International Law Commission to request all States to express their opinions on the question, and then to undertake the necessary studies to that end. In order, however, that genocide might not remain unpunished for lack of a competent international Tribunal, the Iranian delegation suggested that the principle of universal suppression should be accepted. Genocide, because it was an international crime and therefore liable to impair relations between States, was similar to other international crimes and offences, such as counterfeiting and traffic in women, for which the principle of universal suppression held good; that meant that the courts of the country in which the perpetrators of the crime took refuge were competent to proceed against them. Moreover, it would always be possible to have recourse to the procedure provided for in article VIII of the draft, according to which any party to the convention could bring the matter before the competent bodies of the United Nations so that the latter could take the necessary steps to prevent and suppress genocide. Hence it would always be possible to apply to an international political body, even if an international tribunal did not exist. Mr. Abdoh was of the opinion that few Governments would be likely to ratify the convention in its present form. The Iranian delegation would reserve its position until later in the discussion. In conclusion, Mr. Abdoh quoted the appeal for suppression of genocide made by outstanding personalities, among whom was the late Count Bernadotte. That appeal reflected the deepest feeling of the entire world. The convention on genocide, however limited might be its immediate effectiveness, would nevertheless represent an important historical step towards the application of the basic principles of the United Nations Charter. Mr. Azkoul (Lebanon) emphasized that his country was particularly interested in the question of genocide because the Lebanese nation was the product of an amalgamation of groups of human beings of different races and religions and also because many groups of Lebanese were scattered throughout the world. Although it was not perfect, the draft convention contained some very sound points. In the opinion of the Lebanese representative, the essential point was that the definition of genocide took into account the particular

1326

A/C.6/SR.66

motive of the perpetrator, namely, racial, national or religious fanaticism. Such a feeling could derive only from the attitude adopted by a collectivity and could be directed only against another collectivity. That fact was sufficient to transpose genocide from the category of individual crimes or massacres to a new legal category, that of collective crime. Hence it was indisputable that genocide differed, in law, from the other crimes with which it had so far been confused; for while genocide, like the other crimes, resulted in the physical destruction of one or several individuals, it involved a new factor, namely, the intention to destroy a group as such. Mr. Azkoul did not share the scepticism expressed by the United Kingdom representative with regard to the convention. Even if the convention served only to establish officially that genocide was a crime under international law, thus keeping the conscience of humanity constantly on the alert against it, that was already sufficient reason for adopting it. The convention did more; it condemned the fanaticism from which sprang all the horrors of genocide. Such a condemnation could have great influence, particularly on the public opinion of countries like Germany, where racial fanaticism still existed; it could even influence local judges, who might be led thereby to regard that kind of fanaticism as an aggravating and not as an extenuating circumstance in persecutions committed against individuals of a different race. Finally, the draft convention had the further advantage that, for the first time in an international or constitutional document, mention was made in it of the protection of the human group as such and not only of the individual, whether or not he belonged to a minority. The inherent value of the human group had at last been recognized as well as its contribution to the cultural heritage of the human race. The relation between cultural and physical genocide was thus demonstrated; they were but two facets of one and the same act having the same origin and the same purpose, namely, the destruction of a group, whether by the extermination of its members or by the eradication of its distinctive characteristics. Did that go beyond the scope of resolution 96(I) of the Assembly? The connexion made in the convention between genocide and homicide had been interpreted by certain delegations, among them the Canadian delegation, as excluding cultural genocide. Mr. Azkoul did not consider that that argument could be upheld if consideration were given to the motives which had led the Assembly to condemn genocide and which

A/C.6/SR.66

1327

were outlined in the first paragraph of that resolution. One of the reasons which had led the Assembly to condemn genocide was the cultural loss it inflicted upon humanity. The physical and cultural aspects of the crime were therefore indivisible and, if it was the intention of the United Nations to prepare a comprehensive convention on genocide, such a convention must cover cultural genocide. The representative of Lebanon hoped that the divergences of opinion which had been revealed in the Committee with regard to the provisions of the draft convention could be reduced to differences of form and that, with the help of goodwill and a spirit of compromise, a positive result could be reached during the current session. The Chairman declared the general discussion closed and called upon the Committee to take a decision on the proposals of the United States of America (63rd meeting) and the Philippines [A/C.6/213]. Mr. Egeland (Union of South Africa) observed that no delegation had formally proposed that the draft convention should be referred to the International Law Commission. In those circumstances, the United States proposal that the Committee should not refer to the International Law Commission the preparation of the final text of the convention on genocide was purely negative in character. He emphasized the danger of deciding at once against referring the draft convention to the International Law Commission; it might later appear necessary to do so, and the Committee should not bind itself by any premature decision. The delegation of the Union of South Africa supported the Philippine proposal. It was preferable that the Committee should refrain from voting on the United States proposal; if that proposal was nevertheless put to the vote, the delegation of the Union of South Africa would suggest, in order to avoid prejudice to any future decision, the addition of the words “at this stage” after the words “the Committee decides not to refer”. Sir Hartley Shawcross (United Kingdom) supported the view expressed by the representative of the Union of South Africa. Mr. Gross (United States of America) observed that the question upon which the Committee was called to make a decision was of great importance. The point of issue was whether the Committee should entrust to

1328

A/C.6/SR.66

the International Law Commission the establishment of the final text of the draft convention on genocide or whether it should itself prepare that text. The latter part of his delegation’s proposal was thus undeniably positive in character. He reminded the Committee that his delegation was eager to see the adoption of a convention on genocide by the General Assembly at the current session and had submitted its proposal in that spirit. To refer the draft to the International Law Commission would be tantamount to renouncing all hope of adoption of the convention at that session. The Chairman put to the vote the amendment proposed by the delegation of the Union of South Africa; that amendment consisted in the insertion, in the United States proposal, of the words “at this stage” after the words “the Committee decides not to refer”. The amendment was rejected by 27 votes to 11, with 9 abstentions. The Chairman then put to the vote the proposal of the United States of America appearing in document A/C.6/208 (63rd meeting). The United States proposal was adopted by 38 votes to 7, with 4 abstentions. The Chairman asked the Committee to vote on the proposal of the Philippine delegation that (1) the Committee should proceed to the consideration of the draft convention prepared by the Ad Hoc Committee, article by article; and (2) that the decisions taken by the Committee on each article of the draft convention, together with all its resolutions, should be referred to a sub-committee with a view to the preparation of a final draft. In reply to a question by Mr. Chaumont (France), the Chairman explained that when the text prepared by the Ad Hoc Committee on Genocide was examined, account would also be taken of the draft submitted by the French delegation [A/C.6/211]. Mr. Federspiel (Denmark), supported by Mr. Morozov (Union of Soviet Socialist Republics) asked that the Philippine proposal should be divided into two parts, and Mr. Morozov proposed that the vote on the second part, which seemed to him premature, should be deferred. The latter proposal was supported by Mr. Gross (United States of America), Mr. Spiropoulos (Greece) and Mr. Alfaro (Panama).

A/C.6/SR.66

1329

Mr. Ingles (Philippines) agreed to the second paragraph of his proposal being deferred, but reserved his right to submit it again at a suitable time either as it was or in a modified form or to withdraw it. The Chairman put the first paragraph of the Philippine proposal [A/ C.6/213] to the vote. The proposal was adopted by 48 votes to none, with 1 abstention. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) asked delegations wishing to propose amendments to the draft convention to submit them in writing, one day in advance, in accordance with the rules of procedure; time would be saved thereby and the Committee’s work greatly facilitated. He further suggested that the Committee should discuss the articles first and the preamble later. Mr. Abdoh (Iran) supported that suggestion and proposed that the examination of the draft convention on genocide should begin with article I and that the preamble should be discussed last, as it could not properly be drafted unless account were taken of the principles contained in the various articles of the convention. Mr. Morozov (Union of Soviet Socialist Republics) said that the Committee’s vote on the Philippine proposal meant that the draft convention should be examined in the order in which it appeared in document E/794, that is to say by beginning with the preamble; there could be no other interpretation. The USSR delegation considered that the preamble of the convention on genocide should state clearly the juridical nature of the crime and its purpose. For that reason certain points contained in article I should, in the opinion of that delegation, appear in the preamble. In order to avoid having to return to certain articles of the convention when the preamble was under discussion, it was desirable first to decide the question of the juridical nature and the object of genocide and then to proceed to the examination of the various articles of the convention. Mr. Demesmin (Haiti) also considered that the preamble should be discussed first, in order to avoid confusion regarding principles. Mr. Spiropoulos (Greece) preferred that examination of the preamble should be deferred to the end of the discussion, on the ground that,

1330

A/C.6/SR.66

generally speaking, the preamble was merely a repetition of the principles laid down in the articles of the convention. Mr. Raafat (Egypt), Mr. Dihigo (Cuba), Mr. Dignam (Australia) and Mr. Chaumont (France) were of the same opinion, for practical reasons. If the Soviet Union wished some of the points contained in article I to be incorporated in the preamble, it could raise the question when article I was discussed. Mr. Chaumont also pointed out that the preamble of the draft prepared by the Ad Hoc Committee added nothing to the text of the convention, and said that his delegation considered any preamble unnecessary. Sir Hartley Shawcross (United Kingdom) fully agreed with the French representative’s view on the uselessness of the preamble, which, in his opinion, was employed mainly for propaganda purposes. He said that there was no point in agreeing on the preamble of a convention if there were no agreement on the articles of that convention. What mattered in any international treaty were the obligations contained in the various articles, while the preamble, when one existed, was merely an introduction or an explanation of the text which followed. Mr. Bartos (Yugoslavia) said that he had interpreted the vote on the Philippine proposal in the same way as the USSR representative. He objected to the United Kingdom representative’s assertion that the preamble to the convention would be used for propaganda purposes. Legal doctrine was that the essential purpose of a preamble, which affirmed the guiding principles of a convention, was to interpret the text of that convention. There was therefore advantage in reaching prior agreement on the guiding principles. By discussing the preamble first, the Committee would obviate a repetition of the discussion of such principles as each article was examined. Mr. Lachs (Poland) agreed that usually, when an international treaty was being drafted, the articles were dealt with first and the preamble last. In the case of the convention on genocide, however, the position was different. On the one hand, the general debate had indicated such differences of opinion that it would be desirable to begin by reaching agreement on the principles to be enunciated in the preamble. On the other hand, article

A/C.6/SR.66

1331

I and the preamble were obviously so closely linked that they could not be discussed separately. Mr. Prochazka (Czechoslovakia) supported the views of the Soviet Union and Polish representatives. In his opinion it was essential to begin with the preamble, in order to affirm the existence of the organic relationship between genocide and the nazi-fascist ideology. Mr. Gross (United States of America) observed that the articles of a convention were not governed by the terms of the preamble of such a convention: in fact the contrary was the truth. Like Mr. Chaumont, Mr. Gross considered that the preamble of a convention could be omitted without the convention thereby losing its force. He observed that the Sixth Committee was not a political but a legal body and that it should accordingly consider only the legal aspect of the convention and leave aside everything that might be inspired by a desire for propaganda. Mr. Demesmin (Haiti) pointed out that, in considering that item of its agenda, the Sixth Committee was acting not only as a legal body, but as a legal body with legislative powers. A legislator always began by defining the spirit of the law in the preamble; he then embodied the letter of the law in articles. The delegation of Haiti was therefore of the opinion that the examination of the draft convention should begin with the preamble. Mr. Pérez Perozo (Venezuela) explained that the Ad Hoc Committee on Genocide had examined the preamble to the convention last because the contents of the articles were unknown to it. The position was no longer the same; the Committee was in possession of a definite text and there was nothing to prevent it from considering the preamble first. Mr. Kaeckenbeeck (Belgium) proposed as a working method that the discussion of the draft should be held in two readings. During the first, the Committee would examine the various amendments submitted and the connexion between the preamble and the article, and would endeavour to reach agreement in principle, without however making any final decisions. Such decisions would be taken only at the second reading.

1332

A/C.6/SR.67

Mr. Morozov (Union of Soviet Socialist Republics) formally proposed that the Committee should examine the preamble and article I of the draft convention at the same time. The USSR proposal was rejected by 32 votes to 11, with 6 abstentions. The Chairman put to the vote the Iranian proposal to begin the examination of the articles of the draft convention immediately. Mr. Morozov (Union of Soviet Socialist Republics) proposed that the discussion should start with article II. The President ruled that, in accordance with rule 117 of the rules of procedure, the proposal constituted an interruption of the vote and could not be considered. However, the representative of the USSR could submit his proposal during the discussion of the articles. The Iranian proposal was adopted by 36 votes to 4, with 7 abstentions. The Chairman informed the Committee that, in accordance with the provisions of article 120 of the rules of procedure, the proposals relating to the draft convention would be put to the vote in the order in which they were submitted to the Secretariat. The meeting rose at 1.15 p.m.

SIXTYSEVENTH MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 5 October 1948, at 10.50 a.m. Chairman: Mr. R.J. Alfaro (Panama). 9. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article I Mr. Chaumont (France) considered that the subject matter of articles I and II of the draft convention drawn up by the Ad Hoc Committee on Genocide should be combined in a single article, as had been done in article I of the French draft [A/C.6/211].

A/C.6/SR.67

1333

With regard to the text of article I, the French delegation was still in favour of the expression “crime against humanity” in preference to the expression “crime under international law” which had been adopted by the Ad Hoc Committee. It was essential, indeed, that the definition of genocide should be related to the previous instances of that crime which already existed under international law. The expression “crime under international law” was old and somewhat ambiguous, as it had served in particular to denote piracy, a crime whose suppression was not undertaken by an international organization, but which was covered by the legal system, now superseded, of universal suppression. The Chairman pointed out that it was essential, in order to avoid confusion in what might prove to be a difficult discussion, not to deal with more than one particular item at a time. Only after the texts of articles I and II had been studied in detail could the question of their amalgamation be usefully discussed. Mr. Kaeckenbeeck (Belgium) noted that article I did nothing more than reproduce with one addition the terms of resolution 96(I) of the General Assembly, and he thought that that reference would be more appropriate in the preamble. On the other hand, since the fundamental purpose of a convention was to create an obligation, it was preferable that the undertaking to prevent and suppress the crime of genocide which appeared at the end of the preamble, should constitute the text of article I of the convention. The representative of Belgium proposed therefore: (1) that the text of article I as it stood should be deleted; (2) that that text should perhaps be included in the preamble; (3) that the wording of the final paragraph of the preamble should be adopted as article I, with the following amendment: “The High Contracting Parties hereby undertake to prevent and repress the crime of genocide as defined in the present Convention”. Mr. Amado (Brazil) was also of the opinion that article I should be deleted, as its character was purely declaratory. The first part of that article would more appropriately appear in the preamble. The international nature of genocide could be adequately inferred from its definition, from an analysis of the factors constituting it and from the mode of its suppression. The second part of the article, pointing out that genocide could be committed “in time of peace or in time of war”, was superfluous, first, because it simply enunciated a self-evident truth, and secondly because it could

1334

A/C.6/SR.67

give rise to certain difficulties, since genocide committed in time of war had particular legal characteristics which had already been defined at Nürnberg under the heading of crimes against humanity. Mr. Abdoh (Iran) shared the views of the representative of Belgium regarding the transfer of article I to the text of the preamble, and formally proposed that discussion on that article should be postponed in order that it might take place when the preamble was under consideration. He was in favour of retaining the expression “crime under international law” since it appeared in resolution 96(I) of the Assembly. Mr. Pérez Perozo (Venezuela) supported the Belgian proposal. He felt that since the point at issue was to affirm that genocide was a major crime condemned by the whole world, such a declaration would be all the more impressive if it were included in the preamble. Mr. Raafat (Egypt) opposed the Belgian proposal. He thought that article I should be retained because it expressed three fundamental concepts, namely, that genocide was a crime, that it was a crime under international law and that it was a crime in time of peace as well as in time of war. That article was no doubt a repetition of the terms of the General Assembly resolution, but the latter was only a recommendation whereas the convention would be binding on the parties. Mr. Morozov (Union of Soviet Socialist Republics) regretted that the Committee had rejected his previous proposal (66th meeting) to consider article I at the same time as the preamble; in that way the difficulties with which the Committee was now confronted would have been avoided. He therefore agreed with the suggestions which had just been made, namely, that the discussion of article I should be postponed. The proper place for that article was in the preamble, not only because its character was purely declaratory but also because the complement of what it expressed should appear in the preamble. Article I, if it were considered out of its context, did in fact show proof of inaccuracy and inadequacy. To say that genocide was contrary to the rules of international law was neither to define it nor to determine its nature; it was to apply thereto the same abstract formula which had been used in the suppression of the white slave traffic and in the suppression of obscene publications, notwithstanding the fundamental differences which existed between those two categories of infractions of international law. If the text were to have

A/C.6/SR.67

1335

any meaning, all the necessary amplifications should be added thereto. Genocide must be declared to be an atrocious crime against humanity, the prevention and suppression of which should be provided for in the legislation of all democratic States; the prevention and suppression of that crime must apply to all propaganda which stirred up the hatred leading to genocide; the necessity for international collaboration to render such prevention and suppression effective must be stated explicitly. All those provisions were to be found in the draft amendment submitted by the USSR [A/C.6/215/Rev.1] which would be discussed when the preamble came up for consideration. Referring to the part of the article which stated that genocide was a crime in time of peace as well as in time of war, Mr. Morozov could see no objections to that text, save that it was not necessary to embody it in a separate article, as the French delegation had suggested. Its place was in the preamble. In conclusion, the delegation of the Soviet Union was of the opinion that the consideration of article I should be postponed until discussion of the preamble of the draft convention, the USSR amendment and all other amendments on that subject. If that proposal were rejected, the deletion of article I as such would have to be considered. Sir Hartley Shawcross (United Kingdom) thought it necessary to retain in the operative part of the convention the text of article I which he suggested, however, might be completed by the following phrase: “shall be considered as a violation of the present Convention”. It was true that that article did not contain a definition of the crime, since that was given in article II. Article I, however, had a different purpose, namely, to reaffirm in a legislative text, in a written convention, the existence of a crime already known in international law, of which history had furnished many examples throughout the centuries and for the suppression of which the United Kingdom and other countries had fought during the last war. Mr. Bartos (Yugoslavia) pointed out that it was precisely because genocide constituted a crime under international law that the United Nations was applying itself to the preparation of an international convention designed to ensure its prevention and suppression. It was useless, therefore, to state that fact in article I of the convention; that article, in his opinion,

1336

A/C.6/SR.67

should enumerate only the factors which constituted the crime. In its present form, article I was no more than a declaration. Its provisions, consequently, would more properly appear in the part of the convention which was reserved for declarations, namely, in the preamble. The delegation of Yugoslavia supported the Belgian proposal to include in article I of the convention the obligation of signatory States to prevent and suppress genocide. The Yugoslav delegation considered that the most logical solution would be, as the representative of the USSR had proposed, to postpone the discussion of article I until the preamble came up for discussion. It was at that point that the preamble, which must be a solemn declaration, could best be drafted and a decision taken as to what should be included in article I of the convention. Mr. Manini y Ríos (Uruguay) admitted that, in its present form, article I was likely to be misleading, as it might be taken for a definition of genocide. In his opinion article I should explicitly and categorically condemn genocide, not as a new crime, but as a crime under international law. The representative of Uruguay suggested the following formula which he felt would be likely to obtain the approval of the Committee: The High Contracting Parties undertake to prevent and repress genocide, constituting as it does a crime against humanity, whether it be committed in time of war or of peace, in conformity with the provisions of the present Convention.

He pointed out that his delegation preferred the expression “crime against humanity” to that of “crime under international law” which was used in resolution 96(I) of the General Assembly. Mr. Demesmin (Haiti) thought that it would be a mistake to transfer the provisions of article I to the preamble. The preamble of the convention should in fact contain the description of the crime, whereas the articles should contain its definition. However clear a description might be, it had a purely doctrinal character and could never have the force of law. Consequently, in order to obligate a signatory State to ensure the prevention and suppression of genocide, that crime should be defined as a crime under international law and the definition included in the body of the convention and not in the preamble. Mr. Morozov (Union of Soviet Socialist Republics) asked the representative of Belgium if he would agree to the following procedure: (1) to delete

A/C.6/SR.67

1337

article I and to decide, in principle, to include all or parts of its provisions in the preamble; (2) to postpone until the discussion of the preamble the choice and drafting of the provisions which should be included therein. Mr. Kaeckenbeeck (Belgium) fully agreed to that procedure. Mr. Manini y Rios (Uruguay) pointed out the difficulties which certain delegations might have in deciding on the USSR proposal as a whole and asked that that proposal should be voted on in parts. Mr. Noriega (Mexico) reminded the Committee that it was essential in all international treaties to indicate the scope of the instrument. In stating in article I of the convention that genocide was a crime against international law, whether it were committed in time of peace or in time of war, a comprehensive definition of the universal character of genocide was established. Those provisions, if they were inserted in the preamble, would have no legal value. It was for that reason that Mr. Noriega opposed the deletion of article I which, in his opinion, constituted an essential legal factor of the convention. Mr. Bustos Fierro (Argentina) said that it was generally accepted that the preamble of an international convention did not constitute a commitment on the part of the signatory States, but rather an explanation of the reasons for the convention, designed to facilitate the interpretation of its provisions. No purpose would be served, therefore, by transferring the provisions of article I to the preamble, which already contained the same concept of crimes against humanity. In the view of the Argentine delegation, it was absolutely essential to retain article I in the body of the convention because it described the crime. The delegation would therefore vote against the deletion of the article. It was not necessary, however, to state that genocide was a crime “whether committed in time of peace or in time of war”, inasmuch as the convention did not differentiate between the sanctions provided for in both cases. The Argentine delegation shared the view of the delegation of Uruguay that article I should be completed by a specific commitment on the part of the signatories, and proposed the following text:

1338

A/C.6/SR.67

Genocide is a crime under international law which the Contracting Parties bind themselves to prevent and repress in pursuance of the provisions of the present Convention.

Mr. Dihigo (Cuba) observed that article I of the convention was not intended to define the crime of genocide, but to describe its character. It was therefore far from superfluous. While the concept of genocide was undoubtedly not a new one, it was none the less true that the idea of terming it a crime under international law was very recent. History had proved that it was not enough for national legislation to punish genocide; that crime must be punished under international law. The Cuban delegation would therefore vote to retain article I of the convention. Mr. Spiropoulos (Greece) reminded the Committee that the draft before it had been drawn up by the Ad Hoc Committee on Genocide after long deliberation and after a thorough study of all the aspects of the question. He was not unaware of the attitude of those delegations which favoured the transfer of the terms of article I to the preamble; it had been set forth in the report of the Ad Hoc Committee.1 The Ad Hoc Committee had decided, by a strong majority, not to include the provisions of article I in the preamble in order to give greater force to the ideas contained in those provisions. 1

See Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6, page 4.

In the circumstances, the representative of Greece felt that the Committee should not change the text drawn up by the Ad Hoc Committee except for very good reasons; and for its part it was not at all convinced that such reasons existed. Mr. Iksel (Turkey) said that article I was not intended as a definition of genocide. If, as some delegations maintained, it did indeed constitute a definition, that definition was in any case incomplete. The article should therefore be considered at the same time as the preamble; a decision could then be taken as to whether it should be incorporated in the preamble or deleted.

A/C.6/SR.67

1339

Mr. Raafat (Egypt) considered that it was necessary to establish whether a convention already existed declaring genocide to be a crime under international law. If the answer was in the affirmative, it would be sufficient for the convention to state in its preamble that genocide was a crime under international law. If the answer was in the negative, that statement should appear in the operative part of the convention. Mr. Chaumont (France) supported the proposal of the Turkish representative that article I should be considered simultaneously with the preamble, and regretted that the USSR representative had withdrawn his first proposal. It would be better to defer the discussion because it was not yet certain whether the convention would have a preamble. Sardar Bahadur Khan (Pakistan) felt that the solemn statement contained in article I should appear in the operative part of the convention and not in the preamble. He would therefore vote against the proposal to incorporate the article in the preamble. Mr. Maktos (United States of America) felt that a bad precedent should not be set by postponing consideration of article I. The criticism voiced against that article was hardly justified, inasmuch as the article was in no way intended to define genocide, but simply to declare that genocide was a crime under international law. The representative of the United Kingdom had been right in saying that that principle should be reaffirmed in order to dispel any doubts which might exist. Mr. Maktos emphasized that the first part of article I was drafted in terms identical with those which appeared in resolution 96(I) which the General Assembly had unanimously adopted. How could the inclusion of that article in the preamble add to the force of the preamble? If that were so, the entire convention could be inserted in the preamble. He considered that the provisions of article I would have more force in that article than in the preamble, which was not even essential. After explaining the reasons for the vote on that article in the Ad Hoc Committee, Mr. Maktos suggested that only the first part of it should be retained as the second part seemed absolutely useless. On the other hand, he strongly supported the United Kingdom amendment to add to the article the words: “shall be considered a violation of the present Convention”.

1340

A/C.6/SR.67

Referring to the text of article I of the French draft [A/C.6/211], Mr. Maktos pointed out that it was made up of three parts: (1) the statement that genocide was a crime against humanity; (2) the definition of genocide; (3) the responsibility of the perpetrators of genocide before an international tribunal. The second and third parts could best be considered after discussion of articles II and VII, respectively, of the draft convention prepared by the Ad Hoc Committee. Furthermore, the French proposal to define genocide as a “crime against humanity”, a proposal which had already been upheld by that delegation in the Ad Hoc Committee, presented serious disadvantages and was open to misinterpretation in view of the technical meaning given to that expression in article 6, sub-paragraph (c) of the Charter of the Nürnberg International Military Tribunal which had jurisdiction only over crimes committed during the war or in connexion with preparation for war. Moreover, since the International Law Commission had been charged with the formulation of the principles recognized at Nürnberg and with the preparation of a code of crimes against the security of humanity, it was inadvisable to encroach before-hand upon its sphere of work. Mr. Maktos concluded his remarks by repeating his proposal for the immediate consideration of article I, only the first part of which should be retained and to which should be added the United Kingdom amendment. Mr. Abdoh (Iran), on a point of order, recalled that he had made a formal motion at the beginning of the meeting to postpone consideration of article I, since that article was organically connected with the preamble. That did not mean, of course, that it should necessarily be incorporated in the preamble. He proposed, in pursuance of rule 105 of the rules of procedure, that debate on the matter under discussion should be adjourned. Sir Hartley Shawcross (United Kingdom) proposed that the Committee should decide by a vote whether article I should be included in the operative part of the convention or whether it should be deleted on the understanding that its provisions might later be re-introduced in the preamble. Personally, he was wary of long and ambitious preambles which tended to obscure the text of the convention. Mr. Kaeckenbeeck (Belgium), replying to the question raised by the representative of Egypt, said that it was true that no convention as yet

A/C.6/SR.67

1341

existed declaring genocide to be a crime under international law. He was of the opinion, however, that there was no need to repeat the terms of resolution 96(I) in the convention under discussion; such repetition would imply doubt as to the declaratory force of that resolution. In Mr. Kaeckenbeeck’s view, the question was not one of mere procedure, as the representatives of the United States and the United Kingdom seemed to think, but a real question of substance. He explained once more that the Belgian proposal was to substitute for a purely declaratory statement a solemn commitment, of practical import, to prevent and suppress the crime. Mr. Morozov (Union of Soviet Socialist Republics) supported the Iranian representative’s motion for postponement and did not believe that it would create an unfortunate precedent. Mr. Bartos (Yugoslavia) felt that the subject had long been exhausted and that a vote should be taken immediately for or against the motion for postponement, a motion which he also supported. The Chairman put to the vote the Iranian proposal to postpone discussion on article I of the draft. The proposal was rejected by 30 votes to 20. The Chairman asked those representatives who had expressed a desire to intervene whether they wished to continue the general discussion or whether they would forego their turn to speak so that a vote might be taken. Mr. de Beus (Netherlands) wished to continue the discussion on the following day. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) asked the representatives to submit their amendments in writing. The meeting rose at 1.10 p.m.

1342

A/C.6/SR.68

SIXTYEIGHTH MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 6 October 1948, at 3.30 p.m. Acting Chairman: Prince Wan Waithayakon (Siam). 10. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article I (conclusion) Mr. de Beus (Netherlands), referring to article I of the draft convention, agreed with the views expressed by some of the delegates that the article was not entirely satisfactory. The words “in time of peace or in time of war” might well be left out. In other respects it fell short of its original intention. The Committee should clearly state in the first article of the operative part of the convention the main objectives of that convention. In the opinion of the Netherlands delegation, those main objectives were: (1) to state clearly and beyond all doubt that genocide was a crime and notably a crime under international law; (2) that the signatories of the convention would undertake to prevent and punish the crime of genocide. The Netherlands delegation therefore proposed a new text for article I to read as follows [A/C.6/220]: The High Contracting Parties reaffirm that genocide is a crime under international law, which they undertake to prevent and to punish, in accordance with the following articles.

The new text would meet the suggestion put forward at the 67th meeting by the Belgian representative. The Netherlands delegation, however, did not agree with the view expressed by the United Kingdom representative, and supported by the delegation of the United States of America, that it should be stated in the text that the committing of an act of genocide would be a breach of the convention. A convention could be violated only by those who were signatories to it, but, as individuals could also commit genocide, it would be incorrect to state that an individual had violated the convention because he had committed an act of genocide. He hoped therefore that the United Kingdom representative would agree to the proposed draft of article I, the exact wording of which might be left at a later stage to a drafting committee.

A/C.6/SR.68

1343

Mr. Lachs (Poland) failed to understand how a controversy had developed on an issue which seemed very simple. If genocide was considered a crime prior to the Nürnberg trials, article I would add nothing to it. If, however, genocide had not been recognized as such, the proposed convention would not make it a crime under international law for those States which did not ratify the instrument. In the opinion of the Polish delegation, article I was of very little use, if any. The fact that the General Assembly had pronounced itself on the subject was an entirely different matter. The Assembly was an almost universal body and had, in fact, affirmed that genocide was a crime under international law. The United Kingdom delegation had emphasized that the convention should make it clear that genocide was a crime and would be punished, but the question of punishment was already clearly stated under article IV of the convention. As to the general aspect of the problem, the opinion of the Polish delegation was that a convention of the type under consideration was law only between the signatory parties. Mr. Lachs referred to the conventions on narcotics, on traffic in women and children, and on obscene publications, where the general statements were to be found in the preamble. Definitions in its operative part might be harmful as they would limit the concept of genocide. As a lawyer, he was of the opinion that article I was useless and he favoured its deletion, but stated that the ideas contained in the draft article should be discussed in connexion with the preamble. Mr. Sundaram (India) pointed out that the real issue was whether the provisions of article I should figure in the operative part of the convention or should be incorporated in the preamble. In the opinion of the Indian delegation one of the principal objectives of the convention was to secure the adherence of all States to a declaration that genocide was a crime under international law. Even if such a declaration had already been made in the General Assembly, he did not consider that its reaffirmation would be superfluous. A formal recognition by all States could not be obtained by a statement in the preamble, and should therefore be embodied in a substantive article. He also pointed out that for the first time an attempt was being made to define genocide. There was a difference of opinion as to what should be the scope and extent of that crime as a crime under international law; whether cultural genocide should be included, and whether, among

1344

A/C.6/SR.68

other things, physical or biological genocide should include destruction of political groups. Since the scope of the crime under international law was not well recognized, or even well understood by all States in the same sense, it was necessary for the parties to the convention to acknowledge in a substantive article that genocide as defined in the subsequent article or articles was a crime under international law. Mr. Chaumont (France) said that from the discussion it seemed clear that the majority of the Committee was in favour of maintaining the provisions of article I in the text of the convention. A general agreement should be reached on the fundamental points. There were two trends of opinion in the Committee: first, that the contents of article I should be transferred to the preamble; secondly, that they should remain in the operative part. Although in the opinion of his delegation articles I and II should be merged, he was willing to withdraw the French proposal in that respect [A/C.6/211 and A/C.6/216]. But he considered important the declaration at the beginning of the convention that genocide was a crime under international law whether committed in time of war or of peace. Therefore, the French delegation would be willing to accept article I in the form submitted by the Ad Hoc Committee on genocide. Mr. Abdoh (Iran) endorsed the views expressed by the representative of France, emphasizing the importance of the statement that genocide was a crime under international law. He wanted to add to article I the undertaking of the States to prevent and punish the crime. Article VI of the draft convention had the same objective. The drafting committee would be well advised to keep constantly in mind the contents of article VI of the convention when re-drafting the second part of article I. Mr. Tarazi (Syria), although he was of the opinion that the text proposed by the Netherlands delegation should be included in the preamble of the draft convention, agreed as a conciliatory measure to the proposal that that text should be merged with article I of the draft convention, reserving his right to submit any amendments at a later stage. Mr. Federspiel (Denmark) stated that his delegation had not taken part in the general discussion and did not hold any strong views as to whether article I should be maintained in its existing place or should be transferred to the preamble. In his opinion, however, article I should be worded more effectively. For that reason he supported the Netherlands

A/C.6/SR.68

1345

proposal, although he considered that that text too lacked some of the lucidity which article I should have. Article VII showed that the Committee would have to discuss the question of jurisdiction. The Committee might consider it advisable not to limit its concept of genocide to that of a crime under international law. Genocide was a crime whether it came under the jurisdiction of a national or an international court. He wondered therefore whether the Netherlands representative would agree to delete the words “under international law”. He also considered that the words “in accordance with the following articles” should be left out. Mr. Zourek (Czechoslovakia) stated that he had not been convinced by the arguments in favour of maintaining the contents of article I in the operative part of the convention. Its contents had already been laid down in the resolutions of the General Assembly. The opinion had been expressed that resolutions of the General Assembly were not mandatory on the Members, and that therefore the condemnation of genocide as a crime under international law should be in the operative part of the convention. That point needed clarification. While it was true that the General Assembly could not by a resolution adopt new rules of law, its resolutions could reaffirm the already existing law and as such they would be binding on the Members, particularly if they were unanimously adopted. The proposed article I might create difficulties if the convention was not ratified by all Members or was denounced subsequently and matters might, therefore, be simplified by stating in the preamble that genocide was a crime under international law. Definition of genocide was adequately covered in article II; the delegation of Czechoslovakia would therefore vote in favour of the elimination of article I and the transfer of some of its provisions to the preamble. Sir Hartley Shawcross (United Kingdom) pointed out that although Poland had stated that article I was not necessary, it was clear from the discussion that there was a division of opinion on the matter; he therefore did not think there was any harm in its inclusion. If genocide was not already a crime under international law, the only way in which it could be made one was by an international convention generally adhered to by all the States of the world. If on the other hand, genocide was already a crime, then Sir Hartley considered that article I was not necessary, but at the same time harmless, and it might be maintained, as many delegations desired that.

1346

A/C.6/SR.68

He stressed that the article should provide that States which signed the convention would bind themselves not to commit the crime, and to prevent and punish any violations. He accepted the text proposed by the Netherlands. Sir Hartley did not agree with the suggestion of the Danish representative that the words “under international law” should be deleted. The concept “under international law” was quite new and “crime” alone would relegate genocide to the status of a national crime. Furthermore, by retaining the proposed article the same wording would be used as in the declaration of the General Assembly. The view expressed by the Czechoslovak representative that the declaration of the General Assembly of 1946 was mandatory was not quite correct. Declarations by the General Assembly, or resolutions by the Security Council were not mandatory, as had been upheld by the International Court of Justice in a recent case. They were simply declaratory statements and it was, therefore, necessary to secure the agreement of all States to a binding instrument such as the proposed convention on genocide. Mr. Raafat (Egypt) raised a question of procedure. The Committee had before it the questions raised in the USSR proposal [A/C.6/219]: first, to “delete article I and transfer its various points to the preamble”; secondly, to “defer the drafting of this part of the preamble until consideration of the text of the preamble”. Before discussing the text of article I and the amendments submitted by the Netherlands and the United Kingdom, the two questions raised should be settled. The Chairman stated that the Committee had decided at the 67th meeting not to postpone the discussion of article I. An amendment had been submitted by the USSR representative that article I should be deleted and transferred to the preamble. That amendment would be dealt with after the general discussion had been concluded. Mr. Spiropoulos (Greece), Rapporteur, endorsed the views expressed by the representative of Egypt that two questions were being dealt with simultaneously, and that before proceeding any further with the discussion, the matter should be cleared up. Mr. Morozov (Union of Soviet Socialist Republics) referred to the proceedings at the previous meeting when the Committee had rejected the motion of the representative of Iran that discussion of article I should be

A/C.6/SR.68

1347

adjourned. The position now, where procedure was concerned, was whether discussion of article I should be postponed until a discussion took place on the preamble and, further, whether article I should be deleted from the draft convention. There was also before the Committee the Netherlands amendment to article I [A/C.6/220]. That draft text actually constituted a preamble and an inadequate preamble in that its definition of the crime of genocide was too narrow. The representative of the Soviet Union feared that, in the event of the Netherlands amendment being adopted by the Committee, future discussion of the preamble would be carried on with reference to an inadequately drafted article I, with the result that the Committee would have before it two preambles, a preamble qualified as still “hypothetical” by some delegations and the shorter version now submitted as article I by the Netherlands delegation. From the legal point of view that would hardly be a noteworthy achievement. Where the Netherlands amendment was concerned, Mr. Morozov considered that it was insufficient to declare genocide a crime under international law, adding that the High Contracting Parties agreed to punish it. Article IV of the draft convention fully covered the point and enumerated all the acts which must be punished. The proposal of the Netherlands delegation really constituted an attempt to give an inadequate and inaccurate definition of genocide before discussion of the preamble had taken place. The arguments for the retention of article I were not convincing. The Committee should decide whether the provisions of article I should constitute an independent article and, if not, whether discussion of those provisions should be postponed until discussion of the preamble took place. The USSR delegation had already made a proposal to that effect. Article I expressed two ideas and incorporated two positions: that genocide was a crime under international law and that it was punishable in time of war and peace. Both those conceptions should be considered in the preamble. If the Committee decided to retain article I, Mr. Morozov urged that the words “in time of peace or in time of war” should be maintained. Mr. Messina (Dominican Republic) considered that those representatives who advocated the inclusion of article I in the preamble were more logical. The General Assembly had in its resolutions 96(I) and 180(II) enunciated the principle that genocide was a crime under international law; that principle should be reiterated in the preamble to the draft convention.

1348

A/C.6/SR.68

Mr. Messina supported the proposal of the representative of Belgium to that effect [A/C.6/217 ]. Mr. Noriega (Mexico) said that the discussion was repetitive of the discussion at the previous meeting when the decision had been taken that the provisions of article I should not be included in the preamble. A vote had already been taken on that issue and he must request the Chairman to limit speakers to discussion of article I. The Chairman pointed out that the discussion was in order since no decision had been taken on the point of substance. It had only been decided not to adjourn the debate. The deletion of article I and its transfer to the preamble constituted an amendment submitted by the USSR. That amendment was still before the Committee. Mr. de Beus (Netherlands) recalled that the representative of Denmark had proposed the deletion of the words “in accordance with the following articles” from the amendment submitted by the Netherlands delegation, and said that he was prepared to accept that deletion. As regards the proposal that the words “under international law” should be deleted, he endorsed the point of view expressed by the representative of the United Kingdom. There were several reasons for maintaining those words in article I: they appeared in the General Assembly resolution 96(I) of 11 December 1946 and also in the convention as drafted by the Ad Hoc Committee; a majority of the Committee wished to retain them; there was a difference in the conception of crime from the point of view of international and domestic law, a difference which affected such important questions as extradition and the right of asylum, and finally, the use of those words did not prejudge the matter of international jurisdiction. In conclusion, the word “reaffirm” seemed not to meet with the approval of certain delegations; it might in due course be considered by a drafting committee. Mr. Maktos (United States of America) observed that as regards genocide, four stages could be distinguished: in the pre-Nürnberg stage it would have been difficult for any lawyer to prove in court that genocide was a crime. After the judgment of the International Tribunal of Nürnberg, that lawyer would have a better chance but it was still doubtful whether he would succeed in proving his case. The General Assembly’s resolutions still did not make genocide a crime, as they were not mandatory. The fourth

A/C.6/SR.68

1349

stage would have been reached when the convention was concluded. Mr. Maktos pointed out that if a lawyer had to rely on the preamble in order to prove that genocide was a crime, he would have a more difficult task in court than if that statement were laid down in the operative part of the convention. Mr. Bartos (Yugoslavia) expressed agreement with the ideas contained in article I as adopted by the Ad Hoc Committee. Genocide was explicitly mentioned in the national legislation of Yugoslavia, and in the opinion of his delegation States which omitted to include genocide in their legislation failed in their duty. He was surprised that there should be any opposition to the retention of the words “in time of peace or in time of war”. It was as yet uncertain whether there would be a preamble to the convention. Assuming that there were no preamble, article I, both in the draft submitted by the Ad Hoc Committee and in that of the Netherlands delegation, was inadequate and the representative of Yugoslavia would be unable to vote for either. If, on the other hand, there was a preamble, then it was likely that article I would prove to be repetitive of the preamble. That was not a question of substance, but of form. Logically it was only possible to proceed once the Committee knew what the preamble would contain. Although it had been decided at the previous meeting to examine article I, it now appeared that there were certain factors which tended to make a reversal of that decision desirable. Mr. Abdoh (Iran) moved the closure of the debate on article I. The motion was adopted by 42 votes to none, with 6 abstentions. The Chairman ruled that the USSR amendment [A/C.6/219] would be put to the vote paragraph by paragraph. Speaking on a point of order, Mr. Kaeckenbeeck (Belgium) said that representatives might have difficulty in voting, since a number of general questions had been raised. There were three proposals before the Committee: those of the Union of Soviet Socialist Republics, Belgium and the Netherlands. There was a danger in voting on the transfer of article I since certain delegations wanted not only to transfer the article to the preamble but to substitute for it a new text. He considered that a decision on the content of a substituted text should precede the vote on the transfer of article I.

1350

A/C.6/SR.68

The Chairman pointed out that the USSR amendment must be put to the vote before the Belgian amendment since it was furthest removed in content from the original text. Mr. Maktos (United States of America) requested that paragraph 1 of the USSR amendment should be voted on in two parts, the deletion of the article being put to the vote before a vote was taken on the transfer of parts of the article to the preamble. Sir Hartley Shawcross (United Kingdom) stated that the choice between the amendments submitted by the representatives of Belgium and the Netherlands was somewhat difficult; he asked whether the representative of Belgium would be willing to withdraw his amendment in favour of the Netherlands amendment. Mr. Kaeckenbeeck (Belgium) expressed his willingness to withdraw his amendment provided it were not submitted again by another delegation. The USSR amendment was then voted upon in two parts. The first part of paragraph 1 reading: “Delete article I” was rejected by 36 votes to 8, with 5 abstentions: The second part of paragraph 1 reading: “and transfer its various points to the preamble” was rejected by 40 votes to 8. The Chairman ruled that as a result of the voting on paragraph 1, paragraph 2 would not be put to the vote, and said he would take up next the Netherlands amendment [A/C.6/220]. Mr. Morozov (Union of Soviet Socialist Republics) made a request to submit an amendment to the Netherlands text. After hearing comments on that request from the representatives of the United Kingdom, Yugoslavia, France and the Union of Soviet Socialist Republics in connexion with rules 106 and 117 of the rules of procedure, the Chairman ruled that Mr. Morozov was in order in submitting an amendment to the Netherlands text since he had not yet requested the Committee to vote on the latter. Mr. Morozov (Union of Soviet Socialist Republics) submitted the two following amendments to the Netherlands amendment:

A/C.6/SR.68

1351

1. That the words “under international law” should be deleted; 2. That the words “independently of whether committed in time of peace or in time of war” should be added after the words “and to punish”.

Mr. Chaumont (France) proposed the deletion of the words à nouveau after affirment in the French text of the Netherlands amendment and added that he would vote in favour of the second amendment submitted by the representative of the USSR, since it was equivalent to the wording of article I as drafted by the Ad Hoc Committee, but that he was opposed to the first amendment of the USSR. Mr. Tarazi (Syria) suggested that the words “or at any moment” should be inserted after the phrase “in time of peace or in time of war” to cover situations which did not fall into either of those categories. He referred to Palestine as an example, pointing out that, according to its own declaration, the Arab League had not entered Palestine for the purpose of making war but of restoring law and order. The Government of the State of Israel did not constitute a State as it was based on a resolution of the General Assembly, which under the terms of the Charter had only the right to recommend and not to decide. If certain States had recognized that so-called Government, that recognition could not modify its status as in international law recognition was declaratory and not constitutive. Consequently the campaign in Palestine was not a war; nor at the same time, could it be said that it had taken place in a time of peace. Nevertheless, the Jews had committed atrocities against the Arabs during the campaign, and those crimes deserved to be punished. Mr. Kaeckenbeeck (Belgium) suggested that the situation might be met by the insertion of the phrase “at all times” after the phrase “to prevent and punish”. He also suggested that the substitution of the word “confirm” for the word “re-affirm” would meet the difficulty of the French delegation. Mr. de Beus (Netherlands) agreed to the substitution of “confirm” for “re-affirm”. Mr. Demesmin (Haiti) objected to the elimination of the words “under international law” as proposed by the Soviet Union. The omission of that phrase made genocide into a simple crime subject to territorial jurisdiction and defeated the whole purpose of the convention. He supported the second USSR amendment.

1352

A/C.6/SR.68

Mr. Morozov (Union of Soviet Socialist Republics) opposed the view of the delegation of Haiti. He said that the text of the USSR draft preamble gave a better definition of genocide. The Chairman then put to the vote the USSR amendment proposing the deletion of the phrase “under international law”. The amendment was rejected by 36 votes to 3, with 7 abstentions. After a discussion on the Syrian and Belgian amendments and the adequacy of the phrase “in time of peace or in time of war”, Sir Hartley Shawcross (United Kingdom) proposed that the words “whether committed in time of peace or of war” should be inserted after the words “under international law”. A vote was taken on the United Kingdom amendment. The amendment was adopted by 30 votes to 7, with 6 abstentions. Mr. Morozov (Union of Soviet Socialist Republics) stated that his delegation would vote against article I, as a whole, as it was inadequate and too brief. He reserved the right to formulate his proposals when the preamble was under discussion. In response to a request from the representative of Uruguay, the Chairman read the text of Article I as amended: The High Contracting Parties confirm that genocide is a crime under international law, whether committed in time of peace or of war, which they undertake to prevent and to punish.

A number of speakers then returned to the question of the adequacy of the phrase “in time of peace or of war”. The representative of Uruguay proposed the substitution of the phrase “at any time and in any circumstances”, which he suggested had greater force, while the representative of Syria proposed the phrase “in any circumstances”. The Chairman ruled that the point had already been settled by the vote taken on the United Kingdom amendment. He proceeded to put the text of article I as a whole to the vote.

A/C.6/SR.68

1353

Article I was adopted by 37 votes to 3, with 2 abstentions [A/C.6/256 ]. Mr. Bartos (Yugoslavia) announced that, while his delegation had voted in favour of article I as drafted, it reserved the right to propose the reversal of that decision, when the preamble was under discussion. Mr. Lachs (Poland) said that his delegation had not voted for the existing draft of article I on the grounds that the phrase “crime under international law” narrowed the conception of genocide and was not sufficiently comprehensive. Mr. Amado (Brazil) said that a declaration such as that contained in article I should find its place in the preamble and not in the operative part of the convention and he had therefore abstained from voting. Mr. Zourek (Czechoslovakia) stated that his delegation had abstained from voting because, for reasons which had been explained in the course of the discussion, it considered that the part of the text of article I which was purely declaratory in character should logically appear in the preamble to the convention. Mr. Arancibia Lazo (Chile) said that his delegation was in favour of the transfer of the article to the preamble and he had therefore abstained from voting. Mr. Pérez Perozo (Venezuela) observed that he had abstained as he considered that, first, the contents of article I should figure in the preamble; secondly, the words “under international law” should be left out; and thirdly, the words “in time of peace or of war” were unnecessary as it was already clear from the General Assembly resolutions that genocide could be committed at any time. The meeting rose at 6 p.m.

1354

A/C.6/SR.69

SIXTYNINTH MEETING Held at the Palais de Chaillot, Paris, on Thursday, 7 October 1948, at 3.30 p.m. Chairman: Mr. R.J. Alfaro (Panama). [Discussions pertaining to issues other than the Genocide Convention] 12. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II The Chairman asked the representatives to express their views on article II in regard to which a number of amendments had been presented. Mr. Chaumont (France) said that before the Committee proceeded to a discussion of the fundamental issues involved in article II, it would be pertinent to agree to a method of examination. Three major points should be examined: the first, which was not mentioned in the draft convention but was in the draft prepared by the French delegation [A/C.6/211], related to the role of Governments in the perpetration of genocide; the second was whether the motives of the crime should be listed; the third related to the enumeration of the ingredients of the crime. Mr. Chaumont suggested that each point should be examined separately. Mr. Amado (Brazil) stated that genocide must be defined stricto sensu as a specific crime against certain groups for racial, national or religious reasons. The question of the inclusion of political groups had been fully discussed in the Ad Hoc Committee. The United States had accepted the inclusion, but the reasons given by a number of representatives against the protection of political groups were in his opinion incontrovertible. That crime was unknown in the countries of Latin America, since in those countries there did not exist that deep-rooted hatred which in due course led to genocide. Political struggle in Latin America was sometimes violent, sometimes emotional, but it was above all ephemeral. It was impossible in that part of the world to envisage such an intensification of political animosity as would lead to movements of a pogrom-like character. In those countries political movements were always short-lived whereas the crime of genocide was by its very nature dependent on a profound

A/C.6/SR.69

1355

concentration of racial or religious hatred. Such hatred could never grow out of the political movements current in Latin America. The delegation of Brazil considered the inclusion of political groups in the definition of genocide as a dangerous extension which weakened the concept of crime. According to all legislative procedure crime must be given a strict definition. A crime committed for political motives did not contain a moral element, it was free from the intention of destroying the opposing group. Today’s enemies became the friends of tomorrow. In the draft convention genocide must mean a crime committed against racial, national or religious groups and aimed at the total or partial destruction of those groups. The amendment submitted by the United States of America [A/C.6/214] proposed, furthermore, that the word “economic” should be inserted between the words “religious” and “or political”. The delegation of Brazil was opposed to the specific mention of economic groups since, according to the Constitution of Brazil, the rights of economic and political groups were fully protected. The life of every human being must naturally be protected from the violence of political passions and from passions arising from differences in economic conditions, but that protection fell within the province of domestic legislation. Where the international protection of the individual was concerned, that was a matter which should be covered by the legal instruments now being prepared by the Human Rights Commission. Mr. Amado desired to stress again that the crime of genocide could only be perpetrated against groups which were stable and permanent. The delegation of Brazil consequently supported the amendment submitted by Uruguay [A/C.6/209] and that of Iran [A/C.6/218], which called for the deletion of the words “political” and “or political opinion”. The amendment submitted by the delegation of Belgium [A/C.6/217], although differing considerably from the draft of the Ad Hoc Committee, deserved special attention. It was in his opinion acceptable both because its wording was simpler and because it made no mention of political or economic groups. He must object, however, to the use in the Belgian text of the word to “co-operate” with reference to destruction. If the representative of Belgium were prepared to delete the word “co-operate”

1356

A/C.6/SR.69

and use the word “participate” alone he would be prepared to accept the Belgian amendment. Finally, the Chinese amendment [A/C.6/211] [sic] proposed the insertion, in sub-paragraph 2, of the words “or mental health” between the words “physical” and “of members”. The delegation of Brazil would support that amendment if the addition were necessary in order to provide for the contingency of genocide carried out by means of narcotic drugs. Mr. Amado drew attention to a discrepancy between the English and French texts, the English text using the word “mental” and the French text the word morale. Mr. Pérez Perozo (Venezuela) referred to the first part of article II of the draft convention. Although, in the view of several representatives, that article contained a definition of genocide, in his opinion the definition was not an exhaustive one. The Ad Hoc Committee, however, was correct in its decision not to give an exhaustive definition, because genocide as a crime in international law was a new idea, and a definition of a general character might create confusion either by not covering enough ground or by not determining in an adequate manner the nature of the acts. The draft article merely gave a list of acts which would be considered to constitute genocide. An exact definition of genocide should be left to experts in international law. The Venezuelan delegation wished to raise several objections to the first part of the article under discussion. During his participation in the general discussion Mr. Pérez Perozo had expressed the opposition of his delegation to the inclusion of political groups because those groups lacked the essential element of stability which should characterize the groups to be protected by the convention. The inclusion of political groups might endanger the future of the convention because many States would be unwilling to ratify it, fearing the possibility of being called before an international tribunal to answer charges made against them, even if those charges were without foundation. Subversive elements might make use of the convention to weaken the attempts of their own Government to suppress them. He realized that certain countries where civic spirit was highly developed and the political struggle fought through electoral laws, would favour the inclusion of political groups. But there were countries where the population was still developing and where political struggle was very violent. Those countries would obviously not favour the inclusion of

A/C.6/SR.69

1357

political groups in the convention. If the Committee sincerely desired that the convention should be drawn up in the near future it should decide against the inclusion of political groups which would so patently endanger the future of that international instrument. Political groups were already protected by national legislation and that protection would be further extended by the Declaration of Human Rights. Mr. Pérez Perozo also objected to the sentence in the first part of article II dealing with the motives of the crime of genocide. The aim of the convention was to prevent the destruction of those groups; the motive was of no importance. For that reason his delegation favoured the deletion of the last words of the first paragraph of article II which read: “on grounds of the national or racial origin, religious belief or political opinion of its members”. In the first part of article II there was reference to the destruction of groups without specifying whether that reference was to total or partial destruction. In his opinion it should be stated that destruction of part of a group also constituted genocide. The Venezuelan representative wished for the time being to abstain from expressing his views on the inclusion of economic groups, proposed by the United States representative, as he did not know the exact meaning of “economic groups”. If those groups did not have stable characteristics, his delegation would be against their inclusion. The purpose of the convention was not to protect any and every group; if that were the case, other groups of workers, artists, scientists, etc., should also be taken into consideration. Mr. Petren (Sweden) did not favour the inclusion of political groups because it would represent a departure from the definition of genocide proper. The protection of political groups would raise the question of also protecting professional and economic groups. As the value of the convention would depend on the number of countries willing to adhere to it the Swedish delegation favoured a convention which was not too wide in scope and would thereby secure the largest number of signatories. However, since the question was a very important one, his delegation would defer its final stand until a later stage of the discussion but considered that, in principle, the question of the protection of political and other groups should come within the scope of the Commission on Human Rights.

1358

A/C.6/SR.69

Mr. Raafat (Egypt) agreed to the procedure proposed by the French representative, with certain modifications. There were several amendments submitted by the various delegations and he wished to refer in particular to the United States amendment. He could not agree to the inclusion of economic groups in the draft convention, which would only be a new source of discord. Like some other representatives he did not fully understand the meaning of “economic groups”. The Egyptian representative was also against the inclusion of political groups, which went beyond the scope of genocide proper inasmuch as those groups did not have stable characteristics. Their inclusion would bring the United Nations into the domestic political struggle of every country and would make it difficult for many countries to adhere to the convention. Mr. Noriega (Mexico) said that in the important legal question under discussion a strict interpretation was necessary and no ambiguities should be allowed in the text. The acts contemplated in article II, defining the crime of genocide, could be accepted in general but with certain reservations, as had already been expressed during the discussion. He favoured a more precise definition of the measures referred to in paragraph 4. With regard to certain aspects of genocide on which studies had already been made, such as sterilization, obligatory abortion, segregation of the sexes, and legal obstacles to marriage, the first two obviously could be included under genocide, but the others would have to be more carefully considered. Discrimination should not be confused with genocide. The inclusion of all reprehensible acts of the type described under genocide would only lead to confusion in the definition of the crime. Mr. Ti-tsun Li (China) wished to make a correction in the translation into French of his amendment which should read: Atteinte à la santé physique ou mentale, which would cover the question of the use of narcotics. The Chinese delegation had referred in the Ad Hoc Committee to the crimes committed by Japan against the Chinese race through the use of narcotics. Furthermore, with the appearance of synthetic drugs the results which could be envisaged were even more horrifying. The object of the convention was to protect the human race against that type of crime. The use of atomic weapons was being regulated by a special convention, and the Commission on Narcotic Drugs had, in a resolution submitted to the Economic and Social Council, proposed that the use of narcotic drugs for such crimes should be covered by the Convention on Genocide

A/C.6/SR.69

1359

[E/799].1 For that reason, the wording of his amendment should read: “Impairing the physical or mental health of members of the group” [A/ C.6/221/Corr.1]. 1

See Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 9.

Mr. Maúrtua (Peru) said the Committee should draw up a text defining genocide from a technical and practical point of view. The purpose of the discussion was to draw up a convention which would be acceptable to all States, but if the concept of genocide was unduly extended, the future fate of the convention would be endangered. The Committee should constantly bear in mind that the existing draft was the first attempt to introduce international legislation to deal with the crime of genocide. The inclusion of political groups would alarm those countries which covered political crime in their own national legislation. The question of the system of extradition, for instance, would come up for consideration as the countries of Latin America did not accept extradition for political offences. The idea of international legislation was that it should be assimilated by domestic legislation. The individual should be protected by his own national legislation whereas international jurisdiction would apply to Governments which did not do their duty in that respect or encouraged the crime of genocide. Sir Hartley Shawcross (United Kingdom) recognized the difficulties involved in defining the crime of genocide, and added that while he did not wish to interfere too much with the text of the draft convention prepared after considerable study by the Ad Hoc Committee, the question of specific groups which should be protected by the convention was of great importance. He would, therefore, listen with interest to the views expressed by the members of the Committee before his delegation would reach a final conclusion. There was no doubt that racial groups should be included. No one should be persecuted because of the accident of his birth within a certain group. The question arose, however, whether the convention should also provide protection to groups the members of which were as free to leave them as they were to join them. National or religious groups were obvious instances of that kind. If the Committee favoured international legislation

1360

A/C.6/SR.69

to prevent the destruction of national, racial or religious groups, he wondered if protection should be withheld from political groups. He asked whether a fascist State, for instance, should be entitled to destroy the lives of persons because they happened to be members of a communist group, or vice versa. There was as much persecution on political grounds as there was on racial grounds, and the question of political persecution was a practical problem in Europe. Concentration camps, sometimes known as labour camps, might still be in existence or make their appearance in the future. It was true that political groups did not have the same stable characteristics as racial or national groups, but in certain States the ruling political parties would insist that they possessed an existence as stable as some religious or racial groups. The Egyptian representative had stated that inclusion of political groups would prevent certain countries from adhering to the convention. Unless a State was determined to eliminate certain groups because of their political convictions, it would not object to adhering to the convention. And if it would not adhere to the convention on those grounds it would be better to know about it. Genocide it must be remembered could only be committed with the connivance of States, and, therefore, to declare that political groups should be protected by domestic laws was wholly illusory. Mr. Wikborg (Norway) said that his delegation was particularly anxious to attain practical results in order to adopt the draft convention, if possible, during the course of the current session. The adoption of a convention was particularly to the interest of the smaller nations. On the question of the inclusion of political groups, his delegation was in the same position as the United Kingdom and Sweden. He was opposed to the inclusion of political groups on the ground that such groups were never so clear-cut or stable as national, racial or religious groups. Membership of a religious group could be renounced, but with much greater difficulty than that of a political party. It did not follow that, if the phrase were deleted, sanction would be given to political murder, but, as a safeguard, it might be as well to refer the matter to the Commission on Human Rights or to the International Law Commission. His delegation supported the USSR amendment to the effect that genocide should cover the destruction of the whole or part of a group [A/C.6/215/Rev.1]. He was also in favour of the elimination of the sen-

A/C.6/SR.69

1361

tence “on grounds of national or racial origin, religious belief, or political opinion . . .” for the reason that it was the fact of destruction which was vital, whereas motives were difficult to determine. He was in favour of retaining the four subparagraphs of article II; of those sub-paragraphs, the first three were already covered by Norwegian law, the fourth only when forcible means were used. He suggested that sub-paragraph 4 required considerable clarification before it could be adopted. Mr. Alemán (Panama) thought that article II was of too great importance to be discussed separately and should be considered in conjunction with articles III to VII inclusive. Together those articles formed the operative part of the convention. Article II added only one new element to acts already punishable under national penal legislation, namely, the intention to destroy groups “on grounds of the national or racial origin, religious belief, or political opinion . . .” The acts envisaged by sub-paragraph 3 could only be committed by Governments; if committed by individuals, they were covered by the definition of murder. The characteristic which distinguished genocide from the common crime of murder was the intention to destroy a group. He therefore was unable to agree with the statement made at an earlier (64th) meeting by the United Kingdom representative to the effect that genocide was the same thing as murder and was punishable under domestic legislation. He also disagreed with the idea that the isolated killing of a member of a group was not genocide. Such a crime would in fact be genocide if committed with the intent to destroy a group. Sir Hartley Shawcross (United Kingdom), in reply to the representative of Panama, said that his previous statement had been misunderstood and that they were both fundamentally of the same opinion. In so far as genocide was committed by an individual, it was another name for murder, but, in so far as the crime was committed by a State, it was not, of course, covered by national laws. Following a discussion on future procedure, the Chairman pointed out that rule 119 of the rules of procedure provided that, where there were two or more amendments to the same proposal, a vote should first be

1362

A/C.6/SR.71

taken on the amendment furthest removed in substance from the original proposal. In that instance, however, the amendments proposed were on approximately the same plane. To facilitate their discussion, he therefore proposed that the draft article as it stood, should form the basis of discussion, after which the Committee should proceed to discuss amendments. The main points to be discussed were (1) the classification of the groups to be protected; (2) the enumeration of the acts constituting genocide; (3) the role of Governments; (4) the motives for genocide given at the end of the first part of article II. Mr. Bartos (Yugoslavia) recalled that on a previous occasion, the Secretariat had produced a synoptic table of amendments, which had been very helpful. If the Secretariat could provide a similar table, it would enable discussion to take place point by point. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) replied that, in collaboration with the Rapporteur, the Secretariat would endeavour to have such a table prepared for the Committee [A/ C.6/225]. The meeting rose at 5.30 p.m. [Discussions pertaining to issues other than the Genocide Convention]

SEVENTYFIRST MEETING Held at the Palais de Chaillot, Paris, on Monday, 11 October 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). [Discussions pertaining to issues other than the Genocide Convention] 15. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) Mr. Spiropoulos (Greece), Rapporteur, stated that he had drawn up, with the assistance of the Secretariat, a synopsis [A/C.6/225] of the various amendments proposed to the text prepared by the Ad Hoc Committee on Genocide.

A/C.6/SR.71

1363

The Chairman proposed that the members should consider article II, in accordance with the division established in document A/C.6/225. He asked the Committee to decide first on the following phrase: “In this Convention genocide means any of the following deliberate acts . . .” Mr. Morozov (Union of Soviet Socialist Republics) thought it would be difficult to follow the procedure proposed by the Chairman, as article II did not lend itself to such artificial division. In his opinion the article comprised two parts: the first contained a general definition of genocide, the second listed the acts constituting that crime. The first part contained three ideas which were indissolubly linked and could not be discussed separately. Thus, if the procedure suggested by the Chairman were adopted, every delegation would have to be allowed to express its views on the general provisions of article II, whatever the point under discussion. After that, points 1 to 4 of the draft article could be considered. The Chairman recalled that at the last meeting on genocide (69th meeting), the Committee had agreed to the procedure he had just proposed. He urged consideration of the articles of the convention point by point, as that was the only procedure which would enable the Committee to perform its work with dispatch and without confusion. The Chairman thought that the first point to settle was whether or not article II of the convention should contain an enumeration of the acts constituting the crime of genocide. Mr. Chaumont (France) pointed out that the text submitted by his delegation [A/C.6/211] as a substitute for the draft of the Ad Hoc Committee, did not contain an enumeration but a general definition of the crime. He drew attention to the danger of the procedure suggested by the Chairman: a decision on the first phrase would prejudice the fate of the entire French amendment. Mr. Paredes (Philippines) agreed with the French representative’s observations. The text prepared by the Ad Hoc Committee contained the following four points: (1) premeditation; (2) intent to destroy; (3) groups protected by the convention; (4) acts constituting the crime. He proposed that it should first be decided what form the definition of genocide should take; and then whether an enumeration of the crimes constituting genocide should be given in article II. He favoured a system

1364

A/C.6/SR.71

under which each State would pass its own legislation on the subject and the convention would provide only the bases for the fight against genocide, although its provisions might later be widened. Mr. Maûrtua (Peru) believed that, as the concept of genocide was new, it would be well to define it. Its characteristic feature was the destruction of groups. Mr. Demesmin (Haiti) observed that genocide comprised the same constituent factors as any crime under common law; the substantial act, its perpetrator, and the intent underlying the perpetration of the crime. At the basis of the concept of cultural genocide, however, there was also a fourth factor, the “unsubstantial act”. In reply to a question from Mr. Gross (United States of America), the Chairman explained that, when he had suggested a method of work to the Committee, he had taken for granted that the text drawn up by the Ad Hoc Committee was acceptable to the delegations except for certain points on which amendments had been submitted. After a short discussion in which Mr. Spiropoulos (Greece), Rapporteur, Mr. Demesmin (Haiti), Mr. Federspiel (Denmark) and Mr. Lachs (Poland) took part, Mr. Morozov (Union of Soviet Socialist Republics) appealed against the Chairman’s decision to settle first the preliminary question as to whether or not article II should contain an enumeration of the acts constituting genocide. The Chairman put the appeal to the vote. The Chairman’s decision was upheld by 36 votes to 8, with 2 abstentions. The Chairman invited the members of the Committee to express their views on the point under discussion. Mr. Bartos (Yugoslavia) pointed out that all the amendments proposed to the text of article II, except the French amendment, contemplated the enumeration of acts constituting the crime of genocide. The Yugoslav delegation was of the opinion that it was essential to specify the elements constituting the crime, and was therefore opposed to the French amendment on the question of enumeration. The French draft defined genocide as “an attack on . . . life”. Mr. Bartos considered that that was a very vague definition, and thought it would

A/C.6/SR.71

1365

be necessary to be more specific if the judges who would have to take cognizance of the criminal acts submitted to them were to have clear guidance. The Yugoslav representative therefore appealed to the French delegation to withdraw its amendment. Mr. Paredes (Philippines) considered it essential that the crime of genocide should be defined, but thought that the Committee should avoid enumerating acts, since that would inevitably give rise to limited interpretation. He recalled that genocide was a new concept, of which history offered few examples, so that omissions would be likely to occur in any enumeration. In his opinion, a broad definition should be adopted, permitting each State to take the legislative measures it considered most suitable. The Philippine delegation considered that the word “deliberate” was useless, but would not insist on its deletion so as not to prolong the discussion any further. The French text should be adopted or, if the Committee considered that unacceptable, the following alternative: Genocide is a deliberate attack directly or indirectly aimed at a human group for reasons of national or racial origin or religious belief of its members.

Mr. Noriega (Mexico) did not share the views expressed by the Philippine representative, as the discussions in the Ad Hoc Committee on Genocide had proved that it was essential to define the crime as precisely as possible. He was convinced that if definition of the crime were to give rise to various interpretations, many Governments would hesitate to adhere to the convention, fearing that numerous acts falling within their national jurisdiction might be considered as acts of genocide. The Mexican delegation could support only those texts which contained a precise definition of the crime of genocide. Mr. Chaumont (France) explained that the French delegation had submitted its amendment in order to avoid the danger represented by enumeration when an exact definition was sought. At first glance, an enumeration would seem preferable to a general definition, but there should be assurances that such an enumeration would be complete. The enumeration proposed by the Ad Hoc Committee was, however, far from complete. Certain delegations considered that the French text contained ideas which were too vague. Mr. Chaumont wondered if the expression “impairing the physical integrity”, which appeared in the text prepared by the Ad Hoc Committee, was more accurate.

1366

A/C.6/SR.71

The French delegation would not withdraw its amendment, inasmuch as the majority had not as yet expressed itself against it. The French delegation was, however, prepared to show its spirit of conciliation by adopting any formula which appeared more acceptable to the Committee. It should be pointed out, however, in the interest of the groups which the convention sought to protect, that it would be better to avoid any enumeration. A general formula would give more effective protection. Mr. Fitzmaurice (United Kingdom) shared the views of the representative of Mexico. He could not support the formula suggested by the Philippine representative which, in his opinion, gave too wide a scope to the concept of genocide. He recalled that the draft submitted by the Ad Hoc Committee had been prepared with the greatest care by competent jurists; the Committee should therefore keep as closely as possible to the text submitted to it, unless there were good reasons for changing it. Mr. Messina (Dominican Republic) stated that in view of the fact that the penal provisions gave rise to limited interpretation, the definition of genocide should be as complete as possible. That would greatly facilitate ratification of the convention by a large number of Governments. The delegation of the Dominican Republic was therefore in favour of very complete enumeration. Mr. Dignam (Australia) considered, as did the United Kingdom delegation, that there should be no deviation from the text submitted by the Ad Hoc Committee unless it was absolutely necessary. The Australian delegation was nevertheless prepared to consider favourably any amendment which would improve the text. Mr. Dihigo (Cuba) declared that, in general, he favoured exact definitions but that he preferred enumeration in the case of genocide. It was difficult to sum up in a single definition the very different characteristics of the four categories of acts mentioned in the text prepared by the Ad Hoc Committee on Genocide. Mr. Inglizi (Syria) thought that the Committee should enumerate the acts of genocide in such a manner as not to exclude any new act which it was impossible to foresee at that point. He therefore proposed the following text: “In this Convention, any of the following deliberate acts . . . is genocide”.

A/C.6/SR.72

1367

Mr. Morozov (Union of Soviet Socialist Republics) considered that it would be impossible to give a complete enumeration of the acts of genocide, as not all those acts could be foreseen. It was necessary, however, to indicate clearly the specific acts which should be termed acts of genocide. If the formula proposed by the French delegation were adopted, genocide would not be defined as it should be in a legal document. The USSR delegation was therefore in favour of enumeration, on condition that such enumeration was not restrictive. In Mr. Morozov’s opinion, the question of premeditation did not arise, inasmuch as the crime of genocide could be committed only with a definite aim. For that reason he suggested replacing the word “deliberate” by the word “criminal”. It was necessary to emphasize that genocide was not a political crime, but a crime in the broadest sense of the term. The meeting rose at 6.20 p.m.

SEVENTYSECOND MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 12 October 1948, at 3.10 p.m. Chairman: Mr. R.J. Alfaro (Panama). 16. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) Sardar Bahadur Khan (Pakistan) said that his delegation could not accept the French amendment [A/C.6/211] to the first phrase of article II, since its adoption would reduce the scope of the convention. The French delegation had indicated its preference for a formula which did not include an enumeration and had thus decided in favour of a definition by synthesis. The delegation of Pakistan considered it preferable to proceed by analysis, that was to say, to give an enumeration, as had the Ad Hoc Committee on Genocide.

1368

A/C.6/SR.72

In the view of the representative of Pakistan, the expression “attack on . . . life” would restrict the application of article II, since genocide must be condemned, whatever form it assumed. Mr. Pérez Perozo (Venezuela) considered the formula adopted by the Ad Hoc Committee to be excellent. A categorical definition in general terms might prove dangerous, since it would run the risk of failing to include all the essential factors. The representative of Venezuela thought that the drafting of a general definition of that kind should be deferred until later and should be entrusted to qualified jurists when the concept of genocide became more current. The Ad Hoc Committee had decided to confine itself simply to indicating the acts which constituted genocide and the groups against which such acts must be directed if the resultant crime were to be termed genocide. The advantage of that method was that it allowed for the subsequent amendment of the convention by the addition, to the current enumeration, of further acts or groups. The representative of Venezuela regarded as a defect in the French proposal a point which the Philippine delegation (71st meeting) regarded as an important advantage, namely, that the definition proposed by France would enable States to decide, in their national legislations, what were the acts which constituted genocide. In such circumstances certain acts would be regarded as genocide in one country but not in others; it was essential for States to reach agreement on the definition of the acts constituting genocide. The delegation of Venezuela supported the text submitted by the Ad Hoc Committee. Mr. Bartos (Yugoslavia) pointed out that the majority of the members of the Committee were in favour of an enumeration. Admittedly the proposed enumeration was not complete, since it did not make provision for every possible case; nevertheless, it had a practical purpose, that of providing at least some guarantee. The definition of genocide as “an attack on . . . life” was inadequate, since it could give rise to a great variety of interpretations. History showed that genocide was always preceded by a number of preliminary acts. It was essential to combat genocide in all its forms, not

A/C.6/SR.72

1369

merely at the last stage, which was the stage at which “an attack on . . . life” occurred. An enumeration was therefore necessary. Mr. Bartos was of the opinion that any crime committed against certain groups must be defined as genocide, even if it was unpremeditated. Premeditation played an important part in the jurisprudence of a large number of States; in the United States, for example, charges of lynching had been dismissed on the ground that premeditation had not been established. It was necessary to specify that acts constituting genocide were criminal acts; the representative of Yugoslavia accordingly supported the amendment of the USSR delegation [A/C.6/223]. Mr. Reid (New Zealand) thought that the French draft was excellent in theory; if, however, regard was had to the application of the convention, it was preferable that the draft should not be adopted, since it would be difficult to introduce the concept of “an attack on . . . life” into national legislation. Mr. Reid recalled that in the majority of penal codes, a crime required a precise definition capable of limited interpretation. He shared the view of the representative of Venezuela that the expression “an attack on . . . life” would lend itself to sharply differing interpretations in the legislative systems of the fifty-eight Member States. The representative of New Zealand thought that the Committee should not only aim at drafting a declaration on genocide, but should seek to draw up a convention which could be accepted and carried into effect by all States. For that reason he preferred the text submitted by the Ad Hoc Committee, subject to possible amendment. Mr. Spiropoulos (Greece), Rapporteur, observed that the majority of speakers had been in favour of the principle of enumeration. That being so, he asked the representative of France whether he would press for the retention of a general definition. Mr. Chaumont (France) said that, since the majority appeared to favour the principle of enumeration, his delegation felt that it could not maintain its position on that point. The representative of France would therefore adhere to the principle of enumeration, but was anxious that a formula should be adopted which would provide for cases other than those mentioned in the Ad Hoc Committee’s

1370

A/C.6/SR.72

text, since it was essential to avoid a strictly restrictive enumeration. If such a formula could be evolved, the French delegation was prepared to withdraw that part of its amendment. Mr. Lachs (Poland) thanked the representative of France for facilitating the work of the Committee. He pointed out, however, that a number of points still required elucidation. The difficulties which ratification and application would entail must be borne in mind; and it was therefore important that the intentions of the members of the Committee should be defined as accurately as possible. The enumeration of the acts constituting genocide should not be too strict; the Ad Hoc Committee’s draft, however, was confined to the enumeration of classic cases, and it was necessary to make provision for new acts. The Nazis had taken advantage of an incomplete enumeration and had therefore been enabled to use, among other things, asphyxiating gases. The Polish delegation considered that the principle of enumeration should be adopted, but the enumeration should be regarded as a statement of typical cases cited as examples. It was in fact impossible to enumerate every act which might constitute the crime of genocide. The Polish representative therefore proposed the adoption of the formula submitted by the USSR, which included the words “for example”. Mr. Lachs considered that the word “deliberate” was useless, in view of the statement that such acts were committed “with the intent to destroy”. It was essential to discover the underlying intention. It was of little importance whether or not the act was deliberate, since intention implied premeditation. It was essential to describe as “criminal” those acts which constituted genocide. The laws of the majority of States treated them as such, and the concept should now be introduced on an international level. The representative of Poland requested in conclusion: first, the enumeration of acts constituting genocide, quoted as examples; secondly, the deletion of the word “premeditated”; thirdly, the addition of the word “criminal” to describe acts constituting genocide. Mr. Morozov (Union of Soviet Socialist Republics) asked for further information on several points. Which part of the French amendment had been withdrawn? If the whole of the amendment had not been withdrawn, when would the remainder be discussed? In what order would

A/C.6/SR.72

1371

the Committee consider the different parts of article II and the various amendments proposed? The Chairman said that the Committee was following the procedure adopted at the 71st meeting, namely, that of examining the various parts of article II in succession, in accordance with the division established in document A/C.6/225. The Committee had decided to adopt the principle of enumeration; it must now proceed to examine the phrase: “committed with the intent to destroy . . .” Mr. Gross (United States of America) asked to speak on a point of order. He did not agree with the view expressed by the Chairman, and was in the same difficulty as the representative of the Soviet Union. Mr. Gross thought it very difficult to study a question without examining the relevant amendments. The Committee could not adopt the first phrase of article II without studying the USSR amendment, since that amendment would completely change the phrase. The representative of the Soviet Union should be allowed to submit his amendment. Mr. Gross also asked for explanations regarding the French amendment. Mr. Chaumont (France) said that the discussion so far had touched only upon that part of the French amendment defining genocide as “an attack on . . . life”; that was the part which had been withdrawn. The rest of the French amendment would be discussed in connexion with the consideration of the provisions of the convention to which it pertained. Mr. Chaumont agreed with the representative of the United States that the USSR amendment, whereby the word “deliberate” would be replaced by the word “criminal”, should be discussed immediately. Mr. Raafat (Egypt) observed that the first part of article II contained three fundamental ideas concerning, first, the intent to destroy; secondly, the groups to be destroyed; thirdly, the motives for the crime. With regard to the first, some delegations, including the delegation of Belgium, considered that the intent was sufficient and that it was unnecessary to say that the act must be deliberate in order to constitute genocide. The Egyptian delegation did not share that view; both those ideas, very different one from the other, could be retained. The Egyptian delegation stressed the fact that genocide could be not only intentional but premeditated, which would constitute an aggravating circumstance of the crime.

1372

A/C.6/SR.72

As regards the groups subject to destruction, the delegation of Egypt had already explained why it was opposed to the inclusion of political groups in the groups to be protected by the convention. It was also opposed to the inclusion of economic groups, as had been proposed by the delegation of the United States [A/C.6/214 ].1 1

See 69th meeting.

With regard to the motives for the crime, the Egyptian delegation thought that it would be wrong to eliminate the part of the article dealing with that point, as had been proposed by the United Kingdom delegation; it was the motives which characterized the crime. Mr. Raafat reserved the right to restate the arguments of his delegation as each of the amendments submitted came up for consideration. Mr. Pérez Perozo (Venezuela) proposed that, in order to speed up work, the Committee should consider the various parts of article II of the convention, give its opinion regarding them and then appoint a working party to draft a fresh text for that article. Mr. Morozov (Union of Soviet Socialist Republics) observed that discussion on the first phrase of article II should be concluded before the Committee passed on to the study of the other provisions of the article. His view was that the French amendment should be discussed as a whole, as its purpose was to substitute a fresh text for the text submitted by the Ad Hoc Committee. Mr. Chaumont (France) drew the attention of the USSR representative to the fact that the French amendment dealt with a number of widely differing points; there was thus no reason why it should be considered as a whole, unlike the other amendments which had been submitted. The Chairman, supported by Mr. Spiropoulos (Greece), Rapporteur, stated that, in view of the withdrawal, by the representative of France, of that part of his amendment which concerned the definition of genocide, the Committee should now examine the two amendments proposed by Belgium and the Soviet Union to the word “deliberate”, contained in the first phrase of article II. The Belgian amendment proposed to delete that

A/C.6/SR.72

1373

word; the USSR amendment to replace it by the word “criminal”. The Committee would then proceed to the question of the classification of the groups to be protected by the convention. Mr. Bartos (Yugoslavia) pointed out that, in addition to the two amendments mentioned by the Chairman, there was also a Belgian amendment [A/C.6/217 ], suggesting the deletion of the words “In this convention” which appeared at the beginning of the article. That proposal indicated preference for a declaration rather than for a convention. The Committee would therefore have to decide also whether genocide should be defined for the purposes of the convention or whether that definition should take the form of a declaration. Mr. Dihigo (Cuba) thought that the Committee should first settle that question and then proceed to consider the two proposed amendments to the word “deliberate”. Mr. Dignam (Australia) supported the proposal of the representative of Venezuela to set up a working party. Once the Committee had taken the provisional decisions, the working party could proceed to draft a fresh text for article II and settle translation difficulties. The Belgian proposal mentioned by the representative of Yugoslavia could well be studied by the working party. Mr. Noriega (Mexico) appealed to the members of the Committee not to waste precious time on discussion of questions of procedure. The General Assembly had appointed Mr. Alfaro Chairman of the Sixth Committee in tribute to his personal qualities and his impartiality. The Committee should trust him and allow him to conduct the discussion as he thought best. Mr. Demesmin (Haiti) pointed out that the question as to whether or not article II should contain an enumeration of the acts constituting genocide had not yet been put to the vote; he proposed that a vote should be taken on that point immediately, after which the Belgian and USSR amendments should be discussed. Mr. Bartos (Yugoslavia) proposed that the Committee should adhere strictly to the division of article II established in document A/C.6/225, and should consider the proposed amendments one by one. If the

1374

A/C.6/SR.72

Committee reached a decision on those amendments at the first reading, a working party could then draft a text for the Committee to study at the second reading. Mr. Spiropoulos (Greece), Rapporteur, pointed out that it was very difficult for a Committee composed of the representatives of fifty-eight nations to study the provisions of a convention. The task was not impossible, however, provided the Committee exercised a certain restraint and followed the directives of its Chairman. The Rapporteur appealed to the delegations to confine their remarks to the point brought up by the Chairman for discussion. Mr. Abdoh (Iran) supported the remarks made by the Mexican representative and the Rapporteur. He made a formal proposal to the effect that the Committee should authorize the Chairman to enumerate the different points contained in the article under discussion, analyse the amendments submitted, open a discussion on those amendments, and put them to the vote in the order he thought best. The Chairman thanked the delegations which had expressed their confidence in him; he greatly appreciated that confidence. Referring to the provisions of rule 97 of the rules of procedure, he informed the Committee that he had decided to confine the discussion to the amendment proposed by the delegation of the Soviet Union on the word “deliberate”. He would categorically oppose the opening of a discussion on any other point. Mr. Morozov (Union of Soviet Socialist Republics) drew the attention of the Committee to an error in translation which had crept into the English and French texts of document A/C.6/223. The words “criminal acts” were not an exact translation of the original text. Those words should be replaced by the words “acts punishable by law”. That wording tallied more closely with the other provisions of the convention, and in particular with article IX, which had been unanimously adopted by the Ad Hoc Committee on Genocide. The delegation of the USSR did not consider it sufficient, as proposed by the delegation of Belgium, to delete the word “deliberate”; the act constituting genocide must be described; that was the purpose of the amendment. Mr. Kaeckenbeeck (Belgium) stated that the Belgian amendment [A/ C.6/217 ] deleted the word “deliberate”, since it was rendered unnecessary if

A/C.6/SR.72

1375

particular intent were included in the definition of genocide. In that connexion the representative of Belgium could see no difference of principle between the Belgian concept and that of the Soviet Union. In both cases it was by the addition of the concept of particular intent that certain acts already provided for by criminal law were defined as genocide. Mr. Demesmin (Haiti) raised the objection that only the physical aspects of genocide were covered by criminal law. Yet the especial characteristic of that crime was that it also had biological and spiritual aspects. Those three aspects should be included in the enumeration contained in article II. The formula “acts punishable by law” was consequently too vague. On the other hand, all aspects of genocide were envisaged in the words “criminal acts”. As for premeditation, which was merely an aggravating circumstance, it was always implicit in genocide, since preparatory acts were necessary for the extermination of a group. Mr. Amado (Brazil) considered that genocide was characterized by the factor of particular intent to destroy a group. In the absence of that factor, whatever the degree of atrocity of an act and however similar it might be to the acts described in the convention, that act could still not be called genocide. Whereas it was important to retain the concept of dolus specialis, it was superfluous to keep in the text the idea of premeditation or to add to it the formula “acts punishable by law”; that would only be repeating what had already been clearly stated in article I of the draft convention. Mr. Noriega (Mexico) said that he was in favour of the retention of the word “deliberate” since it covered the ideas of plotting and conspiracy. But the words “acts punishable by law” should be deleted from article II, since they would be a mere repetition of article I. Mr. Fawcett (United Kingdom) was also, and for the same reason, in favour of the deletion of the words “acts punishable by law”; he considered, moreover, that the term “deliberate” could also be deleted, provided that the phrase “committed with the intent to destroy” were retained. Mr. Maürtua (Peru) recalled that the task of the Committee was not to elaborate a theoretical system but to draft the text of an international law capable of enforcement. Consequently, the words “In this convention” must be retained, since they would serve to emphasize the technical nature of the provisions which followed.

1376

A/C.6/SR.72

The representative of Peru further expressed the opinion that the retention of the concept of premeditation would have the drawback of excluding from responsibility those who, through negligence or omission, were guilty of the crime of genocide. Mr. Setalvad (India) advocated omitting the word “premeditated”, since intention and motives constituted definite and sufficient factors in the definition of genocide. Similarly the formula “criminal acts” or “acts punishable by law” should be avoided, since articles I and V of the draft explicitly established the criminal nature of genocide. Mr. Pérez Perozo (Venezuela) concurred on those two points with the representative of India, adding, on the one hand, that article IV also emphasized the criminal nature of genocide, and on the other, that premeditation would not affect the nature of the offence, but only the judicial application of the penalty. Mr. Bartos (Yugoslavia) also spoke against the inclusion of the concept of premeditation in the text. From the practical point of view, it would be difficult to distinguish, in an act of genocide, between the action of the instigators who had premeditated the crime and the action of the agents whose intent might have been purely momentary. To accept the concept of premeditation would be tantamount to making suppression dependent upon a subjective psychological condition, and not upon the objective character of the criminal act alone. Further, that concept would allow many cases of genocide to go unpunished. It was preferable merely to indicate, as did the amendment of the Soviet Union, that genocide was an ordinary criminal act. Mr. Spiropoulos (Greece), Rapporteur, noted that it appeared very clear that the majority was opposed to including the concept of premeditation, and felt that it was unnecessary to continue discussion on that point. Similarly, the Committee seemed already to have formed an opinion on the formula “acts punishable by law” proposed by the USSR. He moved that the debate on those points should be closed. Mr. Wikborg (Norway) considered it necessary to draw the attention of the Committee to the ambiguity of the formula proposed by the Soviet Union, which might lead to the impression that in certain cases genocide was not punishable. He interpreted that as a restriction of the concept of genocide and would consequently vote against it.

A/C.6/SR.72

1377

Mr. Chaumont (France) said that the new draft of the USSR amendment was lacking in clarity in that it did not state by what criminal law the acts should be punished; was it by international penal law or by the national criminal laws of each of the contracting parties? The term “criminal” seemed to him preferable, in that it was more general. Mr. Morozov (Union of Soviet Socialist Republics) stated that, during the discussion, no delegation had disputed the fact that genocide was an act punishable by law. It had, indeed, been argued that other articles had stated or would state that fact, but that was not a reason for not trying to improve and clarify the drafting of each individual article, especially since the text of the rest of the convention had not yet been finally agreed upon. The objection of the representative of Norway was unfounded. It could hardly be argued that the amendment of the Soviet Union restricted the concept of genocide, when in fact it stated that that crime was punishable by the legal codes of all the States parties to the convention. On the contrary, the formula was more comprehensive than that of the French amendment. Mr. Fawcett (United Kingdom) reiterated his objection to the inclusion of any description of the act which was to be defined and thought that the formula given in the USSR amendment would be more properly included in article VI of the convention, under the terms of which the parties undertook to enact the necessary legislation in accordance with their constitutional procedures. In article II that formula would have a limiting effect; that undoubtedly was not the intention of the Soviet Union. The Chairman stated that the discussion was now closed; since, however, there was a translation difficulty in connexion with the USSR amendment, the vote would be postponed until the following meeting. The meeting rose at 6.10 p.m.

1378

A/C.6/SR.73

SEVENTYTHIRD MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 13 October 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). 17. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) Mr. Morozov (Union of Soviet Socialist Republics) noted that the word which had been proposed by the USSR delegation [A/C.6/223] as a substitute for the word “deliberate” could not be accurately translated into English or French (72nd meeting); he suggested, therefore, the phrase “the following crimes” in place of “the following deliberate acts”. That wording would clearly indicate that it was not merely a question of acts but of definite crimes. Mr. Chaumont (France) found the new wording proposed by the Soviet Union highly satisfactory; in his opinion it was entirely unobjectionable and he hoped it would receive unanimous support in the Committee. Mr. Dihigo (Cuba) said that his delegation would vote against the deletion of the word “deliberate”, on the ground that such deletion would be dangerous. Genocide could be committed by Governments or by individuals. In the first case, it was indisputable that there must always be premeditation; in the second case, however, that factor would not always be present. In the course of a political struggle between rival parties, for instance, individuals might come to desire the suppression of a particular group. If the USSR amendment were adopted, such a case would be regarded as genocide, with all the serious consequences which that entailed. The small nations might fear that they would be answerable before an international tribunal – should such an international tribunal be set up – for certain acts committed by groups or individuals whose objectives were well-defined and whose aim was to create disturbances. The Cuban delegation was in favour of the inclusion of political groups among those which the convention sought to protect, as well as of the establishment of an international tribunal to take cognizance of acts of

A/C.6/SR.73

1379

genocide. If it were decided that premeditation should not be included among the factors constituting the crime, the delegation of Cuba would be obliged to reserve its position on those two important questions. Mr. Paredes (Philippines) said that his delegation would vote against the amendment of the Soviet Union on the grounds that the convention clearly defined genocide as a crime and that repetition was therefore unnecessary. It might at first sight appear that the idea of premeditation was included in that of intention. If, however, the law provided for premeditation in addition to intention and motive, it was because premeditation had a special meaning, distinct from that of intention. In his view, premeditation signified persistent thought devoted to the attainment of a goal which one had set for oneself. The delegation of the Philippines would accordingly vote against the USSR amendment and for retention of the text submitted by the Ad Hoc Committee on Genocide. The Chairman put to the vote the amendment proposed by the delegation of the Soviet Union to replace the words “deliberate acts” by the word “crimes”. The amendment was rejected by 28 votes to 14, with 1 abstention. The Committee decided by 27 votes to 10, with 6 abstentions, to delete the word “deliberate” from the text drafted by the Ad Hoc Committee. Mr. Noriega (Mexico) and Mr. Messina (Dominican Republic) explained that they had voted against the deletion of the word “deliberate” for the reasons given by the representative of Cuba. Mr. Manini y Rios (Uruguay) said that the arguments put forward by the representative of Cuba would have led the delegation of Uruguay to vote against the deletion of the word “deliberate” if that delegation had been in favour of the inclusion of political groups among the groups to be protected by the convention. The delegation of Uruguay, however, was opposed to such inclusion and for that reason had voted for the deletion of the word “deliberate”.

1380

A/C.6/SR.73

The Chairman invited the Committee to take a decision on the phrase “committed with the intent to destroy a . . . group” and on the amendments proposed thereto. Mr. Abdoh (Iran) feared that the adoption of the Belgian amendment [A/C.6/217 ], which introduced the idea of co-operation into the actual definition of the crime, might lead to the conclusion that genocide had of necessity to be committed by a number of individuals; whereas, in theory, it might equally well be committed by a single individual. The delegation of Iran would therefore oppose the Belgian amendment. That amendment should, however, be discussed when article IV of the convention came up for consideration. Mr. Kaeckenbeeck (Belgium) pointed out that, following the observations of the representative of Brazil (69th meeting), he would be prepared to replace the word “co-operate” by the word “participate”. He explained that the Belgian delegation had put forward its amendment on the ground that it was almost inconceivable that a crime aimed particularly at the destruction of a race or group could be the work of a single individual. Mr. Chaumont (France) held that the crime of genocide existed as soon as an individual became the victim of acts of genocide. If a motive for the crime existed, genocide existed even if only a single individual were the victim. The French delegation had therefore proposed [A/C.6/224 ] to replace the words “acts committed with the intent to destroy a . . . group” by the words “an attack on life directed against a human group, or against an individual as a member of a human group . . .” The group was an abstract concept; it was an aggregate of individuals; it had no independent life of its own; it was harmed when the individuals composing it were harmed. The French amendment had a different object from the Belgian. It had the victims and not the perpetrators of the crime in mind. It also had the advantage of avoiding a technical difficulty likely to arise from the text of the Ad Hoc Committee, namely, that of deciding the minimum number of persons constituting a group. Mr. Gross (United States of America) thought that the French amendment called for the following observations.

A/C.6/SR.73

1381

A number of delegations, including that of the United Kingdom, had maintained that, since homicide was a crime punishable under all civilized legislative systems, a convention defining genocide as a crime under international law was necessary only because States or members of Governments had encouraged or tolerated the destruction of certain human groups. Other delegations considered that, although that might have been true in the past, it had nevertheless to be admitted that human groups could be exterminated by individuals as well as by States or government agencies. The United States delegation thought that those two views were not incompatible and that although it was necessary, on the one hand, to accord international protection to human groups, it was equally necessary to leave to each State the duty to take all action within its power to protect those human groups. Recalling the wording of General Assembly resolution 96(I), the United States representative observed that genocide was the denial of the right to live of entire human groups, as homicide was the denial of an individual’s right to live. The crime of genocide shocked the conscience of mankind, inflicted losses upon humanity and was contrary to moral law. The General Assembly had declared that the suppression of genocide was a matter of international concern, because the extermination of human groups endangered civilization itself. The delegation of the United States held the view that the Committee would not be acting in accordance with resolution 96(I) if it drafted a convention which did not afford protection to human groups against the acts of individuals. Nor would the Committee be acting in accordance with that resolution if it submitted to the General Assembly a draft convention which ignored or underestimated the duty of States themselves to protect the right of human groups to survival. The United States was not in favour of substituting international for national action, but was anxious to ensure that, where State responsibility had not been properly discharged, measures should be taken on an international level. The French delegation proposed that the concept of genocide should be extended to cover cases where a single individual was attacked as a member of a group. The United States delegation considered that the concept of genocide should not be broadened to that extent; nor should it be restricted only to those cases where criminal acts were committed with the connivance or the tolerance of members of Governments.

1382

A/C.6/SR.73

Mr. Raafat (Egypt) did not see any real difference between the text proposed by the Ad Hoc Committee and the amendment submitted by the USSR delegation [A/C.6/223], which proposed replacing the words “committed with intent to destroy” by the words “aimed at the . . . destruction”. Both in fact retained the idea of criminal intent. He recognized the quality of the motives which had inspired the French delegation to submit its amendment, but observed that the idea of genocide could hardly be reconciled with the idea of an attack on the life of a single individual. He felt that the aim of the French amendment would be met if the Committee adopted the Norwegian proposal [A/C.6/228] to insert the words “in whole or in part” after the words “with the intent to destroy”. With regard to the Belgian amendment, Mr. Raafat emphasized that it was possible to imagine cases where physical or biological genocide was committed without co-operation or participation and where the head of the State was alone responsible. Mr. Raafat agreed with the Iranian representative that the idea of participation in the crime could be considered when article IV of the convention came up for consideration. The Egyptian delegation would cast its vote in favour of the text proposed by the Ad Hoc Committee. Mr. Fitzmaurice (United Kingdom) supported the Egyptian representative’s remarks. In his opinion, the USSR amendment was merely a matter of drafting; personally, he preferred the text of the Ad Hoc Committee. With regard to the French amendment, Mr. Fitzmaurice pointed out that when a single individual was affected, it was a case of homicide, whatever the intention of the perpetrator of the crime might be. In those circumstances, it was better to restrict the convention to cases of destruction of human groups and, if it was desired to ensure that cases of partial destruction should also be punished, the amendment proposed by the Norwegian delegation would have to be adopted. In conclusion, the United Kingdom representative contended that the Belgian amendment, even in the new form suggested by the Belgian representative during the discussion, weakened the very concept of genocide.

A/C.6/SR.73

1383

Mr. Wikborg (Norway) stressed that his delegation’s amendment was similar to the one put forward by the Soviet Union delegation in connexion with the second part of article II. He felt, however, that the words “in whole or in part” would be better placed in the first sentence of the article. He further pointed out that his amendment did not go as far as the one submitted by the French delegation and he therefore requested that it should be put to the vote in conjunction with the Ad Hoc Committee’s text. Mr. Chaumont (France) agreed with the views expressed by the representatives of Eygpt [sic], the United Kingdom and the United States of America, and stated that, in a conciliatory spirit, he would withdraw his amendment in favour of the Norwegian amendment. Mr. Spiropoulos (Greece) supported the remarks of the Egyptian and United Kingdom representatives. Mr. Abdoh (Iran) felt that the modification proposed by the Belgian representative did not alter the sense of the amendment; both the word “participate” and the word “co-operate” implied the idea of an understanding and of connivance. But genocide could be committed, at least in theory, by a single individual. The representative of Iran would be unable to support the amendment submitted by Belgium but would vote in favour of the Norwegian amendment. In reply to a question by Mr. Gross (United States of America), Mr. Wikborg (Norway) explained that his amendment was not intended to modify the sense of the second part of article II. The Norwegian delegation simply wanted to point out, with regard to the first of the acts enumerated, that it was not necessary to kill all the members of a group in order to commit genocide. Mr. Bartos (Yugoslavia) thought that the main characteristic of genocide lay in the intent to attack a group. That particular characteristic should be brought out, as in it lay the difference between an ordinary crime and genocide. Of the four texts submitted to the Committee, the Yugoslav delegation considered that two of them were more exact: the draft of the Ad Hoc

1384

A/C.6/SR.73

Committee and that of the USSR. The texts were almost identical in that they both attempted to define the intent behind the crime of genocide. Mr. Bartos recognized the worth of the idea behind the French amendment. In view, however, of the fact that each individual was in fact a member of a group, it would be difficult to establish whether or not the murder of an individual was genocide. He was against the Belgian amendment which required the establishment of a cause-and-effect relationship between a movement, in which there would be participation or contribution, and the act itself. The Yugoslav representative considered that the intent should be described as such. He would therefore support the text of the Ad Hoc Committee or, preferably, that submitted by the USSR. Mr. Noriega (Mexico) thought that the Belgian amendment took into consideration an important idea which would appear more appropriately in article IV of the convention. Cooperation, indeed, entailed the idea of complicity and responsibility of those who took part, directly or indirectly, in the crime of genocide. The word “participate” was not exact enough to be used in article II; in fact, the use of that word might be dangerous because it lacked precision. Mr. Noriega’s opinion was that the Belgian delegation should propose another word or withdraw its amendment. Mr. Manini y Ríos (Uruguay) did not quite understand the purpose of the amendment submitted by Norway. The intent to destroy a group was implicit in all acts of genocide; it was clear that a whole group could not be destroyed in a single operation. On the other hand, there was an important difference, in connexion with the enumeration of the acts constituting genocide, between the English and French texts of the draft prepared by the Ad Hoc Committee. The French text on the first point merely said meurtre, while the English text said “killing members of the group”. The words “members of the group” were to be found throughout the enumeration in the English text, while they never appeared in the enumeration of the French text. The English text was, therefore, perfectly clear: genocide was committed when a member of a group was attacked. The representative of Uruguay considered therefore that the wording of the English text should be followed, thus doing away with the necessity for the Norwegian amendment.

A/C.6/SR.73

1385

Mr. Reid (New Zealand) supported the Norwegian amendment but for different reasons from those which had been expressed by the Norwegian representative himself. Mr. Reid considered that the adoption of the words “in whole or in part” might give rise to the idea that genocide had been committed even where there had been no intention of destroying a whole group. Mr. Reid did not share the point of view of the representative of Yugoslavia. The latter had emphasized that it was especially important to define the intent; he had also stated that he would support the USSR amendment which proposed the use of the expression “aimed at the physical destruction”, but history gave examples of genocide where there had been no intent of physical destruction of the groups concerned. Thus, the older members of a group had been killed and the younger ones converted by divers [sic] means to an ideology different from their own. The group, as such, had ceased to exist, but its members survived. Such acts would not constitute genocide according to the terms of the Soviet Union amendment. Mr. Kaeckenbeeck (Belgium) observed that several representatives had expressed themselves against the Belgian amendment because they considered that the word “participate” or “co-operate” complicated the idea of intent. The purpose of the Belgian delegation was to emphasize the collective character of genocide, but as that characteristic could undoubtedly be emphasized in another article of the convention, his delegation would not insist on its amendment to article II; it might, however, bring it up again in connexion with one of the other articles. Mr. Kaeckenbeeck was doubtful as to the expedience of the Norwegian amendment. The representative of Norway had explained that a whole group was not necessarily destroyed even when the crime of genocide was committed. The main problem, in the view of the Belgian delegation, was to decide against whom the intention of genocide was directed; it was clear that it was aimed at the destruction of a whole group, even if that result was achieved only in part, by stages. The Belgian delegation thought it preferable to adopt the text prepared by the Ad Hoc Committee, as it would be illogical to introduce into the description of the requisite intention the idea of partial destruction, genocide being characterized by the intention to destroy a group.

1386

A/C.6/SR.73

Replying to Mr. Morozov (Union of Soviet Socialist Republics), Mr. Chaumont (France) explained that the French delegation had with drawn only that part of its amendment which was under discussion, namely, the phrase “or against an individual as a member of a human group”. That part of the amendment had been withdrawn in favour of the Norwegian amendment, which expressed the same fundamental idea. Mr. Morozov (Union of Soviet Socialist Republics) pointed out that the purpose of the USSR amendment was to replace the expression “committed with the intent to destroy” by “aimed at the physical destruction”. That was not a mere drafting change. The Soviet Union amendment introduced a new factor: article II was concerned with biological genocide; the idea of “physical destruction” should therefore be specified in the text of the definition so as to establish very clearly the difference between such acts and those covered by article III. Physical genocide was one of the most obvious forms of genocide; a clear, exact and unassailable definition was therefore necessary. The USSR representative thought it was premature to use, in the first part of article II, the expression “with the intent to destroy”. The intent was revealed in the statement of the motives of the crime, which was embodied in the following part of the sentence. Mr. Morozov thought it would be more logical first to define the acts constituting genocide, and then indicate the motives thereof; the acts which constituted genocide were those which were directed towards the destruction of the groups enumerated. The representative of the Soviet Union thought that the text proposed by his delegation was most consistent with the requirements of logic and exactitude. The USSR delegation supported the Norwegian amendment, on the grounds that it expressed an idea corresponding to historical reality. Mr. Chaumont (France) said that it was clear from the wording of the Soviet Union amendment that its author shared the preoccupation of the French delegation regarding the enumeration of the groups protected by the convention. The French delegation had been struck by the number of repetitions which appeared in the text drafted by the Ad Hoc Committee; the superabundance of expressions contained therein was unsatisfactory in a legal text.

A/C.6/SR.73

1387

Mr. Chaumont thought the expression “aimed at the . . . destruction” was preferable to “with the intent to destroy”, used by the Ad Hoc Committee. Moreover, the term “physical destruction” corresponded exactly to the text of article II, which dealt solely with biological genocide. The French representative therefore approved that wording. In conclusion, France would vote for the USSR amendment, supplemented by the Norwegian amendment. Mr. Maúrtua (Peru) supported the amendment of the Soviet Union, but preferred the words “with the intent”. Mr. Morozov (Union of Soviet Socialist Republics) wished to draw attention to another very important factor which must be taken into account when considering his delegation’s amendment. If the words “committed with the intent to . . .” were retained, there would be a risk of ambiguity. The perpetrators of acts of genocide would in certain cases be able to claim that they were not in fact guilty of genocide, having had no intent to destroy a given group, either wholly or partially; they might likewise assert that they had simply carried out superior orders and that they had been unable to do otherwise. In Mr. Morozov’s opinion it was essential, in a general definition, to eliminate everything relating to the concept of responsibility. The general definition should on no account be susceptible of two different interpretations. Rather, therefore, than stipulate the intent to destroy, the article should define acts of genocide as acts “resulting in” destruction. The USSR representative explained that he had made no mention of the groups to be protected because he did not wish to stray from the subject under discussion; but it was evident that article II should mention those groups. Genocide was a crime aimed at the physical destruction, in whole or in part, of definite groups distinguished from other groups by certain well-established criteria. The text of article II should indicate both the motives and the groups, as it was impossible to exclude one and not the other. Mr. Gross (United States of America) thought that the very lucid explanation of the representative of the Soviet Union had made the meaning of the phrase “aimed at the physical destruction” quite clear; it meant “which result in such destruction”. If that were so, then the USSR amendment

1388

A/C.6/SR.73

introduced a fundamental modification to the definition of genocide. It was, indeed, the intent to destroy a group which differentiated the crime of genocide from the crime of simple homicide. For that reason the United States delegation would vote against the amendment of the Soviet Union. Mr. Kaeckenbeeck (Belgium) agreed with that view. He pointed out that, if the Committee were to accept the objective criterion proposed by the USSR, which ruled out the idea of special intent, and it added thereto the Norwegian amendment, which ruled out the idea of the destruction of a whole group, it would arrive at a definition which would make it impossible to draw a distinction between genocide and ordinary murder. Mr. Chaumont (France) thought that when the Committee began to discuss the succeeding paragraphs, in particular those dealing with the acts constituting the crime and with the principle of the responsibility of members of governments, the fears just expressed would be shown to be somewhat excessive. Article I, moreover, stated that genocide was a crime; and any crime necessarily included an element of intent. The idea of the USSR was apparently to guard against the possibility that the presence in the definition of the word “intent” might be used as a pretext, in the future, for pleading not guilty on the grounds of absence of intent. In the circumstances, the objective concept seemed to be more effective than the subjective concept. The French delegation would therefore vote in favour of the amendment of the Soviet Union. Mr. Morozov (Union of Soviet Socialist Republics) thought the objections of the United States and Belgian representatives unfounded, in that they failed to take account of the rest of the USSR amendment. The proposed definition as a whole clearly indicated that genocide was a crime sui generis, comprising two elements: acts aimed at the physical destruction of certain groups and the motives for those acts, which must be committed on grounds of race, nationality or religion. Mr. Morozov stated that there was in fact little divergence in principle between the draft of the Ad Hoc Committee, and the Soviet Union amendment. Both definitions described the acts constituting genocide, and indicated the motives; without these two factors, genocide could not be defined as a crime sui generis.

A/C.6/SR.73

1389

The USSR intention, as the French representative had well understood, was to make the definition of genocide more precise, in order to avoid ambiguity of interpretation. The Chairman reminded the meeting that the French and Belgian amendments had been withdrawn. The Committee had, therefore, to take a decision first on the USSR amendment [A/C.6/223] which proposed that the phrase “committed with the intent to destroy” in the draft convention should be replaced by the phrase “aimed at the physical destruction”; and then on the Norwegian amendment [A/C.6/228]. The USSR amendment was rejected by 36 votes to 11, with 4 abstentions. The Norwegian amendment was adopted by 41 votes to 8, with 2 abstentions. The Chairman announced that the next question which should be discussed was that of the enumeration of groups, which appeared in the first paragraph of article II. Whereas there were no amendments concerning the inclusion of national, racial or religious groups, there were four dealing with political groups. Mr. Petren (Sweden) wanted a definition of the meaning of the term “national group”. If it meant a group enjoying civic rights in a given State, then the convention would not extend protection to such groups if the State ceased to exist or if it were only in the process of formation. It could be argued, of course, that such groups would be entitled to protection as racial or religious groups; it seemed, however, that other factors than those should be taken into consideration. In Switzerland, for instance, the whole of the traditions of a group, with its cultural and historical heritage, had to be taken into account. In other cases, the constituent factor of a group would be its language. It could be contended, of course, that the mere desire to form a group constituted a political factor, and that all such groups would be covered by the concept of a political group. Since there was strong opposition, however, to the inclusion of political groups among the groups to be afforded protection, the Swedish representative proposed that the word “ethnical” should be inserted after the word “national” in the list of groups given in the draft of the Ad Hoc Committee.

1390

A/C.6/SR.74

The Chairman asked the delegations how they thought amendments should be filed, in order best to help the Secretariat and accelerate the work of the Committee. After a discussion in which the representatives of Syria, Sweden, France, Argentina, the United Kingdom, the Union of Soviet Socialist Republics, Chile, Australia and Turkey took part, the Chairman earnestly requested all the delegations to file any amendments relative to article II not later than 14 October. Any amendments resulting from a compromise reached in the course of the discussion, as well as amendments consisting simply in drafting changes might always be submitted, subject to the agreement of the Committee in each case. Furthermore, the Chairman would appreciate it if the members of the Committee were to file amendments relating to other provisions of the draft convention before 16 October. The meeting rose at 6.10 p.m.

SEVENTYFOURTH MEETING Held at the Palais de Chaillot, Paris, on Thursday, 14 October 1948, at 3.25 p.m. Chairman: Mr. R.J. Alfaro (Panama). 18. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) Mr. Petren (Sweden) said that the sole purpose of his amendment [A/ C.6/230] was to add the word “ethnical” after the word “national”. His delegation reserved its position with regard to the inclusion of political groups and with regard to the end of the first paragraph of article II. He asked for the correction of a gross error which had slipped into the document.1 1

See document A/C.6/230/Corr.1.

A/C.6/SR.74

1391

Mr. Medeiros (Bolivia) was in favour of retaining mention of political groups in article II. From the theoretical point of view, genocide meant the physical destruction of a group which was held together by a common origin or a common ideology. There was no valid reason for restricting the concept of genocide by excluding political groups. Moreover, no convincing arguments had been produced in favour of that exclusion. The definition might even be broadened still further to include economic groups. There was nothing to prevent that; the word “genocide” meant the destruction of a group without implying any distinction between the various groups. The Committee should spare no efforts to define genocide, especially as a publicist had recently gone as far as to maintain that there was no such thing as genocide and that the only valid concept was that of crimes against humanity. The definition of genocide in the convention would give it legal existence and would therefore be very important for the theory of international law. From the practical point of view, it should not be forgotten that current political strife had become so violent that parties sought to destroy each other by all possible means. It was therefore very important that political groups should be protected by the convention. The point at issue was not to protect freedom of opinion (that question came within the scope of the protection of human rights) nor was it to prevent States from maintaining internal order in the political field. The issue was to protect political groups against violence, followed by destruction. The political group should be treated in the same way as the religious group, since in both cases their members were united by a common ideal. Mr. Abdoh (Iran) maintained that it would not be opportune at that time to retain the political group in the definition of genocide. If it were recognized that there was a distinction between those groups, membership of which was inevitable, such as racial, religious or national groups, whose distinctive features were permanent; and those, membership of which was voluntary, such as political groups, whose distinctive features were not permanent, it must be admitted that the destruction of the first type appeared most heinous in the light of the conscience of humanity, since it was directed against human beings whom chance alone had grouped together. Those persons should therefore be given a larger

1392

A/C.6/SR.74

measure of protection. Although it was true that people could change their nationality or their religion, such changes did not in fact happen very often; national and religious groups therefore belonged to the category of groups, membership of which was inevitable. Chiefly, however, it was in order that the draft convention might be adopted and ratified by a very great majority, that the representative of Iran preferred that political groups should be excluded. Certain States feared that the inclusion of political groups in the convention might enable an international tribunal to intervene in the suppression of plots or insurrections against which they had to defend themselves. The first concern, therefore, was simply to conclude a convention covering points which raised no difficulties on the part of the great majority of the States concerned. It would always be possible later on to adopt a new convention to supplement the first one. Mr. Raafat (Egypt) pointed out that there had been no opposition to the national, racial and religious group, although the idea of a national group was somewhat ambiguous. He did not think that the Swedish amendment, which sought to clarify the concept of the national group by adding the word “ethnical”, was justified. The well-known problem of the German minorities in Poland or of the Polish minorities in Germany, and the question of the Sudeten Germans, showed that the idea of the national group was perfectly clear. As for the political group, a variety of theories had been expressed, and the question could be settled only by a vote. The same could not be said for the economic group, as representatives would not be able to form an opinion on that question until the United States representative had explained his amendment. Mr. de Beus (Netherlands) agreed wholeheartedly with the representative of Bolivia that the political group should be included. Although that group was certainly more difficult to define than the racial or religious group, it should be protected. It must be remembered that, while the Nazis had destroyed millions of human beings in the Netherlands and elsewhere on account of their race or their nationality, they had also destroyed a great many others for their political opinions. In Germany itself they had attacked the members of the Socialist and Communist parties as well as their parliamentary representatives. That type of crime should not be omitted from the convention.

A/C.6/SR.74

1393

The representative of the Netherlands felt, however, that it would be going too far if the convention were extended to include the protection of economic groups, which were even more difficult to define. It would lead to the absurd result that certain professions, when threatened by economic measures which were required in the interest of the country, might invoke the convention to protect their own interests. Mr. Messina (Dominican Republic) considered that the political group should be deleted from article II. The convention would be weakened if its scope were made too wide. At that new stage in the suppression of a crime which, though as old as the world itself, had been placed on an international level by the defeat of the totalitarian regimes, it would be useless to try to reach perfection at the outset, regardless of the real state of affairs. In law, as in biology, evolution could not proceed by leaps and bounds. Mr. Correa (Ecuador) admitted that all the arguments for and against the inclusion of the political group had their merits and were worthy of consideration. The political group was of course less stable in its characteristics than the others; it was of course a group which could be joined and left at will; but that was not a sufficient reason for refusing to grant it any protection. When a political group was persecuted and faced with destruction, the vagueness of its characteristic features made it more difficult to establish the offence. That, however, did not change the nature of the crime and those who committed it should be punished. In connexion with the historical argument adduced by the representative of the Netherlands, it should be added that, if the convention did not extend its protection to political groups, those who committed the crime of genocide might use the pretext of the political opinions of a racial or religious group to persecute and destroy it, without becoming liable to international sanctions. The delegation of Ecuador was, therefore, in favor of including the political group in the definition of genocide. Mr. Correa’s delegation did not think that its inclusion would really assist subversive elements in revolt against the authority of a State, because there was a great difference between measures for maintaining order in such a case and measures employed in the

1394

A/C.6/SR.74

perpetration of genocide. It would not be difficult to distinguish between them. Any penal provision might give rise to slanderous accusations; it was the duty of the law courts to examine and reject such accusations. In resolution 96(I), the General Assembly included a specific mention of political groups among the victims of genocide and stated that the perpetration of genocide on political grounds was a punishable offence. Public opinion would not understand it if the United Nations no longer condemned in 1948 what it had condemned in 1946. Mr. Correa asked that the convention should not depart in that particular from the resolution of the General Assembly. Mr. Manini y Rios (Uruguay) said that his delegation wished international protection to be extended to all groups without exception. With regard to national, racial or religious groups, a new concept had been evolved, the concept of a special crime consisting in the destruction of an entire group, and that was the crime to which the draft convention applied. As for the political group, the Third Committee was more competent to arrange for its protection. Mr. Gross (United States of America) wondered what had caused the change in attitude on the part of those delegations which were now requesting the deletion of the political group from article II. Recalling the beginnings of resolution 96(I) of the General Assembly, he observed that both in the Sub-Committee which had been established to prepare the draft resolution, and in the Sixth Committee, when that draft came up for approval,1 there had been unanimous agreement on the text which was later adopted by the General Assembly,2 again unanimously, and which had thus become resolution 96(I). 1

2

See Official Records of the second part of the first session of the General Assembly, Sixth Committee, 32nd meeting. Ibid., 55th plenary meeting.

After defining genocide as a denial of the right of existence of entire human groups, that resolution stated that “many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part”. Further on, the General

A/C.6/SR.74

1395

Assembly stated that the crime of genocide was punishable whether it was committed on “religious, racial, political or any other grounds”. Neither during the preparatory work, nor at the time of the adoption of that resolution, had any Government made any reservations concerning the inclusion of the political group in the concept of genocide. That question had not been raised until the spring of 1948, at the meetings of the Ad Hoc Committee on Genocide. It was obvious, therefore, that some delegations had changed their minds, and the reasons for that change should be explained. Mr. Gross agreed with the representative of Ecuador that the draft convention should take its inspiration directly from resolution 96(I), in which the concept of the political group was specifically included. That resolution stated that the denial of the right of existence of entire human groups was “contrary to moral law and to the spirit and aims of the United Nations”. If, then, the protection of human groups, of which the political group was one, was connected with the very aims of the United Nations, that protection could not now be denied to political groups except for some valid reasons which had not existed in 1946. The United States representative did not think that any such valid reasons existed. It had been argued that it was difficult to define political groups. It would then seem to follow that if it should become possible to define political groups, they could be assured of protection. Moreover, clear examples from the recent history of nazism showed that it was perfectly possible to identify political groups. On 22 June 1933, the German Government had passed a decree ordering the dissolution of the German Social Democratic Party; on 14 July 1933, a further decree announced that the National Socialist Party was the only legal party in Germany. The fate of the Communist Party in Germany was too well known to require extensive discussion. After the defeat of nazism, the Allied Control Council, representing the four occupying Powers in Germany, had proclaimed the abolition of the Nazi Party; and that decision had been confirmed in October 1945 by Law No. 2 promulgated by the four Commanders-in-Chief of the armies of occupation. Thus, the Nazis had been able to identify political groups and the occupying Powers had also been able to identify the Nazi Party in order to outlaw it. The representative of the United Kingdom had aptly alluded (69th meeting) to the possibility that the Fascists might destroy the Communist Party and

1396

A/C.6/SR.74

vice versa. Moreover, certain countries had thought it necessary to outlaw the Communist Party. Finally, article 141 of the USSR Constitution of 1936, as amended on 25 February 1947, mentioned the organizations of the Communist Party, among others, in its enumeration of the organizations which were authorized to nominate candidates for the elections. All those examples clearly proved that the Communist Party was a coherent and perfectly identifiable group. The argument based on the difficulty of identifying political groups should therefore be rejected. There remained the anxiety expressed by certain delegations which feared that the provisions of the convention with regard to political groups might be turned from their original purpose and be used to create difficulties for legally established Governments in their defensive measures against subversive elements. That objection, however, should not be applied only to political groups, as other groups, by their fanaticism or their excesses, might place the same Governments in an equally embarrassing position. The question could really be examined only as a whole and in the light of the principles governing a very closely connected problem, that of the protection of human rights. The application of the convention should be subject to the same limits as those which governed the exercise of human rights, namely, the requirements of morality, public order and the general welfare in a democratic society. The United States delegation intended, at a later stage, to show the need for the establishment of an appropriate international tribunal. Such a tribunal would make it possible, in each particular case, to achieve the necessary balance between the protection of groups and those requirements of morality, public order and general welfare which he had just mentioned. Mr. Demesmin (Haiti) maintained the view that all the crimes envisaged were in reality committed for political reasons, whatever motive might be alleged. Genocide was impossible without the participation of the Government, which would always seek to describe as political any activities and organizations it might wish to suppress. Thus even the expression of an opinion could be considered a political act. It was certain also that the attempts made during the recent war to eliminate certain national groups were undertaken for reasons of state, in other words, for political motives.

A/C.6/SR.74

1397

One must look further, and realize that strife between nations had now been superseded by strife between ideologies. Men no longer destroyed for reasons of national, racial or religious hatred, but in the name of ideas and the faith to which they gave birth. A majority Government had nothing to fear from the inclusion of political groups among the groups to be protected by the convention. It was when the majority of the people was opposed to the ideology of the Government that there was a danger of the minority using force to hold the majority in check. The notion of an attack on the internal security of a State was very vague, and any act could be presented as an attack of that nature. The future convention should therefore contain an enumeration of all crimes against basic human liberties, as defined in the Charter of the United Nations. If the Committee wished to do useful work, it must make the concept of genocide cover crimes committed against political groups. Mr. Morozov (Union of Soviet Socialist Republics) classified the opinions expressed by the various delegations under three headings. First of all, there were members who were opposed to including political groups in the enumeration; then those who wished to accept the text of the Ad Hoc Committee, which included political groups; and finally there was the proposal of the United States delegation [A/C.6/214 ] to add yet another group, the “economic” group. Mr. Morozov did not consider that the advocates of the views in the second and third categories had given convincing historical and legal reasons in support of their theses. What their arguments amounted to was that physical destruction for political opinions was also a crime. The USSR delegation was in complete agreement with that view and, as it had stated before the General Assembly in 1946, it regarded physical destruction for political opinions as an inadmissible crime. That was the Soviet Union delegation’s reply to the allegations of the United States representative that it had changed its opinion. It must be borne in mind, however, that the task of the Sixth Committee was to draw up a convention on genocide. If the resolution of the General Assembly had sufficed for the purpose in view, and if all the problems had been solved beforehand, then there would have been no need to spend two years in drawing up a convention. Without infringing resolution 96(I),

1398

A/C.6/SR.74

the task assigned to the Sixth Committee must be examined without heat; that task was to frame a convention on genocide, and nothing else. What then was genocide? According to one view put forward in a French newspaper, there was no such thing as genocide; the crime as such was included in the definition of crimes against humanity. It would be more accurate to say that genocide was one aspect of the crimes against humanity, but that it did not cover all aspects; thus the violation of the rules of warfare, the treatment of prisoners of war, the use of poison gas, to mention a few examples, were not included. The Third Committee certainly dealt with problems which might concern the Sixth Committee, but the same could also be said of other Committees, such as the First or the Fourth. In order to be logical and include in the convention all crimes against humanity, the scope of the discussion of the Sixth Committee would have to be widened and the Committee would have to draw up a “convention for the prevention of crimes against humanity”. That, however, would simply have the effect of diverting the Sixth Committee from the definite task assigned to it, and leading it to examine problems which it was not in a position to take up. The USSR representative rejected from the outset the argument advanced by certain representatives to the effect that, in deciding which groups should be covered by the convention, the primary consideration was to secure a majority of votes. The principles involved should not be sacrificed to political opportunism. Mr. Morozov then gave a legal and historical analysis for the purpose of arriving at a scientific definition of the concept of genocide. It was during the Nürnberg trials that the term “genocide” was used for the first time, in particular in the bill of indictment and the reasons adduced for the sentence, where it was defined as follows: extermination of racial and religious groups in the occupied territories. The representatives of the Netherlands and the United States of America claimed that the Soviet Union delegation had forgotten the Nazi crimes against political groups, and used those crimes as an argument in support of their proposal. The aforesaid documents show, however, that the Nazis had exterminated members of political groups because they formed the intellectual elements of populations which they sought to subjugate in order to establish German domination over the world.

A/C.6/SR.74

1399

The prisoners of Maidanek, Oswiecim and other extermination camps were sent there as members of nations which Hitler’s Germany had decided to wipe out. Most of them had not engaged in any political activity. The fact that there were some members of political organizations among them did not mean that the primary objective was anything other than the wholesale destruction of the civilian populations of the territories which were to be conquered and colonized, and, concurrently, the destruction of their respective national cultures. The acts which were cited at Nürnberg, acts which constituted typical cases of genocide, were characterized by the denial of the right of existence of entire peoples, not of individuals as such. Such was the historic origin of the concept of genocide. Genocide therefore applied to racial and national groups, although that did not make crimes committed against other groups any the less odious. After adducing the etymology of the term “genocide” in support of his argument, Mr. Morozov turned to the juridical aspect of the problem. He wondered what was the appropriate criterion whereby one could define those human groups which were liable to fall prey to genocide. That criterion must be of an objective character; thus the subjective qualities of individuals were ruled out. On the basis of that fundamental concept, the groups could easily be distinguished; they were the racial and national groups, which constituted distinct, clearly determinable communities. It might be wondered why the USSR delegation was willing to mention the religious factor, since that was a matter of individual feeling. It was because, in all known cases of genocide perpetrated on grounds of religion, it had always been evident that nationality or race were concomitant reasons. That was why the delegation of the Soviet Union had proposed, in its amendment [A/C.6/223], that religious groups should be mentioned, in parentheses, after racial and national groups; that would stress the fact that persecution was always directed against national groups, even when it took the form of religious strife. Mr. Morozov was surprised that some delegations should have attempted to extend the application of the convention beyond the scope of the scientific definition of genocide. He recalled, in that connexion, the words used by Sir Hartley Shawcross during the general discussion on genocide; according to the representative of the United Kingdom, the convention on genocide could be no more than a scrap of paper. And the United Kingdom delegation was now asking that the scope of the convention should be

1400

A/C.6/SR.74

extended! That delegation, together with several others, did not recognize cultural genocide, nor the provision to the effect that the “command of the law or superior orders shall not justify genocide”.1 On the other hand, they were trying to extend the convention to cover questions which had not yet been examined, and which were certainly extraneous to the very concept of genocide. In the circumstances, that could be nothing but an attempt to deprive the convention of any practical significance. 1

See Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6, page 9.

The USSR delegation requested the members of the Committee to give dispassionate consideration to the problem before them, namely, the convention on genocide and nothing else. Their task was to determine the groups to be included in the convention; those groups must be selected on legal and historical grounds, and no complications should be introduced. The delegation of the Soviet Union had no objection to the amendment of the Swedish delegation, which proposed that ethnical groups should be added to those already enumerated, as that was not a fresh category. An ethnical group was a sub-group of a national group; it was a smaller collectivity than the nation, but one whose existence could nevertheless be of benefit to humanity. Mr. Manini y Ríos (Uruguay) wished to explain his delegation’s change of attitude, which had been referred to by the United States representative. In 1946, the General Assembly had dealt with the problem as a whole. The problem had then been studied over a period of two years, and it was by a majority of only 4 out of 7 that the political group had been included in the text drafted by the Ad Hoc Committee.1 The problem had now come before the Committee again for a final decision, and delegations should think seriously before casting their votes. In those circumstances, delegations could not be denied the right to change their opinions. 1

See Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6, page 5.

A/C.6/SR.74

1401

The proposal of the Uruguayan delegation [A/C.6/209] was based on practical considerations. If an international tribunal were established – and the speaker was in favor of such a course – it was probable that many States would refuse to allow such a tribunal to intervene in their internal affairs on the pretext that political genocide had been committed. In order, therefore, that an international tribunal might be established, the convention must not apply to political groups. The arguments adduced by the USSR representative were apposite. The concept of genocide was, indeed, the outcome of the Nazi theories of race superiority which were at the basis of the Hitlerian ideology. If the scope of the convention were to be extended, some word other than “genocide” would have to be found. In that connexion, the Uruguavan [sic] representative pointed out that the United States delegation, in asking for the inclusion of economic groups, had also changed its mind. To introduce political concepts into the convention on genocide would be dangerous, and might even result in preventing the conclusion of the convention. That did not mean, of course, that the delegation of Uruguay approved of sanguinary methods of repression for political purposes. The Uruguayan delegation recognized neither racial nor any other superiority and desired that, in every sphere, law should be the final arbiter. Mr. Kaeckenbeeck (Belgium), in reply to the United States representative, explained that the Belgian delegation had put forward its amendment [A/C.6/217 ] because it was convinced that progress must be slow if success were to be achieved. His delegation did not wish to prevent the protection of political or economic groups against violence or attempts at extermination; it did not deny that political intolerance was bidding fair to become as dangerous as national, racial or religious intolerance, or that the crimes resulting from that form of intolerance were particularly odious. The task before the Committee, however, was to draw up a convention on a crime under international law. The question therefore arose as to whether the victims of that crime could be political groups, which were the groups existing within the political life of each State. If the etymology of the word “genocide” were borne in mind, the conclusion would have to be that the crime could be committed only against ethnical groups. The addition of religious groups constituted an extension of the concept of genocide, but that extension had been sanctioned by

1402

A/C.6/SR.74

international law. The extension of genocide to political groups, however, would be an arbitrary measure scarcely likely to lead to success. The Belgian representative pointed out that there was a great difference between a condemnation of genocide in general terms and a convention on the crime designed to be embodied in the criminal law of every country. It was not for the convention to combat all violence resulting from every kind of intolerance. The question of the inclusion of political groups was closely connected with the problem of a compulsory international penal court, and with the chances of securing the ratification of the convention by all the Member States of the United Nations. The Belgian delegation feared that those chances would be greatly endangered if the convention attempted to cover the whole ground at once. The Belgian amendments to the draft convention were based on all the aforementioned considerations. Mr. Fitzmaurice (United Kingdom) wished to reply to two points made by the representative of the USSR. Sir Hartley Shawcross had not said that the convention on genocide would be a mere scrap of paper. What he had said (69th meeting) was that as genocide could not be committed without the connivance of the State, it was wholly illusory to suppose that political or any other groups could be protected merely on the basis of national laws. For that reason, the United Kingdom delegation proposed to submit later some amendments providing for the responsibility of Governments in that respect. As regards the other accusations made by the representative of the Soviet Union in respect of alleged deficiencies in United Kingdom laws and its attitude on genocide, the United Kingdom delegation not only categorically rejected those accusations, but also denied the moral authority of the USSR Government to make them, or to set itself up as a model of conduct before the world. Mr. Spiropoulos (Greece) stated that the arguments invoked for and against the inclusion of political groups had not convinced his delegation. In his opinion, there was no absolute concept of genocide. There were no theoretical or practical reasons for excluding political groups. Member States themselves must decide whether they intended to exclude them or not.

A/C.6/SR.74

1403

The Committee could usefully refer to the judgment of the Nürnberg Tribunal, but it was not bound by its decisions in respect to genocide. The protection of groups was not a new idea. Treaties had already assured the protection of minorities. The convention on genocide was an extension of that protection to certain groups; that instrument would define genocide and would determine the degree to which its protection should be extended to cover minorities. Mr. Abdoh (Iran) pointed out that when resolution 96(I) was adopted, the concept of genocide was entirely new. It had been a vague idea which had not altogether been recognized by all legal experts. The purpose of that resolution had not been to give a definition of genocide, but to denounce the extermination of human groups, political as well as national, racial or religious. That aim had not changed; all groups must be protected, but the Committee should decide whether certain groups were to be protected by the convention on genocide which it was in the process of preparing, or whether it was better to do so in a supplementary convention. The delegation of Iran considered that members should be realistic and should include in the convention only those principles on which Member States were in agreement. The question of the protection of political groups could be dealt with in a subsequent convention. Mr. Dihigo (Cuba) stated that in order to decide whether the protection of the convention should be extended to political groups, it was necessary to determine whether those groups were really in danger. In the past, passion and fanaticism, which were the basis for all acts of genocide committed against national, racial or religious groups, were not to be found in the political struggle between rival parties. But the situation was no longer the same. Passions were more and more apparent in political struggles, and it could be said that political groups were in danger just as other groups, perhaps even in greater danger. For that reason, the Cuban delegation would vote in favor of the inclusion of political groups among those to be protected by the convention. Mr. Camey Herrera (Guatemala) said that after having considered objectively all the arguments advanced in the course of the discussion, his delegation had reached the conclusion that political groups should not be excluded from the definition of genocide.

1404

A/C.6/SR.74

The supporters of exclusion had maintained that there was no historical or legal reason for extending the protection of the convention to political groups. The Guatemalan representative pointed out not only that the Nazis had persecuted groups on grounds of their nationality, race or religion, but that they had also persecuted Germans solely on political grounds. The same could be said of the Fascists, and similar examples could still be found in Spain. The delegation of Guatemala would therefore vote against the amendments to omit political groups from article II of the convention. Mr. de Beus (Netherlands) wished to speak on a point of order. Since the views of the various members of the Committee had been made sufficiently clear, he proposed the closure of the debate. Mr. Gross (United States of America) proposed that the meeting should be adjourned. Mr. Dignam (Australia) supported the Netherlands representative’s motion for closing the debate and asked that it should be put to the vote. The Chairman, in pursuance of rule 106 of the rules of procedure, decided to put the motion for closure of the debate to the vote after two speakers had spoken against the motion. Mr. Demesmin (Haiti) and Mr. Manini y Rios (Uruguay) opposed the closure of the debate because of the importance of the question under discussion, and the necessity for allowing all delegations to express their views as fully as they wished. The motion for the closure of the debate was rejected by 28 votes to 19, with one abstention. In reply to Mr. Fitzmaurice (United Kingdom), the Chairman explained that he had put the motion for the closure of the debate to the vote immediately, in accordance with rule 102 of the rules of procedure, since a point of order was involved. In his opinion the motion to adjourn the meeting did not have precedence over the motion for closure of the debate, since the order of precedence laid down in rule 108 of the rules of procedure applied only when there were proposals or motions other than the four motions enumerated in the said rule. That was not the case in that debate.

A/C.6/SR.75

1405

Mr. Fitzmaurice (United Kingdom) said he regretted having to challenge the interpretation of rule 108 given by the Chairman, but they were dealing with a question of principle which it was desirable to settle. The United Kingdom delegation considered that the order of precedence laid down in rule 108 should apply even if there were no other motions before the meeting. Two motions had been submitted, one for the closure of the debate, and the other to adjourn the meeting. They should have been put to the vote in the order laid down in rule 108. Mr. Spiropoulos (Greece), Rapporteur, said that the question was one of purely academic interest since the motion for the closure of the debate had been rejected, and he proposed, in view of the late hour, that the meeting should adjourn. The meeting rose at 6.15 p.m.

SEVENTYFIFTH MEETING Held at Palais de Chaillot, Paris, on Friday, 15 October 1948, at 3.20 p.m. Chairman: Mr. R.J. Alfaro (Panama). [Discussions pertaining to issues other than the Genocide Convention] 20. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) The Chairman asked members of the Committee to continue the discussion on the inclusion of political groups among the groups protected by article II of the Convention. Mr. Lachs (Poland) wished to dispel the impression which might have been created by the United States representative at the 74th meeting, namely, that those who opposed the inclusion of political groups among the groups protected by the convention did not wish to lay a sound foundation for the convention.

1406

A/C.6/SR.75

The United States representative had based his argument for the inclusion of political groups on the terms of General Assembly resolution 96(I). The operative part of that resolution, however, did not provide that political groups should be included in the list of the groups protected by the convention. The word “political” was mentioned only in an enumeration of the grounds on which genocide could be committed. But the human groups which the convention sought to protect and the motives of the crime were entirely distinct factors which should not be confused. The Polish delegation, therefore, felt that the argument of the United States representative was not valid. Mr. Lachs supported the observations made by the representatives of Iran and Belgium (74th meeting) regarding the other provisions of resolution 96(I). As a member of the drafting committee which had prepared that resolution, he felt he had the right to state that its only aim had been to give a general indication of the General Assembly’s attitude towards genocide. Genocide had not yet been defined; it was the task of the Committee to define it. Mr. Lachs said that he would not repeat the arguments put forward either for or against the inclusion of political groups. He wished to approach the issue from a different standpoint. The object of the convention was to outlaw genocide. That was the crime consisting in the destruction of those groups of human beings which were the product of circumstances beyond the control of their members. The convention proclaimed the equality of men by guaranteeing their rights. If it were accepted that all human beings were equal, then any attack on that equality was a crime. Although many generations had fought to achieve that equality, it did not yet exist. If the United Nations wished to establish such equality at that stage of its labours, it should protect the individual where he was most vulnerable, which was within the group of which he was a member in spite of himself. The convention on genocide must seek to protect human beings whatever the colour of their skin, the god they worshipped and the national groups to which they belonged. Those who needed protection most were those who could not alter their status. For them the idea of equality was of the very greatest importance. It was quite another thing where political groups were concerned. Those groups had various characteristics. They were often the most destructive

A/C.6/SR.75

1407

elements of the community, as in the case of the nazi and fascist parties. It was debatable, therefore, whether political groups should enjoy the same rights as other groups. The Polish delegation considered that the Committee should base its definition of the crime of genocide on those basic principles. It was obvious that Poland condemned and deplored any extermination of human beings for whatever reason it might be. Together with Guatemala, Poland protested against the mass executions and the crimes perpetrated at that time in Spain. Poland would spare no effort to help in securing protection for the victims of those barbarous acts, but it did not think that that protection should be ensured by the convention on genocide. The United Nations had other means at its disposal and the Polish delegation hoped that such protection would be ensured without delay. Mr. Lachs wished to make it clear that by opposing the inclusion of political groups, Poland was in no way maintaining that they should be left without protection, However, in view of their flexibility and their lack of homogeneity they should not be treated in the same way as national, racial or religious groups. Only the latter groups should be protected by the convention because their members were defenceless. The Polish delegation would therefore vote against the inclusion of political groups among the groups protected by the convention. Mr. Gross (United States of America) admitted that there was a difference between a resolution drawn up in the form of a general declaration and a convention; he was surprised, however, to note that the delegations which opposed the extension to political groups of the protection given by the convention had completely ignored the provisions of resolution 96(I), and had not even deemed it necessary to state the reasons for such an attitude. That was why he had asked for an explanation at the 74th meeting. In his opinion very strong arguments would be required to justify a modification of the declaration contained in that resolution. That resolution was as important a factor in the history of the convention as the judgment of Nürnberg, which had been mentioned by Mr. Morozov. The Polish representative had observed that political groups were not mentioned in the operative part of resolution 96(I) and that the word “political” appeared only in the enumeration of the possible grounds for genocide. Mr. Gross emphasized, in that connexion, that the USSR delegation had proposed [A/C.6/215/Rev.1] the deletion of political motives as well as of

1408

A/C.6/SR.75

political groups from article II of the convention. The amendment of the Soviet Union, therefore, was not in accordance with resolution 96(I), at least in respect to the motives of the crime. Mr. Pérez Perozo (Venezuela) pointed out in his reply to the United States representative that resolution 96(I) mentioned political groups only as an example. It did not state that they should be protected by the convention on genocide. Mr. Pérez Perozo thought he could rightly affirm that the delegations which had adopted the resolution had not, at that time, contemplated the protection of political groups by the convention. Proceeding to an analysis of resolution 96(I), the representative of Venezuela called the Committee’s attention to the fact that the operative part of that resolution could be divided into four parts. The first was an affirmation that genocide was a crime under international law. The second was a statement that the perpetrators of that crime should be punished, whatever the motives for the crime. The third was a request to Member States to enact the necessary legislation for the prevention and punishment of genocide. The fourth was a recommendation that international co-operation between States should be organized with a view to facilitating the prevention and punishment of the crime and, to that end, the Economic and Social Council was requested to prepare a draft convention on genocide. That political groups had to be protected was not questioned in any way. The Venezuelan delegation had stated the need for protecting those groups both in the Ad Hoc Committee on Genocide1 and in the Economic and Social Council,2 and it now repeated that statement. The delegation felt, however, that it was for each State to determine the means by which such groups should be protected and to choose between national legislative measures and an international convention. Delegations, such as the delegation of Venezuela, which preferred to protect their political groups by means of national legislation, could not be accused of having changed their attitude since the adoption of resolution 96(I). 1 2

See documents E/AC.25/SR.1, E/AC.25/SR.3, E/AC.25/SR.4. See Official Records of the Economic and Social Council, Third Year, Seventh Session, 218th meeting.

A/C.6/SR.75

1409

Latin-American countries were particularly interested in political genocide because other forms of that crime were completely unknown in those countries. The Venezuelan delegation felt that political groups should be protected not by the convention on genocide but by respect for individual liberties under constitutions, national legislation and the declaration on human rights. Mr. Pérez Perozo recalled that resolution 96(I) stated that genocide “results in great losses to humanity in the form of cultural and other contributions represented by . . . human groups”. The question arose, therefore, why some delegations which had voted for that resolution were now against the inclusion of cultural genocide. The Venezuelan delegation would not assert that they were acting contrary to the provisions of the resolution; it was convinced that they had valid reasons for adopting such an attitude. He also pointed out that national groups were not listed in resolution 96(I). Nevertheless, no delegation had argued that they should be excluded from the convention. With regard to economic groups, it was certainly not on the terms of resolution 96(I) that the United States delegation had based its amendment advocating the inclusion of those groups in the convention, since the resolution did not mention those groups. In conclusion, Mr. Pérez Perozo said that although the Committee should be guided by the spirit of resolution 96(I) in drafting the convention on genocide, it should certainly not reproduce its provisions literally. The members of the Committee were all trying to attain the same goal, namely, the prevention and punishment of genocide. It was necessary to guard against the risk of failing in that task merely because all delegations did not have the same point of view. Mr. Demesmin (Haiti) thought that if the Committee did not wish to go as far as to include the political group among the groups protected, at least genocide committed against a national, racial or religious group for political motives should be punished. Otherwise, since it was established that genocide always implied the participation or complicity of Governments, that crime would never be suppressed; the Government which was responsible would always be able to allege that the extermination of any group had been dictated by political considerations, such as the necessity for quelling an insurrection or maintaining public order; as for the actual perpetrators of the crime, they would always be covered by the orders of their superiors.

1410

A/C.6/SR.75

The representative of Haiti considered the inclusion of the political group, or at least the insertion of political motives in article II, to be an essential condition for safeguarding the peace and dignity of the human person. He therefore appealed to all the delegations to try to ensure that the national interests of Governments should give place to an understanding of the fundamental interests of the peoples and of the individuals composing them so that, in a spirit of conciliation and solidarity, the great principles enunciated in the Charter might prevail. Mr. Petren (Sweden) agreed with the Polish and USSR representatives in recognizing that the political group was different in nature from other groups mentioned, but he did not share the opinion that the religious group existed only in terms of the national or racial group. The profession of a faith did not result only from ancestral habit; it was a question to which each person gave a personal answer. That fact established a bond between the religious group and the groups based on community of opinion, such as political groups. The historical examples which had been given showed that the political group really stood in need of protection, for political hatred was now tending to replace religious hatred. By referring the question to the Third Committee, the Committee would risk leaving the political group for a long time without protection, for it was not known when a convention could be concluded in the field of human rights. Article II of the draft applied only to the most horrible form of the crime against a group, that of its physical destruction. It seemed that all States could guarantee that limited measure of protection to political groups. The representative of Sweden would vote for the inclusion of the political group, but reserved his position with regard to cultural genocide. He was opposed to the inclusion of the economic group in article II. Mr. Spiropoulos (Greece) remarked that the aim of the convention was to protect groups from destruction, and not to guarantee their equality, as the Polish representative had indicated. Mr. Guillen (Salvador) reviewed the main arguments for and against the inclusion of the political group, none of which appeared to him convincing.

A/C.6/SR.75

1411

While members could invoke the unanimity reached on the text of General Assembly resolution 96(I), they could not refuse to anyone the right to change his opinion if he thought it necessary. The historical argument of the USSR representative based on the documents of the Nürnberg trial was not sufficient either, for the Committee was not bound by those decisions and it had the right to look to the future when preparing the text of the draft convention on genocide. The etymology of the word “genocide” could not determine its definitive meaning, for words evolved and changed in meaning even in legislative texts. Thus, there were no decisive reasons against including the political group in the convention. It had been said that that would make the ratification of the convention more difficult: that should not be the case, for article II referred only to certain quite exceptional forms of attack on the existence of the political group. The representative of Salvador was therefore in favour of the extension of protection to the political group. Mr. Lachs (Poland), replying to the representative of Greece, explained that he had not meant equality of groups, but equal protection of groups, in other words, the right of all groups to equal protection before the law. In reply to a question by Mr. Raafat (Egypt), Mr. Gross (United States of America) stated that he withdrew the part of his amendment (69th meeting) relating to the protection of the economic group. The Chairman put to the vote the retention of the political group in the list of groups protected by the convention. Mr. Correa (Ecuador) asked for a vote by roll-call. The vote was taken by roll-call. The Netherlands, having been drawn by lot by the Chairman, voted first. In favour: Netherlands, New Zealand, Norway, Panama, Paraguay, Philippines, Saudi Arabia, Siam, Sweden, Syria, Turkey, United Kingdom, United States of America, Yemen, Australia, Bolivia, Burma, Canada, Chile, China, Cuba, Denmark, Ecuador, Salvador, France, Haiti, Iceland, India, Luxembourg.

1412

A/C.6/SR.75

Against: Poland, Ukrainian Soviet Socialist Republic, Union of South Africa, Union of Soviet Socialist Republics, Uruguay, Venezuela, Argentina, Belgium, Brazil, Byelorussian Soviet Socialist Republic, Czechoslovakia, Dominican Republic, Iran. Abstaining: Nicaragua, Pakistan, Peru, Yugoslavia, Afghanistan, Egypt, Ethiopia, Greece, Lebanon. By 29 votes to 13, with 9 abstentions, the Committee decided to retain the political group among the groups protected by the convention. Mr. Lachs (Poland) said his vote did not mean that political groups should be exposed to extermination, but that their protection was not in the domain of the convention on genocide. The Chairman called for discussion on the Swedish amendment [A/ C.6/230/Corr.1], which proposed the insertion, in article II, of the ethnical group after the national group. Mr. Petren (Sweden) thought that the Egyptian representative’s remarks on the matter (74th meeting) were not conclusive. The constituent factor of a minority might be the language spoken by that group. If a linguistic group were unconnected with an existing State, it would not be protected as a national group, but it could be protected as an ethnical group. The concept of a racial group was often ill-defined. Its race was not always the dominating characteristic of a group, which might rather be defined by the whole of its traditions and its cultural heritage. Addition of the ethnical group would make it possible both to clarify those ideas, and to extend protection to doubtful cases. Mr. Raafat (Egypt) saw no great difference between ethnical and racial groups. He pointed out, moreover, that in the majority of cases, the groups envisaged in the Swedish amendment would be protected as political groups. He was not, however, opposed to the Swedish delegation’s proposal. Mr. Manini y Ríos (Uruguay) proposed that the word “ethnical” should be substituted for the word “racial”, as the two words had the same meaning.

A/C.6/SR.75

1413

Mr. Kaeckenbeeck (Belgium) also thought the two words had exactly the same meaning; consequently, nothing would be added to the text by inserting the ethnical group. The idea of a national group was sufficiently clear. The wording which had been used was derived from the minorities treaties. Mr. Demesmin (Haiti) was in favour of the inclusion of the ethnical group, for intermingling between races in certain regions had made the problem of race so complicated that it might be impossible, in certain cases, to consider a given group as a racial group, although it could not be denied classification as an ethnical group. Mr. Petren (Sweden) made it clear that he would like to retain the racial as well as the ethnical group. In reply to a question from the Indian representative, he said that if, contrary to his delegation’s opinion, the enumeration of motives was to be retained, the word “ethnical” should also figure among the motives for genocide. The Chairman announced that the vote about to take place would relate only to the insertion, proposed by Sweden, of the word “ethnical” in the list of groups, without prejudice to the place that word was to occupy in the list. The Swedish proposal was adopted by 18 votes to 17 with 11 abstentions. The Chairman then submitted for the Committee’s consideration the part of the USSR amendment [A/C.6/223] which would add the religious group in brackets after the national group. Mr. Morozov (Union of Soviet Socialist Republics) recalled that in all the known cases of genocide committed for a religious motive, that motive had always been connected with other motives of a national or racial character. Thus the essential object of the extermination of certain religious groups by the Nazis had been the destruction of national groups. The brackets within which the words “or religious” were to appear would mean that the convention covered the extermination, in the form of religious persecution, of a national group.

1414

A/C.6/SR.75

The representative of the Soviet Union was of the opinion that the descriptions of the groups should be placed in the following logical order: “racial, national (or religious), ethnical . . .” Mr. Raafat (Egypt) did not agree with the point of view of the USSR representative, who wished to reduce the religious group to a mere category of the national group. The historical example of the massacre of St. Bartholomew was a typical case of religious genocide in which considerations of race or nationality had played no part. Recent events in India, Pakistan and Palestine also provided examples of destruction of religious and not racial or national groups. Mr. Bartos (Yugoslavia) approved in principle the scientific definition of religious genocide given by the representative of the Soviet Union. He felt, however, that it was his duty to call attention to exceptions to that rule which had occurred in his country during the recent war. In view of the fact that there were both Serbs and Croats who belonged to one of three religions, there had been cases, among both the Serbian and Croatian peoples, of genocide for purely religious motives. The Chetniks who were in the service of the forces of occupation had encouraged acts of genocide and had perpetrated them against Serbs. Still more flagrant cases had been committed against Croats at the instigation of certain Catholic bishops. As a result, there had been cases of genocide for religious motives within the same nation. For those reasons, his country had had to include provisions in its legislation for the prevention and suppression of religious genocide as such. Mr. Bartos considered that religious groups should be protected as such; he was unable, therefore, to vote in favour of the USSR amendment. Mr. Spiropoulos (Greece) supported the views expressed by the representatives of Egypt and Yugoslavia. He recalled that the minorities treaties had been originally drawn up to protect religious groups. Protection of those groups as such was thus in accordance with historical reality. Mr. Morozov (Union of Soviet Socialist Republics) thought that the historical examples cited by the representative of Egypt supported the argument of the Soviet Union. No analysis of what had happened in Palestine or in India was needed to reach the conclusion that religious strife was not the basis of those conflicts; the pretext of religious strife was used only to conceal the real aims pursued – material aims. The struggle

A/C.6/SR.75

1415

was between interests which were entirely different from the divergent interests of the religions concerned. Religious groups might be victims of genocide, but not qua religious groups. The destruction of national or racial groups was the real aim even when persecution assumed the form of religion. The massacre of St. Bartholomew, for example, had other causes than a conflict between two religions. The USSR delegation believed, therefore, that the formula it had proposed was completely justified. The Chairman put the amendment of the Soviet Union to the vote. The amendment was rejected by 40 votes to 5, with one abstention. The Chairman called upon the Committee to give consideration to the next phrase, which was a statement of the motives for which genocide was committed. That phrase read as follows: “on grounds of the national or racial origin, religious belief, or political opinion of its members”. Three amendments had been submitted to that part of article II. The first, by the United Kingdom [A/C.6/222], suggested that the phrase should be deleted. The second, by Venezuela [A/C.6/231], would substitute for the phrase the words “as such”. The third, by the USSR [A/C.6/223], proposed a text which differed completely from the whole of the first part of article II. The Chairman considered that the essential question was whether the Committee wished to include in article II a statement of the motives for which genocide was committed. Mr. Fitzmaurice (United Kingdom) thought that the phrase was completely useless, for the concept of intent had already been expressed at the beginning of the article. Once the intent to destroy a group existed, that was genocide, whatever reasons the perpetrators of the crime might allege. The phrase was not merely useless; it was dangerous, for its limitative nature would enable those who committed a crime of genocide to claim that they had not committed that crime “on grounds of ” one of the motives listed in the article. The United Kingdom delegation believed that the phrase should be deleted in order to strengthen article II.

1416

A/C.6/SR.75

Mr. Dignam (Australia) agreed with the United Kingdom representative. He thought the drafting of article II defective, and believed that there was everything to gain by deleting the phrase under discussion. Mr. Chaumont (France) drew attention to the amendment submitted by France [A/C.6/224 ]. As the result of an error in translation, the word “particularly” did not appear in the English text. That word, however, constituted the French amendment to the phrase. He noted that the representative of the United Kingdom considered the phrase in question was dangerous because it gave a limitative list; the French amendment would meet the wishes of the United Kingdom delegation since the word “particularly” disposed of the limitative character of the list of motives for which genocide was committed. Mr. Alemán (Panama) pointed out that, according to the penal codes of most countries, the establishment of a crime presupposed two factors, intent and act. It was unnecessary to add the factor of motive in the convention, since no provision was made for it in any penal code. The delegation of Panama would therefore support the United Kingdom amendment. Mr. Demesmin (Haiti) thought that some representatives were confusing “intent” and “motive”. Intent was a positive factor of crime; motive was not. Knowledge of intent did not automatically entail knowledge of motive. The motives had been set out in the first part of article II, which had already been adopted. Mr. Demesmin supported the French amendment, since it removed the limitative character of the enumeration of motives. Mr. Abdoh (Iran) believed that a statement of motives of the crime was necessary. The convention contemplated the case of the destruction of national, racial, or religious groups because of the national or racial origin of their members or because of their religious beliefs. It did not contemplate cases of destruction where the motive was not one of those mentioned in the text submitted by the Ad Hoc Committee. Mr. Abdoh illustrated his argument by the example of the destruction of a national, racial or religious group for motives of profit; in that case the crime would not come within the purview of an international court. If the list of motives were deleted from article II, cases which were not in fact crimes of genocide might come to be considered as such. The

A/C.6/SR.75

1417

delegation of Iran therefore supported retention of the phrase under discussion. Mr. Raafat (Egypt) supported the view expressed by the representative of Iran. He believed that a statement of motives was of primary importance. It would not be genocide if a group were destroyed for motives other than those of national or racial origin, religious belief, or political opinion. That question had been discussed at length by the Ad Hoc Committee on Genocide.1 1

See Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6, page 5.

The Egyptian delegation was in favour of retaining the text submitted by the Ad Hoc Committee. Mr. Morozov (Union of Soviet Socialist Republics) said that his delegation regarded the United Kingdom amendment as an attempt to deprive the definition of genocide of an essential element. That attempt was being made under the pretext of improving the drafting of article II. The delegation of the Soviet Union believed, however, that certain motives which had been alleged officially should not be given credence and that the United Kingdom proposal was not really intended to improve the convention on genocide. From the legal point of view, it was impossible to maintain that the list of motives for genocide should not be included in the definition. He did not wish to give a lecture on elementary law, but he was compelled to point out that the United Kingdom proposal lacked all foundation in law or history. Mr. Morozov stated that a crime against a human group became a crime of genocide when that group was destroyed for national, racial, or religious motives. He pointed out that under the pretext of giving better protection to those groups, a false definition of one of the factors of that crime had already been given. He hoped the Sixth Committee would not make a second mistake by deleting another part of the definition. Mr. Pérez Perozo (Venezuela) said that he had already spoken in favour of deleting the statement of motives; he would not repeat his arguments. The listing of motives should be deleted, whereas the statement that the essential factor in intent was the destruction of a group as such should be

1418

A/C.6/SR.75

retained. The Venezuelan delegation had, therefore, submitted an amendment suggesting that the words “as such” should be substituted for the phrase under discussion. Mr. Reid (New Zealand) wondered whether deletion of the list of motives would really strengthen the convention. He took the example of the case of a defensive war, especially a war undertaken on instructions from the Security Council. Modern war was total, and there might be bombing which might destroy whole groups. If the motives for genocide were not listed in the convention, such bombing might be called a crime of genocide; but that would obviously be untrue. It was, therefore, essential to include the enumeration of the motives for genocide in article II. Mr. Kural (Turkey) supported the representatives of Iran, Egypt and the USSR. His delegation would vote against the United Kingdom amendment. Mr. Bartos (Yugoslavia) pointed out that the list of acts constituting genocide was a statement of material acts which were already crimes in common law. If there were to be a convention on genocide, a very clear distinction must be drawn between common law crimes and crimes of genocide. Intent and motive should, therefore, be stressed. If motive were not defined, any crime committed by one group against another group might be regarded as genocide; but that was not what the members of the Sixth Committee intended. Genocide was a specific crime; the features which distinguished it from other crimes must be defined. Genocide could best be defined by listing the motives for that crime. The Yugoslav delegation would vote against the United Kingdom amendment. Mr. Fitzmaurice (United Kingdom) reviewed all the arguments which had been advanced against his amendment. 1. The representative of France had noted a mistake in the English translation of his amendment and had asserted that to include the word “particularly” would produce a better text than the one submitted by the Ad Hoc Committee. Nevertheless, the United Kingdom delegation believed that it would be better to delete the list of motives. 2. The representatives of Iran and Egypt had brought forward arguments which seemed in the end to support the views of the United Kingdom

A/C.6/SR.75

1419

delegation. That delegation believed that the destruction of a political group constituted a crime of genocide, whatever the motive might be. Mention of motive was dangerous, because it allowed the guilty to exonerate themselves from the charge of genocide on the pretext that they had not been impelled by motives contained in the proposed list in the text of article II as it stood. 3. Mr. Fitzmaurice was sorry to have to note that the USSR representatives were unable to discuss a draft or advance arguments without attributing base motives to their colleagues. He must repeat once again that the United Kingdom delegation did not concede to the Soviet Union any moral authority over other delegations. The USSR representatives had no monopoly of wisdom; and the other representatives were not children. Motive was not an essential factor in the penal law of all countries. Motive did not enter into the establishment of the nature of the crime; its only importance was in estimating the punishment. 4. The representative of New Zealand had brought forward the strongest argument against the United Kingdom amendment. Taking issue with the example which he had given, Mr. Fitzmaurice pointed out that the fact that a war was defensive was not sufficient reason for permitting the destruction of an entire group. Even if in that case there were no intent to destroy the whole group, it would be genocide. Mr. Paredes (Philippines) regarded intent and motive as two different things; but they might coincide. In the particular case of article II, the authors of the draft had purposely shown that intent and motive did coincide. The Ad Hoc Committee had wished to restrict the scope of the word “genocide” to the meaning which it was desired to give to it, namely, the destruction of a group for certain specific reasons. It was possible to conceive of a mass massacre where the intent was to destroy a group, but where the motive was completely different from those which characterized genocide, such as economic rivalry between groups or personal rivalry between tribes. The representative of the Philippines considered that if the Committee wished the concept of genocide to retain its restrictive meaning, the statement of motives should not be deleted. The meeting rose at 6.20 p.m.

1420

A/C.6/SR.76

SEVENTYSIXTH MEETING Held at the Palais de Chaillot, Paris, on Saturday, 16 October 1948, at 4 p.m. Chairman: Mr. R.J. Alfaro (Panama). 21. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) Mr. Morozov (Union of Soviet Socialist Republics) recalled that at the 75th meeting, he had given his delegation’s reasons for considering it necessary that article II should contain a statement of the motives for genocide. He wished to add some further remarks. To ask for deletion of the statement of motives in the general definition was tantamount to a refusal to declare that genocide was the destruction of certain specific groups on the definite grounds of race, nationality or religion. To define genocide without including the motives for the crime would be incorrect and legally unsound. Mr. Morozov considered that the argument put forward by the United Kingdom representative in response to the adversaries of his thesis (75th meeting) was neither logically nor juridically satisfactory. He had given elementary examples of crimes having no analogy with genocide; in fact, the only valid example was that of murder, since that was the only classic crime having characteristics in common with genocide. The various legal systems always drew a distinction between murders according to the motive: jealousy, self-defence, etc. To describe such a crime, it was not sufficient to say that a murder had been committed. In that matter there was an elementary distinction which could not be refuted as easily as in the case of the crimes mentioned by the United Kingdom representative. The USSR representative pointed out that the aim of the convention was not to reiterate definitions already to be found in the laws of various countries, but to establish and define the new factors which would later be envisaged in international law. The convention would be applied to genocide, and not simply to any type of crime under common law. It must not be forgotten that genocide was the result of scientifically false theories, based on the idea that superior and inferior races existed, and

A/C.6/SR.76

1421

according to which superior races had the right to subjugate or wipe out inferior races. That those theories had been taught and practised by the Nazis could be forgotten by no one. In defining genocide, it should be stated that they were false. It was therefore necessary to list the groups which the convention intended to protect and to list the reasons for which they would be liable to attack. From both the historical and the scientific points of view such a definition would be accurate; it must therefore be used in defining genocide and would give the convention real value. Mr. Kaeckenbeeck (Belgium) stated first that the Belgian delegation had always agreed that the enumeration of the motives for the crime should be contained in article II of the convention. His delegation had been named in error as the author of an amendment deleting that enumeration. From the point of view of legal doctrine, it had to be acknowledged that the United Kingdom representative had been quite right to say that it was unusual to define crimes by the motives which led their perpetrators to commit them; the motives merely made it possible to determine what sentence should be inflicted on the guilty person. Theoretically, therefore, the Belgian delegation was prepared to support the United Kingdom representative’s view. It must not be forgotten, however, that legislative work was being attempted and that factors other than those of mere legal doctrine had to be taken into account. In view of the amendments already adopted, it was not sufficient to mention intent, as it was now defined, in order to distinguish between genocide and other political crimes and crimes under common law. The main feature of genocide was the intent to destroy a certain group. That feature had already been weakened by the decision taken at the 73rd meeting, namely, that the intent need not necessarily be to destroy a whole group, but that it was sufficient that it should be directed against part of a group, although it had not been explained what a “part” of a group meant. The concept of intent had thus lost some of its clarity on account of an unfortunate confusion between acts and consequences on the one hand and intention on the other. The concept of protected groups had also been broadened by including, first, political groups, whose membership depended on variable subjective factors difficult to establish, and then ethnical groups, which were difficult to distinguish from racial groups.

1422

A/C.6/SR.76

So much uncertainty had thus been created, that if a statement of motives were omitted, there was a danger that the definition would no longer supply the criteria which were indispensable for determining the new crime. Those considerations weighed against the United Kingdom amendment. The Belgian representative thought that the objections which could be raised with regard to the draft proposed by the Ad Hoc Committee resulted especially from the subjective nature of the motives for the crime; it was necessary to give them an objective character by specifying therein the object of the intent. Mr. Kaeckenbeeck therefore considered that the Venezuelan amendment [A/C.6/231] might serve as a compromise; for the words “as such” described the intention and brought the emphasis back to the concept of groups. The Belgian delegation therefore supported the Venezuelan amendment and asked the members of the Committee to avoid a long discussion on two proposals which were on two different and unconnected levels by accepting that amendment as a compromise solution. Mr. Alemán (Panama) entirely approved of the legal arguments put forward by the United Kingdom delegation. He pointed out that the “elementary law” mentioned by the USSR representative (75th meeting) taught that there was a distinction between intention and motives, and did not use motives in the definition of crimes. Mr. Alemán thought that the United Kingdom representative had brilliantly refuted all arguments raised against his thesis; it therefore served no purpose to defend it again. A careful examination of article II showed clearly that the position of the United Kingdom delegation was justified both from the legal point of view and from that of plain logic. If to the list of criminal deeds held to constitute genocide were added the idea of intention, a clear and precise definition would be obtained; whereas a statement of motives would result in an inadequate definition, as it would allow the guilty parties to claim that they had not acted under the impulse of one of the motives held to be necessary to prove genocide. The delegation of Panama therefore supported the United Kingdom amendment. Mr. Manini y Ríos (Uruguay) shared entirely the views of the Belgian representative. His delegation would vote in favour of the Venezuelan amendment.

A/C.6/SR.76

1423

Mr. Gross (United States of America) said that it was difficult for him to take a definite position, as he had been equally impressed by the arguments of the representative of the United Kingdom and by those of the representative of Belgium. At first, he had thought that a statement of motives would result in ambiguity, in repetition or in a limitation. As a result of the discussions which had just taken place, he thought that a statement of motives would create ambiguity. The representative of the USSR had declared that the deletion of that statement would limit the scope of the convention, whereas other representatives had thought that such a deletion would extend its scope. As those assertions could not both be right, Mr. Gross feared that the inclusion of a statement of motives might give rise to ambiguity. The United States delegation did not share the view of the Belgian representative that the addition of the words “in whole or in part” altered the sense of the draft convention. Moreover, the representative of Norway, who had proposed that amendment, had denied that he intended to alter the sense. Nevertheless, the United States delegation approved the Belgian representative’s conclusions. The fundamental aim of article II was to define the crime in terms of intention, as was normally done by national legislations; to include motives in that definition would lead to ambiguity. The United States delegation would therefore vote in favor of the Venezuelan amendment. Mr. Zourek (Czechoslovakia) supported the arguments in favor of retaining a statement of motives. He emphasized the fact that the idea of genocide, as recognized by international law, already implied the concept of motives. It should not be forgotten that the object of the convention was to define genocide clearly and precisely. Deletion of a statement of motives would result in a mutilated definition, not covering the particular cases which it was desired to bring within the scope of the convention. The scope of the convention would, moreover, become too broad, so that perfectly legal situations might be covered by it. Mr. Zourek agreed that it was difficult to include both intention and motive, but recalled that that situation had arisen as a result of the opposition to the USSR amendment, which would have substituted for the subjective factor of intention an objective factor, which would have

1424

A/C.6/SR.76

simplified the definition. It would be a grave mistake to omit the statement of motives, as the nature of the crime which it was intended to prevent and to punish would thus be obscured. The Czechoslovak representative suggested that the statement of motives should be retained in article II, and that an effort should be made, at the second reading, to revise that part of the article dealing with intention, with a view to making it more objective. Mr. Pérez Perozo (Venezuela) recalled that he had already stated (75th meeting) that an enumeration of motives was useless and even dangerous, as such a restrictive enumeration would be a powerful weapon in the hands of the guilty parties and would help them to avoid being charged with genocide. Their defenders would maintain that the crimes had been committed for other reasons than those listed in article II. Such enumeration was contrary to the spirit of General Assembly resolution 96(I). It was sufficient to indicate that intent was a constituent factor of the crime. He felt that his amendment should meet the views of those who wished to retain a statement of motives; indeed, the motives were implicitly included in the words “as such”. Mr. Noriega (Mexico) thought that the enumeration of motives for the crime would clarify the concept of protected groups which article II sought to define and not merely to enumerate. The Mexican delegation would vote in favor of the text proposed by the Ad Hoc Committee. Mr. Abdoh (Iran) moved the closure of the debate. Mr. Fitzmaurice (United Kingdom) said that as a result of the observations made by the representatives of Belgium, the United States and Venezuela, his delegation was prepared to withdraw its amendment in favour of the Venezuelan amendment. The latter had the merit of avoiding the enumeration of motives for the crime, which the United Kingdom delegation thought too dangerous, and of meeting the objections of those who were opposed to the deletion of that enumeration. In accordance with rule 111 of the rules of procedure, however, he reserved the right to re-introduce his amendment if the Committee should reject the Venezuelan amendment.

A/C.6/SR.76

1425

Mr. Pérez Perozo (Venezuela) and Mr. Gross (United States of America) were opposed to closing the discussion on the ground that debate on the Venezuelan amendment had not yet been completed. The Chairman put the Iranian representative’s motion for closure to the vote. The motion was rejected by a vote of 23 to 20, with 3 abstentions. Mr. Demesmin (Haiti) said that the Venezuelan amendment was open to the same objections as that of the United Kingdom; neither the one nor the other provided for an enumeration of motives for the crime of genocide. There was a great difference between intent, which was a constituent factor of the crime, and the motives for which that crime could be committed. Criminal intent could exist without motives, but motives could not exist without intent. Moreover, intent was a constant factor of the crime while the motives for which the crime was committed could be very varied and did not affect the crime itself. In other words, there was no crime unless there was criminal intent, and the motives for the crime affected only the punishment to be inflicted, making a sentence either more severe or more lenient. As regards genocide, the motives for the crime were of considerable importance, for they determined the tribunal which would have to take cognizance of the crime. If the motives were such that the criminal act could be described as genocide, the appropriate tribunal would be an international tribunal, if, on the other hand, the motives were such that the act could be described as a crime under common law, it would have to be dealt with by national tribunals. In conclusion, the delegation of Haiti wished the definition of genocide to include an enumeration of the motives for the crime, not qua factors which constituted the crime, but qua factors which would make it possible to determine what tribunal had authority to take cognizance of the crime. Mr. Messina (Dominican Republic) agreed that under common law intent sufficed to determine that crime had been committed. He pointed out, however, that the principle could not be applied to genocide, which was

1426

A/C.6/SR.76

a new crime under international law, which had its own characteristics and which should not be confused with crimes under common law. Article VII of the draft convention provided for the creation of an international tribunal to deal with cases of genocide. It was essential, therefore, to define genocide with the greatest possible precision so that only those who were guilty of real acts of genocide should be brought before that tribunal. That was why it was necessary to retain the enumeration of motives in article II. Mr. Messina wished to make it clear that the enumeration of motives in the definition of genocide could not be interpreted as meaning that no crime had been committed if the act were committed for motives other than those mentioned. In such a case a crime would have been committed, but it would be a crime under common law and would come within the competence of national tribunals. The delegation of the Dominican Republic would vote in favor of retaining the enumeration of motives in the definition of genocide, because it considered that if that enumeration were deleted, the convention would be totally ineffective. Mr. Raafat (Egypt) observed that the Venezuelan amendment, proposing that the enumeration of motives should be replaced by the words “as such”, added yet another description of the groups covered by the convention, while it did not define the motives for the crime. In his opinion, if it were agreed to retain the enumeration of the motives for the crime in the definition, it would be better to adopt the much clearer text proposed by the Ad Hoc Committee. With regard to the amendment proposed by the USSR delegation [A/C.6/223], the Egyptian representative did not see much difference between that text and the text proposed by the Ad Hoc Committee, unless it were that in the amendment the words “or religious” were to be in brackets after the word “national”. The Committee had decided, however, at its 75th meeting, that a religious group could not be considered as being part of a national group. In those circumstances, Mr. Raafat wondered whether the Soviet Union delegation would not be prepared to withdraw its amendment and thus act in conformity with the Committee’s decision. Mr. Morozov (Union of Soviet Socialist Republics) was glad to note that those in favour of deleting the enumeration of motives from the

A/C.6/SR.76

1427

definition of genocide were prepared partially to forego their request. He felt that that was yet another proof of the cogency of the case upheld by certain delegations, including that of the USSR. It seemed that the general tendency of the Committee was to give an indication of the motives of the crime in the definition of genocide. It remained, therefore, to decide how that should be done. In the view of the delegation of the Soviet Union, the words “as such” in the Venezuelan amendment would mean that, in cases of genocide, the members of a group would be exterminated solely because they belonged to that group. That of course, was one of the essential characteristics of genocide. There could, however, be other interpretations of the words “as such”. Some delegations had already pointed out that the formula was too vague and could lead to ambiguity. To avoid any future dispute regarding the interpretation of the definition of genocide, that definition, as the representative of the Dominican Republic had pointed out, should be as precise as possible. The text drafted by the Ad Hoc Committee was preferable to the Venezuelan amendment, but the USSR delegation felt that it was not sufficiently precise. Mr. Morozov would not repeat the arguments he had put forward in support of his amendment, but he emphasized the advantages which would be gained by the adoption of his delegation’s draft. There were never purely religious grounds for genocide; they were always bound up with motives of a national character. That was why the words “or religious” should be put in brackets after the word “national”. The delegation of the Soviet Union therefore maintained its amendment. Mr. Fitzmaurice (United Kingdom) stated that, in withdrawing his amendment, he had not intended in any way to change his position, since he had reserved the right to re-introduce it in accordance with rule 111 of the rules of procedure. He agreed with the representatives of Haiti and the Dominican Republic on the need for defining genocide precisely and fully, since the aim of the convention was to establish the concept of a new crime. He felt, however, that the crime was quite adequately defined by stating the intention with which it was committed; the motives were of little importance. Mr. Chaumont (France) supported the reasons given by the Belgian representative for including the motives in the definition. He realized,

1428

A/C.6/SR.76

nevertheless, that for correct drafting, the same series of words should not be repeated in two consecutive phrases. He would have supported the Venezuelan amendment if the representatives of the Dominican Republic and the USSR had not revealed a certain ambiguity therein. Indeed, it might well be asked whether the expression “as such” applied to the description of the group rather than to the group itself. The French representative therefore proposed the following amendment to the Venezuelan proposal: the words “by reason of its nature” should be substituted for the words “as such”. Mr. Amado (Brazil) considered that the dolus specialis, which was a factor constituting genocide, was included in the intention of the perpetrator of the crime. The mere fact that an act was committed with the intent to destroy one of the protected groups was sufficient to constitute genocide. The determination of the motives was useful only in connexion with the application of the penalty, not in connexion with the definition of the crime; and the restrictive enumeration contained in article II of the draft convention might even be dangerous. The representative of Brazil would therefore vote in favor of the Venezuelan amendment and, if that were rejected, for the United Kingdom amendment. Mr. Pérez Perozo (Venezuela) pointed out that, in the Spanish translation, the wording of the French amendment had the same meaning as the wording of the Venezuelan amendment. Mr. Spiropoulos (Greece), Rapporteur, noted that there were two opposing trends of thought: according to the one, the motives should be stated in the definition; according to the other, they should not. On the other hand, those who supported the inclusion of motives did not agree as to the form in which they should be included, whether in an enumeration or in some other way. The adoption of the Venezuelan or the French amendment would mean, therefore, that it was decided to include the motives in the definition but not to enumerate them. Mr. Morozov (Union of Soviet Socialist Republics) thought that, if the two amendments had the same meaning, the French amendment was no

A/C.6/SR.76

1429

improvement on the Venezuelan proposal. The Ad Hoc Committee’s draft was certainly more precise, and the USSR amendment even more so. It was absolutely necessary, unless the entire meaning of the definition of genocide were to be lost, to enumerate the motives for which it was committed. The representative of the Soviet Union would therefore vote against the Venezuelan and French amendments. In order that the Committee might have an opportunity to take a general stand for or against the retention of the enumeration of motives, Mr. Aranciba Lazo (Chile) re-introduced the United Kingdom amendment on behalf of the Chilean delegation, in accordance with rule 111 of the rules of procedure. The Chairman, applying rule 119, put the amendment to the vote. He felt that it was furthest removed in substance from the draft of the Ad Hoc Committee, inasmuch as it proposed that the motives should be left out entirely, whereas the Venezuelan amendment retained those motives by implication. The amendment was rejected by 28 votes to 9, with 6 abstentions. Mr. Manini y Ríos (Uruguay) stated that he had abstained only because of the order in which the amendments had been put to the vote. He was in fact opposed to the enumeration of the motives, but he supported the formula proposed by Venezuela. Mr. Kaeckenbeeck (Belgium) likewise explained the reason for his abstention. He pointed out that the Venezuelan amendment had been put forward as a compromise and that, if a vote were first taken on the extreme proposals, a compromise became impossible. The Chairman proposed that the Committee should vote first on the French amendment, because it was an amendment to the Venezuelan proposal. Mr. Fitzmaurice (United Kingdom) and Mr. Kaeckenbeeck (Belgium) objected, however, that the French amendment was, in fact, a new proposal since it did not include any of the terms of the Venezuelan amendment. Mr. Chaumont (France) pointed out that the French and Venezuelan amendments had in common the deletion of the list of motives and the

1430

A/C.6/SR.77

substitution therefor of certain words. They only differed as to the choice of those words. Mr. Fitzmaurice (United Kingdom) drew the Committee’s attention to the fact that whereas in Spanish there was no difference, in substance, between the French and Venezuelan amendments, in English the difference was considerable. In the English version, the definition of genocide, according to the French amendment, would lay great stress on motive, whereas, according to the Venezuelan amendment, the definition would lay the main emphasis on intent. Mr. Guillen (El Salvador) recalled that, by rejecting the Chilean amendment, the Committee had decided to include motives in the definition. The point presently at issue was whether those motives should be enumerated as in the draft convention, or whether they should merely be implied. He suggested that that question should first be decided by a vote and that the French and Venezuelan amendments should be voted upon only if the principle of enumeration were rejected. The Chairman realized that that suggestion was interesting, although contrary to rule 119 of the rules of procedure. Mr. Gross (United States of America) requested that the meeting should be adjourned. There were no objections. The meeting rose at 6.20 p.m.

SEVENTYSEVENTH MEETING Held at the Palais de Chaillot, Paris, on Monday, 18 October 1948, at 10.45 a.m. Chairman: Mr. R.J. Alfaro (Panama). 22. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) The Chairman asked the Committee to decide whether the amendment proposed by the French delegation (76th meeting), namely that the words

A/C.6/SR.77

1431

“as such” in the Venezuelan amendment [A/C.6/231] should be replaced by the words “by reason of its nature”, constituted an amendment to the Venezuelan amendment or a new proposal. Going by the Spanish interpretation, he thought that the French amendment was merely a change of form in the Venezuelan amendment and served only to define more clearly the substance of the latter. Mr. Pérez Perozo (Venezuela) stated that, in the opinion of his delegation, the French proposal was only a re-draft of his amendment, since it in no way altered the substance. The two amendments were simply two versions of the same text; it would be impossible to incorporate both of them in the draft prepared by the Ad Hoc Committee. If, therefore, one of the two proposals were adopted, the other need not be put to the vote. He thought the French amendment should be put to the vote first. Mr. Kaeckenbeeck (Belgium) feared that the Spanish interpretation of the French amendment had given rise to a misunderstanding by creating the impression that the purpose of the French amendment was the same as that of the Venezuelan amendment. However, a comparison between the French or English texts of the two amendments showed that the difference between them was one of substance and principle and not simply a question of wording. The French amendment reintroduced motives into the definition of genocide, but without enumerating them expressly, while the Venezuelan amendment omitted motives but, in the interests of clarity, narrowed the concept of the group, which the Committee had broadened by including intent to destroy part of a group. Mr. Kaeckenbeeck recalled that he had recommended the adoption of the Venezuelan amendment as a compromise solution between the two opposing views, the one favouring the omission of any enumeration of motives and the other favouring their enumeration. Supporters of those two views had accepted it. He appealed to the Committee to adopt that amendment. Mr. Demesmin (Haiti) considered, as did the representative of Belgium, that there was a difference of substance between the French and Venezuelan amendments. He recalled, however, that at the 76th meeting the Committee had already expressed itself in favour of inserting the motives of the crime in the

1432

A/C.6/SR.77

definition of genocide; that question therefore no longer arose. It remained merely to decide on the form in which the motives of the crime would appear in article II. The Venezuelan amendment could not be considered by the Committee since it did not include motives in the definition of the crime. Mr. Demesmin thought that the Committee should decide only on the French and USSR amendments, those amendments being the only ones which favoured a reference to motives in the definition of genocide. Mr. Dihigo (Cuba) also thought that there was a difference of substance between the Venezuelan and French amendments. In order to establish whether the French proposal should be considered as an amendment to the Venezuelan amendment or as a new proposal, the final provisions of rule 119 of the rules of procedure had to be applied. As the French amendment did not retain any part of the Venezuelan amendment, it could not be considered as an amendment thereto and should be put to the vote second, in accordance with rule 120. Mr. Manini y Rios (Uruguay) supported that view. He did not agree with the conclusion drawn by the representative of Haiti from the Committee’s vote on the United Kingdom amendment, reintroduced by the Chilean delegation (76th meeting). By rejecting that amendment, the Committee had not ipso facto rejected the Venezuelan amendment. Besides, the delegation of Uruguay had stated that it had abstained from voting on the Chilean amendment because it thought that the Venezuelan amendment should be put to the vote first, since it presented a compromise solution between the two views before the Committee. The Venezuelan amendment added something fundamental to the intent of the crime by specifying that the dolus specialis was a necessary factor of the concept of genocide. Mr. Manini y Rios agreed with the representatives of Belgium, Haiti and Cuba that there was a basic difference between the French and Venezuelan amendments. He concluded therefore that the two amendments should be put to the vote in the order in which they had been submitted. Mr. Raafat (Egypt), unlike the representative of Cuba, thought that the provisions of rule 119 of the rules of procedure showed that the French proposal did constitute an amendment to the Venezuelan proposal. The

A/C.6/SR.77

1433

two proposals had a point in common: both omitted the enumeration of motives which appeared in the draft prepared by the Ad Hoc Committee. But while the Venezuelan amendment substituted the words “as such” for that enumeration, the French amendment proposed that it should be replaced by the words “by reason of its nature”. In view of those facts, the French amendment was in fact an amendment and should be put to the vote first in accordance with the provisions of rule 119. Mr. Pérez Perozo (Venezuela) thought that the French amendment did not modify the substance of the amendment submitted by his delegation. The purpose of both amendments was to specify that, for genocide to be committed, a group – for instance, a racial group – must be destroyed qua group. The Venezuelan amendment omitted the enumeration appearing in article II of the Ad Hoc Committee’s draft, but re-introduced the motives for the crime without, however, doing so in a limitative form which admitted of no motives other than those which were listed. The aim of the amendment was to give wider powers of discretion to the judges who would be called upon to deal with cases of genocide. The General Assembly had manifested its intention to suppress genocide as fully as possible. The adoption of the Venezuelan amendment would enable the judges to take into account other motives than those listed in the Ad Hoc Committee’s draft. Mr. Spiropoulos (Greece), Rapporteur, recalled that at the end of the 76th meeting the Chairman had ruled that the French proposal should be considered as an amendment to the Venezuelan proposal. He moved that the Committee should immediately proceed to vote on the French amendment. Mr. Iksel (Turkey) regretted having to appeal against the Chairman’s ruling. In his opinion, since the French proposal neither added to, deleted from or revised part of the Venezuelan proposal, it was not an amendment thereto under the terms of rule 119 of the rules of procedure, but constituted an entirely distinct proposal. The Chairman asked the Committee to decide whether the French amendment should be voted on first.

1434

A/C.6/SR.77

The Committee decided against that procedure by 21 votes to 17, with 8 abstentions. Mr. Chaumont (France) declared that the spirit of his amendment was exactly the same as that of the Venezuelan amendment. His delegation, in putting forward that amendment, had merely been anxious to avoid any possibility of ambiguity. However, in view of the explanations given by the representative of Venezuela regarding the object of his amendment, the French delegation was willing to withdraw its amendment, it being understood that the Venezuelan amendment reintroduced motive into the definition of genocide. Mr. Demesmin (Haiti) also said that, in consideration of Mr. Pérez. Perozo’s explanations, his delegation would willingly vote for the Venezuelan amendment. Mr. Amado (Brazil) said that his delegation would vote for the Venezuelan amendment because it did not include the motives for the crime, but stressed the element of intention. In that connexion, he supported the remarks of the representative of Uruguay. Mr. Kaeckenbeeck (Belgium), supported by Mr. Maktos (United States of America), pointed out that the Committee had to vote on the text of a proposal and not on the interpretation of such text, whether that interpretation were given by its author or by other delegations. The Chairman stated that delegations could vote only on the texts submitted to them. Statements on the interpretation of those texts were of value only in respect to the history of the convention. Mr. Spiropoulos (Greece), Rapporteur, supported the Chairman’s statement, pointing out that interpretation of the provisions of the convention must be left to those who would have to apply them. Mr. Abdoh (Iran) explained that he would vote against the Venezuelan amendment because he did not like compromises. If the Committee wished to indicate the motives for the crime in the definition of genocide, it should enumerate them clearly and precisely; if it did not wish to indicate them, it should refrain from any reference to such motives, even by implication.

A/C.6/SR.77

1435

Mr. Guillen (Salvador) recalled that at the 76th meeting he had suggested that the Committee should first decide whether the motives for the crime were to be enumerated in the definition of genocide, or whether an implicit allusion to such motives would be sufficient. He observed that a vote on that question would have saved lengthy discussions, as the adoption of the principle of enumerating the motives would have ruled out the French and Venezuelan amendments, whereas a contrary decision would have ruled out the amendment of the USSR. Going on to examine the Venezuelan amendment, Mr. Guillen stressed that its adoption would create difficulties for Governments against which rebellious acts might be committed. According to the definition proposed by the Ad Hoc Committee, genocide was committed only if a political group, for instance, were destroyed on account of its political opinions. Under international law, however, any State had the right to defend itself against elements which committed certain acts against the Government. If the rebellious group were destroyed, it would be because of its activities, and not because of its political views. Such cases were not cases of genocide. The Venezuelan amendment would make it possible to describe a Government’s action as genocide when such action was taken not simply on grounds of a group’s political opinions, but on some other grounds. Freedom of opinion should certainly be ensured to political groups, but they should not be allowed to indulge in subversive activities with impunity. Mr. Guillen thought that the text of article II of the draft convention prepared by the Ad Hoc Committee was the most satisfactory. The Chairman put the Venezuelan amendment to the vote in accordance with the Committee’s previous decision. He pointed out that the subject of the vote was the text of the amendment; its interpretation would rest with each Government when ratifying and applying the convention. The Venezuelan amendment was adopted by 27 votes to 22, with 2 abstentions. Prince Wan Waithayakon (Siam) explained why he had voted for the Venezuelan amendment. He thought there were two possible interpretations of the words “as such”; they might mean either “in that the group is a national, racial, religious or political group”, or “because the group

1436

A/C.6/SR.77

is a national, racial, religious or political group”. He himself would adopt the first of those interpretations. Mr. Demesmin (Haiti) had voted in favour of the Venezuelan amendment because the author of that amendment had declared that his object was to provide for all motives instead of giving restrictive enumeration, as proposed by the Ad Hoc Committee. After the decision taken in regard to the United Kingdom amendment (76th meeting), it was impossible to vote for an amendment which would be interpreted as tending to delete the statement of motives. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) reminded the meeting that the Secretariat would have to prepare the new text of the draft convention for examination at the second reading. In that connexion, he wished to point out that the Venezuelan amendment [A/C.6/231] did not appear in the synopsis of amendments drawn up by the Rapporteur [A/C.6/225] and that its text did not take into account all the amendments which had been adopted. It must be clearly understood that the words “ethnical” and “political”, which did not appear in document A/C.6/231, would appear in the text of Article II, which would be drawn up by the Secretariat for examination at the second reading. Mr. Kerno further observed that it was the text of an amendment, regardless of any interpretation, which was put to the vote; the declarations of the various representatives appeared in the summary records of the meetings, and might be used by the competent organs which would have to take cognizance of “disputes between the High Contracting Parties relating to the interpretation or application of this Convention”, as stated in article X of the draft convention. Mr. Morozov (Union of Soviet Socialist Republics) requested that the amendment submitted by his delegation should be put to the vote, as he considered that the Venezuelan amendment ruled out an enumeration of motives. The Assistant Secretary-General’s explanation showed that the fate of the various interpretations would be problematic. It was therefore necessary to draw up a precise text which would not lead to difficulties of interpretation. Mr. Morozov pointed out that the small majority obtained by the Venezuelan amendment showed that many representatives did not consider

A/C.6/SR.77

1437

the proposed wording sufficiently clear. To prevent ambiguity, therefore, the motives should be enumerated; in other words, the amendment of the USSR should be adopted. In reply to Mr. Messina (Dominican Republic), the Chairman stated that the adoption of the Venezuelan amendment involved the deletion of the last part of the first paragraph of article II, namely, “on grounds of the national or racial origin, religious belief, or political opinion of its members”. However, in pursuance of the terms of rule 119 of the rules of procedure, the Committee would also have to decide on the amendment of the Soviet Union [A/C.6/223]. Mr. Messina (Dominican Republic) thought that the enumeration of the motives should appear in the text of article II; he would therefore vote for the USSR amendment, although he would have preferred the text proposed by the Ad Hoc Committee. Mr. Raafat (Egypt) observed that the enumeration of motives should correspond to the enumeration of the groups which the convention was designed to protect; it would therefore be lògical for the amendment of the Soviet Union to contain the words “ethnical” and “political”; for the same reason, the words “or religious” should not be in parentheses. The representative of Egypt would vote for the USSR amendment if its author would agree to make the two corrections he had suggested. Mr. Morozov (Union of Soviet Socialist Republics) regretted that he could not accept the proposals made by the representative of Egypt. The delegation of the Soviet Union was opposed to the enumeration of groups which had been adopted, and would not change its attitude on that point. Mr. Morozov thought that the groups protected and the motives for the crime constituted two entirely different ideas which might quite logically be drafted in two slightly different ways; thus the Committee could retain the enumeration of groups which had been adopted, and adopt the text proposed by the USSR for the enumeration of motives. The representative of the Soviet Union thought that the adoption of the Venezuelan amendment was contrary to the rules of procedure; by adopting it the Committee had, in fact, gone back on a decision, taken by a large majority (76th meeting), to the effect that article II should contain an enumeration of motives. The Venezuelan amendment might be interpreted in

1438

A/C.6/SR.77

several ways; but, in the opinion of the USSR delegation, it was perfectly clear in its omission of any indication of motives. Mr. Morozov wished to re-affirm that it was impossible to define genocide without including in that definition an enumeration of the motives for the crime. Mr. Spiropoulos (Greece), Rapporteur, supported by Mr. Fitzmaurice (United Kingdom), considered that the members were engaged in a useless discussion. After the adoption of the Venezuelan amendment, the text of the first part of article II was complete and definitive. There could therefore be no question of adopting the amendment submitted by the Soviet Union. The Chairman pointed out that rule 119 of the rules of procedure of the General Assembly required that all amendments which had been proposed should be put to the vote. The USSR amendment must therefore be voted on, even though it was clear that its adoption would mean the abrogation of a decision taken at the 75th meeting by 40 votes to 5. Each delegation would have to decide for itself whether the adoption of the Venezuelan amendment obliged it to vote against the amendment of the Soviet Union. Mr. Morozov (Union of Soviet Socialist Republics) did not think that the adoption of the USSR amendment would in any way mean that the Sixth Committee was going back on one of its decisions. In view of the ambiguity of the Venezuelan amendment, it was possible to adopt the amendment of the Soviet Union and at the same time to retain the Venezuelan amendment. The part of article II under discussion would then read: “. . . as such, committed on racial, national (or religious) grounds”. Such a text could satisfy delegations which considered that a statement of motives was implicit in the Venezuelan amendment. Mr. Morozov emphasized again that there was no contradiction between the enumeration of groups adopted by the Committee and the enumeration of motives proposed in the USSR amendment. He protested against the decision of the Chairman who had stated that that amendment would be put to the vote for purely formal reasons. The delegation of the Soviet Union was trying to present an exact definition and the amendment it suggested had not lost its meaning merely because its previous amendments had been rejected. Mr. Abdoh (Iran) speaking on a point of order, drew the Committee’s attention to rule 120 of the rules of procedure. He moved that the ques-

A/C.6/SR.77

1439

tion as to whether or not the Committee wished to vote on the USSR proposal should be put to the vote. Mr. Spiropoulos (Greece), Rapporteur, stated that he could not share the view expressed by the representative of the Soviet Union. He could not agree, either, with the representative of Iran, since rule 120 dealt with proposals, whereas the Committee was at present dealing with amendments; rule 119 should therefore be applied. In accordance with rule 119, the USSR amendment could, for purely formal reasons, be put to the vote. Mr. Camey Herrera (Guatemala) observed that after the adoption of the Venezuelan amendment, there was no reason to vote on other amendments. He proposed putting to the vote at once the proposal made by the representative of Iran; if the Committee should decide not to vote on the amendment of the Soviet Union, the summary record of the meeting should make it clear that the Committee had decided that it was not necessary to vote on the other proposals after the Venezuelan amendment had been adopted. The Chairman ruled, with regard to the proposal of the delegation of Iran, that as the Committee was seized of a number of amendments, rule 119 of the rules of procedure should be applied; the USSR amendment should therefore be put to the vote. Mr. Abdoh (Iran) withdrew his motion since he also was of opinion that a vote should be taken on that amendment. The USSR amendment was rejected by 34 votes to 11, with 6 abstentions. Mr. Manini y Ríos (Uruguay) considered that the rejection of the United Kingdom amendment, which had been reintroduced by the Chilean representative, had been wrongly interpreted to mean that the Committee had decided in favour of the inclusion of motives. Some delegations, and among them the Uruguayan delegation, had wished merely to reserve their position so as to be able to vote on the Venezuelan amendment. It was in that spirit, moreover, that the United Kingdom representative had withdrawn his amendment. Mr. Maktos (United States of America) observed that the interpretation of the Venezuelan amendment, according to the explanations given by its author, was in complete opposition to the meaning given it by the representative of the Soviet Union.

1440

A/C.6/SR.77

The judge who would have to apply the text would certainly tend to assume that the majority of the Committee had decided in favour of the interpretation given to the amendment by its author, since that interpretation had been known to the Committee before the amendment was voted upon. As the Committee had intended to vote only on the wording of the amendment, regardless of interpretation, even of the interpretation given by the Venezuelan representative, the United States representative suggested that a general statement should be included in the report to the effect that the Committee, in taking a decision on any proposal, did not necessarily adopt the interpretation given by its author. The Chairman stated that it was his intention to include such a statement in the report. Mr. Goytisolo (Peru) stated that he had voted for the USSR amendment because he supported the inclusion of motives in the definition. Mr. Morozov (Union of Soviet Socialist Republics) reserved the right to submit some written observations for insertion in the Committee’s report, after article II had been voted on in its entirety. He regretted that the majority had adopted an ambiguous definition of genocide which judges would be able to interpret only with the aid of voluminous documentation. As far as procedure was concerned, the representative of the Soviet Union noted that, before the vote was taken, the Venezuelan amendment had been considered to presume that motives would be mentioned. Once the amendment was adopted, it was claimed that it ruled out those motives. If that had been the case, rule 112 of the rules of procedure should have been applied, under the terms of which a two-thirds majority was required before a proposal which had been already rejected could be reconsidered at the same session. As the proposal to exclude the motives had been rejected by the rejection of the United Kingdom amendment, which had been reintroduced by Chile, that same proposal could not be brought up again and adopted in the form of the Venezuelan amendment save with the consent of the two-thirds majority of members present and voting. He concluded that the rules of procedure had not been observed in that respect. Mr. Demesmin (Haiti) thought that the USSR amendment had not actually been rejected, since the Venezuelan amendment embodied all

A/C.6/SR.77

1441

motives, of whatever nature they might be, including, of course, the ones listed in the USSR proposal. As the Committee had voted once and for all in favour of the inclusion of motives, no subsequent amendment could cause them to be deleted. A vote was taken not on the letter but on the spirit of a proposal. No one could define the meaning of the Venezuelan proposal more clearly than the Venezuelan representative who, in refuting the Belgian representative’s interpretation, had clearly stated that his amendment embodied all possible motives. Mr. Spiropoulos (Greece), Rapporteur, pointed out that the statements which had just been made were only subjective opinions and could not be claimed to interpret the Committee’s vote. With regard to the insertion of written observations in the report, he felt that that report should be merely the reflection, approved by the Committee, of the Committee’s work. He proposed that delegations should have their declarations inserted in the summary records. Mr. Maktos (United States of America) drew the USSR representative’s attention to the fact that the automatic inclusion in the report of every observation submitted by delegations might make the report distinctly partial, if some delegations abused that right. Hence he thought that every such inclusion should have the Committee’s agreement. Mr. Kaeckenbeeck (Belgium) shared the views of the Rapporteur and of the United States representative. Delegations had no right to have their observations included. A report was the synthesis of a Committee’s work, which was approved by the Committee and drafted by the Rapporteur, who acted as spokesman for the Committee before the General Assembly. The representative of Belgium considered it regrettable that efforts were being made to misinterpret the Committee’s votes. Mr. Morozov (Union of Soviet Socialist Republics) did not accept the views of the United States and Belgian representatives. A report should not record only the result of the Committee’s work; if that were the case, it would be reduced to the bare wording of the draft convention. The report should take into account the circumstances in which the various proposals had been submitted, discussed and voted upon; it should mention the various points of view which had been expressed, the exchange of which had allowed the truth to emerge, not merely the particle of truth which was neglected in the systematic votes of the majority, but also the

1442

A/C.6/SR.77

particle of truth which was expressed by the voice of the minority. The latter should be given its place in the Committee’s report, as was the rule for all other documents. The fear that that elementary right would be abused was without foundation. Mr. Morozov reserved the right to submit observations for insertion in the report and to come back to that question when the report was under discussion; he repeated his previous remarks concerning the irregularity of the vote on the Venezuelan proposal. The Chairman pointed out that the Committee had, as its Rapporteur, an illustrious jurist whom it could trust to give, in the report, a correct reflection of the Committee’s work and not merely a reflection of the majority opinion. All statements made by the Committee members would be noted but it was for the Rapporteur alone to decide, in accordance with his conscience and the rules of procedure, whether these statements should be included, with the reservation that each delegation had the right to appeal against that decision to the Committee itself. Mr. Guillen (Salvador) pointed out that, if the Venezuelan amendment were considered to rule out all the motives, such a modification of a decision already adopted should have been voted by a two-thirds majority; if, on the contrary, it was interpreted as incorporating [sic] all the motives, it should not have been voted upon before the USSR amendment. The Venezuelan amendment, which included all the motives, was certainly not as far removed from the draft as the amendment of the Soviet Union, which enumerated only some of them. The examples mentioned showed that questions of procedure, which might, at first sight, appear to be of secondary importance, were extremely important for a clear interpretation of votes. Mr. Bartos (Yugoslavia) thought that, although there was no minority rapporteur in the Committee, as was the custom in parliamentary bodies, the minority should nevertheless be able to express in the report the main elements of its opinion on the substance of the problem. He hoped that the Rapporteur would give to the minority the place to which it was entitled in that document. Mr. Spiropoulos (Greece), Rapporteur, asserted that he would endeavor to reflect the work of the Committee as faithfully as possible. The Committee rose at 1 p.m.

A/C.6/SR.78

1443

SEVENTYEIGHTH MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 19 October 1948, at 10.50 a.m. Chairman: Mr. R.J. Alfaro (Panama). 23. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Proposal to set up a working group Mr. Manini y Ríos (Uruguay) proposed, on a point of order, that a working group should be set up to consider the problem raised by the adoption of the Venezuelan amendment (77th meeting). The representative of Uruguay pointed out that the vote had given rise to three different interpretations. Some delegations had intended to vote for an express reference to motives in the definition of genocide; others had intended to omit motives while retaining intent; others again, among them the Uruguayan delegation, while recognizing that, under the terms of the amendment, genocide meant the destruction of a group perpetrated for any motives whatsoever, had wanted the emphasis to be transferred to the special intent to destroy a group, without enumerating the motives, as the concept of such motives was not sufficiently objective. That had been clearly brought out by the Belgian representative, during the meeting which preceded the vote (76th meeting), in a statement which had shown the weakness of the argument advanced by the USSR representative (77th meeting) that there had been some juggling with the voting procedure and that the Venezuelan amendment was no longer admissible after the rejection of the United Kingdom amendment reintroduced by Chile (76th meeting). To the difficulty of interpreting the Venezuelan amendment was added the feeling of uncertainty regarding the implications of the rejection of the United Kingdom amendment. It certainly could not be maintained, as the representative of the Soviet Union had suggested, that in rejecting that amendment the Committee had intended to retain the motives in the definition of the crime. After that amendment had been conditionally withdrawn by the United Kingdom representative, who had thus declared that he supported the compromise solution afforded by the Venezuelan amendment, the Chilean representative had reintroduced it with a view

1444

A/C.6/SR.78

to enabling the Committee to assess more accurately the opinion of its members by a vote; that vote was not on the principle of omitting motives but simply on the expediency of a compromise solution. That that was true was evidenced by the fact that the United Kingdom representative himself had not voted in favour of his own amendment which had been reintroduced by Chile. There was reason to think that the Venezuelan amendment had mustered a majority of only 27 votes to 22 because of the confusion prevailing during the discussion and during the voting on the amendment. That confusion was also responsible for the fact that while some members maintained that the amendment had been adopted with its three possible interpretations, the inclusion of which in the report would be requested, others argued that it should have been adopted by a two-thirds majority, in accordance with rule 112 of the rules of procedure, and that it had been adopted by a simple majority only because of the aforesaid juggling. Faced with such a situation, any technical committee drafting a convention had the duty to find out what the intention of its members had been when they took a decision out of which confusion had arisen. It was for that reason that Mr. Manini y Rios proposed that a working group should be set up to consider the problem while the Committee proceeded with its work. Mr. Liang (Secretary of the Committee) expressed the concern felt by the Secretary-General on finding that the Committee was not making more progress. Notwithstanding the administrative difficulties which would be raised by a possible decision to meet twice a day, or, to a lesser degree, by a decision to set up sub-committees or working groups, the Secretariat, regardless of the burden thereby imposed on its staff, would do its utmost to facilitate the work of the Committee. The Chairman ruled that a working group should be set up which should endeavour, in the light of the opinions expressed, to come to an agreement on the problem raised by the vote on the Venezuelan amendment. The working group could meet without hindering the Committee’s normal work. Furthermore, in order to expedite the work of the Committee, the Chairman envisaged the necessity of holding two meetings a day, limiting speaking time and requesting delegations to lodge the explanations for their votes, in writing, with the Secretariat.

A/C.6/SR.78

1445

Mr. Pérez Perozo (Venezuela) asked whether the conclusions of the proposed working group might entail reconsideration of his delegation’s amendment; if so, his delegation would reserve the right to withdraw the amendment so as to allow the Committee to take a clearer stand on the question. The Chairman replied that the working group might indeed conclude that the Venezuelan amendment would have to be reconsidered. In that case, rule 112 of the rules of procedure became applicable and the Committee would have to take a decision by a two-thirds majority. Mr. Bartos (Yugoslavia) pointed out that, if a sub-committee were to be set up, according to rule 93 of the rules of procedure the Committee alone and not the Chairman was empowered to appoint it and define its terms of reference. The Chairman remarked that his decision involved the appointment of a working group and not of a sub-committee. Mr. Morozov (Union of Soviet Socialist Republics) thought that it would be unprecedented to set up a working group to study a decision already taken in circumstances about which the Committee was quite clear. A sub-committee or a working group could concern itself only with the preparation of new decisions, not with investigating what the intentions of each delegation had been at the time of the vote, which would only increase the current confusion. Referring to the vote taken on the United Kingdom amendment as reintroduced by Chile, Mr. Morozov challenged the information supplied by the representative of Uruguay and asserted that the United Kingdom representative had indeed voted for the amendment, which rendered the Uruguayan delegation’s deductions meaningless. In the opinion of the USSR representative, there was only one way of escaping legally from the current deadlock; that was by having recourse to rule 112 of the rules of procedure, according to which any delegation could propose the reconsideration of a decision already adopted, provided that two-thirds of the members present and voting supported such revision. Mr. Dignam (Australia) did not share the Chairman’s opinion on the expediency of setting up a working group.

1446

A/C.6/SR.78

He recalled that his delegation had already stated, both in the General Assembly and in the Committee, that, in its view, the adoption of the draft convention on genocide should constitute one of the main achievements of the current session of the Assembly. He regretted that the Committee was doing its work so slowly and was devoting so much time to listening to useless personal interpretations. In order to make up for lost time, the Committee should meet more often and a time-limit should be imposed upon speakers. He understood the Chairman’s hesitation to limit the right to express opinions, but if certain delegations abused that right, it was perfectly legitimate that appropriate measures should be taken in order to ensure liberty without encouraging licence. It was for that reason that the Australian representative proposed that the Committee should report, at the next meeting of the General Assembly, on the state of the Committee’s work to date. If that were not done the Australian delegation would feel compelled to bring the matter before the General Assembly. Mr. Spiropoulos (Greece), Rapporteur, suggested that the Committee should itself interpret its decision on the Venezuelan amendment by voting separately on the three possible interpretations of that amendment. The Chairman noted that suggestion, which could be considered after the meeting of the proposed working group. Mr. Abdoh (Iran) appealed against the Chairman’s decision. The Committee decided by 30 votes to 15, with 3 abstentions, not to set up the proposed working group. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) drew the Committee’s attention to the fact that the President of the General Assembly and the Secretary-General were deeply concerned about the slowness of the Sixth Committee’s work. If States Members wished the convention on genocide to be adopted during the current session, the Committee would have to proceed with its work more rapidly. To that end, delegations should exercise discipline and reduce the length of their speeches so as not to prolong the debate unduly. He assured the Australian representative that the Secretariat would study from a technical standpoint the question as to wether [sic] the Committee could hold two meetings a day.

A/C.6/SR.78

1447

The Chairman said that he himself would do everything possible to accelerate the work of the Committee. Mr. Maktos (United States of America) thought, as did the Australian representative, that two meetings should be held daily. He added, however, that from his experience as Chairman of the Ad Hoc Committee on Genocide, he could state positively that not all the provisions of the convention would give rise to such long discussion as had article II. Only some questions were controversial; the definition of genocide was probably the most important of them. Mr. Maktos wished to express his satisfaction with the way in which the Chairman was conducting the Committee’s work. Mr. Petren (Sweden) pointed out that some delegations which were limited in numbers would find it difficult to provide a representative for several meetings daily of the same Committee. They had to have time to study the various documents. He preferred that the length of the meetings should be extended. Mr. Abdoh (Iran) pointed out that, under rule 104 of the rules of procedure, the Chairman might, with the consent of the Committee, declare closed the list of speakers on any given question. By exercising that right the Chairman would be able to limit discussion. Mr. Kaeckenbeeck (Belgium) agreed with Mr. Maktos that the question of the definition of genocide was the one which was open to most discussion. He did not consider that the work of the Committee would be much accelerated by more frequent meetings. An increase in the number of meetings might result in increasing the confusion, for there would not be sufficient time to study documents and to reflect on amendments proposed. In his opinion, the best results would be achieved if the Committee were guided by parliamentary procedure and examined the draft convention in two readings. The Chairman took note of all the suggestions made. Article II (continued ) The Chairman opened the debate on the amendment proposed by the Chinese delegation [A/C.6/232/Rev.1], after a discussion as to whether that amendment or the new paragraph proposed by France [A/C.6/224 ] should be given precedence in the discussion.

1448

A/C.6/SR.78

Mr. Ti-tsun Li (China) explained that his amendment was to delete the words “the following”, which appeared at the beginning of article II, and to insert the words “including the following” before the enumeration of acts constituting genocide. He recalled that the Sixth Committee had discussed at length the question as to whether the definition of genocide should take the form of a definition in general terms, or whether it should include an enumeration of the various acts constituting the crime of genocide. While some delegations had maintained that such an enumeration was the most simple, concrete and precise form of definition, others had felt that no enumeration could ever be complete and would therefore allow some perpetrators of genocide to escape with impunity. The Committee had voted in favour of enumeration, and the Chinese delegation had voted with the majority. The Chinese delegation had no wish to reopen the discussion of that question, but considered that the second part of article II should be strengthened in order to avoid the danger pointed out by those who had opposed the principle of enumeration. Mr. Li declared that his delegation was not alone in believing that the scope of the enumeration in article II of the draft convention should be enlarged; several delegations had, in fact, submitted amendments to that effect. If the Chinese amendment were adopted, the four categories of acts listed in article II would be merely instances of acts constituting genocide; they would be the most typical and important instance, but not the only acts constituting genocide to the exclusion of all others which could not be foreseen at that time. The Chinese amendment removed the restrictive character of the enumeration and made it possible to include therein those acts which, in the future, might be considered by judges or jurists as acts of genocide. It should not be forgotten that genocide was a new concept and that it was impossible to foresee to what means the perpetrators of the crime might resort when they wished to destroy given groups. Mr. Manini y Ríos (Uruguay) opposed the amendment submitted by the Chinese delegation on the grounds that the laws and legal practice of his country did not permit punishment of the perpetrator of a deed not provided for in the criminal code, or the punishment of crimes on the basis of their analogy with other crimes.

A/C.6/SR.78

1449

Mr. Kaeckenbeeck (Belgium) also thought that it was extremely difficult, if not impossible, to provide for the punishment of crimes not specified in the criminal code. He wondered whether the Committee should not first come to an agreement on the four categories of acts listed in article II; if such agreement proved impossible, it could proceed to consider the amendment submitted by the delegation of China. Mr. Amado (Brazil) was entirely in agreement with the views of the representatives of Uruguay and Belgium. Moreover, the adoption of the Chinese amendment would leave each State free to define as genocide acts other than those which would be enumerated. An unfortunate result of such a situation would be that one and the same act might be considered as genocide in one country and not in another. The General Assembly had defined genocide as a crime under international law; it had expressed the wish that it should be universally suppressed; the definition of genocide could not be left open to different interpretations. The Brazilian delegation favoured a restrictive enumeration of punishable criminal acts and would therefore vote against the amendment submitted by the Chinese delegation. Mr. Chaumont (France) called attention to the amendment submitted by his delegation [A/C.6/233], which might profitably be considered at the same time. That amendment consisted in the insertion, before the enumeration contained in the draft of the Ad Hoc Committee, of the following sentence: The acts of genocide referred to above fall under one of the following categories:

Mr. Lachs (Poland) recalled that he had already emphasized the dangers inherent in a restrictive enumeration of the acts constituting genocide. The Chinese amendment made it possible to specify the most important acts constituting genocide without precluding the possibility of prosecuting the perpetrators of similar crimes which were not listed. A precedent could be found in the Charter of the International Military Tribunal of Nürnberg which, in listing war crimes, used phraseology allowing for the punishment of perpetrators of crimes other than those set forth in that enumeration.

1450

A/C.6/SR.78

The representative of Poland considered that the restrictive enumeration proposed by the Ad Hoc Committee created uncertainty regarding acts for which no provision was explicitly made, for instance, the practice of the authorities in Nazi Germany to issue no more than starvation rations. Moreover, in view of the wide range of possibilities which modern technology offered to criminals, acts of genocide might be committed, the nature of which could not yet be foreseen. The representative of Poland therefore supported the formula suggested by China. Mr. Bartos (Yugoslavia) observed that two hypotheses could be considered. According to the first, the convention on genocide would be a law which judges would have to apply in dealing with crimes of genocide; in that case, the objection raised by the representative of Uruguay would be perfectly well founded. According to the second, the convention would be the statement of an international obligation, making it imperative upon all States to combat genocide. Mr. Bartos felt that it was the second hypothesis which should be adopted. The enumeration of crimes which should be combatted represented, as it stood, a minimum; the advantage of the Chinese amendment lay in the fact that it called upon States to extend the concept of genocide in their respective national legislations. The representative of Yugoslavia pointed out that the Committee had before it three similar proposals submitted by the delegations of China, France and the USSR [A/C.6/223], the purpose of which was to eliminate the restrictive character of the list of crimes constituting genocide. The Yugoslav delegation would support the Chinese amendment. Mr. Maktos (United States of America) regretted that he could not share the Chinese point of view. His chief reason for opposing the amendment submitted by China was that the convention should not include provisions which might lead to greater tension between various Governments; the chances of having one State accuse another of genocide should not be increased. For example, in the case of the Press, one country might describe as genocide what another country considered merely the exercise of the freedom of the Press. In that connexion, the United States representative said that he intended to submit objections to certain provisions of articles III and IV, which dealt with cultural genocide and propaganda, and which might give rise to such accusations.

A/C.6/SR.78

1451

The United States delegation shared the view of the representatives of Belgium and Uruguay that the adoption of the Chinese amendment would mean the use of vague terminology which would make it possible to include, in the list of crimes constituting genocide, all acts which one might wish, wrongly or rightly, to consider as such. The United States delegation would vote against the Chinese amendment. Mr. Goytisolo (Peru) said that he would not repeat the arguments which had been advanced against the Chinese amendment. He entirely shared the opinion of the four representatives who had already spoken on the subject. The delegation of Peru would vote against the Chinese amendment. The Chairman put the Chinese amendment [A/C.6/232/Rev.1] to the vote. The amendment was rejected by 35 votes to 9, with 5 abstentions. The Chairman asked the Committee to proceed to the consideration of the French amendment [A/C.6/224, A/C.6/224/Corr.1] which consisted in the addition at the end of the first paragraph, of the following sentence: “It is committed, encouraged or tolerated by the rulers of a State”. Mr. Pérez Perozo (Venezuela) wondered whether the French amendment should not rather be considered in connexion with article V of the draft convention which dealt with the status of the perpetrators of the crime. Mr. Chaumont (France) thought that the Committee was faced with a fundamental question of principle; it should, therefore, deal with the problem as fully and as seriously as possible, for on its solution would depend the entire legal significance of the convention as well as the reaction of international public opinion, which expected effective measures for the suppression of the crime of genocide. The Ad Hoc Committee had dealt in article V with the question of the status of the perpetrators of the crime, but it was in the definition of genocide itself that it should be established who was responsible for the crime. Article V could contain provisions regarding the perpetrators of the crime, but such provisions should be merely complementary to the principle, which should be established in article II. It was article II which should specify, as part of the definition of the crime, the status of the criminal.

1452

A/C.6/SR.78

The French delegation was willing to accept any suggestion regarding the place of its amendment within article II; it was essential, however, that the substance of that amendment should be included in the definition of genocide, as the French delegation was convinced that the concept of genocide was bound up with the action, or the culpable abstention from action, of the State. France attached great importance to the effective suppression of genocide, both because it desired the advancement of international law and, particularly, because it had been a witness and a victim of that crime, committed on so vast a scale during recent years. The theoreticians of nazism and fascism, who had taught the doctrine of the superiority of certain races, could not have committed their crimes if they had not had the support of their rulers; similarly, pogroms had occurred frequently only in countries where no severe legal measures were taken against the perpetrators. Thus the experience of history showed the way; it was inconceivable that human groups should be exterminated while the Government remained indifferent; it was inadmissible that the central authority should be powerless to put a stop to mass assassination when homicide was the first of punishable crimes. When the crime of genocide was committed, it was committed either directly by the Governments themselves or at their behest; alternatively, they remained indifferent and failed to use the power which every Government should have in order to ensure public order. Thus, whether as perpetrator or as accomplice, the Government’s responsibility was in all cases implicated. Such a conception of the responsibility of the Government meant, from the legal point of view, that it was impossible to leave the task of suppression of a crime of international concern to Governments themselves. Indeed, the problem became international only when the Government failed in its duty, in other words, when the punishment of the crime was not ensured on a national level. If mass murders were committed without the Government’s complicity, it was the Government’s duty to inflict punishment; if it failed to do so, either it shouldered the responsibility for those murders, or it revealed such impotence as was conceivable only in a period of revolution. In either case it was for international society to intervene. There was no indication, however, in the draft of the Ad Hoc Committee, as to how such intervention should be applied. If genocide was a crime under international law, it must be admitted that it was not identical with the various types of murder for which provision

A/C.6/SR.78

1453

was made in national laws; thus the convention answered a purpose which could not be fulfilled by such national legislations. In its resolution 96(I) of 11 December 1946, the General Assembly invited the Member States to take strict measures to prevent mass murders; there should, however, be no confusion between the aim of those recommendations and the aim of the convention. The latter was intended to ensure the international suppression of genocide, and such suppression became necessary only when national suppression was not possible, in other words, when there was either complicity or default on the part of the Government. Action by international society did not duplicate action by the Government, for the former began only when the latter had failed. If the idea advanced by the French delegation were not accepted, it would mean that the future criminal would be entrusted with ensuring his own punishment. The absurdity of such an argument was so obvious that it was unnecessary to stress it. It was useless to argue that the convention aimed at unifying domestic legislations on the suppression of genocide. No possibility of such unification appeared anywhere in the text proposed by the Ad Hoc Committee; and such unification could be achieved only by a specification of the penalties to be imposed. But article VI merely provided that the Contracting Parties undertook to take the necessary measures to ensure the implementation of the provisions of the convention. Those measures were not defined; article VI, by its vagueness, disclosed the ambiguity of the concept adopted therein. Moreover, the problem of genocide on the international level arose only after suppression on the national level was impossible because of the direct action, complicity or tolerance of the Government. Mr. Chaumont then drew the attention of the Committee to another aspect of the question. He wondered what practical result the convention would achieve if the French amendment to article II were not adopted. Governments would then have a powerful weapon for use against their peoples: the convention might prove an instrument of oppression in the hands of unscrupulous statesmen. Governments would feel secure since their responsibility would not be recognized in every case. They would be able to describe as genocide acts committed on their territory and thus, invoking the convention, take totalitarian measures. Although designed to protect essential human rights, the convention would be used to violate those rights and would be an instrument at the service of tyranny.

1454

A/C.6/SR.78

That danger was not illusory; it was always present when imperfect texts, embodying ambiguities, were employed. The adoption of such a text would constitute retrogression, not progress, in international law. Mr. Chaumont earnestly begged the members of the Committee to consider carefully the import of the decision which they would have to take. The most progressive elements of world opinion awaited something better than an absurd text, worked out after two years of effort. Why such efforts, if the convention provided only for the punishment of individuals, visionaries or fanatics, whose punishment was already provided for by all domestic legislations? The purpose of the convention was to condemn racial and national hatred and its extreme consequence, namely, mass murder. It was necessary to lay the foundation for effective international measures of suppression and to arm international law for the fight against such horrors as the world had recently known. The French delegation did not consider that ambition to be excessive; it hoped that States would be ready to recognize their responsibilities in advance and that no Government would be disposed to repeat the action of Pontius Pilate; in that case, it would be useless to continue the work of the United Nations. If the convention were to be based on clear and unambiguous principles, if the effective suppression of genocide were to be ensured, if the hopes of public opinion throughout the world were not to be disappointed and if the dictates of common sense were to be obeyed, the definition of genocide, which was a crime under international law, must include a formula such as was proposed by the French delegation. The meeting rose at 1 p.m.

A/C.6/SR.79

1455

SEVENTYNINTH MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 20 October 1948, at 10.30 a.m. Chairman: Mr. R.J. Alfaro (Panama). [Discussions pertaining to issues other than the Genocide Convention] 25. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) The Chairman invited the Committee to continue the discussion on the French amendment [A/C.6/224 ]. Sardar Bahadur Khan (Pakistan) opposed the French amendment because it appeared from the wording that only rulers could possibly be accessories to genocide; thus fascist or terrorist organizations, whose aim was the systematic extermination of religious, racial or national groups, were omitted. Genocide could be committed by such organizations, which would not necessarily be in any way connected with the Government in power. Such was the case in Germany under the Weimar Republic when the Hitlerites had started to persecute the Jews. The Government in power had simply been unable to take effective action against their crimes or suppress them. The same state of affairs had recently existed in India, where terrorist organizations had been able to massacre hundreds of thousands of people with impunity and where those responsible for the murder of Mahatma Gandhi had had to be left at liberty or even released, for the simple reason that the Government was powerless to prevent and suppress those acts of terrorism. Hence, if crimes were committed by organizations which were neither associated with rulers nor encouraged by them, should one leave them unpunished or wait until they had come to power before their activities were covered by the definition given in the French amendment? Or should law courts waste their time in lengthy arguments concerning interpretation or legal doctrine in an attempt to establish the responsibility of rulers whose only fault was, perhaps, in many cases, that they were powerless?

1456

A/C.6/SR.79

The French amendment would thus allow many responsible parties to escape punishment they deserved. Furthermore, because of the procedure followed so far, the representative of Pakistan felt that the French amendment ought to be discussed at the same time as article V, in which the guilty persons were listed and which therefore represented the real basic text to which the amendment referred. He therefore asked the French delegation to change its proposal so as to make the convention applicable also to those who committed genocide without the assistance or connivance of rulers, and to present it as an amendment to article V. The Pakistan delegation could then vote in favour of the amendment. Mr. Abdoh (Iran) felt that it would be difficult to accept the French amendment. First of all, it was not strictly correct that genocide could not be committed except with the complicity or connivance of rulers. The examples quoted by the Pakistan representative contradicted the absolute rule laid down by the French amendment in that connexion. Again, he disapproved of the fact that the amendment introduced into the definition of the crime an element which was foreign to the very nature of the act, since the complicity or connivance of rulers was only an attendant circumstance and not a constituent factor in the crime. If the amendment were adopted, the result would be that two similar acts would be designated as two different crimes – murder or genocide – according to whether they had been committed with or without the complicity of the State. Furthermore, that idea of attendant circumstance gave rise to a practical difficulty with regard to proof, in cases where it had to be established whether the crime had or had not been tolerated by the State. If the definition itself contained that germ of uncertainty, it was to be feared that many criminals would profit by it to escape punitive action. A definition should be limited to a statement of clear conceptions which were not liable to different interpretations. Finally, if it were brought into closer concordance with article VII of the draft convention, according to which domestic law courts were primarily

A/C.6/SR.79

1457

responsible to try offenders, the French amendment would lead to a real contradiction, inasmuch as a domestic law court could be called upon to pronounce judgment on the responsibility of its own Government. The real aim of the French delegation was certainly to ensure the suppression of genocide in the most serious cases, namely, cases where it was committed with the complicity of governments. That proposal therefore deserved the Committee’s attention, but it should appear in article V and in quite a different form. Mr. Raafat (Egypt) would vote against the French amendment because it tended to limit the scope of the convention. The amendment was not in keeping with article V, which specifically mentioned private individuals amongst those liable for punishment. That article had been adopted unanimously by the Ad Hoc Committee on Genocide and its text already appeared in article IV of the first draft drawn up by the Secretary-General [E/447 ]. The French amendment actually only took up again the proposal made by Mr. Donnédieu de Vabres, one of the consultants, to the effect that the term “genocide” should be limited to acts by rulers.1 But that proposal had been rejected at the time. It was not in accordance with the spirit of General Assembly resolution 96(I), which stated that all those who committed genocide should be punished whether they were private individuals, public officials or statesmen. That resolution had not made any distinction between rulers and non-rulers. Although it did not specifically say so, it should be interpreted as recommending that genocide should be prevented and punished in the same way in both cases. The French amendment would make it impossible to apply uniform measures for prevention and punishment. The General Assembly resolution was in no way imperative, but valid reasons would have to be given for not complying with its recommendations. He felt that no serious case could be made for supporting the French amendment. 1

See document E/447.

The amendment had the unfortunate disadvantage of failing to include in the category of genocide some crimes which were not even covered by common law, for example, crimes committed by para-military organizations

1458

A/C.6/SR.79

which acted on orders. In such cases it was impossible to establish the responsibility of any State. That had been the case in Palestine before 14 May 1948, when Zionist groups had wiped out whole villages, at a time when the Mandatory Power was leaving the country and when no established authority could assume responsibility for those acts. Again, it was because national legislation seemed inadequate to suppress the unique crime of genocide that the United Nations had resolved to draft an agreement and to set up an international tribunal to prevent and punish it. Mr. Pérez Perozo (Venezuela) found that, in spite of the fact that in resolutions 96(I) and 180(II) the General Assembly had clearly shown its desire to punish all those guilty of genocide and not merely rulers alone, and in spite of the fact that the Ad Hoc Committee on Genocide had unanimously adopted article V, which was directly based on those resolutions, the French amendment proposed substituting a new text for that article and inserting the text in an article to which it did not logically belong. With regard to the substance of its proposal, it was a contradiction for the French delegation to admit, on the one hand, that all perpetrators of or accessories to the crime should be punished and to state, on the other hand, that genocide could be committed only by or with the complicity of rulers. He thought that the French conception of genocide, which was limited to acts committed, encouraged or tolerated by rulers, was not in keeping with the facts. In most cases State intervention could easily be detected, but in others not even the slightest blame could be attributed to rulers, particularly in the case of secret societies which succeeded in committing crimes against groups while escaping the notice of the State, or again in the case of countries where the vast extent of the territory and difficulties in communication made it impossible for the Government to intervene in time to prevent the perpetration of crimes or ensure their prevention. He objected also to the fact that the French amendment did not state clearly what was meant by “rulers”. Did “rulers” mean the State by itself or the entire Government or even parliamentary bodies? The conception was even more vague in the Latin-American countries, especially in Venezuela, where the President of the Republic was an official and not

A/C.6/SR.79

1459

the head of the State. Again, it should be noted that it would be difficult to reconcile the responsibility of rulers with the domestic legislation of certain countries which provided for special courts to judge rulers or even exempted the supreme ruler from all responsibility. The amendment would thus deprive article VI of all meaning. Mr. Pérez Perozo thought that if the purpose of the French amendment were to limit the responsibility of rulers alone, it would make it impossible to establish any uniform procedure for prevention and punishment, and would also upset any balance between the many crimes committed and the number of responsible persons to whom the punishment would apply. The fear of punishment would be diminished in the case of non-rulers, while rulers themselves would frequently be able to escape punishment, either by avoiding trial by all possible methods or by shaking off responsibility by making false accusations. He would vote against the French amendment because he thought that the convention should apply to all guilty persons and not merely to rulers. Mr. Morozov (Union of Soviet Socialist Republics) agreed with the representative of France that the victims of nazism and fascism should not be forgotten if effective work were to be done in regard to genocide. In order, however, to make the convention an effective weapon in the fight against genocide, it would be necessary to reject the French amendment. According to the French conception, acts committed by private individuals without the participation of the State, would not constitute genocide. Furthermore, even with regard to acts of genocide committed with the participation or complicity of the State, the French amendment would allow rulers to escape punishment by proving that they neither committed, encouraged nor tolerated the crime. The French amendment was an attempt to include in the definition of genocide certain factors entirely foreign to it, namely, the circumstances in which genocide was punishable and the definition of persons responsible. There was a confusion there between two quite different ideas. The factors the French amendment was attempting to introduce into article II would more appropriately be included under article V, which dealt with persons liable. Whatever might have been the intentions of the French delegation, the effect of its amendment would be to free the large majority of those who

1460

A/C.6/SR.79

had committed acts of genocide from all responsibility and to give rulers an opportunity to avoid punishment by alleging that the crimes of which they had been accused had been committed in circumstances beyond their control. According to the French theory, only rulers would be guilty of genocide while the persons who had actually committed the crime would only be subject to common law. Mr. Morozov pointed out that in such a case it would always be possible for them to give as an excuse the fact that they had acted in compliance with the law or in obedience to superior orders. If it were really desired to combat genocide, it would have to be made clear that any person, whether ruler or private individual, who had taken part in any way whatsoever in genocide, would be held criminally responsible, and would not be able to justify his conduct either on the grounds of law or of obedience to instructions from superior officers. Two tendencies had become evident in the course of the discussion. Some delegations wanted to give undue latitude to the idea of genocide; while others, like the French delegation, wanted to restrict its scope to such an extent that little of the basic idea would be left in the convention. If either of those two tendencies triumphed, it could be rightly said that the United Nations had failed in its task of organizing an effective fight against genocide. Analysing the examples given by the representative of Venezuela, Mr. Maktos (United States of America) pointed out that human groups could be deprived of the protection of the Government of the territory in which they resided either because the officials of the State were themselves ready to commit the crime of genocide or because the State was incapable of protecting the victims in view of the vast extent of its territory. In the first case, the Government should be held responsible for the crime on the ground that it had participated in it directly; but in the second case, if the Government had been unable to prevent or to suppress genocide, although it had taken all appropriate measures to do so, the question of international rather than State responsibility might arise. Mr. Maktos recalled that under international law a State was responsible when a foreigner, whether he belonged to a specific group or not, had been killed in the territory of that State and if the necessary steps had not been taken either to prevent the murder or to punish the guilty party. On the basis of those provisions of international law, the responsibility of a State could also be maintained in a case where an act of genocide had

A/C.6/SR.79

1461

been committed by private individuals without any participation by the rulers, if those rulers had not taken appropriate measures to punish the guilty persons. For its part, the Government of the United States did not wish to substitute international responsibility for national responsibility in all cases where the State had fulfilled its obligations without, however, succeeding in ensuring the prevention or punishment of the crime. The United States delegation felt, for example, that if, in spite of all the measures taken, the State did not succeed in arresting the guilty person, an international agency acting instead of the national courts would have no better chance of succeeding. On the other hand, if a State had not done all it could to prevent or punish the crime, international responsibility would come under consideration. In order to carry out resolution 96(I) of the General Assembly the Committee should draw up a convention designed to protect human groups against the acts of private individuals or of terrorist bands; on the other hand, it should not ignore or minimize the great responsibility which rested on States themselves for protecting those groups and assuring their right to survive. If a State did not fulfil its responsibilities, then, and only then, should action be taken on an international plane. That was the sense in which Mr. Maktos understood the arguments advanced by the United Kingdom representative at the 64th meeting. Mr. Maktos wondered how the word “tolerated” in the French amendment would be interpreted by a court of justice. In the opinion of his delegation, a State was not guilty of having “tolerated” genocide unless it had not taken the necessary steps to prevent the extermination of human groups or if, having taken those measures without having succeeded in preventing the crime, it had failed to do everything in its power to punish the perpetrators of it. There was no doubt that genocide and homicide were two entirely different crimes. If one individual was killed by another individual or even by a government official, that would be an act of homicide. But if that individual were killed with the intent to destroy one of the groups listed in article II of the convention, that would be both genocide (a crime under international law) and homicide (a crime under common law). If the word “tolerated” in the French amendment were to be interpreted in that way, the delegation of the United States agreed with the substance

1462

A/C.6/SR.79

of the amendment. Since it was not sure, however, that a judicial tribunal would give that word the same interpretation, it favoured the draft prepared by the Ad Hoc Committee. The United States representative emphasized the importance of setting up an appropriate international tribunal to ensure the suppression of the crime when the protection of society required that such suppression should be carried out on an international level. To that end his delegation had proposed an amendment to article VII of the convention [A/C.6/235] and he reserved the right to return to the point when article VII was discussed. The Chairman, invoking rule 104 of the rules of procedure, announced the list of speakers, and with the consent of the Committee, declared the list closed, reserving the right of reply to any member if a speech delivered after he had declared the list closed made that desirable. Mr. Petren (Sweden), emphasizing the importance of the question raised by the French amendment, asked for further explanation. According to the French amendment, genocide could be committed only by rulers or at least with their connivance or collusion; acts of genocide committed by private individuals or by private organizations would not be subject to the terms of the convention. If the Swedish delegation had understood it correctly, the amendment restricted the application of the convention solely to cases in which rulers shared in the crimes – either by their acts or by their failure to act – and made those rulers subject to the jurisdiction of an international tribunal. The Swedish delegation did not think that the force of the convention would be weakened if cases of genocide committed by private individuals or private organizations were included among the acts to which the convention applied. For one thing, it should not be forgotten that such cases might very well occur. Furthermore, it should be kept in mind that article IV of the draft convention prepared by the Ad Hoc Committee, as well as article II of the French proposal [A/C.6/211], provided for the punishment of certain offences, such as direct instigation to commit genocide, which preceded the crime and which were generally committed by private individuals or private organizations without any participation on the part of the rulers. If it were desired to keep the provisions of article IV, it would

A/C.6/SR.79

1463

be preferable not to exclude from article II cases of genocide committed by private individuals. Mr. Petren drew attention to the difficulties which the French amendment would raise as regards the punishment to be inflicted. Everyone was agreed that the punishments would have to be very severe in order to achieve the suppression of genocide. If a Government were guilty of having itself committed the crime of genocide, serious punishment could be meted out to its members; but if a Government could only be criticized for its impotence, if it had done everything in its power to prevent the crime and had not succeeded, only a light punishment or perhaps even no punishment at all could be decreed. In that case it was the real perpetrators of the crime – private individuals or organizations which had taken advantage of the weakness of the Government in order to commit the crime – which should be prosecuted, and, if the convention were to be applied to them, it would be preferable not to introduce restrictions into the definition given in article II. The Swedish representative also pointed out that difficulties might be created in the case of genocide committed by private individuals who had been punished by the State in whose territory the crime had been committed, but whose punishment had been deemed insufficient. For all those reasons the Swedish delegation felt that it would be wiser to define the acts constituting genocide in article II of the convention and to provide in another article that the signatory States would agree to ensure the punishment of the crime either through their domestic courts or, in certain cases, by an international tribunal. Mr. Petren wished to point out, however, that in the event that the French amendment were adopted, Sweden would be unable to sign a convention which would submit its sovereign to the jurisdiction of an international tribunal. Sweden was a constitutional monarchy; its Constitution provided that the king could not be prosecuted. If he could not be arraigned before a domestic court of justice, there was all the more reason why he could not be brought to trial before an international court. Mr. Manini y Ríos (Uruguay) agreed with the arguments advanced against the adoption of the French amendment.

1464

A/C.6/SR.79

The French amendment had been proposed in order to strengthen the convention and to ensure efficient suppression of genocide at the international level. The delegation of Uruguay had always been in favour of such suppression, but did not see how the draft convention prepared by the Ad Hoc Committee would exclude the possibility of organizing the international suppression of genocide. While agreeing with the criticisms which had been made, and expressing his intention to vote against the French amendment, Mr. Fitzmaurice (United Kingdom) felt that the French delegation had done useful work in provoking a discussion on the question. He recognized, as did the representative of France, that while acts of genocide committed, encouraged or tolerated by rulers were not the only cases of genocide, they were certainly the most serious. It was in fact difficult to imagine that genocide could be perpetrated on a large scale without the collusion of rulers. If, however, the French text made the mistake of excluding cases of genocide committed by private individuals, the text drafted by the Ad Hoc Committee was also deficient in that it failed adequately to stress the responsibility of the State for the acts of genocide committed in its territory or international responsibility for acts of genocide committed by a State. The discussion of the French amendment had brought out the two following points: First, states were responsible for what occurred in their territory and should take all possible steps to prevent genocide, but could not be held responsible if they had really been unable to prevent it. The convention should include provisions to that effect. Secondly, states and Governments should be held responsible for their actions before an international tribunal if they themselves committed genocide. In the absence of express provisions in the draft convention with respect to that point, the United Kingdom delegation had suggested amendments to articles V and VII designed to give the International Court of Justice jurisdiction in cases where the act of genocide had been committed by a State or by a Government. The United Kingdom representative felt there was no need to include provisions relating to persons liable in the definition of genocide.

A/C.6/SR.80

1465

He shared the views of the representative of Venezuela with regard to the word “rulers”, the meaning of which was not very precise. Moreover, it was not the individual who was important and he therefore preferred the word “Government”. Mr. Dihigo (Cuba) stated that he would vote against the French amendment for the reasons given by the speakers who had preceded him. The meeting rose at 1.05 p.m.

EIGHTIETH MEETING Held at the Palais de Chaillot, Paris, on Thursday, 21 October 1948, at 10.45 a.m. Chairman: Mr. R.J. Alfaro (Panama). [Discussions pertaining to issues other than the Genocide Convention] 27. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) The Chairman reminded the Committee that it had before it a French amendment [A/C.6/224 and A/C.6/224/Corr.1] proposing to add the following text: “It is committed, encouraged or tolerated by the heads of a State”. Mr. Paredes (Philippines) thought the adoption of the French amendment would result in the restriction of genocide to acts committed, encouraged or tolerated by the State. That concept was contrary to resolution 96(I) of the General Assembly, which stated that the authors of crimes of genocide might be private individuals, public officials or statesmen. If the French point of view were adopted, domestic laws would not punish private individuals for committing crimes of genocide, but merely for crimes punishable under the ordinary law, even in cases of obvious intent to destroy a particular group. That intent constituted the criterion for the crime of genocide which the convention sought to prevent and to punish. Adoption of the French amendment would make it impossible

1466

A/C.6/SR.80

to take into account the idea of intent, even in determining aggravating circumstances. Genocide might be committed with the support or the tolerance of the State, but it might also be committed by private individuals without the active intervention or connivance of the rulers. It was the second possibility which had to be borne in mind particularly, so that general standards could be established to enable all States to make provision in their domestic legislation for uniform punishment in all countries of those who committed the crime of genocide. He did not concur in the opinion of those delegations which held it impossible to punish heads of State. Though difficult, it was possible. The problem was admittedly delicate, but that was no reason for not recognizing the guilt of States. Appropriate sanctions imposed by the Security Council or any other organ had to be found, even if the sanction were merely moral condemnation by a General Assembly resolution. On that point the delegation of the Philippines supported the idea contained in the French amendment: that it must be affirmed that heads of States could be accused of genocide. Nevertheless, the possibility that the crime might be committed by private individuals without the complicity or the tolerance of the State should not be excluded. He would welcome a further explanation of the French amendment. In reality the word gouvernants meant heads of State and ministers while the word “rulers” meant rather the men who imposed their will on the Government. The French delegation should specify clearly what governmental element was referred to in its amendment. The convention should cover crimes of genocide committed, encouraged or tolerated by States but also crimes of genocide committed by private individuals without participation or tolerance by the State. Mr. Amado (Brazil) had been impressed by the idealism of the representative of France and regretted he saw himself obliged to oppose his amendment. The theory that the Government was always responsible when a crime of genocide was committed was not in accordance with historical facts; it did not take into account the complex aspects of real life. It was based on the fact that all crimes of genocide committed by individuals were punished

A/C.6/SR.80

1467

by national legislation. But national legislation did not contain provisions for all the types of acts enumerated in the convention as constituting the crime of genocide. The most striking example was the case of cultural genocide, which could obviously be committed by private individuals without any responsibility on the part of the State. There were three ideas contained in the General Assembly’s resolution 96 (I) and in the draft convention prepared by the Ad Hoc Committee: first, uniform punishment for genocide at national level, the States undertaking to make all the necessary changes in their domestic legislation to attain that objective; secondly, co-operation among States for the punishment of the crime through additional measures such as extradition; thirdly, the new principle of responsibility at the international level, which would apply even to Governments. The French proposal tended to restrict the organized suppression of genocide to the adoption of the single principle of responsibility at the international level. That concept would substantially restrict the scope of the convention. The Brazilian delegation would therefore vote against the French amendment. Mr. Bartos (Yugoslavia) stated that, in most cases, genocide was committed, encouraged or tolerated by Governments. In theory the French amendment was therefore perfectly justified, but in practice it was generally very difficult to establish proof that a Government had committed or tolerated the crime of genocide. To prove his point, he gave two sets of examples. First, he recalled certain events which occurred in Central Europe after the war: in 1945, armed bands had been brought into Czechoslovakia and, in spite of the opposition of the Government, had committed crimes of genocide against the Jews; in 1946, the same had occurred in Poland; in 1948, war criminals had been brought illegally into Yugoslavia with very specific plans for the perpetration of crimes of genocide. Because of the opposition of the population and the Government, those war criminals had been arrested and brought to justice. In all three cases, it was absolutely impossible to determine which Governments were responsible. The formula proposed by the French delegation was therefore hazardous in cases of that kind.

1468

A/C.6/SR.80

He went on to consider the case of biological genocide in a country: the crime would not be denied by anyone, but it would be impossible to prove that the Government had encouraged or tolerated it. As a matter of fact the Government might have given instructions, ordered the prosecution of certain individuals involved, and it would thereby become impossible to prove its complicity. In such a case the text drafted by the Ad Hoc Committee would make it possible to say that genocide had been perpetrated while the French amendment would not. He concluded by stating that he would vote against the French amendment. Mr. Demesmin (Haiti) expressed the opinion that the French amendment was not devoid of common sense; it might indeed encourage Governments to be very active in the prevention of genocide, and the convention provided for the prevention of that crime as well as its punishment. The French amendment was incomplete in that it assumed that the crime of genocide was always committed or encouraged by Governments. The amendment did make provision for the fact that Governments might be merely accomplices, but it was impossible to conceive of accomplices if there were no principals, and the latter might therefore be private individuals. It would undoubtedly be possible to amplify the French amendment instead of merely rejecting it. He therefore proposed the addition of the following words to the French amendment: “. . . groups or individuals”. The Chairman pointed out to the representative of Haiti that his amendment could not be considered because it had not been submitted in writing within the time limit prescribed by the rules of procedure. Mr. Messina (Dominican Republic) indicated his opposition to the French amendment. Moreover he considered the amendment proposed by the representative of Haiti as useless, for with the additional reference to groups or individuals, the French amendment would no longer fulfil its purpose. Mr. Spanien (France) noted that the objections raised against the French amendment fell into three classes. The first was criticism of a structural nature: the text of the French amendment did not belong in article II which defined genocide; it should rather be joined to article V which dealt with the persons liable for the crime

A/C.6/SR.80

1469

of genocide. It would even duplicate article V. The French delegation still believed that the logical place for its amendment was article II because its aim was precisely to define genocide in terms of its essential and primary character as a governmental crime, which made it subject to the jurisdiction of an international tribunal. Moreover, that amendment did not duplicate article V, which dealt with punishment of the crime of genocide rather than its definition. The dominant idea of the French proposal was the need for an international tribunal to suppress genocide. As a matter of fact there was hardly any national legislation which did not punish that crime in so far as it constituted an act of killing. A convention which merely invited the signatories to punish genocide through their domestic legislation would be absolutely useless. In any case, a simple recommendation by the General Assembly would be adequate. The true purpose of the convention was to ensure the suppression of that crime when it became in some way legalized by being committed, encouraged or tolerated by heads of State. It was only then, in cases where national tribunals had no jurisdiction or were controlled, that the crime assumed the specific character which made it necessarily fall under international jurisdiction and become subject to punishment on an international plane. In the second place, the French amendment had been criticized because it limited responsibility for genocide to heads of State alone. The French delegation had forestalled that criticism in the first article of its draft convention on genocide [A/C.6/211] which specifically stated that “authors or accomplices, shall be responsible before International Justice”. Thus, no immunity was granted to heads of State and executives, and the excuse which the latter might make that they were obeying the law or superior orders was definitely precluded. The French amendment was certainly not based on the idea that only Governments would be responsible. The responsibility of private individuals was by no means excluded. Finally, the third objection was that the international responsibility determined by the French amendment might relieve Governments of the obligation of suppressing genocide by their own domestic means. He pointed out that the obligation to ensure national suppression existed prior to any discussion of the convention on genocide and declared that the French amendment could not weaken that obligation in any way. On the contrary it strengthened it, since it was by establishing that they had done all in their power to prevent genocide and that they had put in motion all the

1470

A/C.6/SR.80

legal machinery of their domestic laws for its suppression that Governments under suspicion could prove their good faith and obtain their acquittal. International responsibility should in no way be substituted for national measures for suppression, but the necessity of the former became apparent when a State actively or passively tolerated genocide in its territory. National legislation then became ineffective and the only possible means of suppression must be sought at the international level. Certain delegations had been perturbed by the idea that a Government might have to answer to an international tribunal for genocide committed in its territory, even though it had not participated therein either actively or passively, and even if the preparatory steps had been taken outside the territories under its jurisdiction. Mr. Spanien explained that the French draft provided for the organization of the international tribunal in such a way that its impartiality would be absolutely certain; moreover, at every stage in the procedure, conciliation machinery would operate, whereby Governments subject to an enquiry might establish the fact that they had not participated in the crime and prove that the charges brought against them were tendentious. For the full reassurance of those who feared that a Government might be held responsible for an offence of genocide committed by factious elements exercising de facto authority on part of its territory, his delegation would, however, consent to modify its amendment by substituting for the words “heads of a State” the expression “by those who de jure or de facto exercise governmental power”. In conclusion, he said that the French amendment was prompted by his Government’s express desire to entrust the suppression of genocide to an international court. Any other attitude, in his opinion, would be a retrograde step in relation to what had been achieved by the London Agreement and the Judgment of Nürnberg. In that field they now had an international legal heritage which no one had the right to minimize. To refuse to define genocide as an international crime which could be brought before an international court would be equivalent to maintaining the present situation in which genocide could be committed and was being committed, without the existence of any other means of punishing the responsible parties except recourse to war. It was because France was passionately devoted to the cause of peace that it had submitted and maintained its amendment.

A/C.6/SR.80

1471

Mr. Petren (Sweden) asked for an explanation concerning the application of the French amendment when factious elements were guilty of genocide in the territory of any State. If the rulers were acquitted by the international court because they proved that they were unable to prevent and punish the crime, the leaders of these factious bands could not, it appeared, be condemned either, since, in the absence of the factors constituting the crime, namely participation or tolerance by the State, their offence could not be legally described as genocide. Mr. Spanien (France) replied that in that case the international enquiry preliminary to legal proceedings would not fail to exonerate the Government and would establish the sole guilt of the leaders of the bands, who would consequently be alone answerable for their crimes before the international court. Mr. Huneidi (Syria) proposed the adjournment of the vote to permit consideration of the questions raised by the French delegation’s explanations, and to allow the Haitian representative to put his amendment in order. The Chairman thought the vote could not be postponed any further, in view of the length of the discussion, which had enabled the Committee to form a definitive opinion. He put the French amendment to the vote. The French amendment was rejected by 40 votes to 2, with 1 abstention. Mr. Fitzmaurice (United Kingdom) said that, although he had voted against the French amendment, he recognized the value of certain ideas expressed by the French delegation to which it would be useful to return in the course of the examination of the subsequent articles. Mr. Demesmin (Haiti) explained that he had voted in favour of the French amendment because of the importance his delegation attached to the establishment of an international court for the punishment of genocide. In order to avoid any subsequent confusion, he pointed out that article V, which had been referred to frequently, certainly provided for the punishment of those committing the crime, but said nothing about the court which was to punish them. If the convention on genocide, which had to be in the nature of an exceptional law, did not expressly designate a court competent for the punishment of the crime, the guilty parties

1472

A/C.6/SR.80

could be liable only under ordinary law, which obviously would not be competent in respect to certain rulers. Mr. Feaver (Canada) said he had voted against the French amendment for the reasons given by the representatives of Pakistan, the USSR and Venezuela at the 79th meeting. He did not agree with the United Kingdom representative concerning the value of the long discussion on the French amendment, since all the ideas expressed in that regard would again come up in connexion with the text of articles IV and V, which dealt with that very matter. In view of the result of the voting, he was sorry that, to save time, the vote had not taken place immediately after the opening of the discussion on the amendment, and he suggested that before presenting their amendments, delegations should consult unofficially among themselves so as not to submit them unless they had some chance of being adopted. Mr. de Beus (Netherlands) had been obliged to vote against the French amendment because it excluded from the field of the convention genocide committed by individuals when it was neither encouraged nor tolerated by rulers. However, he approved two of the principles involved in the amendment, namely the responsibility of rulers when they encouraged or tolerated genocide, and the setting up of an international court for the punishment of the crime. Mr. Kaeckenbeeck (Belgium) associated himself with the United Kingdom representative’s explanation of his vote and hoped that certain phases of the French amendment would again be discussed in connexion with other provisions of the draft convention. The representative of Liberia was sorry he had been forced to abstain from voting, because his delegation had not been able to be present during the discussion of the French amendment, but he shared the opinion of the Belgian representative concerning the interest of the ideas expressed by the French delegation. The meeting rose at 1 p.m.

A/C.6/SR.81

1473

EIGHTYFIRST MEETING Held at the Palais de Chaillot, Paris, on Friday, 22 October 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama), then Prince Wan Waithayakon (Siam). 28. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Time limit on speeches The Chairman declared that, under rule 103 of the rules of procedure, the United Kingdom representative’s proposal that a time limit should be imposed on speeches of members of the Committee during the further discussion of the draft convention on genocide could be accepted. In view of existing precedents, the Committee could also limit the number of speeches made by each representative to one statement of a general nature on the question under discussion and to one reply if, in the further course of the discussion, reference were made to his arguments, his delegation or his person. Mr. Fitzmaurice (United Kingdom) proposed that a five-minute time limit should be imposed on speeches by all members barring exceptional cases subject to the Chairman’s discretion. He thought that, in order to speed up the work of the Committee, it was better to employ such a method than to increase the number of meetings. Mr. Maktos (United States of America) supported the United Kingdom representative’s proposal. Mr. Federspiel (Denmark) also supported the proposal, but did not believe it would in itself be sufficient to expedite the work of the Committee. He proposed that only questions of principle should be discussed in full Committee, the decisions taken in regard to such questions being then referred to a sub-committee which would draft the text of the relevant articles. Mr. Abdoh (Iran) was also of the opinion that the Committee should discuss and vote upon questions of principle and not on each article point by point.

1474

A/C.6/SR.81

Mr. Spiropoulos (Greece), Rapporteur, thought, on the contrary, that the method already adopted was suitable, as the Committee was working on a prepared text; he considered that the creation of a drafting subcommittee should be contemplated only as a later expedient, if it proved necessary. For the time being, he proposed that only the United Kingdom representative’s proposal should be adopted. Mr. Morozov (Union of Soviet Socialist Republics) opposed the Danish proposal because the new method it suggested might entail a considerable loss of time. On the other hand, he favoured the proposal to impose a time limit on speeches, and thought that the average length of time should be from five to ten minutes for the initial speeches on a point of major importance. He also requested that a deadline should be fixed for the submission of amendments before the meeting at which they were to be discussed. Mr. Reid (New Zealand) recalled, in support of the United Kingdom proposal, that, at the beginning of the session, his delegation had submitted a proposal similar to that made by the representative of Denmark. Experience showed that such a method should have been followed by the Committee. The Chairman recognized the advantages of the method advocated by the representative of Denmark and added that he contemplated applying it during the discussion of the subsequent articles. Consideration of article II, however, should continue as it had begun, in view of its complexity and of the large number of amendments submitted. On the basis of the United Kingdom representative’s motion, the Chairman proposed that the Committee should: First, impose a five-minute time limit on speeches by all delegations, extendable to ten minutes in cases where the question under discussion was obviously of exceptional importance. Secondly, allow members of the Committee to make only one statement on any given question, without prejudice to their right to reply within the above-stipulated time limit to any reference which might be made by other delegations to their arguments, their delegation or their person. The Chairman noted that all members of the Committee, with the exception of the representative of Yugoslavia were in favour of that measure.

A/C.6/SR.81

1475

The proposal was adopted. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) thanked the Committee for adopting the above proposal which, he hoped, would make it possible to complete the examination of the draft convention on genocide by 1 November. If that were not the case, the Committee might have to hold two meetings a day so as not to prolong the session unduly. Article II (continued ) The Chairman opened the discussion on sub-paragraph 1 of article II and on the USSR amendment [A/C.6/223]. As the amendment referred to all the sub-paragraphs of article II, the delegations were free to state their views on all points raised in the USSR amendment. Mr. Sundaram (India) remarked that the amendments to the second part of the article were divided into three parts: the USSR amendment, which grouped all acts constituting genocide under only two categories; the amendments of Uruguay [A/C.6/209], of Belgium [A/C.6/217 ], of China [A/C.6/232/Rev.1], of the United Kingdom [A/C.6/222 and A/ C.6/222/Corr.1] and of India [A/C.6/244 and A/C.6/244/Corr.1], which, adopting the method of classification used in the Ad Hoc Committee’s draft, amplified or amended the list of acts contained therein; and lastly, the amendments of Syria [A/C.6/234 ] and Greece [A/C.6/242] which proposed additions to that list. The USSR amendment was certainly the furthest removed from the text of the draft and should serve as the opening point of the discussion, the more so since, if it were adopted, there might be no need to consider the other amendments. Mr. Morozov (Union of Soviet Socialist Republics) explained that his delegation’s purpose in submitting its proposal had been to avoid, at all costs, a restrictive enumeration of acts constituting genocide, since it was impossible to foresee at present what forms of genocide might be evolved by criminal minds in the future. The acts enumerated in the first part of the amendment were designed to serve only as examples; they had been chosen on the basis of historical considerations, being the acts most frequently committed by the Nazis in the recent past.

1476

A/C.6/SR.81

The second part of the amendment was also drafted in very general terms so as to include all acts capable of creating conditions of life aimed at the total or partial extermination of a group. The text of the Soviet Union amendment was therefore applicable to all acts of genocide, including even those which could not be foreseen at present, and would enable the judges dealing with genocide to punish all the authors of the crime, in whatever form it might be committed. Mr. Raafat (Egypt) saw no reason why the Chinese amendment [A/ C.6/232/Rev.1] should not be adopted. He considered it unnecessary to add the words “intended and likely to cause” in sub-paragraph 3 of article II as proposed by the United Kingdom [A/C.6/222]. On the other hand, the Uruguayan amendment [A/C.6/209] might be accepted, since the addition of the words “disease or a weakening of such members generally” was a useful development of the idea contained in sub-paragraph 2. The representative of Egypt criticized the USSR amendment, as it read in the French version, on the grounds that the first part of it repeated the statement of motives already given in the first paragraph of article II, thus duplicating that paragraph, and that the second part of it singled out acts which were only an additional example of acts of physical destruction listed in the first part. The Chairman recalled that an amendment to the Soviet Union amendment had been submitted by the Peruvian delegation [A/C.6/241], and should be discussed at the same time as it. Mr. Goytisolo (Peru) thought that the USSR amendment might help to clarify the second part of article II, provided it were changed in accordance with the Peruvian proposal. In the first place, the words “for example” should be deleted, since they gave the list a vague character against which the Committee had already decided at the 78th meeting. References to individual executions, which was out of place in a convention on a crime of an essentially collective character, should also be deleted from the text of the Soviet Union proposal. Mr. Maktos (United States of America) agreed with the Peruvian representative’s criticism of the USSR amendment. For his part, he preferred

A/C.6/SR.81

1477

the text of the Ad Hoc Committee’s draft which gave a detailed list of acts constituting genocide. He also agreed with Mr. Raafat that repetition was undesirable. Mr. Kaeckenbeeck (Belgium) thought that if the Soviet Union delegation consented to delete from its amendment the words “for example”, which had already been rejected by the Committee at the 78th meeting, and the reference to “reason of race, nationality or religion”, which had also been rejected (77th meeting) there would only remain a difference of wording between the text of the Ad Hoc Committee’s draft and that of the USSR amendment; the Belgian delegation would then give preference to the latter. Mr. Morozov (Union of Soviet Socialist Republics) replied that he was unable to change his amendment on those two points, in view of the fact that he could not, as already explained (78th meeting), agree to a restrictive list of acts of genocide nor accept the deletion of motives. The changes proposed by the representative of Belgium would deprive the USSR amendment of any substantial difference in meaning from that of the Ad Hoc Committee’s draft. Mr. Fitzmaurice (United Kingdom) explained that his delegation, feeling that the wording of sub-paragraphs 2 and 3 was rather vague, proposed that sub-paragraph 2 should be replaced by the following text: “causing grievous bodily harm to members of the group”, and that at the end of sub-paragraph 3 the words “intended and likely to cause” should be substituted for the words “aimed at causing” [A/C.6/222]. It would not be appropriate to include, in the list of acts of genocide, acts which were of little importance in themselves and were not likely to lead to the physical destruction of the group. With regard to the difference between the French and English texts of sub-paragraph 1, Mr. Fitzmaurice wished to point out that the word “killing” had a much wider meaning than the word “murder”. If, for example, a Government destroyed a group, that might not be “murder” according to some national laws, but it would be “killing”. Mr. Ti-tsun Li (China) stated that the purpose of his delegation’s amendment [A/C.6/232/Rev.1] was to make it possible for the provisions of sub-paragraph 2 to include acts of genocide committed through the use of narcotics. He recalled that his delegation had drawn the Ad Hoc

1478

A/C.6/SR.81

Committee’s attention to the fact that Japan had committed numerous acts of that kind of genocide against the Chinese population.1 If those acts were not as spectacular as Hitlerite killings in gas-chambers, their effect had been no less destructive. In drawing up a convention of universal scope it was appropriate to keep in mind not only the atrocities committed by Nazis and fascists, but also the horrible crimes of which the Japanese had been guilty in China. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 6.

Mr. Sundaram (India) agreed with Mr. Fitzmaurice, that the wording of sub-paragraph 2 was not clear. He supported the United Kingdom amendment but wished, in order to meet the desire of the Chinese delegation, to add the words: “or mental” after the word “physical”, as indicated in his delegation’s amendment [A/C.6/244 ]. With regard to the United Kingdom amendment to sub-paragraph 3, Mr. Sundaram felt that it would be enough to say that the measures or conditions of life were aimed at causing death; it was unnecessary to say also that they were intended to do that. With respect to the Uruguayan amendment, Mr. Sundaram was of the opinion that the list should be restricted to acts likely to cause the physical destruction of the group, and that it was therefore inappropriate to include measures likely to cause “disease or a weakening” of the members of the group. Mr. Morozov (Union of Soviet Socialist Republics) having indicated the difficulty of discussing the numerous amendments to the four sub-paragraphs of article II, at the same time, the Chairman stated that it was impossible to limit the debate to sub-paragraph 1 in view of the fact that the USSR amendment concerned several of these sub-paragraphs. Mr. Spiropoulos (Greece), Rapporteur, noted that the Committee had already expressed its view on the principle of the Soviet Union amendment by adopting a restrictive enumeration of acts of genocide in the first part of article II. He added that the four sub-paragraphs of article II included all the acts enumerated in the USSR amendment. In his view, the same might be

A/C.6/SR.81

1479

said of all the other proposed amendments, with the exception of those made by Syria and Greece for the addition of a fifth sub-paragraph to the enumeration.1 1

Syrian proposal: “5. Imposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment.” Greek proposal: “5. Forced transfer of children to another human group.”

With regard to the first part of the Soviet Union amendment, Mr. Dihigo (Cuba) stated that the scope of the convention should not be extended too far; consequently his delegation would vote for the restrictive enumeration in the four sub-paragraphs of the Ad Hoc Committee draft. Mr. Dihigo admitted that the Peruvian proposal improved the USSR amendment, but he could not support it in view of the fact that it would make for a defective drafting of the list. Mr. Pérez Perozo (Venezuela) supported the Cuban representative. He added that the question of individual executions had been raised in the Ad Hoc Committee and that the latter had decided that killings which were covered by sub-paragraph 1 of the enumeration included mass murder as well as individual executions.2 The Ad Hoc Committee had expressed the view that the death of an individual could be considered as an act of genocide if it was part of a series of similar acts aiming at the destruction of the group to which that individual belonged. The Committee had decided, however, not to state that view in its report to the Economic and Social Council in order that the Council, and later the General Assembly, should be free to give any interpretation they deemed desirable to that sub-paragraph of the list. 2

See document E/AC.25/SR.13.

With regard to the Chinese amendment, Mr. Pérez Perozo agreed with the Rapporteur that the provisions of sub-paragraph 2 could cover the cases envisaged by the Chinese delegation, but he would support the said amendment in view of the fact that it merely clarified the scope of the provisions. Mr. Spanien (France) would be ready to support the USSR amendment if the latter agreed to include political opinion as well as reasons of race,

1480

A/C.6/SR.81

nationality or religion in accordance with the decision already taken by the Committee (75th meeting). In reply to a question from the Chairman, Mr. Kaeckenbeeck (Belgium) explained that his delegation had proposed the insertion of the word “inflicting” before the words “enforced measures or conditions of life” in sub-paragraph 3 [A/C.6/217 ], because it felt that criminal responsibility could only be established in cases where measures or conditions of life had really been inflicted upon the group. As it was a question of drafting, rather than of substance, Mr. Kaeckenbeeck did not insist that a vote be taken on his amendment at the present stage of the Committee’s work. The Chairman put to the vote sub-paragraph 1 of the USSR amendment [A/C.6/223]. The amendment was rejected by 30 votes to 6, with 2 abstentions. The text proposed by the Ad Hoc Committee for sub-paragraph 1 of article II was adopted. Mr. Manini y Ríos (Uruguay) pointed to a discrepancy between the French and English texts of sub-paragraph 1 – the first of which said meurtre and the second “killing members of the group” – and wished to know which of the two texts would serve as a basis for translation into the other official languages of the United Nations. The Chairman stated that it was not for the Committee to decide at present which of the two working languages of the United Nations should prevail. He explained that sub-paragraph 1 of the Ad Hoc Committee’s text had been adopted in both the French and the English versions. Mr. Manini y Ríos (Uruguay) wished it to be clearly understood that his delegation accepted only the English version of the text. Mr. Spanien (France) noted that killing was an act of manslaughter; if it were committed without premeditation, it was an act of homicide, and if it was committed with premeditation, it became an act of murder. In view of the very precise legal meaning of the words “homicide” and “murder”, it seemed that the French word meurtre was the term closest in meaning to the English word “killing”.

A/C.6/SR.81

1481

In order to bring the French text into complete conformity with the English text, it might be worded: meurtre commis sur la personne des membres du groupe. Mr. Dignam (Australia) was not sure that the words meurtre and “killing” were absolutely synonymous. It was important to find a French word which would render exactly the meaning of the English word. Mr. Maktos (United States of America) explained, as Chairman of the Ad Hoc Committee, that the Committee had chosen the word “killing” because it felt that the idea of intent had been made sufficiently clear in the first part of article II. It had never been a question of defining unpremeditated killing as an act of genocide. The Chairman opened the discussion on sub-paragraph 2. He recalled that amendments to the text proposed by the Ad Hoc Committee had been submitted by the USSR, Belgium, China and the United Kingdom. Mr. Ti-tsun Li (China) could not share the view of the representatives who felt that the text proposed by the Ad Hoc Committee was adequate; the concept of impairing the physical integrity was not broad enough to include the harm done by the Japanese to the Chinese people through the use of narcotics. Consequently, the Chinese delegation wished its amendment to stand. Mr. Manini y Ríos (Uruguay) stated that he would vote in favour of the Chinese amendment. He pointed out that there was an essential difference between the French and English versions of the Ad Hoc Committee’s draft: the French text contained no mention of “members of the group”. That was a question of substance and not merely a drafting matter; the French text should be changed unless the Committee decided otherwise. Prince Wan Waithayakon (Siam) took the place of Mr. Alfaro in the Chair. Mr. Raafat (Egypt) felt that the most important amendment was the one submitted by the United Kingdom [A/C.6/222]. It proposed adding the word “grievous” to define the kind of impairment of physical integrity. That addition might give rise to a great many difficulties of interpretation in the courts.

1482

A/C.6/SR.81

Mr. Raafat noted that the text submitted by the Ad Hoc Committee met the demands of the Chinese delegation in the light of previous agreement that the expression “physical integrity” could be interpreted as implying mental integrity as well. A clarification of that point in the Rapporteur’s report should therefore be sufficient to satisfy the Chinese delegation, which might then withdraw its amendment. Mr. Fitzmaurice (United Kingdom) said that in proposing the addition of the word “grievous” his delegation aimed to give greater clarity to the text; that word had a very precise meaning in English law. However, if that were the general desire of the Committee, the United Kingdom delegation would not press for acceptance of the word since the idea of intention was made very clear in the first part of article II. The United Kingdom representative understood perfectly well the reasons which had prompted the Chinese delegation to submit its amendment. He felt, however, that to introduce into the convention the notion of impairment of mental health might give rise to some misunderstanding. He pointed out that if such impairment produced repercussions on physical health the case would be covered by the present text. If there were no repercussions on physical health, it could not be said that a group had been physically destroyed, that was to say that the crime of genocide had been committed in the sense of article II. Mr. Morozov (Union of Soviet Socialist Republics) did not consider the text proposed by the Ad Hoc Committee satisfactory as it was much too vague. It was for that reason that it had received much criticism and been subjected to numerous amendments. He wished to stress once more that the Committee should not have adopted the principle of a restrictive list of the type of acts constituting genocide. If the USSR amendment had been accepted, the provisions of article II would have allayed the concern expressed by the Chinese delegation regarding the use of narcotic drugs in the perpetration of the crime of genocide. The Soviet Union representative stated that he would vote against the text proposed by the Ad Hoc Committee and against all the amendments which had been submitted, because he could not accept the principle of a restrictive enumeration which only defined certain acts of physical genocide. Mr. Sundaram (India) withdrew his amendment [A/C.6/244 ]. As the United Kingdom representative was willing to delete the word “grievous”

A/C.6/SR.81

1483

in his amendment, Mr. Sundaram suggested that the basic idea of the amendment could be retained if the word “serious” were inserted. (That modification would not affect the French text.) The representative of India further suggested that the text submitted by the United Kingdom delegation should be amended by adding the words “or mental” after the word “physical”. The Chairman put the Chinese amendment [A/C.6/232/Rev.1] to the vote. The Chinese amendment was rejected by 17 votes to 10, with 13 abstentions. Mr. Maktos (United States of America) had voted in favour of the Chinese amendment on the instructions of his delegation although its view was that physical integrity also included mental integrity. Mr. Fitzmaurice (United Kingdom) observed that in view of the rejection of the Chinese amendment there was no need to put to the vote the Indian amendment suggesting that the words “or mental” should be inserted in the United Kingdom proposal. On the other hand, Mr. Fitzmaurice was willing that the word “grievous” in his amendment should be replaced by the word “serious”. The representative of India having maintained his amendment, the Chairman put it to the vote. The Indian amendment was adopted by 14 votes to 10, with 14 abstentions. In reply to a question by Mr. Federspiel (Denmark), the Chairman explained that the vote referred to the English text as that was the text which he had read immediately prior to the vote. Speaking on a point of order, Mr. Kaeckenbeeck (Belgium) considered it impossible to exclude one of the working languages when a vote was taken. The texts in the two working languages should correspond exactly. It was impossible to say that the vote had taken place on a text drawn up in one of the working languages and that the official translation into the other language would be made subsequently. The Chairman stated that the fact that the two working languages were on an equal footing had not been contested. He then put to the vote the United Kingdom delegation’s amendment [A/C.6/222] as amended by the Indian proposal.

1484

A/C.6/SR.81

The United Kingdom amendment was adopted by 24 votes to 10, with 7 abstentions. Mr. Ti-tsun Li (China) had voted in favour of the Indian amendment because it had the same implication as the one submitted by the Chinese delegation. Mr. Li hoped that in his report the Rapporteur would emphasize the fact that genocide committed with the aid of narcotic drugs was dealt with in article II of the convention. Mr. Maktos (United States of America) had voted for the Indian amendment, which was almost the same as the defeated Chinese amendment, because he considered that it was necessary for previous decisions to be taken into account at the time when a decision was taken on a proposal. The Chairman opened the discussion on paragraph 3 of article II. He recalled that the delegations of Belgium, the United Kingdom, the Union of Soviet Socialist Republics and Uruguay had suggested amendments to the text proposed by the Ad Hoc Committee. Mr. Manini y Ríos (Uruguay) explained that the purpose of his amendment was to provide for cases where certain measures or living conditions resulted not in death but in “disease or a weakening” of the members of the group. That was a logical conception: in fact, the first sub-paragraph referred to killing and the second to the impairment of physical integrity; thus the third point would take up again the notions expressed in the first two sub-paragraphs. Mr. Morozov (Union of Soviet Socialist Republics) thought that the text proposed by the Uruguayan delegation was too vague, and that it did not provide for all the cases which might arise. The USSR delegation would therefore vote against that amendment. The Chairman put the Uruguayan amendment [A/C.6/209] to the vote. The amendment was rejected by 21 votes to 6, with 9 abstentions. The Chairman opened the discussion on sub-paragraph 2 of the Soviet Union amendment [A/C.6/223]. Mr. Kaeckenbeeck (Belgium) felt that the French translation of the USSR amendment did not fully render the ideas of the authors of that

A/C.6/SR.81

1485

amendment. He suggested to the USSR representative that the words de nature à entraîner should be replaced by the words faites pour entraîner. That amendment would, in addition, take into account the amendment proposed by the United Kingdom delegation. Mr. Federspiel (Denmark) supported the Belgian representative’s view. He considered that the United Kingdom amendment could very well be incorporated into the USSR amendment. Mr. Morozov (Union of Soviet Socialist Republics) stated that he would be happy to study the Belgian representative’s suggestions if they were submitted in writing. Mr. Morozov observed that his amendment stressed the point that the intent to impose certain living conditions was an essential factor of the crime. The text suggested did not contain any enumeration as it was impossible to provide for all measures which might be taken in order to create the living conditions contemplated. The Soviet Union representative moved the adjournment of the debate in order that delegations might study the proposals which had been made in connexion with the USSR amendment. Mr. Maktos (United States of America) felt that it would be preferable for the Committee to finish examining article II before adjourning the meeting. Mr. Abdoh (Iran) supported the point of view of the representative of the United States of America. He observed that the Ad Hoc Committee’s text was preferable to that of the Soviet Union, since it conformed more closely to sub-paragraph 1, which had already been adopted. In that connexion he said that as the Committee had accepted the first part of the USSR amendment it would be logical to accept the second part. Mr. Kaeckenbeeck (Belgium) pointed out that the explanations given by the representative of the Soviet Union showed that a drafting question and not one of substance was involved. The text of the USSR amendment twice mentioned the notion of intent. It would be well, therefore, to replace the expression “aimed at” by the words used in the United Kingdom amendment: “intended and likely to cause”. Mr. Kaeckenbeeck

1486

A/C.6/SR.81

thought that it would be better to say “which will cause”. The essential idea of the amendment would thus be retained by adding the concept that the measures taken were likely to bring about the desired result. Mr. Federspiel (Denmark) preferred the text proposed by the USSR delegation to that of the Ad Hoc Committee. He considered that it would be possible to draw up a text which would meet with the unanimous approval of all members of the Committee. The Danish representative moved the adjournment of the debate. Mr. Maktos (United States of America) stated that he would vote against the motion considering as he did that the members of the Committee had been able to form an adequate opinion regarding the two texts before them in order to vote immediately. Mr. Morozov (Union of Soviet Socialist Republics) found it very difficult to reply immediately to the proposal made by the representative of Belgium. If it only meant a drafting change, he would be glad to accept it, or at least to take it into account in drawing up a new text for the USSR amendment. He thought that it would be quite in order to adjourn the debate in order to allow certain representatives to consult with one another before voting on the USSR amendment. Mr. Kaeckenbeeck (Belgium) also supported the Danish delegation’s motion for the adjournment of the debate. The motion for adjournment was adopted. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) thought it would be well to carry out the Soviet Union representative’s suggestion that the representatives of Denmark, the Soviet Union and Belgium should meet informally before the next meeting of the Committee in order to draw up a new text to take the place of the present USSR amendment. The meeting rose at 6 p.m.

A/C.6/SR.82

1487

EIGHTYSECOND MEETING Held at the Palais de Chaillot, Paris, on Saturday, 23 October 1948, at 10.30 a.m. Chairman: Mr. R.J. Alfaro (Panama). 29. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (continued ) Mr. Kaeckenbeeck (Belgium) said that, as proposed at the 81st meeting, he had consulted the delegation of the Soviet Union with a view to reaching an agreement on the wording of subparagraph (ii) of the USSR amendment to article II [A/C.6/223] in both English and French. He understood that the substitution of the word devant for faites pour in the French version and the substitution of the phrase “as are calculated to bring about” for “as is aimed at” in the English version would be satisfactory to the Soviet Union. Mr. Morozov (Union of Soviet Socialist Republics), confirming the Belgian representative’s statement, asked the representative of the United States whether he accepted the English wording. Mr. Maktos (United States of America) expressed his satisfaction with the wording. Mr. Fitzmaurice (United Kingdom) stated that the wording proposed was entirely satisfactory to his delegation. If the remainder of the Committee also approved of it, he would withdraw his own amendment (81st meeting) to subparagraph 3. Mr. Sundaram (India) likewise announced that he would withdraw his delegation’s amendment to that sub-paragraph (ibid.). Mr. Kaeckenbeeck (Belgium) withdrew his delegation’s amendment [A/C.6/217 ]. Mr. Raafat (Egypt) did not approve of the inclusion of the word “deliberate” in the English text of the USSR amendment on the ground that the word was already included in the first paragraph of article II and no repetition was necessary. That word had not been thought necessary in subparagraphs 1, 2 or 4. He was in favour of the Ad Hoc Committee’s text.

1488

A/C.6/SR.82

Mr. Kaeckenbeeck (Belgium) pointed out that the word “deliberate” in the first part of the article referred to the definite intent to destroy a group or groups. It was necessary to repeat the word in sub-paragraph 3 since the intent in that case was no longer the same, the word “deliberate” referring there to the creation of conditions of life. Mr. Raafat (Egypt) replied that the observations on article II1 made it clear that the “intent to destroy” applied to any of the acts mentioned in sub-paragraphs 1, 2, 3 and 4. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 5.

Mr. Abdoh (Iran) expressed himself in favour of the Ad Hoc Committee’s text for the same reasons as those given by the representative of Egypt. He pointed out that the adoption of only one part of the USSR amendment would give rise to a certain lack of uniformity. If, on the other hand, that amendment had been adopted in its entirety, it would have been possible to accept the phrase “physical destruction in whole or in part” in sub-paragraph (i) of the Soviet Union amendment. The phrase “killing members of the group” used in the Ad Hoc Committee’s draft was not in accordance with the USSR amendment. Mr. Delahaye (France) pointed out that a number of drafting changes were necessary. Mr. Kaeckenbeeck (Belgium) replied that it was impossible for a committee of fifty-eight members to produce a draft which was really perfect in style. At some stage of its work, the Committee would have to appoint a drafting committee. The revised text would subsequently have to be approved as a whole before it was submitted to the General Assembly. The Chairman then put to the vote the second part of the USSR amendment in the revised wording agreed on by the representatives of Belgium and the Soviet Union: “The deliberate infliction of conditions of life for such groups as are calculated to bring about their physical destruction in whole or in part.” The amendment was adopted by 23 votes to 7, with 7 abstentions.

A/C.6/SR.82

1489

The Chairman pointed out that there were no amendments to sub-paragraph 4 of the Ad Hoc Committee’s draft, apart from the last section of the USSR amendment [A/C.6/223]. Mr. Morozov (Union of Soviet Socialist Republics) said he had been under the impression that the vote taken at the 81st meeting involved the acceptance or rejection of the Soviet Union amendment as a whole. That amendment should have been considered in its entirety, since its aim was not to give a complete list of all acts constituting genocide but to give examples by way of illustration. In giving a full list, the Ad Hoc Committee had laid itself open to the danger of misinterpretation. The Soviet Union delegation was opposed to sub-paragraph 4 in the Ad Hoc Committee’s text not because it did not regard it as within the scope of genocide but because the wording was unsatisfactory. Mr. Abdoh (Iran) thought it would be desirable to establish a compromise text by combining part of the Ad Hoc Committee’s text with part of the USSR version. The wording of the Ad Hoc Committee’s draft was general and comprehensive and could be interpreted as covering sterilization and compulsory abortion. The last part of the Soviet Union amendment was, in his view, superfluous. The Chairman then asked the representative of the USSR whether, in view of his previous statement, he wished his amendment to be put to the vote. Mr. Morozov (Union of Soviet Socialist Republics) replied that he had been under the mistaken impression that the Soviet Union amendment had been rejected as a whole. If a vote had not in fact been taken on the last part, it was essential that the Committee should vote on it. The Chairman put the second part of the USSR amendment [A/C.6/223] to the vote. It was rejected by 30 votes to 5, with 7 abstentions. The Chairman then put sub-paragraph 4 of article II of the Ad Hoc Committee’s draft to the vote. Sub-paragraph 4 was adopted by 30 votes to none, with 3 abstentions.

1490

A/C.6/SR.82

The Chairman announced that there was a Syrian amendment (81st meeting) proposing that a fifth sub-paragraph be added to article II. Mr. Tarazi (Syria) noted that the four sub-paragraphs of the Ad Hoc Committee’s draft did not cover the provision proposed by his delegation. The problem of refugees and displaced persons to which his delegation’s proposal referred had arisen at the end of the Second World War and remained extremely acute. In his delegation’s view, any measures directed towards forcing members of a group to leave their homes should be regarded as constituting genocide. That crime was far more serious than ill-treatment. Mr. Kaeckenbeeck (Belgium) pointed to a discrepancy between the French and English texts of that amendment, in that the former used the term populations and the latter the term “members of a group”. He suggested that the English text be taken as a basis and the French translation modified in accordance with it. It should be made clear in the text that the threat of ill-treatment had to be serious in order to constitute genocide; if not, the concept of genocide would be given indefinite scope. Mr. Sundaram (India) expressed agreement with the Belgian representative. He objected to the Syrian proposal on the ground that it went too far: abandonment of homes under the threat of ill-treatment and not even the threat of genocide should not be considered genocide. Mr. Bartos (Yugoslavia), on the other hand, quoted an instance in which the Nazis had dispersed a Slav majority from a certain part of Yugoslavia in order to establish a German majority there. That action was tantamount to the deliberate destruction of a group. Genocide could be committed by forcing members of a group to abandon their homes. The Yugoslav delegation would support the Syrian amendment, subject to a slight modification: in the Yugoslav delegation’s view, the last phrase of the proposal was superfluous; the amendment should end at the word “homes” in the English text and at the word foyers in the French. Mr. Maktos (United States of America) objected to the Syrian amendment on the ground that it deviated too much from the original concept of genocide.

A/C.6/SR.82

1491

In the Collection of Opinions – U.S.-Turkey, fifty claims had been put forward based on the forced abandonment of homes. All those claims had been disallowed because there was absolutely no evidence of compulsion. It was significant that the judge, who disallowed the American claims, was an American. Mr. Fitzmaurice (United Kingdom) said that in the view of his delegation the problem raised by the Syrian amendment was a serious one but did not fall within the definition of genocide. He regarded it as a problem for the Third Committee. Mr. Dihigo (Cuba) felt that although the Syrian amendment was interesting, it did not seem to come within the definition of the crime of genocide, which was, essentially, the destruction of a human group. Mr. Tarazi (Syria) did not consider that the criticisms voiced with reference to his proposal necessitated its withdrawal. The Committee was discussing acts infringing human dignity. He did not agree with the argument that it was the Third Committee, rather than the Sixth, that was competent to examine his proposal. It was the Sixth Committee that had been charged with examining the draft convention on genocide and the crime under discussion did constitute genocide. Since the representative of Belgium had preferred the English text, although the amendment had originally been drafted in French, Mr. Tarazi would agree to amend the French text to read: afin d’échapper à la menace sérieuse de mauvais traitements, if the addition of the word sérieuse would meet the objections of the Belgian representative. Mr. Morozov (Union of Soviet Socialist Republics) agreed with the representatives who considered that the proposed sub-paragraph 5 fell outside the scope of the definition of genocide. Measures compelling members of a group to abandon their homes, in the case of acts committed under the Hitler regime, were rather a consequence of genocide. Such acts were already provided for in the draft convention and would therefore be punishable. The intentions of the Syrian amendment would be fully met, for if the crime of genocide were punishable, acts deriving from it would also be punishable. The proposed sub-paragraph 5 should not be included in article II. The USSR delegation would vote against it.

1492

A/C.6/SR.82

The Chairman put the Syrian amendment [A/C.6/234 ] to the vote. The amendment was rejected by 29 votes to 5, with 8 abstentions. Mr. Raafat (Egypt) explained that he had abstained from voting on the amendment since, in his opinion, that amendment went beyond the accepted idea of genocide in that it did not concern the destruction of human groups. The act referred to in the amendment created displaced persons. Mr. Abdoh (Iran) endorsed the reasons given by the representative of Egypt for his abstention and considered that the question could more appositely be raised in the Third Committee. The Chairman stated that there was one more amendment to be considered, namely a Greek proposal to add a fifth sub-paragraph to article II (81st meeting). Mr. Vallindas (Greece) recalled that the draft convention on genocide prepared by the Secretariat [E/447 ] included in its enumeration of the acts constituting genocide the “forced transfer of children to another human group”. That clause was classified under cultural genocide. The experts who had advised the Secretariat in the preparation of the draft convention were agreed that that point should be covered by the convention on genocide. Only two delegations had expressed their views on that clause. The French delegation was, in principle, opposed to the inclusion of cultural genocide1 but its opposition would surely not extend to the special case of the forced transfer of children, an act far more serious and indeed more barbarous than the other acts enumerated in the first draft convention under the heading of cultural genocide, such as the prohibition of the use of a national language, the destruction of books or of historical or religious monuments. Such acts could be covered by other rules of international law, especially by those dealing with the protection of minorities. The forced transfer of children had not only cultural, but also physical and biological effects since it imposed on young persons conditions of life likely to cause them serious harm or even death. 1

See document E/623.

A/C.6/SR.82

1493

The United States delegation, although opposed to the principle of cultural genocide as enunciated in the first draft convention, had nevertheless made an exception in the special case of the forced transfer of children to another human group. The draft convention submitted by the United States1 included the “forced transfer of children” as a final clause in the enumeration of the acts constituting physical and biological genocide. 1

See document E/623.

The amendment submitted by the Greek delegation had the same end in view. The proposal was necessary because the draft convention prepared by the Ad Hoc Committee did not include that clause in the enumeration of acts in article II. There could be no doubt that a forced transfer of children, committed with the intention of destroying a human group in whole, or at least in part, constituted genocide. The forced transfer of children could be as effective a means of destroying a human group as that of imposing measures intended to prevent births, or inflicting conditions of life likely to cause death. Since the enumeration of the acts in article II of the draft convention was restrictive, the Greek delegation wished to emphasize the necessity of including the “forced transfer of children”, a means of committing genocide which had been used not only in the past but was still being used. Mr. Tarazi (Syria) said that the amendment submitted by the Greek delegation was similar to the one submitted by his delegation (81st meeting) and was meeting with the same criticisms. The Syrian delegation would vote in favour of the Greek amendment since it considered that the crime of genocide was not confined only to the destruction of a human being, but included also the threat of destruction. In the case under discussion that element of threat constituted a decisive factor. Mr. Morozov (Union of Soviet Socialist Republics) considered that the Greek amendment, like the Syrian amendment, went far beyond the limits of the provisions already accepted under article II. From the legal point of view, that was the main objection to it. From the historical point of view, there were records of the destruction of children and young people, but there were none of forced transfer constituting genocide. The point was already fully covered by the provisions of the draft convention.

1494

A/C.6/SR.82

Since the Greek amendment was justifiable neither from the legal nor from the historical point of view, the Soviet Union delegation would vote against it. Mr. Manini y Ríos (Uruguay) did not consider that the Greek amendment was similar to the Syrian proposal, of which a correct interpretation had been given by the USSR representative. The Greek amendment dealt with clearly defined cases of genocide in which the destruction of human groups could occur. Since measures to prevent births had been condemned, there was reason also to condemn measures intended to destroy a new generation through abducting infants, forcing them to change their religion and educating them to become enemies of their own people. The delegation of Uruguay would vote in favor of the Greek amendment. Mr. Maktos (United States of America) stated that although he had voted against the Syrian amendment, he would vote in favour of the Greek proposal. The wording of the Syrian amendment was too indefinite to allow of strict interpretation: for example, the time factor came into play in the term “subsequent ill treatment”; it went beyond the definition of the crime of genocide. The Greek amendment, on the other hand, was very clear, and he would ask the Committee to consider what difference there was from the point of view of the destruction of a group between measures to prevent birth half an hour before the birth and abduction half an hour after the birth. Mr. Raafat (Egypt) asked for a definition of the term “forced transfer”. Did it imply a transfer from one country to another or a transfer from one political or religious group to another? If it were the former, then the Greek amendment was similar to the Syrian; if the latter, then the amendment should be considered along with the Pakistan amendment [A/C.6/229] to article III of the Ad Hoc Committee’s draft, which dealt with forced conversion to another religion. Mr. Vallindas (Greece) stated that the Greek amendment was couched in the same terms as the corresponding provision in the first draft convention prepared by the Secretariat [E/447 ] and meant the forced transfer from one human group to another. Mr. Lachs (Poland) was not quite sure of the meaning of the Greek amendment. The transfers carried out by the Germans during the Sec-

A/C.6/SR.82

1495

ond World War were certainly to be condemned, but the word “transfer” could also be applied to the evacuation of children from a theatre of war. Such evacuation had in fact been carried out by agencies working under the auspices of the United Nations. He joined with the representative of Egypt in asking for elucidation of the point. Mr. Vallindas (Greece) stated that the Greek delegation had in mind not only a specific case such as the forced transfer of Greek children. History recorded cases in which. Christian children were abducted and taken to the Ottoman Empire. A discussion of the Greek case was not, however, appropriate in a committee engaged in drafting a convention. In submitting its amendment the Greek delegation had been motivated only by a desire to contribute to the preparation of a more satisfactory draft and to secure the inclusion of the proposed paragraph in the enumeration under article II. It was for the Committee to decide whether forced transfer was or was not an effective means of destroying a human group. Article II presupposed intent to destroy and enumerated types of acts. There could be no doubt that that act also constituted an effective means of committing genocide, since there was no difference between sterilization, abortion and abduction. Moreover, it was not primarily an act of cultural genocide. Although it could in certain cases be considered as such, it could be perpetrated rather with the intent to destroy or to cause serious physical harm to members of a group. Mr. Dihigo (Cuba) said that, if the Greek amendment were read in conjunction with the introductory paragraph of article II, it would be seen to follow on sub-paragraphs 1 to 4 quite appropriately. Mr. Kaeckenbeeck (Belgium) feared that, although the Greek amendment covered a very important point, its inclusion would give unduly broad scope to the convention and hamper its practical application. Transfers of population did not necessarily mean the physical destruction of a group. He recalled that the Committee had rejected the idea of declaring forced displacement in general to be genocide. Should it now decide differently with regard to the displacement of children? A decision had to be taken on cultural genocide in connexion with article III before considering the Greek amendment. Moreover, the wording of the amendment was too vague.

1496

A/C.6/SR.82

Mr. Lachs (Poland) agreed with the Belgian representative. The Greek representative had not sufficiently clarified the meaning of his amendment. By referring to the abduction of Greek children, the Greek representative had given the matter a distinct political bent. Mr. Abdoh (Iran) felt that, as the Greek amendment concerned cultural as well as physical genocide, it should rather be discussed after article III. Mr. de Beus (Netherlands) agreed that the discussion of the Greek amendment should be postponed until a decision had been taken on cultural genocide. There might be cases of forced transfer of children which were tantamount to genocide, but the wording of the Greek amendment was too vague to justify its immediate adoption. Certain considerations might arise, as, for example, the question whether forced transfer necessarily meant mass transfer; or the question whether the forcible transfer of children to schools of a different language or religion constituted genocide. Mr. Maktos (United States of America) remarked that it was a simple matter for any member to move the postponement of the discussion on an amendment which the member did not favour. He felt that the Greek amendment should stand on its own merits and not be associated too closely with cultural genocide. Even if it were subsequently decided to include cultural genocide in the convention, a judge considering a case of the forced transfer of children would still have to decide whether or not physical genocide were involved. He stressed that, in the eyes of a mother, there was little difference between the prevention of a birth by abortion and the forcible abduction of a child shortly after its birth. Mr. Manini y Ríos (Uruguay) agreed with the United States representative that there was no reason why such acts of physical genocide should be associated with cultural genocide. Mr. Vallindas (Greece) emphasized that the addition he proposed should follow on the first part of article II. It was not connected with cultural genocide, but with the destruction of a group – with physical genocide. Mr. Zourek (Czechoslovakia) remarked that the Committee were indeed unanimous in disapproving the forced transfer of children, but he pointed out that it was a different matter to decide whether that case came under

A/C.6/SR.82

1497

article II of the convention. He asked for explanations as to the scope of the Greek amendment. Referring to the distinction drawn by the Egyptian representative, he stressed that if the Greek amendment covered cases of temporary transfer from one country to another, as indicated by the representative of Poland, all the arguments brought against the Syrian amendment could also be brought against the Greek amendment. If, however, that amendment covered forced transfer from one group to another, it would have to be considered in connexion with the proposed Pakistan amendment to article III, relating to forced conversion from one religion to another. He therefore supported the Belgian proposal. The Chairman put to the vote the Belgian proposal to postpone consideration of the Greek amendment until article III had been discussed. The proposal was rejected by 20 votes to 17, with 5 abstentions. Mr. Morozov (Union of Soviet Socialist Republics) stated that no one had been able to quote any historical case of the destruction of a group through the transfer of children. There had been a reference to hitlerite [sic] crimes committed against children; the aim of the transfer of children by the Germans had, however, been to secure slave labour. If the children later died in the performance of that labour, their deaths could not be directly attributed to their abduction, but would be covered by sub-paragraph 3. In the case of abductions carried out at the time of the Ottoman Empire, the aim had been to enslave children for economic reasons. The United States representative had a wrong approach to the problem. If the intent of the forced transfer was indeed to destroy a group, the other four sub-paragraphs of article II would apply. There were no legal grounds for including the Greek amendment, as it was physical destruction that was under consideration. The Greek amendment turned abruptly to the very different problem of the transfer of individuals. Mr. Iksel (Turkey) wished to make it clear that his voting against the Greek amendment should not be associated with unfair remarks about the Ottoman Empire. Mr. Maktos (United States of America) pointed out that the adjective “forced” appeared before the word “transfer” in the Greek amendment. He observed also that article III was concerned with cultural elements

1498

A/C.6/SR.82

such as language, religion and monuments, and he found it difficult to see how the transfer of children could fit into that context. The Chairman put the Greek amendment to the vote. The amendment was adopted by 20 votes to 13, with 13 abstentions. Prince Wan Waithayakon (Siam) explained that he had abstained from voting because he had felt that the draft text was unsatisfactory; it should have been stated that the transfer of children must involve their complete absorption by a new group with the resultant loss of their former identity. Mr. Stephen (Haiti) stated that he had abstained because he had felt that the convention should, as far as possible, avoid any controversial issue whereas certain ideas in the Greek amendment, for example, the idea of “forced transfer”, were not clear. Mr. Kaeckenbeeck (Belgium) had abstained because he considered the vote on the Greek amendment premature, as certain concepts in it required clarification. The text was too vague and future interpretations of it would be all the more difficult. He was not clear on the comparison drawn by the United States representative between abortion and forced abduction after birth. Again, did the transfer have to be permanent? Did the children have to be destoyed [sic]? Could they be transferred for purely religious or cultural reasons? Mr. Bartos (Yugoslavia) said that he had voted against the amendment because the Committee had already rejected the more general Syrian amendment, against which the same objections might have been raised. He was prepared, however, to agree that the forced transfer of individuals with a view to their assimilation into another group constituted cultural genocide. Mr. Lachs (Poland), while condemning the forced transfer of children at the hands of hitlerites [sic] and fascists, had voted against the amendment because he considered that the way in which it had been presented suggested implications which he deemed out of place. Mr. Zourek (Czechoslovakia) explained that he had voted against the amendment because its wording was unclear and its place in article II illogical.

A/C.6/SR.83

1499

Mr. Vallindas (Greece) pointed out that, in a previous speech, he had referred to a remote historical event concerning the Ottoman Empire and that he had had no intention of alluding to the young Turkish republic, the noble traditions of which Greece admired. The Chairman suggested that the Committee should wait until the following meeting, when the final texts in both languages would be presented, before voting on the adoption of article II as a whole. It was so agreed. The meeting rose at 1 p.m.

EIGHTYTHIRD MEETING Held at the Palais de Chaillot, Paris, on Monday, 25 October 1948, at 3 p.m. Chairman: Mr. R.J. Alfaro (Panama). 30. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article II (conclusion) The Chairman requested the Committee to take a decision on the text of article II, as set forth in document A/C.6/245, which the Committee Secretary then proceeded to read. Mr. Kaeckenbeeck (Belgium) raised a point of order in connexion with the vote which was to be taken. He felt the drafting of both the English and French texts of article II could be improved. He pointed out a discrepancy between the two texts in sub-paragraph 1: the French text said meurtre, whereas the English wording was “killing members of the group”. In sub-paragraph 3, both texts mentioned “groups”; it would be more logical to use the singular and to say, in French: soumission intentionnelle d’un groupe . . . devant entraîner sa destruction . . ., and in English: “the deliberate . . . on a group . . . bring about its physical . . .” Further, in sub-paragraph 5, the expression “human group” was used, although that adjective appeared nowhere else in the text; the word “another” was equally

1500

A/C.6/SR.83

out of place. It would be better to say: “Forced transfer of children from one group to another”. Mr. Kaeckenbeeck thought those few amendments could be adopted at once, before a vote was taken on article II as a whole and even if the various texts adopted by the Committee were to be considered again by a drafting committee. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) agreed in substance with the Belgian representative; he asked the members of the Committee, however, not to waste time in discussing drafting questions which could be easily settled by the drafting committee to be set up for the purpose. Mr. Spiropoulos (Greece), Rapporteur, also agreed with the Belgian representative; the text of article II as set forth in document A/C.6/245 was not absolutely perfect in view of the amendments which had been introduced in the course of the debate. Questions of drafting could, however, be settled by the drafting committee. Mr. Federspiel (Denmark) considered that questions of drafting fell within the competence of the drafting committee; he asked, however, that the summary record of the meeting should mention that the English text of sub-paragraph 3 seemed unintelligible. The Chairman stated that the object of the Belgian proposal was to facilitate the work of the drafting committee. If there were no objections he would take a vote on the text of article II as amended by the Belgian representative. Mr. Federspiel (Denmark) thought it preferable to refer the text as it stood to the drafting committee, mainly because of the discrepancy between the English and French texts of sub-paragraph 1. The Chairman put to the vote the text of article II as set forth in document A/C.6/245. The text of article II was adopted by 28 votes to 6, with 5 abstentions. Mr. Messina (Dominican Republic) wished to explain his vote; he had voted for article II as a whole, but that did not mean that his delegation had modified the position it had taken when voting on the separate

A/C.6/SR.83

1501

parts of the article. The delegation of the Dominican Republic was not in favour of the inclusion of political groups nor of the deletion of the word “premeditated”. Mr. Chaumont (France) had abstained because he considered that the definition of genocide given by article II in its present form was ambiguous and incomplete, and did not provide a solid basis for the international suppression of the crime of genocide. Mr. Zourek (Czechoslovakia) had voted against the text of article II because the definition it contained went further than the notion of genocide as recognized in practice and in international law and was open to contradictory interpretations. He had voted against the present text in the hope that the doubtful points of the definition would be eliminated on a second reading. Mr. Setalvad (India) stated that his vote in favour of the text of article II did not indicate that he withdrew his vote against certain parts of the article, particularly against sub-paragraph 5. Mr. Pérez Perozo (Venezuela) had abstained because his delegation had consistently opposed the inclusion of political groups. Article III The Chairman opened the discussion of article III of the draft convention, including the question as to whether or not the convention would include cultural genocide. Sardar Bahadur Khan (Pakistan) reminded the Committee that during the general debate (63rd meeting) his delegation had been in favour of including cultural genocide in the convention on a par with physical or biological genocide. He stated that for his country cultural genocide was a matter of vital concern, for thirty-five million people, bound to Pakistan by ties of religion, culture and feeling but living outside its frontiers, faced cultural extinction at the hands of ruthless and hostile forces. The delegation of Pakistan considered that the deletion of article III, which had been proposed by some representatives, would be contrary to the letter and spirit of resolution 96(I) of the General Assembly, which explicitly mentioned cultural genocide in its preamble.

1502

A/C.6/SR.83

Cultural genocide could not be divorced from physical and biological genocide, since the two crimes were complementary in so far as they had the same motive and the same object, namely, the destruction of a national, racial or religious group as such, either by exterminating its members or by destroying its special characteristics. The delegation of Pakistan went so far as to say that cultural genocide represented the end, whereas physical genocide was merely the means. The chief motive of genocide was a blind rage to destroy the ideas, the values and the very soul of a national, racial or religious group, rather than its physical existence. Thus the end and the means were closely linked together; cultural genocide and physical genocide were indivisible. It would be against all reason to treat physical genocide as a crime and not to do the same for cultural genocide. Certain delegations held that the purpose of article III could be attained by introducing suitable provisions into the declaration of human rights or into a charter for the protection of minorities. In the opinion of the Pakistan delegation, such a conception of the problem of cultural genocide was the result of confusing the aims and objects of the present convention with those of declarations or charters establishing the rights and duties of man and the citizen; the latter could not declare cultural genocide to be a crime nor provide measures for its prevention and suppression. Hence the deletion of article III of the convention on genocide and its inclusion in an altered form in the declaration of human rights or in a charter for the protection of minorities would not be in accordance with the requirements of resolution 96(I), which stated that genocide, whether physical, biological or cultural, was a crime under international law which had to be prevented and punished. The only way to implement resolution 96(I) of the General Assembly was to include the idea of cultural genocide in the convention on genocide, and nowhere else. Some representatives appeared to consider cultural genocide as a less hideous crime than physical or biological genocide. The representative of Pakistan emphasized that for millions of men in most Eastern countries the protection of sacred books and shrines was more important than life itself; the destruction of those sacred books or shrines might mean the extinction of spiritual life. Certain materialistic philosophies prevented some people from understanding the importance which millions of men in the world attached to the spiritual life.

A/C.6/SR.83

1503

In the opinion of the delegation of Pakistan, it was not enough that laws should be inserted in the constitution or the civil code of the various countries to guarantee the right of self-expression to national, racial or religious groups; such laws did not prevent the perpetration of crimes, as was seen by the unfortunate example of the Nazis, who had persecuted the Jews in accordance with the racial theories preached by the chief exponents of nazism. A convention on genocide was not, therefore, superfluous; on the contrary, it was necessary if it was really intended to put an end to the systematic campaigns of cultural genocide in various parts of the world. The delegation of Pakistan recalled that in article II genocide was defined as something other than the physical destruction of life, as was clearly shown in sub-paragraphs 2 and 3. It had been claimed that article III as proposed by the Ad Hoc Committee would hinder the integration of the various elements of a country into a homogeneous national unit. The delegation of Pakistan believed that the amendment it had submitted [A/C.6/229] would meet the difficulty. It understood perfectly that new countries desired to assimilate immigrants in order to create a powerful national unit; nevertheless if assimilation was nothing but a euphemism concealing measures of coercion designed to eleminate [sic] certain forms of culture, Pakistan formally opposed fascist methods of that kind, which emanated from philosophies that should be repudiated as contrary to the spirit and the aims of the Charter of the United Nations. After making the above general observations on cultural genocide, the representative of Pakistan submitted the amendment proposed by his delegation. He considered that article III as drawn up by the Ad Hoc Committee gave unduly broad scope to the idea of genocide; its provisions might lead to the condemnation of numerous acts committed by the governments of various countries. For that reason the delegation of Pakistan had proposed an amendment which suppressed sub-paragraph 1 of article III and restricted genocide to acts of violence aimed at the destruction of objects of religious or cultural value and at forced conversions. Such acts were already punishable under most criminal codes; the delegation of Pakistan therefore hoped that the Committee would declare that cultural genocide as defined in the Pakistan amendment was a crime under international law which should be prevented and punished. Otherwise, the convention on genocide would only partially achieve its aim.

1504

A/C.6/SR.83

Mr. Pérez Perozo (Venezuela) recalled that in the Ad Hoc Committee on Genocide the representative of Venezuela had favoured the inclusion of cultural genocide in the convention; the Venezuelan delegation would maintain that attitude. The convention should not restrict the concept of genocide to the physical destruction of the human groups whom it was intended to protect. The definition given in article II did not specifically lay down that the destruction of a group had to be physical destruction; it might be argued that the first four sub-paragraphs of article II referred only to concrete acts of physical destruction, but it should be borne in mind that the Committee had included a fifth point covering the “forced transfer of children to another human group”; thus the Committee implicitly recognized that a group could be destroyed although the individual members of it continued to live normally without having suffered physical harm. Sub-paragraph 5 of article II had been adopted because the forced transfer of children to a group where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children. Such transfer might be made from a group with a low standard of civilization and living in conditions both unhealthy and primitive, to a highly civilized group as members of which the children would suffer no physical harm, and would indeed enjoy an existence which was materially much better; in such a case there would be no question of mass murder, mutilation, torture or malnutrition; yet if the intent of the transfer were the destruction of the group, a crime of genocide would undoubtedly have been committed. The Venezuelan delegation was aware that the human conscience was particularly shocked by those acts of genocide which constituted mass murder and those covered by sub-paragraph 3 of article II; yet less spectacular crimes should not be overlooked and the concept of genocide should extend to the inclusion of acts less terrible in themselves but resulting in “great losses to humanity in the form of cultural and other contributions”, for which it was indebted to the destroyed human group. He recalled that resolution 96(I) defined genocide thus: “Genocide is a denial of the right of existence of entire human groups.” A group could be deprived of its existence not only through the physical destruction of

A/C.6/SR.83

1505

its members, but also through the destruction of its specific traits, the loss of which led to the dissolution of its unity, even though no attempt had been made on the life of its members. The element of persecution, which existed in every case of genocide, had two aspects, physical destruction and the destruction of the spirit, each tending to the same end: to deprive the group of its existence. Human groups were the necessary instruments of world co-operation as laid down in the Charter, and it was that concept which showed the exact sense of the General Assembly resolution on the protection of human groups. Adequate justification for the protection of human groups from cultural genocide could be found in present-day history; everyone was aware of the violent outrages committed by the Nazis upon the cultural or religious life of the groups they intended to destroy; everyone knew of the burning of synagogues and Jewish libraries; nor could anyone forget certain events which occurred during the first World War, such as the burning of the university of Louvain and the destruction of the cathedral of Rheims. Those examples were quoted simply to show that crimes against the culture or the religion of certain groups could shock human conscience in the same way as did crimes of physical genocide. Some delegations held that cultural genocide should be excluded from the convention either because there were inherent in it certain factors covered by other conventions, such as the one for the protection of minorities, or because provision was already made for it in national legislation, such as laws on education and the protection of worship. The Venezuelan delegation did not regard such arguments as conclusive; indeed, were they to be pursued to the end, they might lead to the conclusion that the whole convention on genocide was useless, since all the acts constituting genocide were penalized by the laws of all civilized countries, as were the acts enumerated in article IV: conspiracy to commit the crime, intent, attempt and complicity. It should not be forgotten that the General Assembly, in its desire to free the world from the scourge of genocide, had endeavoured to use that name to define a new crime so as to make its features more obvious, thus facilitating international action. With that aim in view, and in order to define the specific traits of the new crime, the convention would necessarily have to take over from the general framework of criminal law certain crimes already penalized under international law; the fact that national laws penalized cultural genocide in certain of its manifestations, such as the destruction of churches or

1506

A/C.6/SR.83

the burning of libraries, was an added reason for the inclusion of that crime in the present convention; just as mass murder and the causing of serious bodily harm, which were crimes penalized by national law, had been included in the convention. The Venezuelan delegation, though favouring the inclusion of cultural genocide in the convention, did not approve the present form of article III. The text of that article was an ill-assorted mixture of heterogeneous elements and abstract conceptions lacking in precision. The terms used were vague and too general to form the substance of a document to win the support of the States which would ratify the convention. The text of article III could be improved if the heterogeneous enumeration now given were deleted and only the indispensable concrete elements retained. The Chairman reminded the representative of Venezuela that in accordance with a decision taken at the 81st meeting of the Committee each speaker was limited to a maximum of ten minutes. Mr. Pérez Perozo (Venezuela) said he would conform to the rule adopted by the Committee although he did not think a time limit should be imposed on speakers when the subject under discussion was as important as that of the adoption of the principle of cultural genocide. Mr. Petren (Sweden) stated that in the opinion of the Swedish delegation the content of article III had many similarities with certain clauses regarding the protection of national minorities contained in a number of treaties concluded after the First World War. But those clauses applied only to States created or revived after the war; consequently, in the opinion of the Swedish delegation, it would be desirable to establish the cultural protection of minorities on a more general international plane. The convention on genocide did not, however, seem to be the appropriate instrument for such protection. The acts which, according to article III, would constitute cultural genocide might be far less serious than those specified in article II; for instance, in the case of measures of educational policy, it might be difficult to estimate their scope in relation to the cultural position of a minority. The question could arise whether, for example, the fact that Sweden had converted the Lapps to Christianity might not lay her open to the accusation that she had committed an act of cultural genocide. The Swedish delegation was disposed to vote against the inclusion of cultural genocide in the convention; in its opinion, the problem of the cultural protection of minorities should be re-examined with a view to

A/C.6/SR.83

1507

drafting a special convention which would prescribe different forms of international control and suppression from those laid down in the convention on genocide. Mr. Amado (Brazil) thought nobody would deny that every criminal act aimed at the destruction of a group should be penalized, nor that every specific trait of a group, its religion among others, should be protected. The only question was to decide by what means the cultural protection of the group should be ensured. Given the historical evolution of civilizations, sometimes through differentiation, sometimes through the amalgamation of local cultures, a State might be justified in its endeavour to achieve by legal means a certain degree of homogeneity and culture within its boundaries. The cultural protection of the group could be sufficiently organized within the international framework of the protection of human rights and of minorities, without there being any need to define as genocide infringements of the cultural rights of the group. The concept of genocide implied only the physical destruction of a group. Cultural genocide was as yet too indefinite a concept to be included in a convention. If, however, the majority were to decide to retain cultural genocide, he would suggest that the text of article III, as set forth in the draft prepared by the Ad Hoc Committee, should be altered. Sub-paragraph 1 should be deleted and the element of violence should be given greater stress in sub-paragraph 2. Mr. Tsien Tai (China) was in favour of retaining cultural genocide in the convention. Although it seemed less brutal, that aspect of the crime against the human group might be even more harmful than physical or biological genocide, since it worked below the surface and attacked a whole population, attempting to deprive it of its ancestral culture and to destroy its very language. That special type of violation of the rights of the group should therefore also be classified as a crime to be suppressed by the convention on genocide, the obligations of which would be far more binding than those implicit in the declaration of human rights, which would have more of a moral force. As for the remarks that had been made concerning a convention for the protection of minorities, it should be remembered that, at present, no such convention existed even in the form of a draft.

1508

A/C.6/SR.83

The Chinese delegation would, therefore, vote in favour of the retention of article III in the convention. Mr. Federspiel (Denmark) did not deny the need to proceed against and suppress acts aimed at the cultural extermination of a group, but he objected to the inclusion of the concept of cultural genocide in the convention, because it was not clearly defined. The Committee’s task was to draw up universal juridical rules, whose provisions would be perfectly clear to everyone and, moreover, capable of practical application. He was astonished that the Ad Hoc Committee should have submitted so vague a text as a basis for discussion. The words “cultural genocide” themselves failed to convey the idea of the destruction of a culture. Any legal work was necessarily slow, and it would be prudent to remain on practical and realistic ground. If the scope of the convention were unduly extended to include ideas such as the protection of minorities, the freedom of the Press, etc., which should normally be dealt with elsewhere, the value of the convention would be greatly reduced and it might even become a tool for political propaganda instead of an international legal instrument. On the one hand, the text submitted to the Committee failed to mention many acts which could be described as cultural genocide; on the other, many acts which were not criminal could be designated in those terms. In his opinion, everything that did not refer to genocide in the true sense of the word should be omitted. From the practical point of view, the national or international tribunals, which would have the task of suppressing genocide, might find themselves in difficulties if they were called upon to pronounce judgment in such an undefined field as cultural genocide, which was directly concerned with the most complex qualities of the human soul. He felt that it would show a lack of logic and of a sense of proportion to include in the same convention both mass murders in gas chambers and the closing of libraries. Mr. Raafat (Egypt) was in favour of retaining cultural genocide in the convention, but in a more limited form, which would be more acceptable to the majority than the text of article III as set forth in the draft prepared by the Ad Hoc Committee.

A/C.6/SR.83

1509

Cultural genocide was certainly not such a heinous crime as the physical destruction of a group, but it did nevertheless constitute a real danger for human groups. It was therefore essential that it should be designated as a crime in international law, at any rate in its more brutal forms, such as the systematic destruction of schools, libraries, etc., or the attempt to assimilate a group, or again compulsory conversions. As those acts were already described as crimes in the penal codes of many civilized countries, there seemed no reason why they should not be classified as international crimes, to be suppressed by a particularly effective international system. The punishment could, of course, be different from that imposed on the perpetrators of physical genocide. It would be up to the competent tribunal to mete out punishment in proportion to the seriousness and violence of the acts committed. An international convention was the only means of allaying the fears inspired by the remarks of the representative of Pakistan and by the behaviour of certain metropolitan Powers in Non-Self-Governing Territories, which were attempting to substitute their own culture for the ancient one respected by the local population, and which was in no way harmful to the public order. That analogy between cultural genocide and the policy of forced assimilation had already been pointed out in the comments included in the draft convention prepared by the Secretary-General [E/447 ]. Among other important problems, it raised the question of the distinction between forced assimilation and cultural genocide and also that of the application of the convention to Non-Self-Governing Territories. Article III might well be a source of endless difficulties but that was not sufficient reason for deleting it. The crime of cultural genocide was at present being committed in the Holy Land and elsewhere. He trusted that the convention would put an end to those dangerous examples of racial, national and religious hatred. He would therefore vote in favour of retaining cultural genocide in the convention, if it were reduced to the very reasonable proportions suggested by the delegation of Pakistan [A/C.6/229]. Mr. Lapointe (Canada) considered the draft convention prepared by the Ad Hoc Committee to be acceptable on the whole, but he disagreed with it on the one fundamental point of cultural genocide. No drafting change of article III would make its substance acceptable to his delegation. Yet it

1510

A/C.6/SR.83

was true to say that the Government and people of Canada were horrified at the idea of cultural genocide and hoped that effective action would be taken to suppress it. The people of his country were deeply attached to their cultural heritage, which was made up mainly of a combination of Anglo-Saxon and French elements, and they would strongly oppose any attempt to undermine the influence of those two cultures in Canada, as they would oppose any similar attempt in any other part of the world. His delegation was not, therefore, opposed to the idea of cultural genocide, but only to the inclusion in the convention of measures to suppress it. His delegation did not wish to limit the scope of the convention in any way, as was shown by the fact that it had voted in favour of the inclusion of the protection of the political group, but it felt that the idea of genocide should be limited to the mass physical destruction of human groups. For that reason, he would support the proposal made by the French delegation [A/C.6/216] to the effect that article III should be deleted and that the attention of the Third Committee should “be drawn to the need for the protection of language, religion and culture within the framework of the international declaration on human rights”. If, however, the Committee were to vote in favour of retaining article III, his delegation would have to make certain reservations, as the Canadian Constitution limited the legislative powers of the Federal Government to the benefit of the provincial legislatures. Mr. Tarazi (Syria) agreed with the representative of Egypt that the idea of cultural genocide should be included in the convention. Since the question involved certain subtle considerations, the text drafted by the Ad Hoc Committee should, however, be developed and improved. In that connexion, he wished to make it clear that the Constitution of Syria guaranteed respect for the cultural rights of the few minorities living in its territory, which had the right to learn their own language in the schools. Mr. Abdoh (Iran) mentioned that his delegation had submitted an amendment [A/C.6/218] for the suppression of article III. The arguments in favour of the inclusion of cultural genocide did not seem convincing. There was, in fact, a great inherent difference between physical genocide, which was the mass extermination of human groups, and so-

A/C.6/SR.83

1511

called cultural genocide, which referred to attempts to destroy the language, religion or culture of a group. It would therefore be better if those two were not, artificially, placed on the same level and if the scope of the convention were limited to the idea of physical genocide, as it had been precisely the large-scale physical extermination of human groups which had shocked the conscience of mankind and inspired the preparation of the convention. There was no actual mention of cultural genocide as a crime in resolution 96(I) of the General Assembly, which had been invoked by those representatives who favoured the inclusion of cultural genocide. That resolution made merely a minor reference to the contribution made by the exterminated groups in the cultural field, and it was definitely concerned only with physical genocide. Pointing to the practical difficulties of interpretation and application which would ensue if article III were adopted, he said it would be necessary to determine the concrete elements of a group’s religion and culture, with which the government would have no right to interfere; it would have to be decided whether all cultures, even the most barbarous, deserved protection, and whether the assimilation resulting from the civilizing action of a State also constituted genocide. It was even possible that the opposition of one political party to another could be described as cultural genocide. The adoption of article III might, on account of its political implications, prevent some countries from ratifying the convention. Mr. Reid (New Zealand) endorsed the arguments against the inclusion of article III raised by the representatives of Sweden, Denmark, Canada and Iran. His delegation would condemn all acts aimed at the destruction of the cultural characteristics of a group, but it did not think that the method chosen by the Ad Hoc Committee was either good or effective. His opinion in that connexion had been confirmed by the remarks made by the representative of Egypt with regard to Non-Self-Governing Territories. The civilization of certain tribes in Africa and the South Seas was actually based on the tribal system, which meant that that system should be protected. Nevertheless, the Trusteeship Council, itself, in the part of its report dealing with the situation in certain regions of Tanganyika [A/603],1 had expressed the opinion that “the now existing tribal structure was an obstacle to the political and social advancement of the indigenous inhabitants”.

1512

A/C.6/SR.83

Thus the Council was opposed to the maintenance of a distinctive cultural trait of the local population. It would be detrimental to the prestige of the United Nations to include in a convention provisions which were so confused that they might be invoked against its own organs. 1

See Official Records of the third session of the General Assembly, supplement No. 4.

Mr. Setalvad (India) fully sympathized with the idea underlying article III. His country attached great importance to the respect for religions, races, and languages, as was reflected in the comprehensive provisions in its Constitution for the protection of minorities. The anxiety expressed by the representative of Pakistan concerning the fate of the thirty-five million Muslims living in India was, therefore, quite unfounded. In the opinion of his delegation, the measures for the protection of the cultural rights of a group, however desirable they might be, were not related to the idea of genocide, which was clearly defined in resolution 96(I) of the General Assembly as the denial of the right of existence of a group. The protection of the cultural rights of a group should be guaranteed not by the convention on genocide but by the declaration of human rights. His delegation would, therefore, vote in favour of the deletion of article III. Mr. Khomussko (Byelorussian Soviet Socialist Republic) thought the arguments put forward by those who favoured the deletion of article III unfounded. The chief argument had been the difficulty of fixing a dividing line between cultural genocide and the violation of human rights. Article III, however, was not concerned with restrictions of the cultural life of a group, but with actions aiming at the destruction of the language, religion or culture of a group for reasons of national, racial or religious hatred. The fact that those acts were always a feature of persecutions having as their object the destruction of groups – as the crimes perpetrated under Hitler showed – made it all the less necessary to prove that such acts should be punished. His country, and others such as the Ukrainian SSR, Poland, Czechoslovakia and the Soviet Union, had suffered from such persecutions, which were aimed at the destruction of cultural institutions and which had always accompanied acts of physical genocide.

A/C.6/SR.83

1513

He wondered how the deletion of article III could be made to fit in with the aim of combating genocide. That deletion would be tantamount to stating in advance that crimes against the culture, religion or language of a group would remain unpunished. His delegation could not agree to such an attitude and would vote in favour of the inclusion of the idea of cultural genocide. Mr. Goytisolo (Peru) regarded the provisions of article III of the draft convention as too broad a conception of genocide as defined in article II. In the sphere of the prevention and suppression of genocide, as in all other spheres covered by international law, progress had to be slow and codification progressive. The Peruvian delegation held that the time was not yet ripe to extend the application of the convention to so-called cultural genocide and it would therefore vote against the retention of article III. Mr. Egeland (Union of South Africa) concurred in the arguments put forward by the representatives of Sweden, Denmark, Canada, Iran and New Zealand in favour of deleting article III. He wished to express the horror his country felt at any attempt to destroy the cultural heritage of a group or to prevent a group from making its specific contribution to the cultural heritage of mankind. He agreed, however, with the representative of India that the protection of the cultural heritage of groups established within a community had no place in the convention on genocide. The population of the Union of South Africa was composed of a number of groups of varying origin and he wished to emphasize the fact that each was encouraged to make the largest possible contribution to the common culture. Like the representative of New Zealand, he wished to point to the danger latent in the provisions of article III where primitive or backward groups were concerned. No one could, for example, approve the inclusion in the convention of provisions for the protection of such customs as cannibalism. The delegation of the Union of South Africa would vote for the deletion of article III. Mr. de Beus (Netherlands), while expressing his country’s aversion to the acts qualified as cultural genocide in article III, said he would vote for the deletion of the article for the reasons outlined by previous speakers and in particular for the following:

1514

A/C.6/SR.83

First, there was an essential difference between cultural genocide and genocide as defined in article II; Secondly, cultural genocide fell rather within the sphere of the protection of human rights or of the rights of minorities; Thirdly, cultural genocide was too vague a concept to admit of precise definition and delimitation for the purpose of inclusion in the convention on genocide; Fourthly, the inclusion of cultural genocide in the convention might give rise to abuses by reason of the vagueness of that concept. His delegation supported the French delegation’s suggestion that the attention of the Third Committee should be drawn to the question of cultural genocide. Mr. Gross (United States of America) opposed the inclusion of article III for two reasons: In the first place, the new and far-reaching concept of cultural genocide, i.e., the destruction of a culture, had no connexion with the better known conception of genocide as the physical destruction of members of a human group. For the inclusion of cultural genocide in the convention on genocide, it was not enough to say that the acts enumerated in article III shocked the conscience of mankind. In the second place, article III, as it now stood or in any amended form, would not meet the wishes of those who favoured its retention. There were in fact grounds for asking whether it was more important to protect the right of a group to express its opinions in the language of its choice or to protect its right to the free expression of thought, whatever the language used. If the object were to preserve the culture of a group, then it was primarily freedom of thought and expression for the members of the group which needed protection. Such protection came within the sphere of human rights. If the individual’s fundamental right to use his own language, to practise his own religion and to attend the school of his choice were protected, that would be tantamount to protecting the group of which the individual was a member. Mr. Correa (Ecuador) was of the opinion that the idea of cultural genocide should be included in the convention, since it would meet a real need.

A/C.6/SR.83

1515

A group consisted of individuals and possessed a culture of its own. The destruction of that culture was normally effected with less violence than the extermination of the members of the group, but the result was the same – the disappearance of the group. The convention would be incomplete if it were limited to the protection of human groups against physical genocide alone. If attacks against the culture of a group remained unpunished for the want of appropriate provisions in the convention, that would facilitate the perpetration of physical genocide, in which such attacks normally culminated. It should not be forgotten that the chief object of the convention was the prevention of genocide. There were grounds, therefore, for retaining the idea of cultural genocide in the convention. The drafting of article III, however, was not felicitous. Its scope was too great and would have to be restricted in order to ensure effective protection. He did not share the view that the protection of groups against acts of cultural genocide could be ensured by the declaration of human rights. Protection should be given within the framework of the convention on genocide. It would be undesirable to eliminate article III without an attempt to amend it so as to make it acceptable to the delegations which at present opposed it, and he suggested that a drafting committee should be given the task of drawing up a draft article giving a clear definition of cultural genocide. Mr. Kaeckenbeeck (Belgium) pointed out that, in expressing their views on the retention or deletion of article III of the convention, the members of the Committee were not taking sides for or against the protection of human groups against acts of cultural genocide; they were merely expressing their views on a method of protection. Member States had to choose between international prevention of genocide on the basis of a convention ratified by a large number of States and no such prevention at all. It was clear that the adoption of article III would not contribute towards the ensurance [sic] of effective international protection against the acts described in article II. While appreciating the importance of protecting minorities, he wished to point out that it had no place in the convention on genocide. Article II of the convention already went a very long way. There would be sufficient cause for gratification if the abominable crimes envisaged in article II could be prevented, both at national and international levels. The indefinite extension of the concept of genocide served neither to give it

1516

A/C.6/SR.83

additional force nor to facilitate the suppression of the crime. Moreover, since the acts described as cultural genocide came within the province of the domestic affairs of States, it would be difficult for the latter to recognize an international jurisdiction in such cases. The delegation of Belgium was opposed to the retention of article III. Mr. Morozov (Union of Soviet Socialist Republics) recalled that the provisions of article III originally formed part of the general definition of genocide and were included in article II of the convention. To meet the wishes of the United States representative on the Ad Hoc Committee on Genocide, who was opposed to the inclusion of cultural genocide1, those provisions had been detached from article II to form a separate article. The USSR delegation thought it preferable to include cultural genocide in the definition of the crime of genocide, in view of the close link which existed between the two forms of the crime. In genocide the important element was the intent to destroy a given group in whole or in part. The physical destruction of members of the group was one way of carrying out that intention, and the destruction of the culture of the group was another. The Nürnberg verdicts had shown that the destruction of the culture of certain groups might constitute a method of destroying those groups; there had been examples of that in Czechoslovakia, Poland and Luxembourg. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 7.

A number of delegations held the view that the protection of groups against acts of cultural genocide could very well be ensured by the declaration of human rights, and that the idea of cultural genocide was not yet sufficiently developed to warrant its inclusion in the convention. The Soviet Union delegation did not share that view. It was not sufficient for the declaration of human rights to deal with the cultural protection of groups. Such protection should be ensured by the convention on genocide. The declaration proclaimed the individual’s right to life, liberty and security of person, which might be interpreted as ensuring his protection against any act of physical genocide; yet no one disputed the need for a convention on physical genocide.

A/C.6/SR.83

1517

The delegation of the USSR was somewhat surprised to see, on the one hand, a tendency to include in article II provisions which had absolutely no connexion with the idea of genocide as hitherto defined, and on the other hand, attempts to exclude from article III elements which were essential in the definition of genocide, elements without which the definition would not conform to the Committee’s objectives. Mr. Zourek (Czechoslovakia) urged the need for mature reflection before deciding whether or not to adopt a definition of genocide which covered offences other than those enumerated in article II of the convention. He wished to draw the Committee’s attention to the fact that a group might disappear either as a result of the physical extermination of its members or as a result of the forcible destruction of its distinctive and permanent characteristics. The ensuing loss to humanity was no less in the second case than in the first. He quoted numerous instances of cultural genocide, of which the Czech and Slovak peoples had been victims during the nazi occupation. Those acts were designed to pave the way for the systematic disappearance of the Czechoslovak nation as an independent national entity. Such nazi activity had been accompanied by a thorough attempt to destroy everything which might remind the people of its national past and to prepare the way for complete germanification. The Nürnberg trials had shown that the measures taken by the nazis in Czechoslovakia were merely the groundwork of a gigantic plan for the complete germanification of the Czechoslovak nation. It was hardly necessary to emphasize the close connexion between such a plan and the nazi theory of racial superiority. Mr. Zourek also quoted the case of the Lusatian Serbs who had been subjected to brutal germanification. All those acts of cultural genocide had been inspired by the same motives as those of physical genocide; they had the same object – the destruction of racial, national or religious groups. As the purpose of the convention was to ensure protection for human groups and to prevent their disappearance, it would be just as correct to apply penal sanctions in the cases of violence envisaged by article III of the convention, as it was in the cases covered by article II. Having no further speakers on his list, the Chairman declared the general discussion closed.

1518

A/C.6/SR.83

Mr. Raafat (Egypt) proposed that the meeting be adjourned in view of the importance of the question and the number of delegations which were not represented at the meeting. The motion for adjournment was rejected by 24 votes to 18, with 2 abstentions. The Chairman made it clear that the vote would concern only the question as to whether or not the convention would cover cultural genocide. He put to the vote the exclusion of cultural genocide from the scope of the convention. A vote was taken by roll-call. The roll-call began with the Union of South Africa, whose name was drawn by lot by the Chairman. In favour : Union of South Africa, United Kingdom, the United States of America, Australia, Belgium, Bolivia, Brazil, Canada, Chile, Denmark, Dominican Republic, France, Greece, India, Iran, Liberia, Luxembourg, Netherlands, New Zealand, Norway, Panama, Peru, Siam, Sweden, Turkey. Against: Union of Soviet Socialist Republics, Yugoslavia, Byelorussian Soviet Socialist Republic, China, Czechoslovakia, Ecuador, Egypt, Ethiopia, Lebanon, Mexico, Pakistan, Philippines, Poland, Saudi Arabia, Syria, Ukrainian Soviet Socialist Republic. Abstaining: Venezuela, Afghanistan, Argentina and Cuba. By 25 votes to 16, with 4 abstentions, 13 delegations being absent during the vote, the Committee decided not to include provisions relating to cultural genocide in the convention. Mr. Pérez Perozo (Venezuela) explained that his delegation had abstained from voting because it had not had an opportunity of fully stating its point of view on the question. Mr. Medeiros (Bolivia) said he had voted for the exclusion of cultural genocide for purely technical reasons. His delegation thought that the term genocide should be limited to the physical destruction of human groups; the other acts described in article III of the draft convention came within the competence of the Third Committee.

A/C.6/SR.84

1519

Mr. Federspiel (Denmark) wished to make it clear that, if he had voted for the exclusion of provisions concerning acts of cultural genocide, it was not because he disputed the criminal nature of these acts, but because he considered the question came within the sphere of human rights. The meeting rose at 6.5 p.m. [sic]

EIGHTYFOURTH MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 26 October 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). 31. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article IV The Chairman said that many amendments had been submitted to article IV of the draft convention, prepared by the Ad Hoc Committee. The amendments had been submitted by the delegations of France [A/C.6/211], the United States [A/C.6/214 ], the USSR [A/C.6/215/Rev.1], Belgium [A/C.6/217 ], Iran [A/C.6/218], and the United Kingdom [A/C.6/236] delegations. He then opened the debate on the first sentence of Article IV which read as follows: “The following acts shall be punishable:” [E/794 ] and on the amendment proposed by Belgium [A/C.6/217 ]. Mr. Kaeckenbeeck (Belgium) explained that his amendment had a double purpose. First, it drew a distinction between the crime of genocide as such, and certain acts which, though allied with genocide and equally punishable, were not genocide itself. Secondly, it attempted to clarify article IV and to make it juridically sound. It would be better, from the point of view of the wording, to confine the list in article IV to other acts allied with genocide properly so-called, and to state in the first sentence that such crimes were also punishable. The crimes listed in the Belgian delegation’s amendment were not exactly the same as those given in the Ad Hoc Committee’s list. The Belgian

1520

A/C.6/SR.84

amendment suppressed the words “or in private” and “whether such incitement be successful or not”. Further, the French word entente (agreement) which was too vague and unknown in Belgian law, had been replaced by the word complot (plotting) to render the English “conspiracy”. It was true that that last idea was more limited than the English concept of “conspiracy”, but it was impossible to find an entirely appropriate expression in the various European legislations. Mr. Maktos (United States of America) emphasized the fact that there was no great difference between the Belgian amendment and the Ad Hoc Committee text. As chairman of that Committee, he explained that the system of a complete list of punishable acts had been preferred by the Committee because it offered the advantage of grouping all those acts together. Mr. Fitzmaurice (United Kingdom) drew the Committee’s attention to the word “punishable” which appeared in both the Ad Hoc Committee text and the Belgian amendment. The word generally suggested the idea of the punishment of individuals, as States could not be punished. In those circumstances, he wondered whether it was appropriate to use that word in a convention on a crime which was customarily committed by States, Governments or government institutions. He suggested substituting the words “shall be illegal and punishable”, for “shall be punishable”. Such a phrase would cover genocide perpetrated by States or Governments, as well as genocide committed by private individuals. Mr. Pérez Perozo (Venezuela) said his delegation had no substantial objections to raise to article IV of the draft Convention; the form only could be improved. The Ad Hoc Committee had prepared an admirably balanced text for article IV. After having defined in article II the acts which characterized genocide and having distinguished it from all other crimes, the Ad Hoc Committee had coupled it with other crimes by describing, in article IV, the punishable acts common to most violations. There could be no objection to the punishment of those acts, in view of the fact that they were included in almost all domestic penal codes. The Venezuelan delegation could not accept the amendments submitted by the United States [A/C.6/214 ] and Iranian [A/C.6/218] delegations which proposed the deletion of article IV(c). All legislations regarded incitement

A/C.6/SR.84

1521

to crime as punishable. Some of them treated it as complicity; others, such as the Venezuelan legislation, regarded it as a special offence, regardless of the results it produced. There was, therefore, all the more reason to punish incitement to commit genocide, in view of the fact that that crime was usually the result of hatred instilled in the masses by inciters. Further, it could not be forgotten that the purpose of the convention was not only to suppress, but also to prevent genocide, and to that end the Ad Hoc Committee had decided that incitement to commit the crime should be punishable as well. The Venezuelan delegation did not object to the Belgian delegation’s text for the first sentence of article IV, nor to the proposed changes in the order of the sub-paragraphs of that article. It had serious objections, however, to the deletion, in sub-paragraph (c), of the words “or in private” and “whether such incitement be successful or not”. Incitement could be carried out in public, but it could also take place in private, through individual consultation, by letter or even by telephone. It was necessary to punish both forms of incitement. Further, the provisions stating that incitement was punishable, regardless of whether it was successful or not, were anything but superfluous. They might not be necessary in the case of legislation which considered incitement as a separate criminal act in itself, but they served some purpose in the case of legislation which viewed incitement as complicity, since the person concerned might escape punishment if the crime to which he incited others, could not have been committed. He accepted the United Kingdom delegation’s amendment to sub-paragraph (e) article IV [A/C.6/236]. It improved the text and introduced the element of premeditation. Nevertheless, the Venezuelan delegation preferred the words “intentional complicity” to “deliberate complicity”, since it was intent, rather than premeditation, which rendered the complicity a punishable offence. Premeditation merely constituted an aggravating circumstance of the crime, making it possible to decide the punitive measures to be applied, whereas the intention was the really important consideration since it was the factor which established the actual existence of the violation. Premeditation would not exist without intent, but intent could exist without premeditation. In the case of genocide, it was important to bear the element of intent in mind when establishing complicity.

1522

A/C.6/SR.84

In the opinion of the Venezuelan delegation, article IV should specify clearly that the complicity envisaged in sub-paragraph (e) should apply equally to acts carried out before the crime was committed and to those performed subsequently, that is, to acts assisting the culprits to escape the punishment they deserved. The Venezuelan penal system made provision for that form of complicity, which it called encubrimiento, and considered it as a special infringement of the proper administration of justice. In the case of genocide, which was usually committed with the participation of the Government, that form of complicity should be taken into consideration, since the Government nearly always had all the proofs in its possession and controlled the authors of the crime, with the result that it was extremely easy for the Government to ensure the impunity of those guilty. Mr. Morozov (Union of Soviet Socialist Republics) thought that at the present stage of its work, the Committee should not linger over the discussion of drafting amendments, even if they would improve the text. The drafting committee which would be given the task of preparing a draft for second reading, might take such amendments into consideration. The Ad Hoc Committee on Genocide had adopted the present text of article IV for the reasons given by the United States representative. The USSR delegation agreed with those reasons and considered that the first sentence of article IV should be retained in the form in which it appeared in the Ad Hoc Committee draft. He objected to the United Kingdom delegation’s amendment to that sentence. If certain acts were “punishable”, the implication was that they were “illegal”, since no one could be punished for committing a legal act. Hence, it was redundant to state that acts were “illegal and punishable”. The Soviet Union delegation would vote against the proposed amendments to the first sentence of article IV of the draft. The Chairman said there would be no point in putting the first sentence of article IV to the vote, as it was only an introductory phrase. He opened the debate on sub-paragraph (a) and on the amendments submitted by the French [A/C.6/211, article 2] and Belgian [A/C.6/217 ] delegations. Mr. Kaeckenbeeck (Belgium) pointed out that his amendment was mainly a matter of drafting. He saw no objection to discussing it at the time when the final text of the convention was drawn up.

A/C.6/SR.84

1523

Mr. Spanien (France) said his delegation had not submitted a formal amendment to sub-paragraph (a), but had rather presented a whole new draft [A/C.6/211], which contained an article replacing the list of punishable acts by an enunciation of principles in accordance with French law. The French delegation found some difficulty in envisaging special punishments for certain acts, such as conspiracy and complicity, because the very principles of French law made for the suppression of those acts. The same was not true, however, with regard to attempt, provocation, or instigation to commit a crime; the convention had therefore to make provision for the punishment of those acts. The French delegation had submitted its article 2 as a substitute for article IV of the Ad Hoc Committee’s draft for purposes of brevity and clearness. Nevertheless, it was prepared to support the Ad Hoc Committee’s formula, if the Committee preferred the system of enumeration. The Chairman asked the Committee to take a decision on the preliminary question of whether it would adopt the system of enumeration, as proposed by the Ad Hoc Committee, or the system of enunciation proposed by the French delegation. Mr. Morozov (Union of Soviet Socialist Republics) recalled that the Committee had decided to adopt the Ad Hoc Committee’s text as a basis for its discussion and urged that the provisions of article IV of the draft should be examined paragraph by paragraph. The French delegation’s text could be examined during the discussion of the relevant points of article IV. Mr. Spanien (France) withdrew his amendment, subject to the reservation that he would bring up its provisions as amendments to certain parts of article IV, in the course of the discussions. Mr. Raafat (Egypt) felt that sub-paragraph (a) of article IV should not give rise to long discussions. The only amendment necessary was the change necessitated by the deletion of article III of the draft convention. He proposed the following text: “(a) genocide as defined in the present convention”. Mr. Maktos (United States of America) explained that the Ad Hoc Committee had indicated in article IV, which articles of the convention dealt

1524

A/C.6/SR.84

with the definition of genocide, considering it desirable to be precise wherever possible. Mr. Guerreiro (Brazil) felt that sub-paragraph (a) should be studied later when the Belgian amendment was examined, as the questions it raised were only matters of drafting. The Chairman, in accordance with rule 109 of the rules of procedure, put to the vote the amendment proposed by the Egyptian delegation during the discussion. The amendment was rejected by 28 votes to 10, with 2 abstentions. The Chairman then put to the vote the following amended version of article IV (a): Genocide as defined in article II.

Sub-paragraph (a) was adopted by 36 votes to none, with 7 abstentions. Mr. Morozov (Union of Soviet Socialist Republics) explained that although he had voted in favour of sub-paragraph (a) of article IV, that that vote did not in any way alter his attitude to article II. Mr. Fitzmaurice (United Kingdom) said he had voted in favour of paragraph (a) of article IV with the understanding that the vote concerned a question of principle and that the Belgian amendment would be examined subsequently by the drafting committee which would draw up the final text of the draft convention. Mr. Petren (Sweden) pointed out that the discussion which had preceded the vote had shown that the meaning of the juridical terms used in the various sub-paragraphs of article IV, varied to some extent in the different penal systems. Consequently, when the text of the convention was introduced into the various criminal codes, certain differences of meaning would be inevitable. It would therefore be advisable to point out, in the report of the Rapporteur, for example, that the provisions of article IV did not bind signatory States to prosecute acts in preparation for genocide in a more severe measure than that required by their national legislations for the most serious crimes now punishable under those legislations. The Chairman called for discussion of sub-paragraph (b) of article IV. He pointed out that no amendments to that sub-paragraph had been submitted.

A/C.6/SR.84

1525

Mr. Kaeckenbeeck (Belgium) pointed out that the French text should use the word complot instead of the word entente which did not exist in French or Belgian law. It was true that the word complot did not have exactly the same meaning as the English word “conspiracy” but, as the representative of Sweden had pointed out after the previous vote, there would admittedly be certain differences between the texts; a complete revision of the penal law of certain countries would be impossible. Each State should base its views on the principles of its own juridical system. Mr. Federspiel (Denmark) agreed with the representatives of Sweden and Belgium that the text of the convention would present certain difficulties in regard to its application. Danish law made no provision for “conspiracy” or complot, but would nevertheless apply the provisions of the convention. It seemed inadvisable to embark on a discussion as to the exact meaning of the terms used, for that would make it practically impossible to draft the convention. He thought the idea of preparatory acts contained in the USSR amendment was preferable to the idea of entente or “conspiracy”. Mr. Maktos (United States of America) explained that the word “conspiracy” had a very precise meaning in Anglo-Saxon law; it meant the agreement between two or more persons to commit an unlawful act. The representative of the United States concurred in the view expressed by the Danish delegation: there should not at that point be any discussion of the meaning of the words used in the English and French texts. Mr. Raafat (Egypt) observed that the convention on genocide would have to be applied by fifty-eight States; it was not therefore a law based on the penal code of any particular State. The idea of conspiracy, which was unknown in French and Belgian penal law, had been introduced into Egyptian law; it meant the connivance of several persons to commit a crime, whether the crime was successful or not. The expression “whether . . . successful or not”, which appeared in subparagraph (c) with regard to incitement, should also be used in paragraph (b) in relation to conspiracy. He thought the word entente could be retained in the French text. Mr. Kaeckenbeeck (Belgium) thought it advisable to settle the question of how the States were to be bound by the convention on genocide. If the object of the convention were to establish certain principles which

1526

A/C.6/SR.84

States should introduce into their national legislations, as laid down in article VI, it was impossible to introduce unknown ideas which would involve a complete revision of the principles underlying the penal codes of certain countries. If the purpose were simply a definition of the crime of genocide, without any obligation on the part of the States to introduce those principles into their penal codes, there was ample opportunity to introduce vague concepts, which would have the advantage of covering many more acts. The Chairman put to the vote the text of sub-paragraph (b) as proposed by the Ad Hoc Committee. He made it clear that all questions of correlation between the English and French texts would be considered by the drafting committee, which would draw up the final text. Sub-paragraph (b) was adopted by 41 votes to none, with 4 abstentions. Mr. Kaeckenbeeck (Belgium) had abstained because the vote had been taken on the basis of the English text and the Committee had not decided whether the French text would use the word entente or complot. The Belgian delegation approved the idea expressed in sub-paragraph (b) but could not vote in favour of it unless that idea were expressed in terms which conformed with the general principles of criminal law. Mr. Spanien (France) had abstained for the same reasons as the representative of Belgium. The French delegation approved the spirit of subparagraph (b) and would have voted in favour of it if the drafting had been acceptable. Mr. de Beus (Netherlands) explained his vote by reasons similar to those expressed by the representatives of Belgium and France. The Chairman called for discussion of sub-paragraph (c) of article IV. He pointed out that two amendments had been submitted suggesting its deletion. They were presented by the delegations of the United States of America and Iran. Mr. Maktos (United States of America) explained the reasons for his delegation’s proposal to delete sub-paragraph (c). Article IV provided that, in addition to incitement, the acts enumerated in sub-paragraphs (a), (b), (d ) and (e) should be punishable. It was obvious that the convention should first of all establish the culpability of all who

A/C.6/SR.84

1527

performed the physical acts defined in article II. In the second place, in order to afford greater protection, it was provided that attempts to commit such acts should also be punishable. In order to prevent genocide as far as possible, it was provided, in the third place, that even if there were no physical acts or attempts, there might be conspiracy to perform such acts and conspiracy was declared to be punishable. The United States delegation was of the opinion that it would be impossible to stray farther from the point of departure, which was the commission of acts constituting genocide, and to say that direct incitement should also be punishable. From the theoretical point of view, the claim could be made that incitement to crime should be punishable, but should such a provision be included in a convention on genocide? Genocide was a new crime. There was general agreement that the convention would be ineffective if it embodied provisions which were too far removed from its principal objective: to prevent and punish genocide. Even with respect to preventive measures, it should be borne in mind that direct incitement, such as would result in the immediate commission of the crime, was in general merely one aspect of an attempt or overt act of conspiracy. It was therefore sufficient to state that the attempt and the conspiracy would be punishable without specifically mentioning incitement in the convention. There could be no serious objection to the retention of that idea in article IV if its retention did not give rise to dangerous repercussions in other fields of human activity, particularly in the case of freedom of speech and of the Press. The convention which was designed to afford protection against genocide could not at the same time endanger freedom of the Press. If it were admitted that incitement was an act of genocide, any newspaper article criticizing a political group, for example, or suggesting certain measures with regard to such group for the general welfare, might make it possible for certain States to claim that a Government which allowed the publication of such an article was committing an act of genocide; and yet that article might be nothing more than the mere exercise of the right of freedom of the Press. The contention that certain statements in the Press were punishable as libel was not germane to the issue. Libel was the crime itself; it corresponded to the physical act in the case of genocide; there could be attempt or conspiracy or even incitement to commit libel.

1528

A/C.6/SR.84

The United States delegation had proposed only two deletions from the text submitted by the Ad Hoc Committee on Genocide; the article regarding cultural genocide and the paragraph regarding direct incitement to commit genocide. Those proposals had been made after serious consideration and with a sincere desire to make the convention as acceptable and as effective as possible. The Government of the United States was well aware that cultural genocide involved acts which shocked the conscience of mankind. It knew that those acts should be punished on the same basis as the acts constituting physical genocide. It had nevertheless requested the deletion of any provision making cultural genocide a crime and had also requested the deletion of sub-paragraph (c) which made direct incitement a crime. That action was intended to make the convention truly effective. The Committee’s vote on article III had shown that the majority preferred a realistic attitude to a purely idealistic approach. The United States delegation was of the opinion that it would be difficult to make any distinction between the exercise of the right of freedom of the Press and an alleged violation of the convention if incitement were retained as one of the punishable acts. The convention might thus serve to encourage needless repressive measures. Moreover, the United States delegation believed that the retention of the provisions regarding incitement might increase the tension among certain Member States because of the interpretation which might be given to certain newspaper articles. A clear line of demarcation had to be drawn between acts which were punishable and those which were not. Punishment should be meted out for the physical acts of genocide, the attempt and the conspiracy, even if that conspiracy were not followed by an attempt or the actual commission of the crime. Genocide could be committed only by several people; there would consequently be conspiracy, and conspiracy would be punishable even if the convention contained no explicit provision regarding direct incitement. For the above reasons, the United States delegation believed that subparagraph (c) of article IV should be deleted. Mr. Abdoh (Iran) had nothing to add to the arguments presented by the United States delegation. He had certain observations to make regarding the text proposed by the Ad Hoc Committee, in the event that the amendments submitted by the

A/C.6/SR.84

1529

United States and Iran were not adopted. The text provided for incitement in public or in private; incitement in private could have no influence on the perpetration of the crime of genocide; it therefore presented no danger and there was no reason to make it punishable. In addition the text stated that it did not matter whether such incitement were successful or not; that clause was superfluous for if incitement were successful, the idea of complicity would be involved; in addition, if the phrase “whether such incitement be successful or not” were retained in sub-paragraph (c), there was no reason why it should not appear in sub-paragraph (b) in connexion with conspiracy to commit the crime. The delegation of Iran was of the opinion that it was preferable to delete sub-paragraph (c) but, if the majority decided to retain it, the representative of Iran would propose another amendment to delete the words “or in private” and “whether such incitement be successful or not”. Mr. Lachs (Poland) thought the amendments presented by the United States and Iran were particularly interesting because they concerned a question of principle which was of primary importance. All the members of the Sixth Committee had expressed their horror of genocide and had stated that the convention should reaffirm the nature of that crime, that is to say, that it should give a clear and precise definition. The convention should make it possible to punish the crime, but above all to prevent it. Victims of genocide could derive but meagre satisfaction from seeing the guilty persons brought to justice after the crime had been committed; it would be better to prevent the crime from being committed; that could be achieved by taking adequate measures to make it impossible for criminals to carry out their plans. Criminal law was designed to protect certain values. The more important those values were, the more necessary it was to have strong and effective protection. To that end penal law gave a definition of the crime as well as a definition of the preparatory acts which preceded the crime. Thus, to protect the independence and the integrity of the State, the law intervened promptly in the case of all acts which, even though not criminal in themselves, might lead to the crime of endangering the safety of the State. The penal codes of Norway, Switzerland and Brazil embodied provisions for acts which were not criminal in themselves but which might lead to the commission of a crime.

1530

A/C.6/SR.84

Incitement to genocide was one of those typical cases in which the law should intervene at a very early stage. The deletion of sub-paragraph (c) of article IV would lessen the value of the convention. The United States representative’s remarks concerning the freedom of the Press were not appropriate in the present case, for that freedom must not be so great as to permit the Press to engage in incitement to genocide. The Polish delegation was in favour of retaining sub-paragraph (c). Mr. Kaeckenbeeck (Belgium) agreed with the representative of Poland on the need for preventing genocide, but pointed out that the Sixth Committee had already done all that was necessary in that connexion by adopting article I of the draft convention. It was not necessary, for the prevention of genocide, to include sub-paragraph (c) in article IV. The United States delegation had pointed out the danger to freedom of speech inherent in the Ad Hoc Committee text. The respect for freedom of speech should be ensured before introducing any idea of punishment. That was an essential principle which should not be abandoned. In his opinion, the amendment submitted by his delegation constituted a happy compromise between the United States amendment and the text prepared by the Ad Hoc Committee. The latter text introduced ideas, which did not at present exist in certain criminal codes, when it spoke of unsuccessful incitement. His delegation would vote in favour of the United States amendment because of the dangers pointed out by the United States representative. If that amendment were rejected, the Belgian delegation would insist that its own amendment be put to the vote. Mr. Bartos (Yugoslavia) thought the amendments for the deletion of sub-paragraph (c) extremely important. If the Committee decided to delete that sub-paragraph, it would prove that it was not really seeking to prevent and punish genocide. The peoples who had been victims of acts of genocide during the Second World War were anxious above all that such acts should never be repeated. Yet the first stage of those crimes had been the preparation and mobilization of the masses, by means of theories disseminated through propaganda, by the circles who had financed that propaganda. The General

A/C.6/SR.84

1531

Assembly resolution on the subject expressly demanded the prevention and punishment of genocide. The first step in the campaign against genocide would be to prevent incitement to the crime. States should be under the obligation to prevent and punish genocide. One way of preventing it was to state that liberty should be regulated so as to avoid anarchy. He could not understand the position of the United States delegation, which objected to the inclusion of the incitement to genocide in article IV, on the pretext that its inclusion might prejudice freedom of speech. Freedom should not be confused with anarchy and acts conducive to genocide should not be permitted in the name of freedom. Mr. Spanien (France) said that two types of argument had been advanced in favour of the United States amendment for the deletion of sub-paragraph (c) from article IV. It had been said that, as the Committee had deleted the mention of cultural genocide, it should logically also delete the mention of incitement contained in sub-paragraph (c). That argument was not convincing to his delegation, which had only voted against the inclusion of cultural genocide because it thought that that problem came within the competence of another body than the Sixth Committee. It had also been argued that the retention of a provision for the punishment of incitement to genocide might endanger freedom of speech. He did not think freedom of speech was involved, because that freedom could not in any way imply a right to incite people to commit a crime. It was precisely in connexion with genocide that the suppression of propaganda was absolutely essential. His delegation would therefore vote against the deletion of sub-paragraph (c). As for the actual wording of that sub-paragraph, he did not share the scruples of the Belgian representative, who was opposed to the idea of punishment for unsuccessful incitement. In that connexion, he mentioned that the French penal code contained measures for the suppression of propaganda in favour of abortion, whether that propaganda was successful or not. He reserved his position, however, on the subject of incitement in private, which required some clarification. Mr. Demesmin (Haiti) did not think that the argument that the retention of sub-paragraph (c) would endanger freedom of speech was convincing, as

1532

A/C.6/SR.84

freedom of speech, like all other freedoms, could not, by its very nature, be entirely unlimited. Moreover, the interests of the victims of genocide should take precedence over the interests of the Press. He thought that, as conspiracy was already included in the list of punishable acts, incitement should also be included. Conspiracy might remain a purely mental process without ever being translated into action, whereas incitement had to find outward expression either in words or in actions. It was therefore more tangible and easier to determine than conspiracy. Moreover, incitement was itself a cause of conspiracy and should be punished if conspiracy were to be punished. He was therefore in favour of retaining sub-paragraph (c) in full, as every form of incitement should be punished. Incitement should be punishable, whether successful or not, just as the attempt to commit a crime was punishable according to the criminal code, even if, for some reason beyond the will of the criminal, the crime was not actually committed. Mr. Arancibia Lazo (Chile) thought that the Committee should not content itself with noting that there was general agreement on the terrible nature of genocide and on the need to prevent and punish it. It was not preparing a treatise on criminal law, but had rather to accomplish something positive and should be realistic in its approach. It was above all essential to prepare a convention which would be approved by a great many States. Sub-paragraph (c) of article IV seemed in the case of many Governments, and not without reason, to constitute an obstacle to the ratification of the convention. It was indeed to be feared that the inclusion of incitement in public might, in some scases, interfere with the freedom of the Press, a freedom to which the democratic countries were so attached, and the punishment of incitement in private might encroach on the actual liberty of the individual. In his opinion, the convention would be sufficiently effective if the attempt to commit genocide were punishable, and it would be wise to avoid mentioning incitement, for its inclusion among the punishable acts might give rise to many political difficulties and unjust accusations, made simply for the sake of propaganda. He would, therefore, vote in favour of the United States amendment. Mr. Guerreiro (Brazil) stated that an article of the Brazilian Constitution condemned any propaganda which encouraged political and racial hatred

A/C.6/SR.84

1533

and any incitement to war. The criminal code of his country provided for the punishment of direct incitement to commit a crime. Therefore, from the point of view of its domestic legal system, his delegation would have no difficulty in accepting the principle of punishment for incitement to genocide. Those provisions in the national legislation of his country, however, were clearly defined and subject to a precise legal interpretation. They were administered by an independent judiciary, and could not therefore conflict with freedom of speech. The same would not be the case in international law, where there was as yet no permanent legal system capable of establishing the legal interpretation of a text such as that of sub-paragraph (c), which might be interpreted in many different ways, the more so as its application would be in the hands of international organs of a purely political nature. It was therefore to be feared that such a text might give rise to unjust accusations, aimed at strengthening the propaganda carried on against a State by its political opponents or by other States. His delegation was opposed to the inclusion of incitement among the punishable acts for the reasons mentioned and because it wished to take into account the practical difficulties of adapting the convention to certain domestic legal systems. Mr. Fitzmaurice (United Kingdom) thought that something could be said in favour of all the arguments raised both for and against the inclusion of incitement in the list of punishable acts. On the one hand, no one wished to encourage incitement to genocide and everyone was in agreement with the Polish delegation on the need to ensure the prevention of genocide. On the other hand, the inclusion of incitement might undoubtedly give rise to abuses, for any criticism of one group by another might, whether in good or bad faith, be represented by certain countries as an incitement to genocide. Sub-paragraph (c) of article IV would thus become a source of controversy among the nations. He agreed that, in theory, incitement could be considered as a separate act, for it was in fact different from conspiracy, complicity and attempt. However, in practice, as genocide was generally committed on a large scale and

1534

A/C.6/SR.84

over a long period, it was unlikely that incitement would not eventually lead either to conspiracy, or to attempt or to complicity. The question then arose whether it was really necessary to punish genocide at as early a stage as incitement, or whether it would not suffice to punish it at the stage of conspiracy, attempt or complicity. His delegation thought the latter course should be followed so as to avoid giving anyone the slightest pretext to interfere with freedom of opinion and because the suppression of incitement would lose its importance if all the States signatories were to carry out loyally the obligation, set forth at the beginning of the convention, to prevent and punish the crime of genocide. That aim could be adequately achieved if conspiracy, attempt and complicity could be punished. He was, therefore, in favour of the deletion of sub-paragraph (c). Mr. Dignam (Australia) was not convinced by the arguments put forward by the representatives of the United States, Brazil and the United Kingdom. As the representative of Yugoslavia had pointed out, freedom was not anarchy and it was therefore quite natural that freedom should be limited. Thus, in Australia, freedom of expression was restricted to some extent by the laws governing libel, contempt of court and obscene publications. Such freedom found its limits in the requirements of public order. He did not think, therefore, that the punishment of incitement to genocide would really prejudice freedom of speech. He was therefore in favour of retaining the mention of incitement, but he would prefer a combination of the French and Polish amendments to the text of the draft. Mr. Petren (Sweden) said that he would vote in favour of retaining the mention of incitement in the list of punishable acts as it would fit into the framework of the Swedish criminal code without any difficulty. However, his Government did not wish to enter into any engagement which might oblige it to alter its legislation with regard to violations of the laws governing the Press. That matter came exclusively within the competence of the Swedish courts and extradition was not granted. His delegation therefore reserved its position with regard to article VII of the draft convention.

A/C.6/SR.84

1535

Mr. Dihigo (Cuba) pointed out that incitement was usually punishable only in the case of special crimes, such as rebellion, which was prejudicial to the general interests of the community. On the international level, genocide was a similar crime, directed against whole groups and caused by the hatred aroused by those who incited people to commit it. Incitement to genocide should therefore be punished because of the essential part it played in the commission of the crime. He would vote for the retention of sub-paragraph (c), though he felt that the text of the draft before the committee went too far. He preferred the Belgian amendment and was in complete agreement with it concerning the deletion of the phrase “whether such incitement be successful or not”, but he would like to know more exactly what the effect would be of deleting the words “or in private”. Mr. Morozov (Union of Soviet Socialist Republics) did not consider the legal arguments raised in favour of the deletion of incitement to be valid. In his opinion, the most important factor to be taken into account was the nature of genocide, as set forth in the definition, which the Committee had unfortunately shortened before adopting. The main characteristic of genocide was the mass extermination of human groups and it followed that many people were implicated in the perpetration of that crime. It was impossible that hundreds of thousands of people should commit so many crimes unless they had been incited to do so and unless the crimes had been premeditated and carefully organized. He asked how, in those circumstances, the inciters and organizers of the crime could be allowed to escape punishment, when they were the ones really responsible for the atrocities committed. The peoples of the world would indeed be puzzled if the Committee, basing its decision on purely political arguments of doubtful validity, were to state that the instigators of genocide, those who incited others to commit the concrete acts of genocide, were to remain unpunished. The United States representative had expressed the fear that the suppression of incitement to genocide might endanger freedom of speech. In his opinion, that fear was quite unfounded, as freedom of speech could never be confused with the freedom to incite people to commit crimes. As for the political difficulties raised by some delegations, they were obviously the result of the error the Committee had made in including political

1536

A/C.6/SR.85

groups in the convention. Their inclusion caused certain Governments to fear that the punishment of incitement to genocide might become an instrument of propaganda in the hands of their political opponents and so they came to the unjustified conclusion that they must not punish incitement to genocide. On that particularly important question, he urged the Committee not to disappoint public opinion, which expected it to ensure the effective punishment of genocide in all its forms, in accordance with the promises contained in the General Assembly resolutions. The meeting rose at 6.5 p.m. [sic]

EIGHTYFIFTH MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 27 October 1948, at 3.20 p.m. Chairman: Mr. R.J. Alfaro (Panama). 32. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article IV (continued ) The Chairman called on the Committee to continue the discussion of sub-paragraph (c) of article IV of the draft convention on genocide, which included incitement in the enumeration of punishable acts. Mr. Federspiel (Denmark) stated that the arguments advanced in the course of the discussion (84th meeting) had convinced him that a clause providing for the punishment of incitement to commit genocide should be included in the convention. It would not be sufficient to punish only intent, complicity and other preparatory acts alone in order to prevent genocide; it was essential to punish the guilty persons at the most dangerous stage of the crime, the stage of incitement. He would therefore vote against the deletion of the clause on incitement. In his opinion, however, the draft text was unsatisfactory, as there might be difficulties in its application; he preferred the Belgian amendment [A/C.6/217 ].

A/C.6/SR.85

1537

Mr. Kaeckenbeeck (Belgium), answering the Cuban representative’s request for an explanation (84th meeting), said that the deletion of the words “whether such incitement be successful or not” at the end of subparagraph (c), as proposed by the Belgian amendment, would allow the legislatures of each country to decide, in accordance with its own laws on incitement, whether incitement to commit genocide had to be successful in order to be punishable. The Belgian delegation proposed that deletion so that States should not be faced with the dilemma of having either to reject the convention or recognize the need for a serious alteration in a fundamental principle of their criminal law. Instead of imposing a uniform solution in a matter which was not essential, it was preferable to pass it over in silence and let the judges of each country apply the principles with which they were familiar. The result would of course be a lack of uniformity in the punishment imposed, but that was a lesser evil than the danger of increasing the difficulties which certain States would have in ratifying the convention. The absence of any mention of that point in the convention would in no way prevent the application of the national law, so that once genocide had been recognized as a crime, such aspects as complicity and incitement would become punishable in accordance with the general principles of the laws of each country. But he thought it was possible to go even further than did his amendment and accept the one submitted by the United States which proposed the deletion of the whole of sub-paragraph (c). As far as Belgium was concerned, the deletion of that sub-paragraph would not mean that incitement to commit genocide would go unpunished, but merely that Belgian law would take its course in regard to the punishment of incitement to commit it. Mr. Zourek (Czechoslovakia) did not think there was much cause to fear that the prevention of direct incitement to commit genocide might threaten freedom of expression or freedom of the Press. The fundamental freedoms were, after all, explicitly restricted to a greater or less extent in all legal systems by the provisions of criminal law. Direct incitement to murder constituted a criminal offence in all countries, and no one would ever claim that freedom of expression was thereby affected. Certain delegations feared that the punishment of incitement to commit genocide might lead to abuses. That was an argument which might be

1538

A/C.6/SR.85

applied to any legal text. There might certainly be differences of interpretation with regard to the application of the convention on genocide, but the draft convention definitely prescribed the persons or bodies by whom such difficulties were to be solved: on the national plane by judges and, on the international plane, by bodies designated for that purpose in the text of the convention itself. An attempt had been made to show that the deletion of article III was a reason for the deletion of sub-paragraph (c) of article IV, but in his opinion, the contrary was nearer the truth, for if the scope of the convention had already been limited by the exclusion of cultural genocide, then it was all the more important to reinforce the measures for the prevention and punishment of all forms of genocide as defined in article II. The representatives of Poland, France, Haiti, Cuba and the USSR had rightly stressed (84th meeting) the necessity of punishing that crime in its initial stage, at a moment when its perpetration could still be prevented. Speaking generally, a convention, the aim of which was to define, prevent and punish a crime such as genocide, the perpetration of which could in all cases be traced back to the rousing of racial, national or religious hatred, could not exclude from the enumeration of punishable acts direct incitement, which many national legal systems considered punishable in the case of other crimes. Public opinion would certainly fail to see why incitement to commit genocide should not be punished. For all those reasons, he considered it essential to retain sub-paragraph (c) in article IV, if the convention were to be effective and mark a forward step in the suppression of the most horrible crime ever committed. Mr. Manini y Ríos (Uruguay) considered that to punish incitement to genocide was the best method of preventing the perpetration of that crime. Sub-paragraph (c) of article IV was therefore an essential provision and would show the sincere desire on the part of the United Nations to ensure the prevention of genocide. Incitement to crime was not a new conception, it was penalized by the legal systems of many countries. There was consequently no reason why incitement to commit genocide should not be punished also. As for the objection that the clause might encroach upon freedom of opinion or of the Press, to both of which the Government of Uruguay attached great importance, he failed to see how those freedoms could be

A/C.6/SR.85

1539

threatened by the punishment of direct incitement to commit genocide, when they were in no way threatened by the punishment of incitement to commit other crimes. It could be argued from the strictly legal point of view that it was unnecessary to proceed against incitement, but then that argument also held good in the case of attempt and complicity. Since the two acts had been included among those which were punishable, it was proper that incitement should be added to them, for history showed that the majority of cases of genocide had been preceded by a violent campaign of incitement. With regard to the drafting of sub-paragraph (c), the term “in private” needed closer definition and, further, the final phrase “whether such incitement be successful or not” was superfluous, since incitement was a crime in itself only when it was not successful; when it was, it was equivalent to complicity. Subject to further elucidation of the words “in private”, the Uruguayan delegation would in principle support the Belgian amendment. Mr. Raafat (Egypt) thought the legal arguments adduced in favour of the deletion of sub-paragraph (c) extremely weak. The representative of the United States had held at the 84th meeting that incitement was partly conspiracy and partly attempt: that opinion had already been refuted by the representative of the United Kingdom (ibid.) and it was sufficient to consult the text of article IV to be convinced that the four sub-paragraphs (b), (c), (d ) and (e) referred to different aspects of the violation and were in no way interchangeable. Moreover, the domestic codes of the various countries established the same distinction. As for the fear that the punishment of incitement might endanger the freedom of the Press, he considered such an argument unacceptable, inasmuch as liberty had to end where crime began. He had, on the other hand, been impressed by the legal arguments of the Polish delegation (ibid.), which had recalled that the aim of the convention was not merely to punish but also and above all to prevent genocide, in order to avoid the need for punishing it. After the deletion of article III, the only texts of the convention which dealt with the prevention of the crime were sub-paragraphs (b) and (c) of article IV. Unless both those sub-paragraphs were retained, the convention would be merely an

1540

A/C.6/SR.85

instrument for punishment of the crime. If incitement to debauchery and rebellion were punished, it would be strange not to punish incitement to genocide. The Egyptian delegation would therefore vote against the deletion of sub-paragraph (c). Mr. Inglés (Philippines) explained that his delegation would have no difficulty in accepting the principle embodied in sub-paragraph (c) of article IV which was intended to penalize incitement to genocide, since the penal code of his country punished incitement to certain major crimes, such as sedition and rebellion, as separate crimes and made a clear distinction between incitement and attempt, conspiracy and complicity. Moreover, Philippine courts had held that in no circumstances could the outlawing of incitement be considered an infringement of freedom of speech and of the Press which were guaranteed by the Constitution. The Philippine law on sedition and rebellion dated back to the period of United States rule and United States legislators had in large measure been responsible for it. The Supreme Court of the Philippines, speaking through United States judges and later through national judges, had always declared that the outlawing of incitement to those crimes did not endanger freedom of speech or of the Press, and had cited decisions of the Federal Supreme Court or other supreme courts of the United States as well as the political writings of Filipino statesmen prior to the United States regime, in which a distinction had been drawn between liberty and licence. He was therefore of the opinion that the juridical arguments advanced by the representative of the United States against sub-paragraph (c) of article IV had no valid basis either in Philippine or American jurisprudence. It was possible that certain delegations would hesitate to adopt the convention if it included incitement as one of the punishable acts. No delegation, however, had gone so far as to state that its Government would refuse to adhere to the convention if sub-paragraph (c) were retained. If certain States were to adopt that attitude, the Committee would be entitled to know their reasons. He did not think such reasons could be of a legal nature, as the main objections to sub-paragraph (c), namely that incitement would be implied in attempt, conspiracy or complicity, and that freedom of speech and of the Press were endangered, had already been refuted.

A/C.6/SR.85

1541

If the text of that sub-paragraph appeared to some to be too vague, the remedy should not be sought in the elimination of the principle embodied therein, but in a sincere effort to make it clearer and more precise. Any obstacles which might be foreseen as regarded the enforcement of that sub-paragraph could, he thought, be removed by amending subsequent articles of the draft convention. It would be well to follow the example of the Swedish delegation, which had accepted the principle of outlawing incitement to genocide, while reserving its position with respect to the competence of an international tribunal in that matter. He did not believe that political considerations, such as the danger of increasing international tension, could be invoked against that principle, for, though the Sixth Committee might sometimes deal with the legal aspect of political questions, it should never concern itself with the political aspect of legal questions. Nevertheless, even from the political point of view, the prohibition of incitement to genocide by private individuals or groups acting independently of their Governments could only relieve international tension, and not increase it. The delegation of the Philippines would therefore vote in favour of the retention of the punishment of incitement, while reserving its position with regard to the text to be adopted, as it would prefer a more precise wording than that contained in the draft. Mr. Maktos (United States of America) regretted he could not withdraw his own amendment to delete sub-paragraph (c) in the same spirit of co-operation which had led to the conditional withdrawal of the Belgian amendment on incitement (84th meeting) and to the withdrawal of the United States amendment concerning economic groups (75th meeting). He could not do so because he believed, on the one hand, that the approval of that sub-paragraph would present an obstacle to the adoption of the convention, or, if the convention were adopted, hamper its effective application, and, on the other hand, that that sub-paragraph would serve as a pretext for certain countries to harass others and thus cause increased international tension. He then considered the arguments against the deletion of sub-paragraph (c) in the order in which they had been presented. The Polish delegation had affirmed (84th meeting) that the convention should not only punish but also prevent genocide. That was a general

1542

A/C.6/SR.85

statement on which there was universal agreement but which could not settle the question. The real problem was to determine how far back it was required to go to prevent the crime, what fundamental rights might be endangered by such preventative measures, how the need for prevention could be reconciled with respect for those rights, and what the limits of the convention in that field should be. The representative of Poland was certainly correct in stating that the higher the values to be protected, the stronger the protection should be. Freedom of expression was precisely one of those essential values which should not be endangered. Turning to the example given by the representative of Yugoslavia (ibid.) of crimes of genocide committed by the Nazis, he observed that if a genocide convention had been in effect at that time, prohibiting conspiracy but not incitement, all the guilty persons could have been convicted of conspiracy. He wondered if a convention outlawing both conspiracy and incitement would have been more effective in preventing genocide than a convention which punished only one of those acts. In reply to the representative of France (ibid.), he explained he had not said that the deletion of sub-paragraph (c) followed necessarily from the deletion of article III, but that the reasons which had justified the deletion of cultural genocide were also valid reasons for the deletion of incitement. There was certainly no thought of tolerating any propaganda in favour of genocide, but the generous ideal of preventing such propaganda should not afford any opportunity for restricting freedom of the Press by enabling a government to control newspapers and the radio on the pretext of suppressing such propaganda. It was also to be feared that certain Governments might use the same pretext to attack other Governments and thus increase international tension. To defend freedom of speech, it was not enough to express faith in it. All the necessary measures must be taken for its protection. Consequently he thought it advisable to stress the threat to freedom of speech that might result from the adoption of sub-paragraph (c). He agreed with the representative of Haiti (ibid.) that all rights were limited by the rights of others. Accordingly, he felt that protection against genocide should stop where freedom of speech began. Before replying to the arguments advanced by the representative of Australia (ibid.) he recalled that, at the 112th meeting of the Third Com-

A/C.6/SR.85

1543

mittee, the Australian delegation had taken a position on incitement to discrimination similar to that which the United States delegation was now defending before the Sixth Committee. The Australian delegation had, in fact, expressed the fear that prohibition of incitement to discrimination might result in unjustified limitation of freedom of speech. In opposing the United States amendment, the representative of Australia had pointed to the need for limiting freedom of speech in certain cases, and had cited the example of libel and obscene publications. Libel could not, however, be compared to genocide; even incitement to libel was different from incitement to genocide in that it was easier to prove and could not cause complications or international tension. The representative of the USSR had expressed concern (ibid.) regarding the reaction which public opinion might have if the provision against incitement to genocide were deleted, but it would be more appropriate to ask what its reaction would be if freedom of the Press were endangered by the insertion of that provision. In conclusion, he pointed to the merits of the arguments presented (ibid.) by the delegations of Chile, Brazil, New Zealand and the United Kingdom and emphasized the point that, even without a special text to that effect in the convention, incitement to genocide would none the less be punished by national legislation without endangering freedom of the Press and without serving as a pretext for international tension. The cure should not be worse than the disease. Mr. Lachs (Poland) stressed the fact that it was necessary for the Committee to concentrate on the preventive aspects of the convention if it wished to achieve practical results. The United States and Chilean delegations opposed the inclusion of incitement to commit genocide in the list of punishable acts, on the grounds that it might infringe the freedom of the Press, a liberty dear to the democracies. The Polish delegation did not share that point of view. The purpose of recognizing the freedom of the Press had been to allow the truth to be spoken and to become known to all, and to combat lies. No limits could be imposed on the freedom of the Press if it were used only for those ends. It should not be forgotten, however, that in some countries freedom had sometimes been grievously abused, and the Press had published nothing but lies and distorted information. There were

1544

A/C.6/SR.85

several methods of guarding against the propagation of lies through the Press. The representative of Australia had mentioned some of them when he pointed out that certain legislations, including his own, imposed restrictions on the freedom of the Press in respect of libel or obscene publications. He thought the same method should be used for protection against lies leading to the perpetration of genocide. No one disputed the right of the free expression of opinion; what must be prevented was the abuse of the freedom of the Press for purposes of incitement to commit genocide. The representative of the United States had appealed to the members of the Committee to show a spirit of co-operation and join in support of his proposal. A question of principle was involved, a principle on which the whole value of the convention depended. If Governments were protected by national laws which punished incitement to rebellion, how could protection against incitement to genocide be denied to certain groups, particularly in view of the fact that the groups to be protected by the convention were for the most part extremely weak and helpless to defend themselves against their persecutors? The United States representative had also said that genocide could not be compared to libel. If it were admitted that the individual had to be protected in certain fields, there was no reason for refusing him protection as a member of a group to which he belonged by necessity and for reasons beyond his control. The delegation of Poland was convinced of the need to retain the provisions of sub-paragraph (c) of article IV. Mr. Messina (Dominican Republic) shared the views of the delegations which favoured the deletion of sub-paragraph (c). For the same reasons for which it had opposed the inclusion of political groups among the groups protected by the convention, the delegation of the Dominican Republic was against the retention of sub-paragraph (c). It did not think that the convention should contain provisions which could be interpreted so broadly as to endanger the freedom of the Press and to increase the tension between States. Although the Dominican Republic by no means approved incitement to genocide, it thought that form of the crime should be punished in accordance with national laws and not under the convention on genocide.

A/C.6/SR.85

1545

Mr. Morozov (Union of Soviet Socialist Republics) stated that members of the Committee could not be asked in the name of international cooperation to agree to delete from the convention on genocide one of the essential elements in the struggle against that crime. The convention was not designed merely to punish genocide once it had been committed; its chief aim was to provide all possible means to prevent a repetition of the acts which had shocked the conscience of the world. It was particularly in the field of preventing genocide that Member States should join their efforts and manifest their spirit of co-operation. The representative of the United States had stressed the difficulty of fixing the limit beyond which the convention should cease to apply and wondered where that limit should be. The USSR delegation’s reply was that the convention should go as far as was necessary in order to ensure the prevention of the crime. The Belgian delegation had proposed a compromise solution. Compromises were desirable whenever conflicting proposals were not absolutely incompatible with each other. In the case of sub-paragraph (c), however, conflicting proposals excluded each other. The Soviet Union delegation thought the provisions of that sub-paragraph should be retained in their entirety. He could not understand the United States delegation’s fear that adoption of sub-paragraph (c) of article IV might lead certain States to make political charges against others. If the United States delegation had any serious reasons for such fears, it should specify them. Whatever the result of the vote, justice and public opinion would be on the side of those who had fought to make the convention an effective instrument, not only for the punishment, but also for the prevention of genocide. Mr. Spanien (France) stated that the explanations given by the various delegations had convinced him that if the convention contained no provision for the punishment of incitement to commit genocide, the legitimate hopes of people throughout the world would be deceived. The deletion of sub-paragraph (c) was not justifiable either from the legal or the moral point of view, since all national legislation treated incitement to crime, even if not successful, as a separate and independent breach of the law.

1546

A/C.6/SR.85

With regard to the fears expressed by the representative of the United States, he noted that if the provisions of sub-paragraph (c) were retained, propaganda in favour of genocide would not be punished as propaganda, but only as incitement to commit a crime; it would be its criminal character that would make it punishable under sub-paragraph (c) of article IV. Mr. Bartos (Yugoslavia), replying to the representative of Chile who had called on members of the Committee (84th meeting) to be realistic and to refrain from quoting history at every turn, remarked that countries which had not been the victims of nazi and fascist atrocities could afford to forget the past; those who, like Yugoslavia, had suffered under acts of genocide could not do so. He challenged the United States representative’s argument that the existence of a convention on genocide providing for the punishment of conspiracy and incitement would not have prevented the Nazis from carrying out their criminal activities any more than a convention providing for the punishment of conspiracy alone. The Committee should prepare the convention in the firm conviction that it, like any other, would be observed and implemented. The Charter imposed upon Member States respect for the obligations arising out of treaties. Certain statistics showed that the number of acts of genocide had diminished after the Moscow Declaration, which had proclaimed that those guilty of crimes against humanity would be punished. The preventive value of the convention under preparation by the Committee could not therefore be questioned in advance. In the course of the Nürnberg Trial the authors of acts of genocide had invoked the principle that laws could not be retroactive, and that plea had unfortunately been accepted by some of the judges. To avoid the recurrence of such a situation, the convention should declare that incitement to commit genocide was a punishable act. By rejecting the provisions of sub-paragraph (c), the Committee would only be putting another and a more powerful weapon into the hands of the criminals, as the deletion of the provision on incitement from the draft convention would be still worse than the absence of any provision on the subject. In the opinion of the Yugoslav delegation, the arguments advanced by the United States delegation were actually in favour of retaining subparagraph (c).

A/C.6/SR.85

1547

Mr. Dignam (Australia) wished to point out, in reply to the United States representative, that the document under discussion by the Third Committee was very different from that before the Sixth Committee, so that the arguments advanced in connexion with incitement to discrimination did not apply to incitement to genocide. Mr. Abdoh (Iran), remarking that the purpose of the amendment he had submitted at the 84th meeting was the same as that of the Belgian delegation’s amendment and that the terms of the two were practically identical, withdrew his amendment in favour of the Belgian one. The Chairman put to the vote the United States amendment proposing the deletion of subparagraph (c) of article IV [A/C.6/214 ]. Mr. Morozov (Union of Soviet Socialist Republics) requested a vote by roll-call. A vote was taken by roll-call. Saudi Arabia, having been drawn by lot by the Chairman, voted first. In favour: Turkey, Union of South Africa, United Kingdom, United States of America, Belgium, Bolivia, Brazil, Canada, Chile, Dominican Republic, Iran, Luxembourg, Netherlands, New Zealand, Nicaragua, Panama. Against: Sweden, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Uruguay, Venezuela, Yemen, Yugoslavia, Argentina, Australia, Byelorussian Soviet Socialist Republic, China, Colombia, Cuba, Czechoslovakia, Denmark, Ecuador, Egypt, Ethiopia, France, Haiti, India, Liberia, Mexico, Norway, Peru, Philippines, Poland. Abstaining: Saudi Arabia, Siam, Syria, Afghanistan, Greece. The amendment was rejected by 27 votes to 16, with 5 abstentions. Mr. Correa (Ecuador) noted, in explaining his vote, that the Committee had an unfortunate tendency to confuse the principle contained in a text with the wording of that text. Rather than try to improve an unsatisfactory text, members proposed deleting it. The delegation of Ecuador thought that the wording of sub-paragraph (c) left much to be desired; nevertheless, it had voted against the proposal to delete that paragraph, in the hope that its wording would be altered later.

1548

A/C.6/SR.85

If the Committee believed that genocide should be punished, it must, for the sake of logic, decide that incitement to the crime should also be punished. In the interests of public order the criminal code of Ecuador provided for the punishment of incitement to crime. Prince Wan Waithayakon (Siam) said his delegation was opposed to the text prepared by the Ad Hoc Committee and preferred the formula submitted by the Belgian delegation. As the Belgian delegation had favoured the deletion of sub-paragraph (c), his delegation had abstained from voting. Mr. Maktos (United States of America) reserved his Government’s position on the subject of incitement to commit genocide. The Chairman called for a vote on sub-paragraph (a) of the Belgian amendment [A/C.6/217 ] dealing with incitement to commit genocide. Mr. Morozov (Union of Soviet Socialist Republics) and Mr. Demesmin (Haiti) wondered whether the fact that the Belgian delegation had voted in favour of the United States amendment implied the withdrawal of the Belgian amendment. Mr. Houard (Belgium), supported by Mr. Abdoh (Iran), said there was no contradiction in the Belgian delegation’s attitude in supporting the United States amendment and at the same time maintaining its own amendment. As the United States amendment had been rejected, it was logical that a vote should be taken on the Belgian amendment. The Chairman pointed out that Mr. Kaeckenbeeck had made a reservation to that effect when he had declared (84th meeting) that his delegation would vote in favour of the United States amendment. Mr. Morozov (Union of Soviet Socialist Republics) requested a roll-call vote on the Belgian amendment, as it suggested the deletion of an essential idea. Since the aim of the convention was to prevent genocide rather than to punish it, it would be a mistake to make incitement to genocide punishable only when it was successful. Mr. Pérez Perozo (Venezuela) said the Belgian amendment had two objects; in the first place, the deletion of the words “or in private” and in the second place the deletion of the words “whether such incitement be successful or not”. Some delegations might wish to vote in favour of deleting one of those deletions but not the other. He therefore requested that the amendment should be put to the vote in parts.

A/C.6/SR.85

1549

The Chairman pointed out that the text of the Belgian amendment read as follows: “direct and public incitement to commit genocide”. That amendment could be discussed before a vote was taken if the members of the Committee so desired. Mr. Morozov (Union of Soviet Socialist Republics) considered the suggestion made by the representative of Venezuela perfectly justified. The Belgian amendment had to be put to the vote in parts, as it involved two totally different ideas. His delegation would not request a roll-call vote on the question of the deletion of the words “or in private”. He thought it would be advisable to exchange views on the meaning of the phrase “direct incitement . . . in private”. It would also be advisable to clarify the meaning of the Belgian amendment, although its author had already outlined the real motives underlying it. The Chairman pointed out that the text of the Belgian amendment did not lend itself to a vote in parts, as requested by the representative of Venezuela. However, the Committee could first decide whether or not the notion that incitement in private was punishable should be rejected. If its decision were in the affirmative, that would mean that the Committee had agreed to delete the words “or in private”, the suppression of which was implicit in the Belgian amendment. After that preliminary decision, the text of the Belgian amendment would be put to the vote. The Chairman put to the vote the suggestion to delete the words “or in private”. The suggestion was adopted by 26 votes to 6, with 10 abstentions. The Chairman announced that a roll-call vote would next be taken on the text of the Belgian amendment. Sardar Bahadur Khan (Pakistan) thought it would be better to continue to follow the procedure suggested by the representative of Venezuela and to vote on the deletion of the words “whether such incitement be successful or not”. Mr. Pérez Perozo (Venezuela) said that the representative of Pakistan had interpreted his proposal quite correctly. A vote should be taken on the question of deleting the words “whether such incitement be successful or not”.

1550

A/C.6/SR.85

Mr. Morozov (Union of Soviet Socialist Republics) agreed. The object of the Belgian amendment was to delete the last phrase of the text proposed by the Ad Hoc Committee, for the two texts were identical in every other respect. Mr. Fitzmaurice (United Kingdom) wished to explain his delegation’s attitude before the vote was taken. He would abstain from voting because he did not think the deletion of the words “whether such incitement be successful or not” would have any effect from the legal point of view. Even if that idea were not laid down specifically in the text, incitement would be punished in any case. Only if successful incitement were specifically included among the punishable acts would it follow that unsuccessful incitement was not punishable. Mr. Demesmin (Haiti) thought it would be advisable to reopen the debate on the Belgian amendment. There was actually a substantial difference between that amendment and the text submitted by the Ad Hoc Committee, in that the former read: “direct and public incitement . . .”, while the latter read: “direct incitement in public . . .” Mr. Raafat (Egypt) agreed with the representative of Haiti and noted that there were also some other important differences between the text of article IV submitted by the Ad Hoc Committee and the text of the Belgian amendment, especially with regard to the first sentence and the idea of complicity. Mr. Lachs (Poland) was in complete agreement with the representative of the United Kingdom concerning the legal significance of the phrase “whether such incitement be successful or not”. Moreover, the rejection of the United States amendment showed that the Committee had already decided to consider incitement as a crime in itself. There was therefore no further need to vote on the Belgian amendment. The representative of Poland thought it would be better to adopt the text submitted by the Ad Hoc Committee. The Chairman said he could not accept the suggestion made by the representative of Poland. He called on the Committee to vote by roll-call on the proposal for the deletion of the words “whether such incitement be successful or not”, the deletion of which was implicit in the text of the Belgian amendment.

A/C.6/SR.85

1551

A vote was taken by roll-call as follows: Australia, having been drawn by lot by the Chairman, voted first. In favour: Australia, Belgium, Brazil, Canada, Chile, China, Cuba, Ecuador, Greece, India, Iran, Luxembourg, Mexico, Panama, Siam, Turkey, Union of South Africa, Uruguay, Argentina. Against: Byelorussian Soviet Socialist Republic, Czechoslovakia, France, Haiti, Norway, Peru, Philippines, Poland, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Venezuela, Yugoslavia. Abstaining: Bolivia, Burma, Denmark, Dominican Republic, Egypt, Ethiopia, Nicaragua, Saudi Arabia, Sweden, Syria, United Kingdom, United States of America, Yemen, Afghanistan. The deletion of the words “whether such incitement be successful or not” was approved by 19 votes to 12, with 14 abstentions. Mr. Egeland (Union of South Africa) explained, in order to avoid any misunderstanding, that he had voted in favour of the deletion because he agreed with the representative of the United Kingdom that the words in question were superfluous. The Chairman called for a vote on the text of the Belgian amendment. Mr. Morozov (Union of Soviet Socialist Republics) asked what the real difference was, after the deletions which had just been decided upon, between the text submitted by the Ad Hoc Committee and that of the Belgian amendment. If it was simply a difference of drafting, the question could be considered at a later stage of the Committee’s work. If it was a difference of substance, he would request that the vote on the amendment be postponed until the following meeting, so as to enable representatives to compare the written text of the Belgian amendment with that of subparagraph (c) of the Ad Hoc Committee’s draft, as amended by the two votes which had just taken place. The Chairman thought that there was a difference between the two texts but that it was not a difference of substance. There was an amendment before the Committee and a vote had to be taken on the text of that amendment.

1552

A/C.6/SR.85

Mr. Demesmin (Haiti) thought that there was an important difference between the text submitted by the Ad Hoc Committee and that of the Belgian amendment. According to the latter two essential conditions had to be fulfilled if incitement were to be considered as a crime: it had to be both direct and public. The idea of “public places” had a clearly defined legal connotation. Hence, direct incitement, carried out in a place other than those falling within the category of public places, would not be considered a crime according to the Belgian amendment, and it would be possible to gather hundreds of people together in a private estate and incite them to commit genocide, without being considered guilty of a crime. Mr. Bartos (Yugoslavia) thought that the Chairman’s decision not to put to the vote the first sentence of the Belgian amendment to article IV had led the Committee into an impasse. There was actually a great difference between that sentence and the first sentence of article IV as drafted by the Ad Hoc Committee. The acts which were considered to be crimes as important as genocide itself in the Ad Hoc Committee’s draft were considered as secondary crimes in the Belgian amendment. An important question of substance was involved and not merely a drafting point. Mr. Pescatore (Luxembourg) requested that rule 118 of the General Assembly’s rules of procedure should be applied and that the Belgian amendment should be put to a “final vote in its entirety”. Mr. Maktos (United States of America) and Mr. Spiropoulos (Greece) supported that request. The Chairman said that it was in conformity with rule 118 that he had called for a vote on the Belgian amendment immediately after the last of the preceding votes had been taken. It had been in order to satisfy the representatives of Venezuela, the USSR and Pakistan that he had departed from the rules of procedure, with the tacit agreement of the members of the Committee. He put to the vote the text of the Belgian amendment [A/C.6/217, subparagraph (a)]. The Belgian amendment was adopted by 24 votes to 12, with 8 abstentions. Mr. Pérez Perozo (Venezuela) said he had voted in favour of the Belgian amendment, although he considered that text inadequate since it did not

A/C.6/SR.86

1553

cover all aspects of the question. It was, however, better to adopt some provisions, even if they were incomplete, rather than to delete them entirely. The Chairman opened the discussion on sub-paragraph (d ) of article IV in the Ad Hoc Committee’s draft. Since there were no amendments to that sub-paragraph it would, if there were no objections, be considered as unanimously adopted. Sub-paragraph (d) of article IV of the Ad Hoc. Committee’s draft was adopted unanimously. [Discussions pertaining to issues other than the Genocide Convention]

EIGHTYSIXTH MEETING Held at the Palais de Chaillot, Paris, on Thursday, 28 October 1948, at 3 p.m. Chairman: Mr. R.J. Alfaro (Panama). 34. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article IV (continued ) The Chairman opened the debate on the amendment submitted by the USSR delegation [A/C.6/215/Rev.1] proposing the insertion in article IV of two new sub-paragraphs, (e) and ( f ), relating respectively to acts in preparation for the commission of genocide and to public propaganda; sub-paragraph (e) of the draft prepared by the Ad Hoc Committee would become sub-paragraph ( g). The first subject for discussion would be the sub-paragraph relating to acts in preparation for the commission of genocide. Mr. Morozov (Union of Soviet Socialist Republics) stated that his delegation’s amendment expressed an idea which had been frequently advanced by certain delegations, namely, that it was important to punish genocide but even more important to prevent it by creating conditions which would make it impossible.

1554

A/C.6/SR.86

His amendment was similar in substance to the provisions of the second sub-paragraph of the first paragraph of article II of the draft convention prepared by the Secretary-General [E/447 ]. The delegation of the Soviet Union considered that preparatory acts should be punished when they were such as to constitute a direct preparation for the perpetration of the crime. The text proposed by the USSR delegation gave a restrictive enumeration of the acts which should be considered as fulfilling the above condition. The object of the proposed text was to avoid broadening unduly the concept of preparatory acts, in order that it might be acceptable to States whose internal legislation provided for the punishment of preparatory acts only in certain specified cases. Mr. Morozov hoped that his amendment would be adopted, as the essential purpose of the convention must be to prevent the perpetration of genocide. Mr. de Beus (Netherlands) supported that part of the USSR amendment unreservedly. The Netherlands Government had always considered that there were two omissions in the draft convention drawn up by the Ad Hoc Committee: it covered neither preparatory acts nor the promulgation of laws directed towards the perpetration of genocide. The Netherlands delegation had intended to submit an amendment on those points, but had decided not to do so when it saw that they were covered by the amendment of the Soviet Union. Mr. de Beus recalled that the Nazis, during the first period of their rule over Germany and the first period of their occupation of invaded countries, had made very detailed technical and scientific preparation for genocide, which they had subsequently carried out on a vast scale. Without such preparation they could not have committed their crimes so extensively and so thoroughly. It was well to mention, among the preparatory acts, the giving of orders or the assignment of tasks aimed at the commission of genocide; that offence was doubtless included, by implication, in the concept of incitement or conspiracy, but it would be preferable, in order to rule out all possible doubt, to make specific mention of it. Mr. de Beus proposed an amendment to supplement the USSR text; it consisted in inserting the words “promulgating laws” before the words “issuing instructions”.

A/C.6/SR.86

1555

The Netherlands delegation would support the amendment of the Soviet Union if it were modified in that sense. Mr. Bartos (Yugoslavia) recalled that, during the general debate, the Yugoslav delegation had made a very definite statement (63rd meeting) on the fact that the draft convention prepared by the Ad Hoc Committee contained no provision relating to the prevention of genocide. But resolution 96(I) of the General Assembly called on States to take the necessary measures to prevent and punish the crime. The Ad Hoc Committee had concentrated chiefly on measures for punishment, but the peoples of the world demanded that genocide should never again be committed. The main preoccupation must therefore be to prevent it; and, to that end, all preparatory acts must be punished. It was impossible to imagine a convention on genocide which contained no provision to prevent “studies and research for the purpose of developing the technique of genocide” [A/C.6/215/Rev.1]; ten years before the war, indeed, the Nazis were already perfecting plans for genocide. It was also necessary to prevent the setting up of installations intended for the perpetration of genocide; the gas chambers had been built and tested more than four years before the war. Steps must also be taken to prevent the issuing of instructions or orders aimed at the commission of genocide; the Nürnberg trials had revealed that certain nazi groups had received orders to commit genocide in the Slav countries and against the Jews. Thus history showed beyond doubt that the punishment of preparatory acts was necessary to prevent the perpetration of the crime. The Yugoslav delegation considered that the main object of the convention was to prevent genocide; it would therefore vote for the USSR amendment. Mr. Federspiel (Denmark) welcomed the amendment proposed by the delegation of the Soviet Union, as it dealt with a very important problem. Preparatory acts could be put into three categories: (1) the preparation and perfecting of material instruments; (2) technical organization; (3) the adoption of legislative measures and the creation of the necessary mentality. The USSR amendment covered those three aspects, but the text might with advantage be made more precise. It was contrary to legal principles to enumerate criminal acts by way of example; moreover, since the enumeration

1556

A/C.6/SR.86

proposed by the Soviet Union was restrictive, the courts would have to declare that any act not mentioned therein could not be punished. The Danish delegation therefore thought it preferable that a precise definition should be given of the three categories of acts preparatory to the commission of genocide, omitting enumeration of any kind. Mr. Pérez Perozo (Venezuela) declared that the penal code of Venezuela contained very clear provisions regarding preparatory acts; such acts were punishable only if they constituted the first manifestation of the commission of a crime. It was, indeed, extremely difficult to establish the criminal intent of the author of a preparatory act unless he made a confession – which was unlikely, as he could always claim that his act was harmless in intention and not unlawful – or unless drastic measures were employed to make him speak. The USSR amendment was vague, even ambiguous; if it were adopted, it might result in retarding the progress of science and technical research, and lead to the closing down of factories; for most scientific and industrial activities could be regarded as acts preparatory to the commission of genocide. According to one commentary on the penal code of the Soviet Union, it appeared that that code condemned preparatory acts; the amendment might accordingly be embodied in USSR legislation, but it would not be in harmony with the legislation of most other countries, which had a different conception on that point. With regard to the application of the provisions of the amendment, it would be very difficult for courts to decide to what extent a preparatory act was committed with a view to the subsequent commission of genocide. The representative of Venezuela pointed out, further, that the convention provided for the punishment of complicity and attempt. Those crimes were in themselves preparatory acts easier to define than those provided for in the USSR amendment; complicity was generally easy to establish, since it was preceded by certain concrete measures the aim of which was quite clear; the same was true of attempt, which implied that certain illegal measures had been taken. Mr. Pérez Perozo recalled that most national systems of law did not provide for the punishment of preparatory acts; they would therefore have to be radically changed if the USSR amendment were adopted.

A/C.6/SR.86

1557

The Venezuelan delegation would consequently vote against the amendment. Mr. Petren (Sweden) stated that the Swedish penal code contained provisions relating to preparatory acts, which were punishable in the case of the most serious offences. The definition of those preparatory acts corresponded closely to the part of the USSR amendment regarding the “setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide”. The Swedish delegation would therefore vote for that part of the amendment. With regard to the rest of the amendment, it was partially covered, in the Swedish penal code, by the concepts of attempt and incitement. The correspondence between the amendment of the Soviet Union and the Swedish penal code was not complete, however, as the terms of the amendment were too wide. The Swedish delegation, therefore, could not vote for that part of the amendment. Mr. Raafat (Egypt) declared that his delegation viewed with great sympathy the principle of a convention with the widest possible scope. It could not, however, accept the USSR amendment. Preparatory acts did not in fact constitute a real danger unless there were some beginning of perpetration, in other words, some attempt; but attempt had been declared punishable. Most of the acts enumerated in the amendment of the Soviet Union constituted, in the most serious cases, acts of conspiracy and complicity. Thus the setting up of installations and the manufacture or supply of substances were serious offences from the point of view of complicity; the act of giving instructions or assigning tasks constituted conspiracy. The Egyptian delegation would therefore vote against the USSR amendment. Mr. Maktos (United States of America) would not have thought that any representative desirous of seeing the convention adopted could approve an amendment with so wide a scope. That amendment would make the convention a purely academic document destined to remain ineffective, as so many of the League of Nations treaties. All States hated genocide

1558

A/C.6/SR.86

and sincerely desired to punish it. That was why it had been decided to arrange for its punishment at all stages preceding the commission of the material act, not only at the stage of perpetration of the act itself but at the successive stages of incitement, conspiracy and attempt. It was impossible, however, to move still farther away from the crime itself and to punish acts of preparation. That would be going much too far; at that stage, the danger was not imminent. If the convention were to be really effective, it must be confined to provisions which were essential. Mr. Maktos thought it was easy to propose measures, regardless of the possibility of applying them, when there was no intention of adopting the convention. He recalled that the representative of the Soviet Union on the Ad Hoc Committee had said that he could not approve the convention because he was not satisfied with article II.1 The United States representative felt he could predict that the USSR delegation would vote against the text of the convention. He considered that delegations which had no intention of ratifying the convention should not create difficulties for those which sincerely desired to do so. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 17.

Mr. Lachs (Poland) recalled that the Committee had accepted the principle that incitement was a crime (85th meeting). All similar acts, therefore, should also be considered as crimes. The aim of the amendment of the Soviet Union was to put preparatory acts on the same level as incitement; the latter was a moral act; preparatory acts were the material equivalent. The representative of the United States had been inaccurate in his analysis; incitement and acts of preparation did not constitute two different types of genocide. The representative of Poland was of the opinion that the manufacture of arms should also be considered to be an act of preparation. Reference to the criminal codes of Norway, Switzerland and Brazil showed that the concept of preparatory acts existed in the case of crimes far less serious than genocide. There should therefore be no difficulty in adopting the principle that preparatory acts were punishable in the case of genocide.

A/C.6/SR.86

1559

Mr. Lachs considered that the USSR amendment should be adopted; in due course certain drafting changes could be made. The task of the Committee was to draw up the text of the convention; the question as to whether certain Governments would refuse to ratify it did not arise at that stage. Mr. Fitzmaurice (United Kingdom) said that he fully appreciated the motives which had led the delegation of the Soviet Union to submit its amendment; nevertheless, he would be unable to support it. The provisions of the USSR amendment could not be enforced under the British system of law, which required positive evidence before any sentence could be passed. It was practically impossible, however, to prove that the object of the preparatory acts enumerated in the amendment was to encourage the perpetration of genocide. The representative of the United Kingdom observed that a preparatory act could not be condemned on vague presumptions; if, however, such presumptions were substantiated, there would be conspiracy or attempt, which crimes were already provided for in the convention. In conclusion, Mr. Fitzmaurice stated that, according to most legal systems, the amendment of the Soviet Union would not serve to prevent genocide. Mr. Spiropoulos (Greece) stated that theoretically there was nothing to prevent the adoption of the USSR amendment. The Committee had decided to consider conspiracy and incitement as crimes; there was no juridical reason for refusing to regard preparatory acts in the same light. Mr. Spiropoulos observed, however, that the convention must have a practical aim; the question therefore arose as to whether it was desirable to decide to punish acts of preparation. The Ad Hoc Committee had already considered that question; the majority of its members had decided against the punishment of preparatory acts since, in the most serious cases, conspiracy and complicity sufficed to cover such acts.1 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 8.

1560

A/C.6/SR.86

The representative of Greece considered that it was impossible to include in the convention a provision which would be a serious hindrance to its ratification by a large number of States. Mr. Demesmin (Haiti) considered that, from a theoretical as well as from a practical point of view, sub-paragraph (e) of the Soviet Union amendment was unacceptable. The provisions of that amendment would lead to legislation which would paralyse all scientific research and would be an obstacle to progress. The representative of Haiti said that the amendment should be rejected. Mr. Morozov (Union of Soviet Socialist Republics) thought it regrettable that when it came to solving international problems, the United States delegation should act, as it did, under the influence of fear. As a result, the only argument it could muster against the USSR amendment was the threat that one or more countries might refuse to sign the convention if it included that amendment. Contrary to what had been stated by the representative of the United States, the delegation of the Soviet Union had never said, during the discussion of the draft convention in the Ad Hoc Committee, that its Government would reject the convention if one or other of the clauses were retained or rejected. No such statement could be found in any document. On the other hand, more than one speech had been made by the USSR representative objecting to a similar threat on the part of the United States delegation. Mr. Morozov declared that the attitude of his delegation had never varied either in the Ad Hoc Committee or during the current debates in the Sixth Committee. The object of his delegation had always been the creation of an effective instrument for the prevention of genocide, and it was in that spirit that it had submitted the amendment under discussion. The representative of the United States complained that attempts were unceasingly being made to widen the scope of the convention, forgetting that he himself had succeeded in having political groups included among the groups to be protected and had proposed the inclusion of the economic group (69th meeting), a proposal which he had withdrawn (75th meeting) only because there was no chance that it would be adopted. What the delegation of the Soviet Union desired was that the convention should

A/C.6/SR.86

1561

be wide enough in scope to make it possible to stop the criminal at the first stage in the perpetration of the crime, without waiting until he had actually committed it. It had been argued that it would be difficult to determine whether a given act of preparation was or was not designed to lead to the perpetration of genocide. That might, indeed, be somewhat difficult, but the definition of a crime should never be contingent on the difficulties of proof which might arise in connexion with the punishment of that crime. As for the apprehension that the punishment of preparatory acts might put an end to scientific progress, it was as unfounded as the solicitude shown for the freedom of the Press in the discussion which had preceded the vote on the inclusion of incitement among the punishable acts (84th and 85th meetings). The same purpose governed the suppression of preparatory acts and of incitement; it was that of preventing the very possibility of genocide. The representative of Greece had admitted that on legal grounds there was no obstacle to the adoption of the USSR amendment. Mr. Morozov recalled that what the amendment did was no more, in fact, than to reintroduce a text adopted, without any outside influence, by the experts who had prepared the first draft convention on genocide [E/447 ]. The representative of the Soviet Union accepted the Netherlands amendment which would complete the USSR proposal; and he requested that a vote by roll-call should be taken on that proposal. Mr. Maktos (United States of America) explained that he had not himself used legal argument for the rejection of the amendment of the Soviet Union because the delegations of Venezuela and Egypt had already put forward the main objections, to which the United Kingdom representative had added others based on the laws of his own country. Legal arguments, however, were not the only ones that must be considered. The USSR amendment raised serious problems of general policy. It was clear that the future of the convention was at stake for, if it was desired that it should not remain a dead letter but should be accepted by a great majority of the United Nations, care must be taken to make it acceptable to the greatest number. Without intending to make the slightest threat, it was that aspect that the United States delegation had kept in mind.

1562

A/C.6/SR.86

The United Kingdom representative had pointed out that if the amendment of the Soviet Union were adopted, the possession of any kind of object might give rise to an accusation of genocide. In any case, by permitting some States to prevent others from possessing certain products or objects, the amendment might give them a pretext for arriving by indirect means at the solution of certain problems which had been the subject of discussion for two years and which were not in the same category as genocide. In answer to the USSR representative’s comment, Mr. Maktos pointed out that he had merely predicted that the Soviet Union would not sign the convention, without asserting that it had announced such an intention. Mr. Abdoh (Iran) stated that he would vote against the USSR amendment since preparatory acts must be determined in accordance with definite criteria if they were to be punishable. Action could be taken against acts preparatory to the crime of counterfeiting and especially against the manufacture of machinery intended for the striking of false coinage, because the very purpose of that manufacture implied preparation for the crime, inasmuch as the machinery was unusable for any other end but that of committing the offence. It did not seem possible to find so definite a criterion to apply to the acts envisaged by the amendment of the Soviet Union. Further, it was desirable to avoid any increase of international tension on the political plane. If it was intended to make the convention an effective instrument, it should not be encumbered with provisions which might make its ratification more difficult. Moreover, the rejection of the USSR amendment would not prevent the punishment of preparatory acts in the most serious cases, under the headings of complicity, attempt, incitement and, above all, conspiracy. Recalling the tragic experiences of the Czech and Slovak peoples, Mr. Zourek (Czechoslovakia) asked that preparation to commit genocide should be made punishable in its initial stage. It was the more necessary to declare that preparatory acts were punishable inasmuch as such acts were not normally punishable under most national legislations and became punishable only when the law expressly so provided. If preparatory acts had been made punishable by the International Convention for the Sup-

A/C.6/SR.86

1563

pression of Counterfeiting Currency, there was all the more reason that they should be made punishable by a convention whose object was to save human lives. The Czechoslovak delegation would therefore vote for the amendment of the Soviet Union. Mr. Federspiel (Denmark) considered that the convention should retain the principle that acts preparatory to genocide were punishable. In view, however, of the differences of opinion on that point, he suggested that the Committee should first decide whether it wished to include in the convention provisions relating to preparatory acts. If that principle were accepted, a drafting committee might then be entrusted with the task of drawing up a more concise, analytical text on the basis of the USSR amendment, defining the nature of preparatory acts without enumerating them. Referring to the United Kingdom representative’s observations on the difficulties of proof, Mr. Federspiel added that those difficulties would be the greater, in regard to acts preparatory to genocide, because it would frequently be impossible to investigate the crime without the assistance of an authority which might be involved in the case. Mr. Bartos (Yugoslavia) thought that rejection of the Soviet Union amendment would be equivalent to depriving the convention of all preventive force. Legal objections to the amendment did not stand up under critical examination. It had been said that the concept of preparatory acts appeared only in the most modern codes of law and that it would be difficult for some courts to rule on the matter. In fact, all codes of law took preparatory acts into account, even though they might not use the term itself. An example was the unlawful carrying of arms, which was prohibited in the United Kingdom. Moreover, it was not true that preparatory acts were already punishable under the provisions of sub-paragraphs (b), (c), (d ) and (e) of article IV. The fact was that conspiracy, incitement, attempt and complicity were punishable only in the case of crime as defined in article II. The USSR amendment, on the other hand, proposed that preparatory acts should be punishable as such, whether or not genocide had been completed.

1564

A/C.6/SR.86

With regard to the criterion which would make it possible to determine what acts were punishable, it appeared in the text of the amendment itself. According to the type of acts enumerated, the amendment specified that they must be such as to aim at the development of a technique of genocide, or that they must be intended for the perpetration of genocide, or that they must be committed with a view to the perpetration of genocide. In the first two cases, it would thus be enough for judges to evaluate the intention of the offenders and, in the third case, to refer to the text in order to establish the nature of an act as definite as the giving of orders aimed at the commission of genocide. Mr. Fitzmaurice (United Kingdom) did not find the arguments of the Yugoslav representative convincing. He explained that the prohibition pertaining to the carrying of arms in his country applied only to certain arms as specified in a restricted list. The delegation of the Soviet Union should likewise have specified those objects the possession of which might give rise to the charge of genocide in the circumstances envisaged in his amendment. On the other hand, the objects in question could be used for purposes which had nothing to do with genocide and such a provision could give rise to unjust accusations. Mr. Lachs (Poland), in reply to the representative of Iran, cited as a typical example of acts in preparation for genocide the case of two plants set up by the Germans near Danzig for the manufacture of soap from human bodies. Experts had determined, after the war, that those plants could serve only that purpose. Mr. Morozov (Union of Soviet Socialist Republics) pointed out that his amendment adequately indicated what were punishable preparatory acts. Thus, with regard to the possession of articles or products, the amendment made it clear that the owner must know that they were intended for the perpetration of genocide; it could hardly be claimed that that was applicable to any and every kind of article or product, whatever its nature. In view of the Danish representative’s proposal, Mr. Morozov suggested that the vote on sub-paragraph (e) of his amendment should be taken in parts; first, on the content of the first sentence of the amendment, dealing with the punishment of preparatory acts in general; next, on the enumeration of those acts. Should there be a negative vote on the second part, the question would be referred to a drafting committee which, as the Danish

A/C.6/SR.86

1565

representative desired, could prepare a wider and more comprehensive text than the enumeration contained in the amendment. The Chairman pointed out, first, that there was only one amendment before the Committee, that presented by the USSR, and a Netherlands modification of that amendment, which the Soviet Union had accepted; and, secondly, that the amendment raised the question as to whether preparatory acts should in principle be considered punishable. He asked the Committee to decide whether it wished first to vote on the question of principle and next on the amendment, or whether it preferred to proceed directly to a vote on the amendment with the modification suggested by the Netherlands. Mr. Morozov (Union of Soviet Socialist Republics) accepted the Netherlands modification of his amendment. He did not think it necessary that the question of principle should be voted on first, as there was no basic text on that point, but merely an amendment intended to complete the provisions of the convention. The vote should consequently be taken on that amendment, either as a whole or in several parts, should a division be requested. Mr. Maktos (United States of America) thought it would be advisable to vote first, as the Danish representative had suggested, on the principle of the punishment of preparatory acts; then, if the vote were negative, the Committee would save time by not having to vote on the detailed provisions of the USSR amendment. The Committee decided, by 25 votes to 3, with 13 abstentions, to vote first on the principle of the inclusion in the convention of a provision concerning the punishment of preparatory acts. Mr. Morozov (Union of Soviet Socialist Republics), in explanation of his negative vote, pointed out that what the Chairman had put to the vote had been neither a proposal nor an amendment, and that consequently the rules of procedure had not been observed. Nevertheless, the delegation of the Soviet Union bowed to the Committee’s decision, and would vote in favour both of the principle of including in the convention provisions concerning the punishment of acts preparatory to genocide, and of the text it had proposed.

1566

A/C.6/SR.86

Mr. Chaumont (France) stated that he had abstained from voting for the same reasons as those given by the USSR representative, Under rule 119 of the rules of procedure, the amendment should have been put to the vote first. The Chairman called on the Committee to vote on the principle of the inclusion in the convention of provisions concerning the punishment of acts in preparation for genocide. He explained that the amendment of the Soviet Union would be put to the vote after the vote on the question of principle. Mr. Maktos (United States of America) pointed out that if the Committee voted negatively on the question of principle, it would thereby have rejected the USSR amendment. In his opinion that amendment could be put to the vote only if the principle involved were accepted by the Committee. The Chairman pointed out that, according to the rules of procedure, the amendment of the Soviet Union must be put to the vote whatever the result of the vote on the question of principle. He stated that, as Mr. Morozov had requested, the vote on the amendment would be taken by roll-call. With regard to the question of principle, the Chairman explained that the vote would bear solely on the principle of including in the convention provisions concerning the punishment of acts preparatory to genocide. Acceptance of that principle would in no way imply approval or disapproval of the method of enumeration used in the USSR amendment, nor would it prejudge the form in which such provisions should appear in the convention. Mr. Morozov (Union of Soviet Socialist Republics) said that, if his amendment were to be put to the vote after the question of principle, it was on the latter question that the vote should be taken by roll-call. The Chairman put to the vote the principle of the inclusion in the convention of provisions concerning the punishment of acts preparatory to genocide. A vote was taken by roll-call, as follows:

A/C.6/SR.86

1567

Cuba, having been drawn by lot by the Chairman, voted first. In favour: Czechoslovakia, Denmark, Netherlands, Norway, Poland, Sweden, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Yugoslavia, Australia, Byelorussian Soviet Socialist Republic. Against: Cuba, Dominican Republic, Egypt, France, Greece, Guatemala, Haiti, India, Iran, Luxembourg, New Zealand, Panama, Paraguay, Saudi Arabia, Syria, Turkey, Union of South Africa, United Kingdom, United States of America, Uruguay, Venezuela, Afghanistan, Argentina, Belgium, Bolivia, Brazil, Canada, Chile, China. Abstaining: Liberia, Peru, Philippines, Siam, Yemen. The Committee decided, by 29 votes to 11, with 5 abstentions, not to include in the convention provisions concerning the punishment of acts preparatory to genocide. Prince Wan Waithayakon (Siam) explained that his delegation favoured the principle of including acts preparatory to genocide and considered the wording of provisions to that effect to be of paramount importance. As no text had been before the Committee at the time of the vote, his delegation had thought it better to abstain. The representative of Siam would vote against the amendment of the Soviet Union because he did not consider its wording to be satisfactory. The Chairman put to the vote sub-paragraph (e) of the USSR amendment [A/C.6/215/Rev.1], together with the modification proposed in the course of the discussion by the Netherlands representative and accepted by the delegation of the Soviet Union. Sub-paragraph (e) of the amendment was rejected by 30 votes to 8, with 5 abstentions. The Chairman opened the discussion on the USSR amendment [A/ C.6/215/Rev.1] whereby a sub-paragraph ( f ), dealing with public propaganda, would be added to article IV of the convention. Mr. Morozov (Union of Soviet Socialist Republics) stated that his delegation was once more advocating the inclusion, among punishable acts, of propaganda aimed at instigating the perpetration of crimes of genocide,

1568

A/C.6/SR.86

notwithstanding the rejection of that proposal in the Ad Hoc Committee. His delegation’s position in the matter was based on the conviction that it was essential, in combating genocide, to take into account the important part played in inciting racial, national or religious hatreds by such powerful means of disseminating ideas as the Press, the radio and the cinema. The Ad Hoc Committee on Genocide had rejected the amendment of the Soviet Union on the grounds that the punishment of propaganda, which was the object of that amendment, was covered by the provisions of subparagraph (c) of article IV, which dealt with incitement to genocide.1 The USSR delegation did not agree with that point of view. Sub-paragraph (c) dealt with incitement to commit a concrete act, namely, genocide, as defined in article II of the convention. Sub-paragraph ( f ), which the delegation of the Soviet Union wished to add to article IV, dealt with the forms of public propaganda aimed at inflaming racial, national or religious hatred or at provoking the commission of acts of genocide. Those forms of propaganda were the cause of acts of genocide, in that they spread the idea of committing the crime and tended to give the criminals a kind of justification for their actions on the ideological plane. Hitler’s Mein Kampf and other works, which had been widely circulated in Germany, had been intended to convince the Germans of their right, as a so-called superior race, to destroy the so-called inferior races. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 9.

If it was desired to make the convention an effective instrument in the campaign against genocide, there must be prevention of the use of various forms of public propaganda for incitement to hatred and threats to human lives. Mr. Petren (Sweden) said that the USSR amendment was partly covered in Sweden by a new law, which was to enter into force on 1 January 1949, and which had been enacted in order to carry out resolution 96(I) of the General Assembly. In conformity with that law, those who publicly threatened, slandered or insulted a group of a particular origin or religion, would in future be punished under the Swedish penal code. The groups mentioned in those provisions of the Swedish penal code were the same as those protected under article II of the convention, with the exception

A/C.6/SR.86

1569

of political groups. Sweden was amending its legislation with regard to defamation and slander and, in that connexion, it intended to study the question of protecting political groups. In the light of the preliminary discussions which had already taken place, it seemed doubtful that it would be possible to grant political groups the same protection as other groups. The Swedish delegation would be in sympathy with the principle of the amendment of the Soviet Union, but feared that the text proposed might have the effect of preventing any form of criticism, even if it were justified. If the amendment had concerned only threats, slander and insults, the Swedish delegation would have voted for it. But, as it went much further, the delegation thought it better to abstain. Mr. Spiropoulos (Greece) thought that the USSR amendment was out of place in a convention on genocide. The convention on genocide could not provide for the suppression of the forms of public propaganda “aimed at inciting racial, national or religious enmities or hatreds”, as the intention to destroy a specific group, which was an essential part of the definition of genocide, was absent. However regrettable such acts might be, they did not come within the scope of the convention on genocide. As for the forms of public propaganda “aimed at . . . provoking the commission of acts of genocide”, their punishment was ensured by the provisions of sub-paragraph (c) of article IV. Mr. Chaumont (France) expressed his delegation’s wholehearted sympathy with the principle of the amendment of the Soviet Union. He recalled that the French draft [A/C.6/211] provided for the punishment of provocation or instigation to genocide. Those two ideas covered cases similar to the ones envisaged by the USSR delegation. The text submitted by that delegation suffered, however, from a number of defects in drafting and would therefore require revision. In the first place, an unrestricted enumeration of examples was unsatisfactory from a legal point of view. In the second place, the amendment of the Soviet Union was so drafted as to give the impression that it was directed against two kinds of propaganda, one inciting to hatred, which was an emotion, and the other aimed at provoking the commission of genocide. But the

1570

A/C.6/SR.86

Committee had never considered hatred as a crime. Intent had to be accompanied by some concrete action before there could be a crime. If the USSR amendment were adopted, it would be well to amend it as follows: “All forms of public propaganda which inflame racial, national or religious enmities or hatreds, with the object of provoking the commission of crimes of genocide.” It might be argued that the provisions of sub-paragraph (c) of article IV covered the cases envisaged in the amendment of the Soviet Union. It was undeniable, nevertheless, that the formula proposed by the amendment was more complete. The French delegation would abstain from voting on the USSR amendment, but it felt that the drafting committee which the Committee would inevitably have to set up to arrange the various articles of the draft convention, might take that amendment into account when drafting sub-paragraph (c). If the amendment were rejected, the Committee might attempt, during the second reading of the draft convention, to supplement the provisions of sub-paragraph (c) in such a way as to satisfy the delegation of the Soviet Union. Mr. Maktos (United States of America) regretted that he could not agree to the procedure suggested by the French representative. In his opinion, the Committee should adopt or reject the amendments once and for all, and should not permit discussions of substance to be reopened on the pretext of drafting amendments. The United States delegation thought that the sub-paragraph ( f ) proposed by the USSR delegation went too far and could not be included in the convention on genocide. It was obvious that nobody approved of the type of propaganda at which the amendment was directed. If that amendment were adopted, however, it would endanger freedom of speech and freedom of the Press. The inclusion of such provisions in the convention would in fact make it possible to muzzle the Press. In that connexion, Mr. Maktos pointed out that the idea which the delegation of the Soviet Union wished to introduce into article IV was lacking in clarity. Some criticisms in a free Press might very well be classified as propaganda under the terms of sub-paragraph ( f ). There had been examples of that in the totalitarian countries such as nazi Germany. The convention should not become, through the adoption of the USSR amendment, a pretext for some countries to harass others in which the

A/C.6/SR.86

1571

freedom of the Press was recognized. Neither should the convention allow Governments to decide what, in their eyes, constituted propaganda. Unfortunately, there were some Governments in the world which controlled information and declared any unofficial report to be false or distorted. The adoption of the provisions of sub-paragraph ( f ) would enable those Governments to legalize, so to speak, such practices. It might also allow some countries to control information not only within the boundaries of their own territories but also outside. It would indeed be easy to stop embarrassing criticism by making accusations of propaganda. The inclusion in the convention of the amendment proposed by the delegation of the Soviet Union could not fail to increase tension between States. It was because the United States delegation considered freedom of information and of the Press to be of priceless value that it was opposed to the adoption of the USSR amendment. Mr. Demesmin (Haiti) could not understand how anyone could object to sub-paragraph ( f ) of the Soviet amendment. It was impossible to argue against that amendment on the ground that the freedom of the Press should be safeguarded. There was no need to fear any abuse, as it was easy to determine, by analysing published writing, whether it did or did not constitute propaganda aimed at inflaming hatred or provoking the commission of crimes of genocide. Nor could it be argued that the provisions of sub-paragraph (c) covered the cases envisaged in the USSR amendment. That sub-paragraph dealt with incitement to the crime of genocide, whereas the amendment dealt with the dissemination of ideas which, if shared, might lead to genocide. The dynamic force of ideas was undeniable. If it was desired to prevent genocide, anything which might lead to that crime must be prevented. Nothing, however, was more conducive to the crime than the dissemination of ideas of hatred. The amendment of the Soviet Union should be adopted in the interests of the campaign against genocide. Books might even be added to the list of the forms of public propaganda in that amendment. Mr. Dihigo (Cuba) agreed with the observations of the representatives of Greece and France.

1572

A/C.6/SR.87

The Cuban delegation favoured the adoption of measures aimed at the prevention of incitement to national, racial or religious hatred, but it did not think that such measures could be taken within the framework of the convention on genocide. With regard to the second part of the USSR amendment, Mr. Dihigo observed that that type of propaganda, if it constituted direct incitement to crime, would be punishable under the provisions of sub-paragraph (c) of article IV. To include indirect incitement to genocide would be to go beyond the decisions of the Committee. The Cuban delegation would vote against the amendment of the Soviet Union. The meeting rose at 6.15 p.m.

EIGHTYSEVENTH MEETING Held at the Palais de Chaillot, Paris, on Friday 29 October 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). 35. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article IV (continued ) The Chairman requested the Committee to continue the discussion of the part of the USSR amendment [A/C.6/215/Rev.1] which proposed the addition to article IV of a sub-paragraph ( f ), the purpose of which was to penalize all forms of public propaganda aimed at provoking genocide. Mr. Abdoh (Iran) considered that the first part of that sub-paragraph, relating to propaganda aimed at inciting to racial, national or religious enmities or hatreds, should not be included in the convention. The concept of genocide did not extend to propaganda of that kind. Such propaganda should certainly be punished, but its punishment was not within the province of the convention.

A/C.6/SR.87

1573

The second part of that sub-paragraph referred to propaganda directed towards the commission of genocide. If the immediate purpose of such propaganda were incitement to the perpetration of genocide, it was covered by sub-paragraph (c) of article IV, which penalized incitement. But if such propaganda merely took the form of indirect incitement to crime, it should not be taken into consideration, as the Committee had already implicitly excluded indirect incitement from the enumeration contained in article IV. If the amendment of the Soviet Union were adopted, it would have to be brought into line with article II, and the Committee would therefore have to envisage the punishment of propaganda aimed at stirring up political hatred. The result might be that political strife between parties could be interpreted as propaganda of that sort, which could, in certain circumstances, provide national authorities with an excuse for violating the freedom of the Press and, in other cases, give rise to disputes between the Powers and aggravate international tension. The Committee should confine itself to suppressing genocide properly socalled, and it should avoid any additions to the convention which might render its adoption by a large majority more difficult. Mr. Manini y Ríos (Uruguay) said that the discussion had revealed two conflicting theories. One was based on the desire to act with circumspection in order to safeguard the freedom of the Press, whereas the other advocated the prevention of genocide by the severest possible measures. As no question of principle was at stake, it should be possible to reach a compromise solution. Indeed, the only principle which governed the discussion and upon which all delegations were agreed was that genocide had to be prevented. Opinions differed only as to the methods to be applied to ensure the prevention of that crime. The representative of Uruguay recalled that, by adopting sub-paragraph (c) of article IV (85th meeting), which was also a compromise solution, the Committee had declared public incitement to genocide to be a punishable offence; and the acts of public propaganda directed towards the perpetration of genocide, covered by the second part of the USSR amendment, were connected with such incitement. The only difference was that the amendment aimed at making those acts of propaganda into new crimes and at punishing them as such.

1574

A/C.6/SR.87

With regard to propaganda aimed at stirring up hatred, Mr. Manini y Ríos argued that the definition of genocide adopted by the Committee did not allow hatred or enmity to be considered as an act of genocide. Moreover, since the convention must envisage the establishment of an international tribunal empowered to apply its provisions, failing which the convention would be no more than a declaration of principle, the adoption of the amendment of the Soviet Union would give such a tribunal a right of control over the methods employed by Governments to communicate with their citizens. Surely no country could accept such a right of supervision which could be applied even to propaganda directed against a specific political group, since political groups were also protected by the convention as a result of a decision adopted by the Committee but which the Uruguayan delegation had not approved (75th meeting). Such control was all the more unacceptable in view of the fact that the very concept of propaganda was so indefinite that a request had recently been made to forbid the exhibition of a film based on a famous novel by Dickens because it was allegedly anti-semitic. For all those reasons, the Uruguayan delegation would vote against the USSR amendment. Mr. Raafat (Egypt) shared the opinion of those delegations which connected the second part of the amendment of the Soviet Union with sub-paragraph (c) of article IV. Without passing definite judgment on the matter, he considered that the first part of the amendment deserved to be taken into account; he would prefer, however, the text of article III of the draft prepared by the Secretary-General [E/447], wherein it was stated that in order to be punishable, propaganda must be carried on systematically. Mr. Tarazi (Syria) appreciated the sentiments underlying the USSR amendment but would not vote for it because the text, as it stood, would endanger the liberty which the democratic countries prized so highly. He recalled the two axioms which summed up French teaching and French jurisprudence on that point: liberty shall not infringe upon law and order, but neither shall law and order infringe upon liberty. Mr. Bartos (Yugoslavia) considered that equality must take precedence over liberty because, if men were not equal, the least favoured group was not free in relation to the most favoured group. To allow racial, national

A/C.6/SR.87

1575

or religious hatred to be spread was tantamount to authorizing discrimination and, to some extent, to proclaiming the inequality of citizens. Propaganda which stirred up hatred must be punished because it was at the very source of acts of genocide; and the campaign against that crime could not be effectively organized unless the measures proposed in the amendment of the Soviet Union were adopted. In certain countries punishment of propaganda aimed at stirring up racial, national or religious hatred was already provided for by domestic legislation. Could it be said that those countries were deprived of liberty because they punished abuse of liberty and confined it within the limits of law and order? Mr. Bartos did not agree that the second part of the USSR amendment duplicated sub-paragraph (c) of article IV. That sub-paragraph covered incitement to a crime committed at a particular time, in a particular place and against a particular category of persons. The amendment, on the other hand, sought to suppress general incitement to genocide, when such incitement took the form of popular education and of moulding public opinion with a view to developing racial, national or religious hatred. Mr. Pérez Perozo (Venezuela), reminded the meeting that when, at the suggestion of France and Venezuela, the Ad Hoc Committee on Genocide had decided that, to be punishable, incitement must be direct and public, the representative of Venezuela had pointed out1 that the insertion of those two qualifying words avoided the necessity of listing the various forms which incitement could assume, particularly in the case of written and spoken propaganda which was thus included in the definition of incitement. As a matter of fact, it would be difficult to imagine propaganda in favour of genocide which would not at the same time constitute incitement to that crime. The representative of Venezuela also remarked that the convention should be restricted to a definition of the categories of acts punishable as genocide, without any indication of the category into which they fell. To state that intention was punishable was sufficient to place Governments under the obligation to adopt measures against all forms of propaganda in favour of genocide. 1

See document E/AC.25/SR.16.

1576

A/C.6/SR.87

Later, when the delegation of the Soviet Union had reintroduced the text of the Secretary-General’s draft concerning propaganda [E/447], modifying it by the addition of the parenthesis containing examples of forms of propaganda and by the deletion of the reference to the systematic character of that propaganda, and had taken the draft thus amended as the basis for its proposal that acts of propaganda should be included in article IV, the representative of Venezuela had declared his opposition to any enumeration, which would necessarily be incomplete, of the forms of propaganda implicitly covered by sub-paragraph (c) of article IV. Since all those reasons remained valid, the delegation of Venezuela would not change its attitude towards the USSR amendment and would vote against it. Mr. Lachs (Poland) expressed concern at the turn which the discussion was taking; considerations extraneous to the subject, such as the manner in which certain Governments might use the convention for their own purposes, had been introduced. He considered that the good-will of of [sic] those who were co-operating in the drafting of that document should be taken for granted and he requested that the experiences of countries which had suffered directly and cruelly from genocide during the last war should be taken into account. In the Polish representative’s opinion, the problem was simple. The most horrible crime ever known to the world had been brought about by preaching hatred of certain human groups. It was unnecessary directly to incite future perpetrators to commit acts of genocide. It was sufficient to play skilfully on mob psychology by casting suspicion on certain groups, by insinuating that they were responsible for economic or other difficulties, in order to create an atmosphere favourable to the perpetration of the crime. It was necessary, therefore, to outlaw that form of propaganda, which was as dangerous if not more dangerous than direct incitement to the commission of genocide. In their domestic laws, Poland, Norway and Sweden had taken useful steps to combat hate propaganda. Why could not the other Members of the United Nations follow their example and comply with the recommendations of resolution 96(I) of the General Assembly? The fear of endangering freedom of information could not be justified, because preaching hate could not be considered as information. Rather

A/C.6/SR.87

1577

than protect the right to spread such information, it would be better to give up all idea of protection. Since laws protected the individual against libel and slander, the group was also entitled to the same protection. Mr. Lachs therefore asked the Committee to adopt the amendment of the Soviet Union, the effect of which would be to make propaganda preparatory to genocide punishable. Mr. Fitzmaurice (United Kingdom) declared that, if the world situation were different, he would raise no objection to the USSR amendment, and the convention itself would probably be superfluous. But account must be taken of the current state of the world. The representative of the United Kingdom was opposed to the amendment of the Soviet Union, not because he in any way approved of incitement to hatred, but because that amendment, if it were adopted, together with the protection of political groups, might become a pretext for serious abuses; it would give Governments – and there were a number which disliked criticism, particularly newspaper criticism – the right to complain of the Press of other countries. Mere criticism of a political party in a foreign country might be considered by that country – particularly if, as was sometimes the case, that party was the sole party in the country – as propaganda aimed at the dissemination of hatred against a political group. Since it was not certain that the USSR amendment would always be interpreted in a reasonable way; since, on the contrary, it could frequently be used to further aims other than the campaign against genocide, the United Kingdom delegation would not vote for it. Mr. Morozov (Union of Soviet Socialist Republics) wished to attempt to refute the main arguments adduced by the opponents of his amendment. It had been claimed that the amendment of the Soviet Union would be prejudicial to freedom of expression and of the Press; but opposition to the Press, the radio or the cinema, when those media encouraged a crime such as genocide, did not constitute an attack on the freedom of expression. The United Kingdom representative, while recognizing the need for combating propaganda designed to stir up racial, national or religious hatred, said that if the USSR amendment were accepted certain Governments, though in fact innocent, could be accused by others. But if the acts of which they were accused had not in fact been committed, there

1578

A/C.6/SR.87

would be no need to fear condemnation. There were, in fact, two possible alternatives: either genocide was punishable by national tribunals; or it was punishable first by national tribunals and then by international bodies. In both cases, the accusations brought up would be examined by judges. From the fears expressed by the United Kingdom representative it must be concluded that he lacked confidence in the ability both of the courts of his own country and in that of an international tribunal to decide whether or not an act was punishable. There were no grounds for such lack of confidence in the tribunals; the argument was therefore not a very weighty one. A third argument was that acts of propaganda were already covered by sub-paragraph (c) of article IV. But the expression “direct incitement” still further restricted the concept of incitement, already limited by the deletion, from sub-paragraph (c), of the words “in public” and “whether such incitement be successful or not” (85th meeting). If the amendment of the Soviet Union were rejected, it might be claimed that propaganda was not covered by sub-paragraph (c), which dealt only with direct incitement; moreover, it might be concluded from the fact that the idea of propaganda had been definitely rejected, that the provisions of sub-paragraph (c) expressly excluded the concept of propaganda. In conclusion, the USSR representative thought that, if it were desired to wage an effective campaign against genocide, all the false arguments which had been advanced against his amendment should be rejected and the amendment adopted. The courts would then be able to strike at the very root of the evil from which humanity had suffered so much. The Chairman called upon the Committee to take a decision on subparagraph ( f ) of the amendment of the Soviet Union. Mr. Raafat (Egypt) asked that, in accordance with rule 118 of the rules of procedure, the amendment should be divided into two parts. It contained two ideas: (1) propaganda aimed at incitement to hatred; (2) propaganda aimed at incitement to genocide. Mr. Maktos (United States of America) thought division unnecessary. Certain representatives had remarked earlier that the second idea was covered by sub-paragraph (c) of article IV, relating to direct incitement; if that were so, it was not necessary to put that part to the vote; if it were not so, then the decision of the Committee with regard to sub-paragraph

A/C.6/SR.87

1579

(c) of article IV implied that any act of incitement which was not direct was not punishable. Mr. Chaumont (France) thought it would be more logical to divide the USSR amendment into three parts. The first part would comprise the first words of the text, namely, “All forms of public propaganda (Press, radio, cinema, etc.)”; the two other parts would cover respectively the two ideas referred to by the Egyptian representative. The Chairman decided that the amendment should be divided into two parts; the first words of the text being common to both parts, they would be put to the vote both times. He invited the Committee to take a decision first on the following text: “All forms of public propaganda (Press, radio, cinema, etc.) aimed at inciting racial, national or religious enmities or hatreds”. That part of the amendment was rejected by 28 votes to 11, with 4 abstentions. The Chairman put to the vote the second part of the text, namely, “All forms of public propaganda (Press, radio, cinema, etc.) aimed at provoking the commission of acts of genocide”. That part of the amendment was rejected by 30 votes to 8, with 6 abstentions. After an observation by Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) Mr. Morozov (Union of Soviet Socialist Republics) said that, since the two parts of his amendment had been rejected, it was useless to put the amendment as a whole to the vote. Sub-paragraph ( f ) of the USSR amendment was rejected. Mr. Demesmin (Haiti) said that he had voted in favour of the amendment of the Soviet Union. He observed that some delegations had introduced political considerations in asking for the rejection of that amendment. It should not be forgotten, however, that the Sixth Committee was a legal body, with a legislative mandate. The Committee could not perform useful work if its decisions depended on presumption of good or bad faith of certain Member States. The representative of Haiti thought that the delegations should decide on the proposals submitted to the Committee in consideration of their intrinsic value, not of the possible motives of their authors.

1580

A/C.6/SR.87

The delegation of Haiti had voted for the USSR amendment as a contribution to the maintenance of peace; for if propaganda aimed at stirring up racial or national hatred were permitted, it would lead not only to genocide, but to war as well. Mr. Sundaram (India) said that he had voted against the amendment of the Soviet Union. He agreed that all forms of public propaganda aimed at stirring up hatred or provoking genocide should be punished; it was for all States to take the measures necessary to prevent and punish propaganda of that kind. India had already done so. The Indian delegation did not consider, however that a proposal which aimed at making public propaganda a crime under international law was called for in the convention on genocide. It was for that reason that the Indian delegation had voted against the USSR amendment. The Chairman opened the debate on subparagraph (e) of article IV as drafted by the Ad Hoc Committee. He recalled that two amendments had been offered to that sub-paragraph, one by the Belgian delegation [A/C.6/217], the other by the United Kingdom delegation [A/C.6/236]. Mr. Pescatore (Luxembourg) made a number of observations on the Belgian amendment. Despite appearances, there was a substantial difference between the Ad Hoc Committee’s draft and the Belgian amendment. In the former text, complicity applied to all the acts enumerated in article IV, in other words, to genocide itself, to conspiracy, incitement and attempt; in the Belgian text, on the other hand, complicity applied only to genocide. Mr. Pescatore pointed out that, in the legal system to which Luxembourg law adhered, complicity meant the rendering of accessory or secondary aid, or simply of facilities, to the perpetrator of an offence. Accomplices were punished only if the crime were actually committed. A person who rendered essential, principal or indispensable aid was termed a co-perpetrator and was placed on the same footing, in regard to punishment, as the perpetrator. Bearing in mind that interpretation of complicity, Mr. Pescatore proceeded to analyse, with the help of several examples, the text of article IV as drafted by the Ad Hoc Committee.

A/C.6/SR.87

1581

In the first place, complicity in conspiracy appeared so meaningless that it was unnecessary to elaborate upon it. Secondly, it was possible to conceive of complicity in incitement; but in the convention on genocide that concept was particularly unclear. The delegation of Luxembourg had voted against the inclusion in the convention of the concept of incitement to genocide, because the inclusion of provisions concerning the punishment of complicity in incitement would merely add another, still vaguer concept. Thirdly, it was easy to conceive of complicity in attempt; nevertheless, the distinction which had already been established between an accomplice and a co-perpetrator must be applied in such a case. Co-perpetrators were punished on the same grounds as the main perpetrators; mere accomplices escaped conviction. It would be wiser, therefore, also to exclude the concept of complicity in attempt. To those considerations must be added the difficulties of proving such complicity. Finally, the representative of Luxembourg expressed the view that the Belgian amendment should be approved by the Committee. He pointed out, moreover, that the introductory sentence and sub-paragraph (a) as drafted by the Ad Hoc Committee had been included only on account of the wording of the sub-paragraph relating to complicity. The text of article IV as proposed by Belgium was preferable because it was simpler. When the Committee had decided (84th meeting) to refer to a drafting committee the first sentence of article IV, the discussion had borne only on the words “shall be punishable”; the Belgian amendment showed that that sentence was of substantial importance. It would therefore be well to put sub-paragraph (d ) of the Belgian amendment to the vote first and then to vote on the first sentence of the text proposed for article IV; that sentence would then be referred to the drafting committee for final drafting. Mr. Fitzmaurice (United Kingdom) explained that his amendment contained two different ideas. Its first object was to show that complicity applied only to material acts of genocide; on that point, the United Kingdom amendment was identical with that of Belgium, and the reasons were the same as those which had been set out by the Luxembourg representative. The second aim of the United Kingdom amendment was to introduce the word “deliberate”. It was in fact possible to be implicated in

1582

A/C.6/SR.87

a crime in all innocence; it was therefore essential to state that complicity must be “deliberate” to constitute a crime. Mr. Fitzmaurice observed, in that connexion, that the representative of Venezuela had taken the English word “deliberate” to mean, in French préméditée (84th meeting); that interpretation was incorrect, the correct translation being intentionnelle. Mr. Chaumont (France) unreservedly supported the Belgian amendment. He thought that the adoption of the proposed text by the Ad Hoc Committee must have been due to an oversight; thus it was difficult to understand what was meant by complicity in conspiracy; according to the French conception of criminal law, complicity applied only to the main crime; so vague a notion of complicity as that contained in the draft of the Ad Hoc Committee could hardly be accepted. The French representative observed that the Belgian amendment entailed a change in the introductory sentence of article IV as proposed by the Ad Hoc Committee. Mr. Chaumont preferred the Belgian amendment to that of the United Kingdom, because it was completely unambiguous; complicity applied only to the crime of genocide itself. Furthermore, the word “deliberate” added nothing to the idea of criminal intent which, according to French criminal law, was a necessary factor in complicity. On the contrary, such an addition could lead those who were applying the convention to try to discover the motives of the legislator. The French delegation was therefore in favour of the amendment proposed by Belgium. Mr. Pescatore (Luxembourg) agreed with the United Kingdom representative that, to constitute an offence, complicity must be deliberate. Criminal intent was an essential factor in the assessment of a crime and the infliction of punishment. That general principle was so obvious that to describe complicity as deliberate was mere repetition. Mr. Houard (Belgium) expressed complete agreement with the remarks of the representatives of France and Luxembourg. He stated that if the United Kingdom maintained its amendment, he would abstain from voting. In reply to a question by Mr. Fitzmaurice (United Kingdom), Mr. Pescatore (Luxembourg) pointed out that there was a discrepancy between

A/C.6/SR.87

1583

the English and French texts of the Belgian amendment, and that the French text was the authentic one. The Chairman stated that, since the Belgian amendment had been submitted in French, the English translation should be altered to correspond exactly to the French text. Mr. Fitzmaurice (United Kingdom) said that it was impossible, in English at any rate, not to indicate the act in which complicity would be punishable. He therefore maintained his delegation’s amendment. Mr. Fitzmaurice admitted that in some legal systems the concept of complicity implied intent; in other systems, however, that was not so. In view of the importance of the convention on genocide, which established a new crime under international law, it would be preferable, even at the risk of repetition, to define the exact meaning of the somewhat vague notion of complicity. Mr. Bartos (Yugoslavia) pointed out that, according to the terms of the Belgian amendment, an accomplice of a person who had not succeeded in killing his victim, but had merely wounded him, would go unpunished, even though he had been perfectly well aware of the crime which the principal intended to commit; in that case the accomplice could plead that genocide had not been committed, but merely attempted. The text drawn up by the Ad Hoc Committee, which would allow the punishment of complicity in all the acts enumerated in article IV, seemed to the Yugoslav delegation much better. Mr. Chaumont (France) did not think the example given by the Yugoslav representative was decisive. In the case mentioned by Mr. Bartos, since the physical integrity of the victim had been impaired, the provisions of article II, sub-paragraph 2 of the convention would make it possible to establish that genocide had taken place. In the opinion of the French delegation, it would have been necessary to extend complicity to other acts than genocide proper if the Committee had adopted a narrow definition of the crime. But since the definition contained in article II was wide enough, it would be better not to apply complicity to all the acts enumerated in the different paragraphs of article IV – the only result of which would be to introduce vague concepts into

1584

A/C.6/SR.87

the convention – but to adhere to the well-established practices of positive law existing in most countries. Mr. Pescatore (Luxembourg) pointed out to the Yugoslav representative that the Committee was not called upon to pronounce judgment in individual cases, but to carry out legislative work; it should therefore take a wide view of the subject. The practice of criminal law had shown that in the majority of cases complicity was very difficult to prove. It was still more so in the case of an attempted crime. It seemed, therefore, that from the legislator’s point of view, and in order not to increase the difficulties which would be encountered by those who would have to apply the convention, it would be wiser to keep within the limits laid down by domestic legislations. Mr. Raafat (Egypt) stated that the remarks of the representative of Luxembourg had almost convinced him of the necessity of limiting the act which would be punishable under the terms of article IV, sub-paragraph (e), to complicity in the crime of genocide properly so-called. The example given by the Yugoslav delegation, however, had proved that complicity in an attempt at genocide was quite possible. An analysis of the examples mentioned by the representative of Luxembourg led, in fact, to the conclusion that complicity in incitement to genocide or in conspiracy to commit genocide were quite possible. That being so, the Egyptian delegation would prefer that the convention, as proposed by the Ad Hoc Committee, should declare as punishable complicity in all the acts enumerated in article IV. With regard to the amendment of the United Kingdom, Mr. Raafat observed that, although the word “willful” appeared in the draft convention prepared by the Secretary-General [E/447], it was preferable not to use it because it was impossible, under any legal system, to conceive of complicity without intent. Mr. Pescatore (Luxembourg) wished to make it clear that he had not contended that complicity in incitement to commit genocide was inconceivable. He had said that it was advisable to omit that concept from the convention because it was unclear. Complicity in an attempt at genocide was, of course, easily conceivable, but it too should be omitted from the

A/C.6/SR.87

1585

convention since in the majority of cases it would be very difficult to prove. Mr. Pérez Perozo (Venezuela) explained that he had proposed (84th meeting) that the expression complicité préméditée, in the French text of the United Kingdom amendment, should be replaced by the expression complicité intentionnelle, because he had had before him only the French text, in which the word “deliberate” had been translated by préméditée. Mr. Pérez Perozo admitted that, generally speaking, complicity without intent was inconceivable. In the case of genocide, however, which was a crime in which a number of persons were involved, the use of the word “deliberate” in describing punishable complicity was an added clarification which was far from useless. The Committee had recognized intent as an essential factor in the definition of genocide; it had included it in the provisions of article II of the convention. For consistency’s sake, it should retain it in article IV, sub-paragraph (e). Mr. Abdoh (Iran) thought punishment of complicity should be limited to cases of complicity in the act of genocide properly so-called. In his opinion the provisions of article IV, sub-paragraph (b), relating to conspiracy to commit genocide, would ensure punishment in the case mentioned by the Yugoslav representative. The Iranian delegation considered that if sub-paragraph (e) were included in the form proposed by the Belgian delegation, the enumeration contained in article IV would be complete and would cover all the cases which should be punished. Mr. Morozov (Union of Soviet Socialist Republics) stated that the Ad Hoc Committee on Genocide had unanimously adopted sub-paragraph (e) of article IV, not by an oversight but because it was convinced that its provisions were valuable. Mr. Morozov supported the remarks that had been made in opposition to the United Kingdom amendment. He added that article II of the convention already defined genocide as a premeditated crime, and thus as a deliberate one; it was useless, therefore, to repeat that complicity, in order to be punishable, must be deliberate. Moreover, such a definition would enable accomplices in crimes of genocide to escape the punishment they deserved by pleading the absence of any criminal intent.

1586

A/C.6/SR.87

The USSR delegation considered that complicity in all the acts enumerated in article IV should be punished, not only in genocide proper. It would therefore vote against the Belgian amendment and for the retention of the text prepared by the Ad Hoc Committee. In reply to the representative of Luxembourg, Mr. Bartos (Yugoslavia) maintained that if the legislative work for which the Committee was laying the foundations were to be effective in practice, all possible circumstances should be taken into account. Mr. Bartos pointed out to the representative of France that the provisions of article II, sub-paragraph 2, would not make it possible, in the aforesaid case of attempted genocide, to ensure the punishment of an accomplice, since it could not be held that a slight wound was describable as “impairing . . . physical integrity”. Nor did the provisions of article IV, sub-paragraph (b), which had been referred to by the Iranian representative, apply; conspiracy to commit genocide could not be placed on the same footing as complicity in attempt. Mr. Bartos agreed with the United Kingdom representative that complicity, to be punishable, must be deliberate; but since intent was implicit in the concept of complicity, the United Kingdom amendment was superfluous. The Yugoslav delegation would vote against both the proposed amendments. Mr. Maktos (United States of America), speaking as Chairman of the Ad Hoc Committee, confirmed that article IV, sub-paragraph (e), had not been adopted by mistake. The United States delegation itself had voted at the time for that sub-paragraph.1 Mr. Maktos had already stated the reasons of general policy which had led some delegations to oppose the inclusion of certain provisions in the convention. Thus the United States delegation had stated its opposition to the inclusion of incitement to commit genocide among the acts which would be punishable under the terms of article IV. In order to be consistent, it would also vote against the provisions concerning the punishment of complicity. Speaking of the United Kingdom amendment, Mr. Maktos remarked that there was no serious objection to stating that complicity, to be punishable,

A/C.6/SR.87

1587

must be deliberate. Moreover, he concurred with Mr. Fitzmaurice that the word “complicity”, without any indication of the acts in which there was complicity, would be meaningless, at least in English. In reply to the Yugoslav representative, Mr. Houard (Belgium) emphasized the fact that great caution must be exercised in formulating juridical rules. If the convention were to be effectively applied it should contain only clear definitions, known to all the various legal systems. Mr. Fitzmaurice (United Kingdom) withdrew the part of his amendment concerning the addition of the word “deliberate”, since it was understood that, to be punishable, complicity in genocide must be deliberate. Mr. Houard (Belgium) declared that as a result of the withdrawal of the word “deliberate”, the United Kingdom amendment was practically the same as the Belgian amendment; he therefore withdrew his amendment in favour of that of the United Kingdom, which would then read “complicity in any act of genocide”. Mr. Chaumont (France) stated that he was prepared to vote for that wording, on the understanding that its meaning was different from that of the text drawn up by the Ad Hoc Committee. He suggested that the wording “complicity in any act of genocide” should be retained in English, and in French simply the words la complicité. The Chairman said that the drafting committee which would be set up later by the Committee would deal with all questions of style and with the concordance of the translations. He put to a vote the United Kingdom amendment to article IV, subparagraph (e), reading: “Complicity in any act of genocide”. The amendment was adopted by 25 votes to 14, with 3 abstentions. The meeting rose at 6.15 p.m. [Discussions pertaining to issues other than the Genocide Convention]

1588

A/C.6/SR.91

NINETY-FIRST MEETING Held at the Palais de Chaillot, Paris, on Thursday, 4 November 1948, at 10.50 a.m. Chairman: Mr. R.J. Alfaro (Panama). [Discussions pertaining to issues other than the Genocide Convention] 40. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article IV (conclusion) The Chairman invited the Committee to continue consideration of article IV of the draft convention and especially of the introductory sentence. Mr. Maktos (United States of America) asked first of all that the consideration of the convention on genocide should not be interrupted in future, except in cases of extreme necessity; he made that request solely in order that the Committee might finish its work on genocide in the desired time. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) shared the point of view of the United States representative. He explained that the General Committee had decided that the session of the General Assembly should end on 8 December; the Sixth Committee must therefore finish its work about 1 December. The question of genocide should consequently be dealt with as quickly as possible. With regard to article IV of the convention, Mr. Kerno suggested that consideration of the first sentence should be referred to the drafting committee, which would at the same time study the text proposed by the Ad Hoc Committee and the Belgian amendment [A/C.6/217]. A mere question of drafting was involved, since the provisions relating to substance had already been adopted. Mr. Abdoh (Iran) and Mr. Spiropoulos (Greece) supported the Assistant Secretary-General’s suggestion, as they thought that such a procedure would enable the Committee’s work to be accelerated. Mr. Kaeckenbeeck (Belgium) also supported the proposal; he pointed out that he had already requested reference of the matter to the drafting committee on the ground that it was merely a question of wording.

A/C.6/SR.91

1589

Mr. Morozov (Union of Soviet Socialist Republics) thought it was unnecessary to linger over questions of no special importance, but that there was no reason for referring back the consideration of questions which could easily be settled at once in the Committee. There was no reason of principle for not retaining the text proposed by the Ad Hoc Committee; as a general rule, it was not advisable to amend the draft prepared by the Ad Hoc Committee unless there was an imperative reason for so doing. Mr. Morozov stated that by adopting sub-paragraph (a) of the text of the Ad Hoc Committee, the Committee had prejudged its decision regarding the Belgian amendment; the enumeration proposed by the Belgian amendment did not include the crime of genocide itself, which was the first point in the enumeration proposed by the Ad Hoc Committee. The USSR representative therefore proposed that the first sentence of article IV, as proposed by the Ad Hoc Committee, should be put to the vote. If the drafting committee thought it necessary to amend the sentence, the Committee would consider the changes made at a second reading. Mr. Maktos (United States of America) shared the view of the representative of the Soviet Union. The Committee had prejudged the fate of the Belgian amendment by adopting sub-paragraph (a) of the text proposed by the Ad Hoc Committee. Mr. Maktos also thought that the Ad Hoc Committee’s text should not be amended unless a question of principle were involved. Mr. Pérez Perozo (Venezuela) pointed out that the Belgian amendment altered the enumeration proposed by the Ad Hoc Committee, in that it placed “incitement” before “conspiracy”, contrary to the order adopted by the Ad Hoc Committee. The representative of Venezuela wished to know whether that change was accidental or intentional. The Chairman thought the Belgian amendment enumerated the acts in their natural order of execution, which appeared more logical. He thought that the differences between the text of the Ad Hoc Committee and that of Belgium were sufficiently important to warrant discussion. It was preferable to settle the question immediately rather than to refer it to the drafting committee and risk debating it at a later stage.

1590

A/C.6/SR.91

The Chairman pointed out that it was not possible to vote only on the text of the Ad Hoc Committee, unless the Belgian delegation agreed to withdraw its amendment. Mr. Chaumont (France) thought the Belgian delegation was not inclined to withdraw its amendment; if it withdrew it, the French delegation would reintroduce it in accordance with rules 73 and 111 of the rules of procedure. Mr. Chaumont supported the remarks of the USSR representative; it was possible to reach a speedy decision on article IV, for that question had already been the subject of considerable debate. The French delegation supported the Belgian amendment because it was more logical and constituted an improvement in the wording of the text. Mr. Kaeckenbeeck (Belgium) said that he could not withdraw his amendment. On the one hand, he considered the text he proposed preferable in a legal document. On the other hand, an important question of principle was involved: different types of acts could not be placed on an equal footing in an enumeration. The Chairman put to the vote the Belgian amendment to the first sentence of article IV. The amendment was rejected by 24 votes to 17, with 1 abstention. The Chairman put to the vote the text proposed by the Ad Hoc Committee for the first sentence of article IV. The text was adopted by 30 votes to 3, with 6 abstentions. Mr. Fitzmaurice (United Kingdom) said he had voted against the text of the Ad Hoc Committee because he had always objected to the words “shall be punishable”, but that was a question of drafting which could be settled by the drafting committee. Mr. Fitzmaurice recalled that only individuals, and not Governments, were punishable. He would have preferred the words “shall constitute infractions”. The Chairman put to the vote the whole of article IV, as it had been amended as a result of the voting on each paragraph (84th, 85th and 87th meetings).

A/C.6/SR.92

1591

Article IV as amended was adopted by 35 votes to none, with 6 abstentions. Mr. Morozov (Union of Soviet Socialist Republics) said he had voted in favour of the adoption of article IV as amended, in view of the arguments which had been advanced when the USSR amendments had been rejected (87th meeting), namely, that cases of incitement by public propaganda were covered by the idea of direct incitement in public, and that preparatory acts committed in the forms envisaged in the USSR amendment constituted acts of genocide as defined in articles II and IV of the convention. Mr. Maktos (United States of America) said that he had abstained because incitement appeared in the list of punishable acts. Mr. Arancibia Lazo (Chile) explained that he had abstained because the procedure followed was based on an erroneous interpretation of the rules of procedure; he considered that when all the parts of a text had been adopted, it was unnecessary to vote on the whole. The meeting rose at 1 p.m.

NINETY-SECOND MEETING Held at the Palais de Chaillot, Paris, on Friday, 5 November 1948, at 10.45 a.m. Chairman: Mr. R.J. Alfaro (Panama). 41. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article V The Chairman called for discussion of article V of the draft convention on genocide, as well as the amendments to that text proposed by the delegations of the USSR [A/C.6/215/Rev.1], Belgium [A/C.6/217], France [A/C.6/224], the United Kingdom [A/C.6/236], Syria [A/C.6/246] and Sweden [A/C.6/247]. Mr. Morozov (Union of Soviet Socialist Republics) stressed the fact that the fundamental idea of article V of the draft convention was to proclaim

1592

A/C.6/SR.92

that all those committing genocide, no matter who they were, should be punished. The second phrase of that article added a necessary clarification, but the delegation of the USSR was of the opinion that that clarification was not adequate and that, in accordance with the principle contained in article 8 of the Charter of the International Military Tribunal of Nürnberg it should be explicitly affirmed that the command of the law or superior orders shall not justify genocide. It was with that aim in view that the delegation of the Soviet Union had presented its amendment. The delegation of the USSR had omitted from the text of its proposal the second part of article 8 of the Nürnberg Charter which referred to the possibility of considering command of the law or superior orders as grounds for reducing the penalty because it held the view that that section referred only to the penalty and not to the determination of guilt. Mr. Kaeckenbeeck (Belgium) stated that, since the amendment proposed by his delegation was purely a question of drafting, he had no objection to having that amendment considered by the drafting committee which would subsequently be set up by the Committee. The delegation of Belgium was in complete agreement with the delegation of the Soviet Union on the fact that all persons guilty of genocide should be punished but as the word “punished” appeared in various articles of the convention, it preferred the substitution of the words “brought to justice.” That was the purpose of the Belgian amendment. Mr. Kaeckenbeeck pointed out that the principle embodied in the USSR amendment conflicted with the provisions of some domestic criminal legislations. In view of the fact that those legislations would have to be brought into harmony with the convention on genocide, there were serious obstacles to the insertion in the convention of the paragraph proposed by the Soviet Union delegation. Mr. Fitzmaurice (United Kingdom) explained that his delegation proposed a new text to replace article V because the original text did not seem satisfactory. What interpretation should be given to the French word gouvernants in article V? Was it the head of State, as indicated in the English translation? It was well known that, according to certain Constitutions, the head

A/C.6/SR.92

1593

of State could not be tried in the courts of his own country. Moreover, whether he had exercised absolute personal power or whether he had acted on the initiative of his ministers, when a head of State was guilty of genocide, it was in reality the State itself or the Government which committed the crime. In those circumstances, it was useless to say that “heads of State” should be punished. The fact to be established was the penal responsibility of the State or the Government itself, or even the organs or the authorities of the State or Government, which included heads of State and public officials. In view of the fact that, on the one hand, punishment in the true sense of the word was impossible in the case of States or Governments and, on the other hand, that they could not be brought to trial before their own courts, it was advisable to provide that acts of genocide would constitute a violation of the convention when such acts were committed by States or Governments or on their behalf. In that way, by invoking violation of an international convention, States or Governments could be brought before an international court, which would not pronounce sentence but would order cessation of those acts. In that connexion Mr. Fitzmaurice recalled that his delegation had proposed an amendment [A/C.6/236/Corr.1] to article VII of the convention providing for jurisdiction of the International Court of Justice in that regard. Mr. Tarazi (Syria) stressed the fact that his delegation had proposed an amendment to article V of the convention for purposes of clarification. The words “heads of State” which appeared in that article referred to legal Governments which were in power by the will of the people, in accordance with a Constitution. Nevertheless legal theory and precedent, particularly in France, also recognized two other categories of heads of State: normal de facto heads of State, that was, those who were in power because of the breakdown of authority, and de facto heads of State who were usurpers, that was, who had seized power without any right. Citing the French ordinance of 9 August 1944 which had nullified the acts of the Vichy government, described as a de facto usurping government, Mr. Tarazi stated that in reality de facto heads of government who were usurpers were individuals who had seized power illegally. In view of the fact that they would not be included in the category of “private

1594

A/C.6/SR.92

individuals” envisaged in article V – since that category referred only to private individuals who were neither officials nor heads of State – the delegation of Syria proposed that the list given in article V should be extended to include de facto heads of State and persons having usurped authority. The article would then read: Those committing genocide or any of the other acts enumerated in article V shall be punished, whether they are heads of State, public officials, persons having usurped authority or private individuals.

In explaining the position of his delegation with regard to article V of the convention, Mr. Petren (Sweden) pointed out that, since the question of the competent authority in matters of genocide had not yet been settled, three possibilities should be considered: prosecution before national courts of the State to which persons accused of genocide were subject; prosecution before the national courts of another State; and prosecution before an international criminal court. The Swedish Constitution provided that the king could not be brought to trial. Therefore, in the hypothetical case that the king were accused of genocide, he could not be brought to trial before the Swedish courts or before the national courts of another country. Consideration might be given to the question of whether, in case the convention established an international criminal court, an agreement should be reached, in the common interest, to make monarchs subject to that jurisdiction. A decision of that kind would, however, require revision of the constitution and the delegation of Sweden was not in a position to promise that such a change would be made in its Constitution. Under those conditions, the Swedish delegation could not accept article V of the convention unless the words “heads of State” were deleted. It had proposed the following text: Those committing genocide or any of the other acts enumerated in article V shall be punished, whether they are public officials or private individuals.

It would, however, be willing to vote in favour of the Ad Hoc Committee text if the words “heads of State” were replaced by an expression which would include members of the Government but would exclude heads of State who enjoyed constitutional immunity. Mr. Petren wished to draw the attention of the Committee to the question of the responsibility of legislators. Would those who voted in favour of

A/C.6/SR.92

1595

a law organizing genocide be held responsible as well as those who had voted the necessary appropriations for the crime to be committed? In that field, should legislative immunity be considered? The Swedish delegation was of the opinion that the question had not been sufficiently studied, and that it was therefore preferable to omit heads of State from the list contained in article V. The United Kingdom amendment raised a further question, that of the provision for criminal sanctions. Individuals who had personally planned or executed the crime would obviously be punished in accordance with the penalties provided by the criminal law. In the case of the State or the Government, however, the only question could be that of ordering them to pay reparations to the victims. The Swedish delegation was prepared to discuss the inclusion in the convention of a clause regarding the reparations to be paid to victims by a State of which the heads had committed genocide, but it wished to point out that, strictly speaking, a criminal penalty would not be involved. For those reasons and also because the Swedish criminal code did not recognize the idea of the penal responsibility of legal persons, the Swedish delegation was of the opinion that it was inappropriate to refer to the penal responsibility of States and Governments and that article V should provide only for the punishment of individuals. Sardar Bahadur Khan (Pakistan) recalled that, in most cases, genocide was committed by heads of State or with their complicity and that the principle objective was to avoid a recurrence of crimes as barbarous as those of which recent history had furnished so many examples. It was only by organizing the prevention of genocide and providing for the punishment of those who were guilty of it, no matter what their official or social position might be, that that objective would be realized. The Pakistan delegation was of the opinion that article V should be drafted in as broad terms as possible. Accordingly, it would vote for any amendment which would enlarge the scope of that article. Nevertheless, in order to avoid the inclusion in the convention of provisions which conflicted with certain constitutional principles and in order to make the convention acceptable to the greatest possible number of States, the delegation of Pakistan would not oppose the proposal of the Swedish delegation to delete “heads of State” from the list of persons who were

1596

A/C.6/SR.92

punishable under the terms of article V. It pointed out, however, that there was no reason to exclude from the list heads of State who did not enjoy the same immunity as certain monarchs. The representative of Pakistan noted a slight difference between the English and French texts of article V. The French expression gouvernants included ministers or members of the Government as well as heads of State, while the English expression “heads of State” was less explicit. In one way or another it should be specified that ministers or members of the Government were included in the category of “public officials.” Since the question involved was purely one of drafting, the drafting committee, which would undoubtedly be set up by the Committee, could decide the matter. Mr. Morozov (Union of Soviet Socialist Republics) pointed out the difficulty of simultaneous discussion of all the amendments submitted in connexion with article V of the convention and suggested that each of the amendments should be discussed separately. Mr. Spiropoulos (Greece) and Mr. Maktos (United States of America) supported that suggestion. Mr. Dignam (Australia) opposed that suggestion, and pointed out that the various amendments had several points in common and that repetition would be avoided if they were examined together. The Chairman decided that, in order to avoid confusion in the discussion, each amendment would be taken up separately. He asked the Committee to consider the amendment proposed by the USSR delegation [A/C.6/215/Rev. 1]. Mr. Chaumont (France) stressed the difficulty of expressing a view regarding the Soviet Union amendment proposing the addition of a second paragraph to article V, before the Committee had adopted the first paragraph of that article and the amendments thereto. As a matter of fact, the vote on the USSR amendment might depend to a great extent on the provisions of the first paragraph of article V. The text proposed by the Soviet Union delegation was needed to complete the provisions which the French delegation would have liked to see included in the definition of genocide. The principle on which it was

A/C.6/SR.92

1597

based appeared in the Nürnberg Charter, which in that regard constituted a valuable precedent. In spite of that precedent, however, such a principle should be affirmed in the convention. The French delegation would therefore vote for the USSR amendment. Mr. Pérez Perozo (Venezuela) recalled that his delegation had opposed the adoption of the Soviet Union amendment in the Ad Hoc Committee.1 Its opinion of that amendment had not altered and it would oppose it again for the same reasons, some of which were theoretical and others practical. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 9.

According to the definition of genocide given in article II of the convention, intent formed the chief element of the crime. By excluding that element the USSR amendment completely altered the nature of genocide, Mr. Pérez Perozo gave as an example a group of soldiers, ordered by an officer to open fire on a political group and who did so in the belief that they were suppressing disturbances, whereas the officer had really intended the destruction of the group. Mr. Pérez Perozo emphasized that the adoption of the amendment in question would lead to the punishment of those soldiers whatever action they took: if they obeyed the order, they would have committed genocide and if they did not obey it, they would be guilty of insubordination. The delegation of Venezuela could not accept that amendment because it contravened fundamental principles of Venezuelan penal law, which prohibited punishment for action in accordance with superior orders and laid down that the giver of the illegal order was solely responsible, unless the executor of the order had exceeded his instructions. The amendment was also contrary to certain provisions of the Venezuelan Constitution, which laid down that the army was a non-political body, bound to unquestioning obedience. Adoption of the Soviet Union amendment would tend to encourage indiscipline by permitting soldiers to discuss orders received. Mr. Pérez Perozo emphasized in that connexion that the provisions of that amendment were all the more dangerous in that it had been decided to include political groups among those protected by the convention.

1598

A/C.6/SR.92

The representatives of the USSR and France had pointed out that the proposed amendment figured in the Nürnberg Charter. It should, however, not be forgotten that the International Military Tribunal had been set up at a special moment in order to judge special crimes: it was a question of acts committed by the “major war criminals of the European Axis.” Genocide was committed in time of peace as well as in time of war and the convention should mainly legislate for crimes committed in time of peace. By requesting the Economic and Social Council to draft a convention on genocide [resolution 96 I] and the International Law Commission to formulate the principles consecrated by the Nürnberg Charter and to draw up a draft code applicable to crimes against peace and security [resolution 95 I], the General Assembly had stressed the difference between genocide and the crimes the Nürnberg Tribunal had been set up to suppress. On a number of occasions certain delegations had warned the Committee against the danger of including in the convention any provisions which might form an obstacle to its ratification. The delegation of Venezuela regarded the amendment proposed by the delegation of the Soviet Union as precisely such a provision. For all those reasons the Venezuelan delegation would vote against the amendment. Mr. Spiropoulos (Greece) observed that an individual might well commit an act of genocide by complying with an order, but the element of intent, which was an essential element of genocide, would be lacking. In such a case it could not be said that the individual concerned had committed genocide. The principle contained in the USSR amendment was not recognized by all domestic legislations. The land warfare code of the United States of America did not recognize it. It was only the new code of 1944 which had introduced it. It was true that the principle figured in article 8 of the Nürnberg Charter, which had been set up to try crimes against peace, war crimes and crimes against humanity, of which genocide was one, but there were grounds for observing that the Tribunal had given a restrictive interpretation to the provisions of that article. It was clear from a large number of decisions that the Tribunal, in order to decide whether or not the accused was responsible for the crimes of which he was accused, had

A/C.6/SR.92

1599

attempted to determine whether or not he had full freedom of action, in other words, whether he had had any possibility of disobeying the orders he had received. The delegation of Greece considered it preferable not to adopt the Soviet Union amendment and to leave the judge free to decide, in each individual case, whether the element of intention was present or not. Mr. Maktos (United States of America) opposed the adoption of the USSR amendment and thought it would be more satisfactory to leave the judge free to pronounce judgment in each individual case, taking the special circumstances into account. He pointed out that the fact that the convention lacked provisions of the kind proposed by that amendment would not prevent the judge from establishing the guilt of an individual who had carried out an order, provided the element of intent were present. On the other hand, the introduction of such provisions into article V of the convention would restrict the judge’s freedom of action and might compel him to condemn innocent parties. There were therefore grounds for doubt as to whether it was wise to include in the Convention so inflexible a clause as the one proposed by the Soviet Union delegation or whether it would not be more advisable first to permit international law to develop in the matter. He recalled that the Commission on International Law would be studying that question. The delegation of the United States was in favour of the second solution, since it feared that adoption of the USSR amendment would result in confronting a soldier with the difficult choice between obeying the order and being shot later for committing an act of genocide or else refusing and being shot immediately for insubordination. Mr. Raafat (Egypt) supported the Soviet Union amendment on the ground that the convention should take precedence over national legislation, where the latter contained incitement to genocide. It was also important that the principle of that amendment should figure in all penal codes which had not yet given it full recognition. Mr. Petren (Sweden), while appreciating the motives underlying the USSR amendment, said that he would nevertheless vote against it for the same reasons as the representatives of Belgium, Venezuela, Greece and the United States.

1600

A/C.6/SR.92

Mr. Dihigo (Cuba) thought that the principle expressed in the Soviet Union amendment was too rigid; in certain cases it would result in injustices and would place those in subordinate positions in the dilemma to which reference had been made. Like the representative of the United States, he thought the rejection of the amendment would in no way prejudice the judges’ ruling on specific cases; it would be quite possible for the judge to recognize whether or not the accused was guilty, even if he had acted under superior orders. Mr. Messina (Dominican Republic) said that he was unable to vote in favour of the USSR amendment, since, in the first place, its contents were incompatible with the provisions of the Constitution of his country and, in the second place, it would lead to injustices, encourage insubordination and generate disorder. Mr. Zourek (Czechoslovakia) said that his Government had regarded the text of article V in the Ad Hoc Committee’s text as inadequate, since it did not provide sufficient guarantees against genocide. It should be amplified by the inclusion of an explicit clause on the lines of the one proposed by the delegation of the Soviet Union. The principle embodied in that amendment had already been recognized by the Nürnberg Charter. A number of delegations maintained that the convention on genocide did not need to seek a model in that Charter. But, since the General Assembly’s resolutions had designated genocide as an international crime, the Nürnberg Charter, as the only text in which the criminal acts constituting genocide had been declared international crimes, was its only possible model. For that reason the Czechoslovak delegation could not approve article V of the draft convention, which would be a retrogade step on a fundamental point of international penal law by comparison with its recent achievements. If those who executed the crime were permitted to invoke command of the law or superior orders, most offenders would evade punishment since in the majority of cases genocide was committed with the participation of the State. Such a result would be contrary to the principles of morality and justice. It was therefore essential to adopt the USSR amendment, which, by precluding all attempts at self-vindication by reference to the law or to orders received, would give article V a powerful psychological

A/C.6/SR.92

1601

effect and would make an important contribution to the struggle to prevent the crime. In Mr. Zourek’s view, the basic arguments adduced against the amendment were unconvincing and if they were to be taken into account, might equally well lead to the rejection of the convention on genocide as a whole. In fact, all considerations on the question of intent were entirely a matter for the decision of the judge who was called on to determine the responsibility of the accused and award the appropriate penalty. With regard to the objection raised on the score of domestic legislation of countries which did not admit responsibility in the case of compliance with the law or superior orders, the Czechoslovak representative held that domestic legislation should not be allowed to infringe international law. Nor should attempts be made to restrict the application of a rule which had been established as a principle of international law. According to Mr. Maûrtua (Peru), the Soviet Union amendment was mainly concerned with the moral aspect of the problem. From that standpoint, indeed, the criminal act could not be justified by compliance with the law. It would, however, be going too far, if in such cases it was always regarded as a crime within the competence of penal law. The convention could not include provisions contradictory to certain principles of the internal law of the States called upon to apply it. But the adoption of the principle contained in the USSR amendment would result in a conflict between the international law proclaimed in the convention and in the national legislation of Peru and of many other countries, which admitted that compliance with an order constituted justification and placed responsibility on the giver of the order and on those who exceeded it. On the other hand, it should not be forgotten that the law was the basis of public order and that to limit the scope of the law under consideration would result in making non-compliance a right to be enjoyed by every citizen. Moreover, it was difficult to foresee a case in which the law would command the commission of genocide. For that reason the USSR amendment could not be adopted unless modified in the light of the preceding observations. The representative of Peru therefore proposed that the words “command of the law or . . .” should be

1602

A/C.6/SR.92

deleted from the amendment and the following phrase “penal law will determine the degree of responsibility in each case,” added. Mr. Kaeckenbeeck (Belgium) saw an advantage in avoiding the accumulation of obstacles which some parliaments would have to surmount when the time came to ratify the convention. He was of the opinion that in that respect the United Kingdom amendment offered a better solution to the problem than that of the USSR. It would be a mistake to weaken the protective value of the law. The penal law of each country should be allowed to take its normal course, judges being permitted to apply the law in accordance with the principles of equity with which they were familiar. Replying to the arguments of the representative of the United States, Mr. Chaumont (France) maintained that the punishment of a soldier, which did not of course exclude the punishment of an officer, was intended to produce a profound psychological effect, the deterrent value of which had been stressed by the representative of Czechoslovakia. On the other hand, it was perfectly normal that an international law such as the convention on genocide should contain instructions to the judges charged with its application. It could not be asserted that it would thereby restrict the power of judges to determine the responsibility of the accused. It was possible, as the representative of Greece had pointed out, that certain domestic legislations did not recognize the principle embodied in the Soviet Union amendment. Did that fact, however, preclude a convention from adopting it in the field of international law? Mr. Chaumont recalled that the principle was based on the Nürnberg precedent, and, had it not then been admitted, Hitler alone would have been responsible for the crimes committed by the Nazis. The French delegation attached particular importance to the adoption of the principle, since, in view of statements made by certain representatives, the convention might, if it were silent on the point, be wrongly interpreted by those who would have the task of applying it in the future. Mr. Bartos (Yugoslavia) said he would vote in favour of the USSR amendment, since it corresponded exactly to the purpose of the convention, namely, the reduction in the number of crimes, and consequently in the number of victims.

A/C.6/SR.92

1603

From a juridical point of view it was quite logical that the convention should require domestic legislation to subordinate itself to international law. An international treaty introduced into the national law of a State concerned a lex specialis, which could not be overruled by national law. If, on the other hand, certain provisions of national law did not respect the international obligations assumed by a State, those provisions would be regarded as non-existent with regard to international law by virtue of the saying fraus omnia corrumpit. The representative of Yugoslavia recalled that, at the time when the General Assembly resolutions on genocide were being drawn up,1 all the delegations seemed to have recognized that the principles of the Nürnberg Charter would be applied to the convention on genocide. He was surprised that in the name of respect for discipline, an attempt was made to exclude the principle of the responsibility of subordinates from the convention. Mr. Bartos said that it would amount to recognizing the system of so-called “official channels” thanks to which, in a modern State, every responsible person was always covered by an order coming from a higher authority. In that case the preventive fight against genocide would be only an empty word. 1

See Official Records of the second part of the first session of the General Assembly, 55th plenary meeting; and Official Records of the second session of the General Assembly, 123rd plenary meeting.

Mr. Abdoh (Iran) stated that, although he understood the reasons for the amendment proposed by the Soviet Union delegation, he could not vote in its favour for practical, national and moral reasons. In the first place, the delegation of Iran had always been of the opinion that the convention should contain only general directives, acceptable to all, and leave it to national legislation to determine the various methods of application. That system would spare the various parliaments and Governments many difficulties when the time came for ratifying the convention and would also allow for the greatest possible number of accessions. Mr. Abdoh pointed out that the legislation and the jurisprudence of Iran did not generally recognize that obedience to an order constituted

1604

A/C.6/SR.92

justification in civil life. Naturally it was a different matter where military affairs were concerned, as the necessities of public order required respect for discipline. Such respect would cease to exist if, when a soldier received an order, he had to decide for himself whether he should execute it or not. Finally, from the moral point of view, the representative of Iran thought it was difficult to accept the idea that punishment should be inflicted on a person who had, without intent, committed the act of which he was accused. Mr. Federspiel (Denmark) agreed with the principle underlying the USSR amendment, and stated that the principle invoked was not contrary to any provisions of the internal legislation of his country. He would not, however, vote in favour of the amendment for the reasons already expressed by the Belgian representative, as it was important that the convention should, above all, be acceptable to a very large number of States. Mr. Federspiel added that that amendment, which would involve important modifications in many national legislations, would also affect the right of self-defence, which had been recognized in many instruments. It would seem that in face of an accusation as serious as that of genocide, no means of justification should be refused to the defence. That was a problem which deserved considerable thought. Mr. Lachs (Poland) considered that none of the objections raised against the Soviet Union amendment was convincing. It could not be denied that, if the principle of the responsibility of subordinates had not been applied at Nürnberg, many guilty persons would have escaped punishment by invoking the orders of their superiors. The Polish representative pointed out that that principle was covered by article 8 of the Nürnberg Charter and that the Judgment of that Tribunal, in mentioning that article, had stated that it was in accordance with the common law of States. In the majority of legislations, command of the law or superior orders was only an attenuating circumstance and not a justification. It would appear that those legislations did not therefore consider intent as a necessary element in criminal responsibility. Mr. Lachs shared the view of the representative of France that the adoption of that principle would not in any way limit the authority of the judge, as the United States representative claimed, inasmuch as he would be free

A/C.6/SR.92

1605

to apply the attenuating circumstances. The role of the legislator was to determine the degree of responsibility of the guilty parties and he could decide that the judge should not be obliged to acquit anyone invoking an order from his superior as a justification. With regard to the objection raised by the Belgian representative, Mr. Lachs considered that, if certain legislations ignored that principle, article VI of the convention would, in that respect, make its recognition obligatory and its adoption necessary. Mr. Lachs recalled that if the USSR amendment suppressed the justification of superior orders, it did not suppress certain other elements in the criminal act, such as coercion and the impossibility of refusing to act, which could play an important part in determining the responsibility of the accused. As there was no valid legal reason against adoption of the Soviet Union amendment, the Polish representative considered that it should be adopted; without it the convention would not be an efficient instrument in the fight against genocide. Mr. Inglés (Philippines) declared that he would willingly have supported the principle proposed by the Soviet Union amendment, which was recognized by the legislation of his country, if certain delegations had not stated that that principle was incompatible with the domestic laws of their countries, and that its adoption would constitute an obstacle to the ratification of the convention. For that reason, the Philippines representative would abstain from voting. Mr. Pratt de María (Uruguay) confronted by two views, one that punishment should be effective (as the Soviet Union amendment required), the other that it should be just, had decided in favour of the text proposed by the Ad Hoc Committee. He thought the latter was sufficiently flexible to permit a compromise between both opinions, while taking into consideration the principle of obedience which was the basis of all legislation. Mr. Maktos (United States of America) agreed with the representative of France that when legislating on the question the law-makers had the right to advise the judges entrusted with the application of the convention, but he did not think that the directives proposed by the delegation

1606

A/C.6/SR.92

of the USSR should be accepted, as their danger had already been sufficiently stressed. Mr. Maûrtua (Peru), observing that the majority of the delegations appeared to oppose the Soviet Union amendment, withdrew his own amendment to the latter. Mr. Camey Herrera (Guatemala) stated that the Constitution of his country characterized the army as a non-political body and imposed on it the obligation to obey the orders it received. A new principle had, however, been introduced into the Guatemalan legislation that, when the orders given concerned a civilian, the duty to obey did not go so far as the execution of those orders if they were illegal. Guatemala had therefore recognized in anticipation the principle which was the purpose of the USSR amendment. Mr. Camey Herrera considered the adoption of that principle essential if the convention were to punish all criminals, even those – and they were numerous – who could invoke an order from a superior. As a compromise, however, the representative of Guatemala suggested that the phrase dealing with command of the law should be deleted in the amendment, which would then refer only to orders received from superior authorities. Mr. Morozov (Union of Soviet Socialist Republics) remarked that in the course of the discussion the original sense of his delegation’s amendment had often been distorted. Thus, the representative of the Dominican Republic had even gone so far as to say that the principle proposed by that amendment would lead to confusion and anarchy. The representative of Uruguay, for his part, had reproached the Soviet Union delegation for attaching more importance to the effectiveness of the punishment than to justice. Mr. Morozov stated that those two views could not be opposed and that the purpose of the USSR amendment was to obtain justice through the effectiveness of the punishment. On the other hand, it was not correct to state, as the representatives of the United States and Venezuela had done, that the amendment would lead to the condemnation of innocent people. The Soviet Union proposal had, in fact, stated that neither command of the law nor superior orders

A/C.6/SR.92

1607

could justify genocide. The word genocide referred there explicitly to the definition of the crime, as covered by articles II and IV of the draft convention, in which definition the element of intent was included. An innocent person would not therefore be condemned as he would not have had the intention of committing the crime; only the truly guilty party would be punished. The amendment proposed by the USSR delegation was only the addition of an explanation to article V in order to bring it into line with the principles established at Nürnberg, and completed the article by extending punishment to all responsible parties. The representatives of France and of Poland had rightly observed that, if the principle of the responsibility of subordinates had not been recognized at Nürnberg, one single man could have been declared guilty for all the nazi crimes: Hitler himself. But it was particularly in the field of the prevention of genocide that the amendment took on its full meaning. It would in fact constitute a solemn warning to all those who might be tempted to obey orders inciting to crime and make them face their personal responsibility. In that sense, the amendment would, in many instances, help to prevent the consummation of a crime, and that was the United Nations’ main purpose in drawing up the convention of genocide. The Chairman put to the vote the Soviet Union amendment adding to article V a second paragraph reading as follows: “Command of the law or superior orders shall not justify genocide.” [A/C.6/215/Rev. 1]. Mr. Morozov (Union of Soviet Socialist Republics) asked that the vote be taken by roll-call. The vote was taken by roll-call. Bolivia, having been drawn by lot by the Chairman, voted first. In favour: Byelorussian Soviet Socialist Republic, Czechoslovakia, Egypt, Ethiopia, France, Guatemala, Mexico, Norway, Panama, Poland, Syria, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Yemen, Yugoslavia. Against: Brazil, Canada, Chile, China, Cuba, Denmark, Dominican Republic, Ecuador, El Salvador, Greece, India, Iran, Liberia, Luxembourg,

1608

A/C.6/SR.92

Netherlands, New Zealand, Nicaragua, Siam, Sweden, Turkey, United Kingdom, United States of America, Uruguay, Venezuela, Afghanistan, Argentina, Australia, Belgium. Abstentions: Colombia, Pakistan, Peru, Philippines, Saudi Arabia, Union of South Africa. The amendment was rejected by 28 votes to 15, with 6 abstentions. Mr. Correa (Ecuador) explained that in voting against the amendment, he had not pronounced himself against the principle it contained, which seemed to him to be just, but too rigidly defined. In his opinion that principle should be applied by the tribunals with all the flexibility necessary to take into account the special circumstances pertaining to each case. Mr. Chaumont (France) stated that his delegation did not consider that the decision taken might have the effect of allowing guilty persons to escape international justice. Mr. de Beus (Netherlands) had voted against the amendment because he considered that the scope of the principle should be defined by the International Law Commission, and it was therefore premature to take a decision at that point. Mr. Maktos (United States of America) endorsed the remarks of the representative of the Netherlands. Mr. Amado (Brazil) explained his vote by associating himself with the remarks of the representatives of Ecuador and the Netherlands, and added that the principles of Nürnberg, which had been mention, had not to date been definitely formulated. That was the responsibility of the International Law Commission and it was in the text which would result from the work of that Commission that the principle of the amendment submitted by the USSR should find its place. The meeting rose at 1 p.m.

A/C.6/SR.93

1609

NINETY-THIRD MEETING Held at the Palais de Chaillot, Paris, on Saturday, 6 November 1948, at 10.45 a.m. Chairman: Mr. R.J. Alfaro (Panama). 42. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article V (continued ) The Chairman invited the Committee to continue the debate on article V of the draft convention, and in particular on the Swedish amendment to that article (92nd meeting). Mr. Fitzmaurice (United Kingdom) said he was in favour of the Swedish amendment, because by the deletion of “heads of State” in the enumeration of the persons liable, it would resolve a difficulty which arose also for the United Kingdom, where the king was not subject to the provisions of the penal code and could not be brought before any court. It was constitutionally impossible to introduce legislation to alter that situation. It would, therefore, be equally impossible for the United Kingdom to accept the obligation resulting from article V. However, if the head of State of a constitutional monarchy were not responsible, it was appropriate that his acts, if they constituted an act of genocide, should give rise to reparation. For that reason, the acts of the monarch, being acts of the State or the Government since he could act only on the advice of his ministers, the United Kingdom delegation had proposed that a clause should be added to article V stipulating that acts of genocide committed by or on behalf of States or Governments would constitute a breach of the convention [A/C.6/236 ]. Thus completed, the Swedish amendment would appear to be readily adoptable. Mr. Chaumont (France) while understanding the preoccupations which had prompted the Swedish amendment, thought it would be dangerous not to mention heads of State in article V, particularly since it was not

1610

A/C.6/SR.93

then known whether the complementary clause proposed by the United Kingdom would be adopted or not. The suppression of the responsibility of heads of State would, in fact, have serious consequences, especially after the Committee had admitted (92nd meeting) that obedience to the law or to the order of a higher authority could be regarded as justification. As a result of that decision, a great number of subordinate criminals would escape punishment, their acts being covered by the orders of superiors. If the heads of State who had given those orders were not punishable either, there would, in the majority of cases, be no question of responsibility to consider and no guilty party to punish. For that reason his delegation could not vote in favour of the Swedish amendment, the consequences of which undoubtedly went beyond its author’s intention. He thought that the difficulty raised by the Swedish delegation did not result from the French word gouvernants, which in reality embraced only those having the actual responsibility of power, but from the English translations, either “rulers” or “heads of State,” which had been given for it. The solution, then, would be to find the English term corresponding exactly to the idea of legally responsible rulers. In the French text the word gouvernants might be maintained. Moreover, an official interpretation of it would be given in the Committee’s report, excluding the idea of the heads of State of constitutional democratic Governments who had no real responsibility. He therefore asked the Swedish delegation to accept that compromise solution. Mr. Raafat (Egypt) noted that article V of the draft convention gave as broad an enumeration as possible of the persons liable and that the Swedish amendment would result in eliminating from it the most important category. The concept of ruler did indeed include not only the constitutional monarch, which the Swedish delegation wished to rule out of consideration, but also ministers and all those exercising governmental power, in contrast to administrative officials. The Swedish amendment would therefore result in excluding the responsibility of ministers.

A/C.6/SR.93

1611

He thought that the fears of the Swedish delegation were exaggerated and that in practice, taking the hypothesis of a concrete case, only the responsibility of the actual culprits would be retained, that is, of the ministers and not of the sovereign who had no power to act alone, in contrast with the responsibility of dictators which was retained. He thought that in the light of that interpretation, the Swedish amendment might be withdrawn. Mr. Kaeckenbeeck (Belgium) thought on the contrary that article V raised a real difficulty for certain countries, including Belgium. If they accepted the convention, they would be confronted with the problem of incorporating in their national legislation clauses contrary to the fundamental principles of their constitutional law. That was an insurmountable obstacle. On the other hand, there was much truth in the remarks of the French and Egyptian representatives. He thought the attempt to go too closely into the problem made its solution more remote, and he wished to propose in place of article V a new text as follows: The States Parties to the present convention shall ensure the punishment of the acts enumerated in article IV, whether their authors are agents of the State or not.

That wording had a twofold advantage: it did away with the disputed word “rulers,” and covered all categories of guilty parties without proceeding to enumerate them, as did article V of the draft convention. An enumeration was, indeed, by its nature incomplete, and the one in point omitted, for example, the category of magistrates, who were neither rulers, nor public officials, nor private individuals. Moreover, he pointed out that the text he proposed expressly mentioned the undertaking for States to punish genocide, an undertaking which in no way resulted from article V, which limited itself to indicating, without further details, that the guilty parties would be punished. Finally, he considered that his proposal would be complete only if it were followed by an article laying down that disputes relating to the fulfilment

1612

A/C.6/SR.93

of the undertaking should be brought before the International Court of Justice, whose responsibility it would be to order the cessation of the imputed acts and to repair the damage caused to the injured persons. Mr. Spiropoulos (Greece) pointed out that the term “public officials” should be understood in its broadest sense, which could hardly fail to include magistrates. The Chairman recalled that the Ad Hoc Committee, as a translation of the word gouvernants, had preferred the expression “heads of States” to “rulers,” which was not suitable for designating the head of the State. It was of course permissible for the Committee to reconsider that decision and adopt the expression “rulers,” as being more general. Mr. Pratt de María (Uruguay) would vote against the Swedish amendment because it confused two aspects of the problem: that of national law and that of international law. National legislation was in a position to establish all the degrees of responsibility it considered appropriate. When, however, it was a case of an international crime, such as genocide, answerable to an international court, no exception could be laid down concerning the category of those responsible. Guilt in that case went back to a question of proof. Mr. Abdoh (Iran) would have been in favour of the Swedish amendment, for it had been prompted by difficulties which also applied to his own country, if the French and Egyptian representatives had not emphasized its dangerous consequences; the amendment would enable certain categories of rulers wielding effective power to be exempt from responsibility for their actions. In those conditions, he would rather accept the text suggested by the Belgian delegation. He felt, however, that the Committee’s report should in any case contain an official interpretation of the expression finally adopted, which would exclude the heads of States of parliamentary and constitutional regimes from among the persons liable. With regard to the English version, he thought the expression “rulers” should be adopted in preference to the “heads of State.” Mr. Sundaram (India) shared the opinion of the Swedish delegation regarding the obstacles of a constitutional nature raised by the text of article V of the draft convention.

A/C.6/SR.93

1613

He thought, however, that the Swedish amendment should be completed and should include persons exercising authority in the State in addition to public officials and private individuals. Thus no one could be able to avoid liability, with the exception of constitutional heads of State who wielded no effective power. That would correspond exactly to the aim of the Swedish delegation. Examining the amendment proposed by the United Kingdom, he thought it approached the problem from the right angle by drawing a distinction between the penal punishment of crime which was within the competence of the national legislation in every country and – in cases where the crime was committed or tolerated by a State and thus constituted a violation of the convention – the intervention of the International Court of Justice to put an end to the acts in question and to compensate the victims for any damage caused. Mr. Petren (Sweden) said his delegation would be satisfied if it were made clear one way or another that the constitutional heads of State would not be liable under the convention. Consequently, he would agree to the French suggestion to retain the word “rulers” in the text of article V with the reservation that a suitable official interpretation should be inserted into the Committee’s report. As to the choice of a corresponding English word, he would refer the matter to the drafting committee which could also examine the suggestions made by the representatives of Iran and India. He thought that the Belgian amendment was of great interest but that it required more thorough consideration. He stressed the importance of ascertaining the opinion of the authors of the draft convention on the responsibility incurred by parliamentarians who voted for or against legislation inciting to genocide. Mr. Morozov (Union of Soviet Socialist Republics) admitted that every country’s national legislation could be respected but felt that article V of the draft convention did not cover the extreme cases which had roused the concern of the Swedish delegation. The Swedish amendment could not possibly be adopted for it would amount to stating that not only constitutional rulers but also heads of

1614

A/C.6/SR.93

Governments and ministers, who were the ones really responsible for the crimes in question, could not be punished. It would be possible, however, to allay the fears of the Swedish delegation and at the same time to retain the word “rulers” in the text of article V by indicating that the delegation accepted the article with the reservation of the restrictive interpretation it gave to the word “rulers.” It would suffice to mention that restrictive interpretation in the report. Moreover, the English translation would be better if the word “rulers” were adopted instead of the expression “heads of State.” He noted that the Swedish delegation was not opposed to that solution and thought that it could withdraw its amendment. Mr. de Beus (Netherlands) pointed out that the same difficulties existed for his country, which was also a constitutional monarchy. He agreed with the representatives of France and the USSR and proposed that, in the English version, the words “heads of State” should be replaced by the words “responsible rulers” [A/C.6/253] which in his opinion were the best rendering of the notion of rulers. Mr. Spiropoulos (Greece) agreed with the French and USSR representatives that the French version of the draft convention could be retained and that the English translation could be improved by the drafting committee. He also felt that the Committee’s report could mention formally that constitutional heads of State who had no effective power could not be held responsible. Mr. Pérez Perozo (Venezuela) pointed out that his delegation would have been satisfied if the enumeration of punishable persons had only referred to public officials and private individuals because all the rulers of his country were regarded as public officials. However, since it was not so in all countries, he did not object to retaining the word “rulers” in the text of the article. The Chairman drew the Committee’s attention to the fact that the amendment proposed by the Belgian delegation in the course of the debate, was not, properly speaking, an amendment to the Swedish amendment, but a new proposal; consequently, it would not be possible to consider it until it had been circulated among the members of the Committee in the regular manner.

A/C.6/SR.93

1615

The Belgian amendment having thus been disposed of, there were three possible solutions with regard to article V: (1) To retain the word gouvernants in French, replacing the expression “heads of State” in the English text by the word “rulers,” the question of the internal responsibility of the ruler in each State to be decided according to the constitutional provisions of each State; (2) To retain the word gouvernants in French, replacing the expression “heads of State” in the English text by the word “responsible rulers”; (3) To delete the words gouvernants and “heads of State.” Mr. Fitzmaurice (United Kingdom) indicated that it would be difficult to discuss the Swedish amendment without at the same time discussing that of the United Kingdom. The United Kingdom delegation objected not merely to the expression “heads of State,” but to the whole of article V of the convention as proposed by the Ad Hoc Committee. It was not without some surprise that Mr. Fitzmaurice had heard the representative of Egypt say that article V was couched in the broadest possible terms; the United Kingdom delegation, on the contrary, believed that article V as then drafted concerned only one form of genocide, that committed by individuals. What would happen if a head of State or a prime minister were guilty of genocide? In such a case it would be the State itself or the Government which in reality committed the crime. The head of State, or the prime minister, would not be punished by national punitive tribunals. The remaining hypothesis was that genocide committed by Governments would be punished under international law. However, since no international penal court existed and the only international court was the International Court of Justice, no punishment properly speaking could be meted out; an order to put an end to the offensive acts and pay reparations was the only measure which could be expected from the International Court of Justice. Article V as drafted had no practical value. The “rulers” mentioned in it would never be punished if it were not exclusively stated that genocide could be committed by States or by Governments, and that in that case its punishment was under international jurisdiction. Mr. Fitzmaurice asked whether the word gouvernants in French could not be replaced by the word gouvernements.

1616

A/C.6/SR.93

Mr. Tarazi (Syria) stressed the fact that the Swedish amendment was of interest not only to monarchies but also to parliamentary States; his delegation would vote in favour of the proposal to retain the word gouvernants in French and to replace the expression “heads of State” in English by “rulers”; it appeared to him that that solution would answer the interests of everyone. Mr. Maktos (United States of America) wished to point out, in his capacity as chairman of the Ad Hoc Committee on Genocide, that it was not the French text of article V which had been taken as the basis when that article had been voted upon. At that time the Committee had thought that the expression “heads of State” was nearer to the French word gouvernants than the word “rulers,” which for example, would not include the President of the United States of America.1 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 9. See also document E/AC.25/SR.18.

Mr. Maktos did not share the opinion of the United Kingdom representative that genocide could be committed by juridical entities such as the State or the Government; in reality genocide was always committed by individuals. It was one of the aims of the convention on genocide to organize the punishment of that crime. It was necessary to punish perpetrators of acts of genocide, and not to envisage measures such as the cessation of imputed acts or payment of compensation. The fact that national tribunals could not ensure the punishment of rulers if the latter were guilty of genocide, and the fact that there did not at present exist an international criminal court, could not be taken into consideration. It was precisely to meet situations where national tribunals were unable to ensure the punishment of the crime that the convention provided for the creation of an international tribunal without which the convention would lose all value. In reply to the question asked by the Swedish representative concerning the responsibility of members of Governments, Mr. Maktos pointed out that one of the reasons for which his delegation had voted against the inclusion of incitement among acts punishable under article IV of the convention (85th meeting), was precisely the fact that that question had not been elucidated.

A/C.6/SR.93

1617

In conclusion, Mr. Maktos stated that his delegation opposed the substitution of the word “rulers” for the expression “heads of State”; it also opposed the formula proposed by the Netherlands delegation since, in his opinion, there was no such thing as non-responsible rulers; moreover, it was for the judges to determine whether or not there was responsibility; Mr. Maktos agreed to the expression “agents of the State” proposed by the Belgian delegation [A/C.6/252], which comprised both heads of State and officials, and he proposed that article IV should be worded in the following way: “Those committing genocide or any of the other acts enumerated in article IV shall be punished, whether they are agents of the State or private individuals.” Mr. Chaumont (France) pointed out, as had the representative of the United States, that it was precisely because national tribunals would not be able to ensure the punishment of the crime and because there was no international penal court in existence that the convention should establish one. The French delegation was opposed on principle to the substitution in the French text of the word gouvernements for the word gouvernants. The French idea of penal responsibility applied to individuals only, for only individuals could commit crimes; it could not apply to corporate bodies or to abstract communities. It would be best, therefore, to keep the word gouvernants in the French text and to translate it in the English text by the expression “responsible rulers,” as the Netherlands delegation had suggested. Mr. Petren (Sweden) withdrew his amendment in favour of the Netherlands amendment, at the same time reserving the position of his delegation with regard to the Belgian amendment. He stressed the question of the responsibility of members of parliament, pointing out that in Sweden a member of parliament was neither an official nor a private individual. He asked for clarification with regard to the scope of article V where members of parliament were concerned. Mr. de Beus (Netherlands) urged the adoption of the formula he had suggested. The expression agents de l’Etat, suggested by the Belgian representative, seemed to him to have the same disadvantage as the word “rulers,” in that it did not exclude constitutional monarchs.

1618

A/C.6/SR.93

Mr. Kaeckenbeeck (Belgium) pointed out that the adoption of the Netherlands amendment would preclude consideration of the amendment his delegation had proposed to article V. He would not object to the Netherlands amendment being put to the vote immediately, but he would like it to be well understood that if suggestions regarding a complementary article were to be adopted later, it would be possible to redraft article V. In that connexion, he pointed out that the final drafting of that article could not be completed until votes had been taken on the United Kingdom and Belgian amendments to articles V and VII of the draft convention. Mr. Fitzmaurice (United Kingdom) stated that the remarks of the representatives of the United States and France showed that there was a misunderstanding with regard to the actual scope of article V. The advocates of that article started from the principle that an international penal court would be set up. There was, however, no such court in existence, and were it to be established, it would probably be a long time before it was working effectively. Until that time, the provisions of article V would be of no practical use. But even when the court had been set up, how were rulers to be arraigned before it? Governments would certainly not hand their heads of State or their ministers over to the court, and the idea of an armed force being sent to arrest the guilty parties was even less conceivable. In those circumstances, there was only one solution possible on a realistic basis: provision would have to be made for the arraignment of States or Governments before the International Court of Justice. Mr. Spiropoulos (Greece) saw no reason for the United Kingdom representative to presume that national tribunals would not punish the persons guilty of genocide to whom article V referred. If they did not do so, they would obviously be failing to comply with the convention. Mr. Morozov (Union of Soviet Socialist Republics) made a formal proposal to adjourn the discussion of the Netherlands amendment to article V. He explained that the purpose of his motion was to give delegations time to consider the Belgian amendment. Mr. Kaeckenbeeck (Belgium) and Mr. Correa (Ecuador) supported the motion, pointing out that it would be well for the delegations to be able

A/C.6/SR.93

1619

to examine the different amendments in their context before deciding upon them. Mr. Chaumont (France) and Mr. Spiropoulos (Greece) opposed the motion for adjournment, which would result only in a repetition of the same arguments at the next meeting. The Netherlands amendment involved only a slight alteration in the English text of article V; it had already been the subject of a prolonged discussion, and it would very well be put to the vote at once. The motion for adjournment was adopted by 21 votes to 19, with 3 abstentions. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) suggested that the delegations which had taken the most active part in the discussion should meet informally with a view to prepare, for the next meeting, a draft of article V which they would consider acceptable. Article VI The Chairman opened the discussion on article VI of the draft convention prepared by the Ad Hoc Committee on Genocide and on the two amendments to the article, proposed by the delegations of Belgium [A/C.6/217 ] and the USSR [A/C.6/215/Rev. 1]. Mr. Kaeckenbeeck (Belgium) stated that his delegation had not proposed an amendment but a simple drafting change which could be referred to the drafting committee. Mr. Morozov (Union of Soviet Socialist Republics) explained that there were two ideas in his amendment. First, it proposed the addition of the words “to provide criminal penalties for the authors of such crimes.” It was essential to emphasize in the actual text of article VI that the legislative measures taken by Governments should include criminal penalties for the authors of the crime of genocide. Such an addition only defined the contents of the article more specifically. Secondly, the USSR amendment proposed the addition of the words “aimed at the prevention and suppression of genocide and also at the prevention and suppression of incitement of racial, national and religious

1620

A/C.6/SR.93

hatred.” In many cases the crime of genocide originated from such hatred. Criminal penalties had to be provided against incitement in order to make the suppression of the crime of genocide as complete and effective as possible. Subject to those amendments, the delegation of the Soviet Union was prepared to accept the provisions of article VI. The Chairman pointed out that the Committee had already decided, at the 87th meeting, when article IV was discussed, that the scope of the convention was not to be broadened to include the prevention and punishment of incitement to racial, national and religious hatred. He therefore ruled that there was no need for the Committee to take a decision on that part of the USSR amendment. Mr. Maktos (United States of America), speaking on a point of order, proposed that that part of the amendment should not be discussed unless an appeal were made against the Chairman’s decision. Mr. Morozov (Union of Soviet Socialist Republics) contested the Chairman’s decision. When the Committee had decided not to mention incitement to racial, national and religious hatred in the definition of genocide, it had not prejudiced its decision on the amendment before them, which was an entirely different matter. The representative of the Soviet Union considered that the acts enumerated in article IV should be punished by national laws, as should also other categories of crimes, such as incitement to racial, national and religious hatred, which appeared in articles 57 to 59 of the USSR Penal Code. He therefore asked to have the whole of the amendment put to the vote. In accordance with rule 102 of the rules of procedure, the Chairman put the appeal of the Soviet Union representative to the vote. On a vote by show of hands, the Chairman’s ruling was maintained. The Chairman stated that the Committee had now to decide on the second part of the USSR amendment, namely, to add to article VI the words “to provide criminal penalties for the authors of such crimes.” Mr. Pratt de María (Uruguay) was ready to accept the amendment but reserved the position of his delegation on the question of international jurisdiction.

A/C.6/SR.93

1621

Mr. Chaumont (France) could not accept the Soviet Union amendment, as the French delegation thought that it would be impracticable to leave the suppression of the crime of genocide to States. In the large majority of cases, the crime was committed with the toleration and even the complicity of Governments. To leave the application of penalties to their care would not, therefore, be in keeping with the need for effective punishment of genocide at the international level. The amendment might, however, be taken up with advantage at a later stage. There was a defect in the text of the convention prepared by the Ad Hoc Committee. In no part of the convention were any real penalties specified; they had, however, to be provided at the international level. Mr. Chaumont would abstain from voting on article VI as proposed by the Ad Hoc Committee; the wording of the article was ambiguous and it was ineffective. The constitutional reservation it contained was likely to rob the convention of its meaning. Mr. Kaeckenbeeck (Belgium) saw no difficulty in accepting the USSR amendment, which in his opinion clarified article VI. If the crime of genocide were to be punished, there must be provisions to that effect in the penal codes. The remarks of the French representative were, he thought, based on a misunderstanding, and in that connexion he drew the attention of the Committee to the necessity for a joint study of problems for which the solutions were connected with one another. Mr. Abdoh (Iran) supported the remarks of the Belgian representative and approved the Soviet Union amendment. Mr. Maktos (United States of America) stressed the fact that, under the terms of article VI, States which were parties to the convention bound themselves to take the necessary legislative measures for the application of the provisions of the convention. That was a very broad formula, and it was impossible for any Government to commit itself further. A more specific provision would create difficulties for certain countries such as, for example, the United States, which had a federal Constitution and could enter into only a general engagement to respect the provisions of the convention. The USSR amendment only raised unnecessary difficulties. Moreover, it limited the scope of article VI by restricting the legislative measures to penal measures. The amendment was unnecessary, and it also raised the difficulty which the French representative had mentioned.

1622

A/C.6/SR.93

Mr. Kaeckenbeeck (Belgium) declared that if article VI required parties to the convention to bind themselves to take the necessary legislative measures for the application of all the provisions of the convention, including the establishment of an international tribunal, his delegation would not be able to vote for the article. That seemed to be the interpretation of the representatives of the United States and France. It was in fact impossible to consider the establishment by internal legislative measures of an international penal court. The Belgian representative asked that the misunderstanding which appeared to exist be cleared up. Mr. Morozov (Union of Soviet Socialist Republics) considered that there was no foundation for the doubts expressed by the Belgian representative. If article VI had been intended to settle the question of the competent jurisdiction, that question would have been mentioned. As it was, article VI only contained one idea, which was the application of the provisions of the convention by national legislations. There were, however, two points of view among the delegations: some delegations thought that the crime of genocide came within the competence of domestic tribunals, others that it was a matter for an international tribunal. The latter point of view did not preclude the punishment of the crime by national laws as well. The Soviet Union amendment merely specified that the legislative measures which States would have to take should include criminal penalties. Thus amended, the article did not in any way prejudice the Committee’s decision on the possible competence of an international tribunal. Whether or not the latter were established, Governments would have to take the necessary measures to ensure the application of the provisions of the convention. Even those delegations that wished to see an international tribunal established in that field could not oppose the prior punishment of the crime of genocide by national laws. Mr. Maktos (United States of America) said that, as he had pointed out in his previous speech, article VI as then drafted was as general and broad as States could wish. The USSR amendment would have the effect of restricting its scope to one particular aspect of the question, namely that of penal sanctions. Thus modified, the article was unacceptable to those nations, whose constitutions did not permit the impeachment of the head of the State. Mr. Chaumont (France) shared the view of the representative of the United States. Article VI was applicable to all the provisions of the con-

A/C.6/SR.93

1623

vention. He therefore found it difficult to understand the misgivings of the Belgian representative. Did the latter wish to discriminate between the different provisions of the convention? If, as the French delegation hoped, the Committee, in the course of its discussion of article VII, adopted the principle that an international penal court should be established, article VI would involve States in the obligation of taking the measures which ensued from that decision. In the opinion of Mr. Kaeckenbeeck (Belgium), article VI implied that Governments undertook to enact the legislative measures required to secure conformity with the provisions of the convention, and in particular, measures for the prevention of genocide. He had for that reason announced his willingness to accept the Soviet Union amendment, which made the point clear. Before adopting article VI, it was essential to make its meaning absolutely plain. Mr. Kaeckenbeeck considered that the article involved States in an obligation to introduce the definition of genocide and the penalties envisaged for it into their own penal codes, and also to determine the competent jurisdiction and the procedure to be followed. Only the ratification of a convention containing provisions to that effect could entail the obligation to set up an international penal court. The Belgian delegation was prepared to vote in favour of the USSR amendment, if the intention of article VI were in fact to secure that national laws conformed with the provisions of the convention. In order to remove all doubt on the subject, he formally proposed an amendment to the effect that the words chez eux should be inserted after the words pour assurer. Mr. Abdoh (Iran) also supported the Soviet Union amendment for in his view also the amendment signified that States were under an obligation to take the legislative measures necessary to ensure the application of the provisions of the convention and particularly measures concerned with the prevention and suppression of genocide. The latter measures formed an essential part of the convention. He enquired why the provisions under discussion had been included in article VI and not at the end of the convention, where they would be more appropriately placed. The Chairman said that the Belgian amendment was not acceptable at the stage reached in the discussion. If it were merely a question of clarification, it could be considered by the drafting committee at a later date.

1624

A/C.6/SR.93

Mr. Morozov (Union of Soviet Socialist Republics) suggested that the Belgian amendment should be incorporated in the amendment, since in his opinion the former defined the real meaning of article VI. Mr. Maktos (United States of America) observed that the proposal of the USSR representative amounted to an indirect modification of the Chairman’s decision, which could not be modified except by a direct appeal against it. The Chairman ruled that the Belgian amendment was a drafting amendment and would, as such, be referred to the drafting committee. He proposed that a vote should be taken on the Soviet Union amendment to the effect that the words “to provide criminal penalties for the authors of such crimes” should be inserted at the end of article VI. Mr. Pescatore (Luxembourg) with the support of Mr. Chaumont (France) pointed out a discrepancy between the English and French versions of the USSR amendment and asked which best conformed to the original proposal. The Chairman said that the question should be decided by the drafting committee. Mr. Pérez Perozo (Venezuela), speaking on a point of order, remarked that the Belgian amendment was an amendment to the USSR amendment. Since it had been accepted by the representative of the USSR, it should be put to the vote at the same time and regarded as an integral part of it. For his part, he would not vote in favour of the USSR amendment unless it were voted in conjunction with and at the same time as the Belgian amendment. Mr. Morozov (Union of Soviet Socialist Republics) proposed that a vote on the Soviet Union amendment should be deferred until the beginning of the next meeting with a view to the incorporation of the Belgian amendment. It was preferable not to take a hasty vote on the USSR amendment, since that might prevent a number of delegations from voting in its favour. He therefore wished to protest against the Chairman’s decision. Mr. Maktos (United States of America) pointed out that, under rule 117 of the rules of procedure, no member might interrupt the vote, once it was in progress.

A/C.6/SR.94

1625

The Chairman said that, in accordance with the rules of procedure, he was unable to consider the protest made by the representative of the Soviet Union until after the vote. He pointed out to the representative of Venezuela that the Belgian amendment was not an amendment of substance but a question of clarification and should therefore be referred to the drafting committee. He put the USSR amendment to the vote [A/C.6/215/Rev. 1, paragraph 6 ]. The amendment was adopted by 17 votes to 14, with 8 abstentions. The Chairman then put article VI as amended to the vote. Article VI as amended was adopted by 26 votes to 3, with 11 abstentions. Mr. Morozov (Union of Soviet Socialist Republics) raised objection to the Chairman’s refusal to consider his proposal to adjourn the vote. His proposal should have been given priority in discussion. He pointed out that, when a question had become the subject of an agreement between two delegations, as in the present case, the rules of procedure might not be used as a means to prevent its consideration. The meeting rose at 1.35 p.m.

NINETY-FOURTH MEETING Held at the Palais de Chaillot, Paris, on Monday, 8 November 1948, at 11 a.m. Chairman: Mr. R.J. Alfaro (Panama). 43. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Articles VIII and IX The Chairman stated that the Committee had before it an amendment to articles V and VII, introduced by the Belgian delegation [A/C.6/252], which required careful consideration on the part of the delegations.

1626

A/C.6/SR.94

He therefore suggested that the Committee should proceed with the examination of subsequent articles. The Chairman proposed that article VIII of the draft convention be discussed. Mr. Chaumont (France) thought that article VIII might also be reserved for discussion at a later date, as it was closely linked with article VII. As the French delegation had previously stated, the important element in the convention was the inclusion of provisions for the suppression and prevention of genocide. Article VIII referred to competent organs of the United Nations, and pre-supposed that previous articles had determined the machinery for the suppression and prevention of genocide; Mr. Chaumont therefore felt that the Committee should examine other articles first. The Chairman thought the remarks of the French delegate should be considered. He proposed, therefore, that the Committee should proceed with the examination of article IX. Mr. Fitzmaurice (United Kingdom) wondered whether it was necessary to postpone consideration of article VIII. Both the United Kingdom [A/C.6/236 ] and other delegations had submitted proposals for the deletion of that article. The question was not affected by any decision the Committee might take on international jurisdiction. His delegation had asked that article VIII should be deleted not because of any disagreement in substance, but simply because it considered the article superfluous. The way was already open to all Members of the United Nations to call upon a competent organ of that organization to take action under the Charter on any question they deemed necessary, including the violation of a convention. Mr. Kaeckenbeeck (Belgium) agreed with the remarks made by the United Kingdom representative. The Belgian delegation had also suggested deletion of article VIII [A/C.6/217] because it considered that no convention should repeat, in different words, what was already included in the Charter as it might create confusion. His delegation reiterated that article VIII served no useful purpose in the convention. Mr. Maktos (United States of America) wished to explain the reasons why article VIII was included in the convention. In the Ad Hoc Com-

A/C.6/SR.94

1627

mittee on Genocide, the USSR delegation had endeavoured to establish that appeals should by made only to the Security Council.1 Mr. Maktos had pointed out in the Committee that the purpose of the Soviet Union proposal was to prevent any cases from being referred to an international court.2 He had stated at the time that the difference between the Security Council and a domestic court was negligible because the USSR, as some of the other Powers, would have the right of veto in the Security Council. It was decided by way of compromise that cases could be brought before any competent organ of the United Nations. 1

2

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 12. See document E/AC.25/SR.8.

Mr. Maktos was in favour of the deletion of article VIII, but objected in advance to any effort which might be made to reintroduce a provision to the effect that cases could be brought before the Security Council only. Mr. Maktos concluded by stating that he was in agreement with the views expressed by the Belgian and United Kingdom representatives. Mr. Morozov (Union of Soviet Socialist Republics) said that he did not agree with the United States representative’s interpretation of his delegation’s amendment to article VIII [A/C.6/215/Rev.1]. He would, however, not deal with the substance of the matter for the moment, but would express his views on the question of procedure only. While it was correct to state that proposals had been submitted for the deletion of article VIII, there was also a Soviet Union proposal to replace it by another article, which differed considerably from the original text. If the Committee decided to discuss article VIII, the USSR amendment, being the furthest removed from the original article VIII, should be considered first. If, however, the proposal to delete the article was adopted, his delegation would reserve the right to submit its own proposal, which introduced an entirely new text. If the Soviet Union amendment were rejected, the question would then arise whether article VIII should be maintained in the convention in the form in which it was then drafted. Mr. de Beus (Netherlands) concurred with the United Kingdom and Belgian delegations that article VIII was superfluous. While he agreed with the

1628

A/C.6/SR.94

USSR on the question of procedure, he shared the French representative’s views that consideration of article VIII should be deferred until a decision had been taken on article VII, with which it was closely linked. The problem had two different aspects, which should be kept separate, namely, the criminal jurisdiction over individuals, and jurisdiction over States with regard to breaches of the convention. The Chairman, noting that the consensus of opinion seemed to favour a postponement of the consideration of article VIII, proposed passing on to a discussion of article IX. He invited the Committee’s comments on article IX of the draft convention. Mr. Kaeckenbeeck (Belgium) said that his delegation had submitted an amendment to article IX [A/C.6/217 ] proposing that the first paragraph should be replaced by the following: The crime of genocide as defined in article II shall not be considered as a political crime exempt from extradition.

The second paragraph would remain unchanged. As political groups were included in the definition given in article II, it was preferable, in article IX, to use the wording that genocide was not a political crime exempt from extradition; there were political crimes which permitted extradition, and others which did not. The convention should specify that genocide belonged to the former category. With regard to the omission of the reference to the preparatory acts mentioned in article IV, the deletion of which was implied in the Belgian amendment, Mr. Kaeckenbeeck observed that incitement or complicity might be carried on in such a way that some States could not, under their domestic legislation, extradite those guilty of such acts. As compared to the text proposed by the Ad Hoc Committee, the Belgian amendment would restrict the scope of article IX. Mr. Fitzmaurice (United Kingdom) said that the text of the Belgian amendment and that of the United Kingdom delegation [A/C.6/236 ] were fundamentally the same and differed only in wording. The substance of the United Kingdom amendment was that genocide should not be considered a political crime for purposes of extradition. It therefore suggested replacing the sentence “and therefore shall be grounds for extradition” by “for purposes of extradition,” which prejudged the second paragraph.

A/C.6/SR.94

1629

Mr. Maktos (United States of America) endorsed the remarks made by the United Kingdom representative. His only disagreement with the Belgian amendment was that it endeavoured to make certain acts exempt from extradition. Mr. Maktos failed to see why criminals who had committed those types of acts should not be extradited; the United Kingdom amendment did include those criminals. He agreed with the United Kingdom representative that it was preferable to use the terms “for purposes of extradition,” and concluded by expressing his preference for the United Kingdom amendment. Mr. Chaumont (France) considered that the first part of the Belgian amendment – that was, the use of the term “exempt from extradition” was excellent and he did not feel the Committee would have any difficulty in approving it. The United Kingdom amendment did not fundamentally change the substance of the text, therefore he preferred the Belgian amendment. He wished, however, to explain the difficulties he had encountered with regard to the second part of the Belgian amendment, which proposed the deletion of the reference to the preparatory acts mentioned in article IV. His views concurred with those of the United States representative, but he was not yet ready to take a definite position on the question as it would depend on the decision of principles taken under articles V and VII. The question was whether machinery would be set up for the punishment at international level of the crime of genocide. If the machinery provided were satisfactory, then the Belgian amendment was acceptable; but if no satisfactory machinery were established, then certain important changes would have to be introduced into the Belgian amendment. He reiterated that the point under consideration should be deferred until a decision had been taken on the principle covered in articles V and VII. Mr. Chaumont asked if the Belgian representative could further clarify the question. Mr. Kaeckenbeeck (Belgium) fully appreciated the difficulties encountered by the French representative. The matter might be simplified if the Belgian amendment were divided into two parts, and the Committee dealt, at the current meeting, with the part acceptable to the majority. The second part of the amendment might be left aside until a decision had been taken on articles V and VII. The amendment involved a subject on which the Committee would finally have to come to a decision. Mr. Kaeckenbeeck agreed that while there was a difference in terminology, the United Kingdom and Belgian amendments were substantially the same.

1630

A/C.6/SR.94

Mr. Maktos (United States of America) wished to comment on the Belgian suggestion to divide article VIII into two parts and discuss only one part at the current meeting. He would regret to see the Committee abandon the procedure of discussing the draft convention article by article. Article V was very clear and limited in scope, and the idea it embraced should not be confused with the principles contained in article VII. In his opinion, the Belgian amendment to those two articles [A/C.6/252] confused two ideas which should not be included in the same article. The Belgian amendment also prejudged questions of jurisdiction which he considered the Committee should not take up at that stage of the discussion. The Government of the United States had not yet come to a decision as to what jurisdiction should be granted to certain courts. Mr. Maktos saw no reason why the Committee should postpone consideration of article V which included a totally different idea from the one embodied in article VII. The Belgian amendment was essentially the same as the text proposed by the Ad Hoc Committee with the exception of the term “agents of the State.” Mr. Maktos’ objection to that expression was that it stressed the notion of agents of States rather than private individuals. He concluded by formally proposing that the Committee should take up the discussion of article V. The Chairman, with the agreement of the United States representative, announced that the discussion on article IX would be completed before the Committee resumed discussion of article V. Mr. Morozov (Union of Soviet Socialist Republics) thought that the basic text should be shown to be inadequate before amendments were submitted. He did not agree with the position taken by the representative of France. In his opinion, the text of article IX did not require any alteration as it set forth quite clearly the fact that genocide should not be considered as a political crime and should therefore be a ground for extradition. The Belgian and United Kingdom amendments seemed to imply that it was only for purposes of extradition that genocide should not be considered as a political crime, while, in his opinion, genocide was the mass destruction of innocent groups and could never, in any event, be considered as a political crime.

A/C.6/SR.94

1631

He would therefore vote against the Belgian and United Kingdom amendments and in favour of the Ad Hoc Committee text. Mr. Pescatore (Luxembourg) said that there were two categories of persons which were usually exempt from extradition, political criminals and nationals of the State concerned. He asked whether a State would be obliged to extradite its own nationals under the provisions of article IX. Mr. Fitzmaurice (United Kingdom), replying to the representative of the Soviet Union, said that the defect of the Ad Hoc Committee text was that it made extradition too compulsory. The question whether a request for extradition should be granted depended on a wide variety of factors and the question of whether the crime was political or not was only one of those factors. It was therefore better to use the wording of the United Kingdom amendment, as it would be technically incorrect to state that, because the crime was not political, it would necessarily be a ground for extradition. With regard to the USSR representative’s statement that genocide was not a political crime, he said that it was inherently political in that its commission could usually be traced to political motives. It was precisely because of the political nature of the crime that it was necessary to state that, for purposes of extradition, it should be considered as nonpolitical. Mr. Kaeckenbeeck (Belgium) agreed with the remarks of the United Kingdom representative. In addition, he drew attention to the fact that extradition was a very complicated matter involving treaties and international negotiations for the revision of treaties as well as the domestic laws of each individual country. It was for that reason that he had proposed that the crime of genocide as defined in article II should be referred to in connexion with extradition, rather than the other acts enumerated in article IV. It might be very difficult to make treaties for extradition to cover the wide variety of acts listed in article IV, hence he thought it would be better to limit the scope of article IX so as to make it possible for a large majority of the countries to ratify the convention. Mr. Correa (Ecuador), being of the opinion that further discussion would only serve to confuse the issues, moved the closure of the debate.

1632

A/C.6/SR.94

Mr. Pratt de María (Uruguay) opposed the closure as he did not think that there had been sufficient discussion to make the issues perfectly clear. Mr. Chaumont (France) also opposed the closure as he thought there were still some misunderstandings which should be dispelled before a vote was taken. He also pointed out that no reply had yet been given to the question asked by the representative of Luxembourg. The motion for the closure of the debate was rejected by 22 votes to 5, with 6 abstentions. Mr. Chaumont (France) wished to make his position quite clear as the USSR representative appeared to have misunderstood it. It was only for drafting reasons that he had agreed to the first part of the Belgian amendment and he did not agree with the substitution of the reference to article IV by a reference to article II. The text of article IV had already been adopted and all the acts listed therein were considered to be equally punishable. In his opinion, there was no need to differentiate between those acts; they should all be considered as grounds for extradition. It was for that reason that he requested that the Belgian amendment should be put to the vote in parts. In reply to the question asked by the representative of Luxembourg, he said that the Ad Hoc Committee had only envisaged extradition as applying to foreigners and not to a country’s own nationals. Mr. Zourek (Czechoslovakia) said that the amendments submitted tended to limit the scope of article IX. In many domestic legal systems political crimes were subject to less serious punishment than other crimes. It would therefore be contrary to the purposes of the convention if genocide were considered as a non-political crime only for the purposes of extradition. Mr. Kaeckenbeeck (Belgium) said it would create great difficulties for his delegation if all the acts listed in article IV were to be considered as grounds for extradition, particularly in view of the fact that article IX made extradition obligatory. As those acts were not so serious as the actual commission of genocide, his delegation had thought it better to limit the scope of article IX and to refer only to genocide as defined in article II.

A/C.6/SR.94

1633

With regard to the question asked by the representative of Luxembourg, he thought that the phrase “in accordance with its laws” in the second paragraph of article IX made it quite clear that no country would be obliged to extradite its own nationals, if its laws did not permit that. Mr. Amado (Brazil) said that he would vote in favour of the United Kingdom amendment. He agreed that genocide was very often committed as a result of political motives and it should therefore be stated that, for the purposes of extradition, it should not be considered as a political crime. In reply to the remarks made by the representative of Belgium, he said that the crimes listed in article IV were extremely serious and should not therefore be exempt from extradition. In his opinion, it was not sufficient simply to refer to the crime of genocide as defined in article II. Mr. Pratt de María (Uruguay) said that there seemed to be some confusion as to whether article IX dealt exclusively with extradition or whether the general question of the political or non-political character of the crime of genocide was also involved. He agreed with the representative of the United Kingdom that genocide was usually committed as a result of political motives and he would therefore vote in favour of the United Kingdom amendment. With regard to the point raised by the representative of Luxembourg, he agreed with the representative of Belgium that it was covered by the second paragraph of article IX. There were some countries, including his own, which accorded extradition of their own nationals, but the provisions of article IX, paragraph 2, would enable each country to act in accordance with its own laws in that respect. Mr. Fitzmaurice (United Kingdom) announced the position of the United Kingdom delegation with regard to the second part of the Belgian amendment. Although the United Kingdom amendment had not proposed the exclusion of the other acts listed in article IV, after hearing the explanations given by the Belgian representative, his delegation would vote in favour of that part of the Belgian amendment. Article IX was the article which involved the United Kingdom in the greatest difficulties. There was no objection to the substance of the article, but as drafted in the Ad Hoc Committee text it would necessarily entail

1634

A/C.6/SR.94

considerable changes in existing extradition laws. The article would be more readily acceptable if its application were confined to the main crime of genocide excluding acts such as incitement which involved technical difficulties. Mr. Maktos explained the intention of the Ad Hoc Committee with regard to article IX. That Committee had not intended a juridical-philosophic discussion as to whether genocide was or was not a political crime. Its purpose had been to ensure that criminals would not escape being brought to justice on the pretext that the crime was not considered as extraditable. The categories of acts in regard to which extradition was applicable differed from one State to another. His own Government was prepared to agree that extradition should extend to all cases listed in article IV. If, however, the inclusion of all such cases would make the convention inacceptable to a number of delegations, the Committee should consider whether the adoption of the convention as a whole would thereby be endangered. Mr. Morozov (Union of Soviet Socialist Republics) said that the discussion appeared to have swung to the subject of whether or not genocide was a political crime. The text of the draft convention made it quite clear that genocide was not a political crime. He expressed surprise that so many delegations had changed their opinion on the point. It would be wrong to conclude that acts of genocide committed by or with the support of a State in the furtherance of its policy were invariably political crimes. The Committee’s aim was to ensure that the adoption of such means of implementing a policy was punished; the important thing, therefore, was to proclaim such acts as criminal and to see to it that the culprit could not take shelter behind certain provisions exempting some crimes from extradition. In Mr. Morozov’s view, there was no need to draw any distinction between the acts listed in article IV and those listed in article II. If the Belgian proposal were adopted, a number of acts included under article IV might be regarded as less serious crimes, and those guilty of their perpetration might be able to seek refuge in foreign countries, a result altogether out of accord with the remaining provisions of the convention.

A/C.6/SR.94

1635

The USSR representative considered it wrong to base any decision on the fear that the convention would not be ratified. The Committee should decide on purely juridical grounds. With regard to the question put by the representative of Luxembourg, the answer was to be found in the second part of article IX in the Ad Hoc Committee’s version. He saw no grounds for any amendment of the Ad Hoc Committee’s text to cover the point. The Soviet Union representative expressed his surprise at the rapidity with which the United States representative, who had been Chairman of the Ad Hoc Committee, had changed his opinion, particularly in view of the fact that the text had been adopted unanimously. He proposed the rejection of both the Belgian and the United Kingdom amendments. Mr. Saleh (Lebanon) said that the French proposal to divide the vote on the Belgian amendment would greatly facilitate further discussion of article IX. Most crimes classified as genocide had a political basis and the Belgian amendment substituting the phrase “exempt from extradition” was therefore acceptable. The other part of the Belgian amendment limiting the application of article IX to acts listed under article II was not, however, acceptable to his delegation. Mr. Feaver (Canada) recalled that the Canadian delegation had voted (85th meeting) against the inclusion of incitement among the acts listed under article IV, the original drafting of which did not include that element. It was therefore not acceptable to his delegation to admit incitement as a ground for extradition. He supported the Belgian proposal that the acts liable to extradition should be limited to those listed in article II. If Governments had difficulty in accepting the convention as a whole, because it included too broad a list of acts in regard to which extradition should be granted, he thought it would be wise to accept the Belgian amendment on that point. Mr. Ansteensen (Norway) proposed the insertion of the word “general” before the phrase “laws and treaties” in the second paragraph of article IX on the grounds that it was important to prevent Governments from issuing special legislation in order to evade the obligation to extradite. He

1636

A/C.6/SR.94

would have circulated a written amendment to that effect but had not anticipated the discussion of article IX at the present meeting. Mr. Maktos (United States of America), replying to the reference which the USSR representative had made to the change in his attitude, said that there had not really been any change in his original attitude to article IX. He had always been opposed to the inclusion of the element of incitement in article IV, and he had hoped that the Committee would reverse the decision of the Ad Hoc Committee. His attitude was therefore consistent. The fact that the Committee had maintained incitement in article IV affected his attitude with regard to article IX. With regard to Mr. Morozov’s assertion that the Committee should be guided solely by juridical considerations, Mr. Maktos pointed out that the most important consideration at present was whether the Committee was drafting a document for ratification or not. The success of the convention was more important than its contents and an empty victory was not to be desired. At San Francisco the smaller States might have outvoted the big five on the issue of the compulsory jurisdiction of the International Court of Justice, but they had wisely refrained from doing so for the very same reasons. The Chairman said that there were two main issues facing the Committee, first the question of substituting the reference to article II for a reference to article IV as proposed by the Belgian amendment, and secondly, the choice between the United Kingdom and Belgian versions of the last phrase of the first paragraph of article IX. A number of delegations were in favour of the drafting proposed by the United Kingdom, though opposed to any change of substance. He did not regard it as feasible to vote on the Belgian proposal in parts and suggested that the Committee should first vote on the Belgian amendment as a whole; if that amendment were rejected, they should vote on the United Kingdom amendment and, if that were rejected, on the Ad Hoc Committee version. He thought it necessary that a vote should first be taken on the Belgian amendment since it was the one furthest removed from the original version and enquired whether the Belgian delegate was in agreement with the proposal. Mr. Kaeckenbeeck (Belgium) expressed agreement with the procedure proposed.

A/C.6/SR.94

1637

Mr. Pérez Perozo (Venezuela) suggested that, in view of the difficulties which would probably arise over the voting, it might be advisable to vote first on the question of principle, that is, whether or not reference should be made to article IV. Mr. Chaumont (France) agreed with the procedure proposed but reminded the Chairman of his earlier request for a division of the vote, a request he was entitled to make under rule 118 of the rules of procedure. Mr. Fitzmaurice (United Kingdom) supported the French proposal that the vote should be taken in parts. If the Belgian proposal were put to the vote as a whole, he would be faced with the difficulty of wishing to vote in favour of the substitution of article II for article IV, while preferring his own delegation’s drafting of the last phrase of the first paragraph. Mr. Dignam (Australia) expressed himself at a loss to understand why there were two proposals concerned in the Belgian amendment. The Chairman held that the Belgian proposal must be voted as a whole. Mr. Dihigo (Cuba) considered that the Belgian proposal did in fact contain two points, one of drafting and the other of substance. He suggested that the difficulty might be solved if the French delegation would present its view on the matter of substance in the form of an amendment to the Belgian amendment. Mr. Davin (New Zealand) and Mr. Sundaram (India) said they were faced with the same difficulty as the United Kingdom delegation. Mr. Davin asked whether the Belgian delegate would accept the United Kingdom amendment in the form of an amendment to the Belgian amendment, while Mr. Sundaram suggested that the Committee should first vote on the United Kingdom amendment and then, if that were accepted, on the Belgian amendment as amended by the United Kingdom drafting. Mr. Chaumont (France) supported the Cuban proposal and formally proposed the elimination of the words “as defined in article II” from the Belgian amendment. Mr. Maktos (United States of America) proposed that the Committee should vote on the Belgian amendment in two parts, the first ending with the words “article II.”

1638

A/C.6/SR.94

Mr. Kaeckenbeeck (Belgium) again emphasized that the purpose of the first part of the Belgian amendment was identical with that of the United Kingdom amendment. It was merely a question of drafting. He had no objection to an undivided vote provided the question of drafting were subsequently referred to a drafting committee. The important point was to decide whether the Committee wished extradition to apply to all acts listed in article IV or merely to those listed in article II. The Chairman welcomed the Belgian proposal and agreed that the drafting of the last words of the first paragraph could be considered by a drafting committee or by the Committee itself. He stated that the question was whether extradition should be granted for the acts enumerated in article II or, as proposed in the Ad Hoc Committee draft, for the acts listed in article IV. He would put the Belgian proposal to the vote. Those voting in favour of it would be voting for the elimination of the reference to article IV. The amendment was rejected by 17 votes to 16, with 4 abstentions. Mr. Chaumont (France) said that he had voted against the Belgian amendment because of the procedure adopted. If effective international guarantees were created, it was well that the Belgian amendment had been rejected. If not, then the anxiety of the Belgian delegation was fully comprehensible. The Chairman then put the United Kingdom amendment [A/C.6/236] to the vote. The amendment was adopted by 27 votes to 7, with 2 abstentions. Mr. Kaeckenbeeck (Belgium) said he had been obliged to vote against the United Kingdom amendment because the retention of the reference to article IV would involve serious legal difficulties and might even preclude Belgian acceptance of the convention as a whole. Mr. Chaumont (France) said that he had voted in favour of the amendment, although he preferred the drafting of the Belgian amendment. The meeting rose at 1 p.m.

A/C.6/SR.95

1639

NINETY-FIFTH MEETING Held at the Palais de Chaillot, Paris, on Monday, 8 November 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). 44. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article IX (conclusion) In reply to a request made by the representative of Luxembourg at the 94th meeting, the Chairman stated that extradition would be effected in conformity with the laws and treaties in force, as provided in the second paragraph of article IX; consequently States, whose legislation did not provide for the extradition of their own nationals, would be under no obligation whatsoever to grant it. He then put to the vote the whole of article IX in the following wording: Genocide and the other acts enumerated in article IV shall not be considered as political crimes for the purposes of extradition. Each Party to this convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force.

Article IX was adopted by 26 votes to 2, with 5 abstentions. Mr. Davin (New Zealand) explained that his delegation, in voting in favour of that article, had interpreted it as not imposing a formal obligation on States to conclude new extradition treaties to cover genocide. Article V (continued ) The Chairman invited the Committee to continue its discussion of article V of the draft convention and the amendments to that article proposed by the delegations of the Netherlands (93rd meeting), Belgium [A/C.6/252], the United Kingdom [A/C.6/236 ] and Syria (92nd meeting). Mr. Fitzmaurice (United Kingdom) pointed out that the English expression “responsible rulers” proposed by the Netherlands delegation did not give sufficiently clear expression to the idea of that delegation.

1640

A/C.6/SR.95

He preferred the following text of the first paragraph of the Belgian amendment: “The States Parties to the present Convention shall ensure the punishment of the acts enumerated in article IV, whether their authors are agents of the State or not.” Mr. Maktos (United States of America) also approved the expression “agents of the State” which he wished to substitute for the words “heads of State” and “public officials” in the Ad Hoc Committee’s draft. Mr. Guerreiro (Brazil) feared that the beginning of the first paragraph of the Belgian amendment might prejudice the question of the punishment of genocide by an international court, a question which should only be decided by article VII of the convention; he requested precise information on the point. Mr. Kaeckenbeeck (Belgium), in response to that request, outlined the general mechanism of his delegation’s amendment. The first paragraph was intended to impose on States the obligation to prevent acts of genocide on a national scale, whether their authors were private citizens or agents of the State. The text was as general as possible, since, by abstaining from an enumeration, the necessity was avoided of determining in each individual case whether or not the individual concerned fell into one or other category of punishable individuals. The Belgian amendment, however, had another aspect which linked it with the substance of articles VII and VIII of the draft convention. It admittedly provided for the punishment of genocide on the domestic plane by national courts, since that was immediately practicable. On the other hand, it was deliberately silent on the question of punishment on the international plane, since there was no court in existence capable of exercising such a function nor would there be for some time to come. The Belgian delegation had thought it preferable to have recourse to an already existing court, the International Court of Justice, whose competence could not of course be extended to the penal sphere, but which could certainly play an important part within the framework of the convention on genocide. It could establish the non-fulfilment, by a State, of its obligation to punish the acts enumerated in article IV, pass judgment on all disputes relating to the direct responsibility of a State for the commission of such acts, and prescribe measures to bring about the cessation of the imputed acts and

A/C.6/SR.95

1641

to repair the damage they had caused. Such were the real implications of the Belgian amendment taken as a whole. After that explanation, Mr. Maktos (United States of America) thought that, if the Committee was to remain within the framework of article V, it would do better to return to the Ad Hoc Committee text, which was perfectly clear and ensured that all categories were covered by measures of punishment, and to substitute the expression “agents of the State” for the expression “heads of State” in the English text of the article. Mr. de Beus (Netherlands) largely shared the views of the Belgian representative. He thought, however, that the Belgian amendment should be discussed later, on the ground that it was premature to introduce into the discussion the question of the courts competent to deal with genocide as committed by individuals on the one hand and by States on the other. Article V of the Ad Hoc Committee draft on the other hand, was limited to a lucid treatment of the question of those liable to punishment. The only question raised with regard to that version was that of the best phrase to substitute for the expression “heads of State” in order to meet the objections expressed by certain delegations. Mr. Guerreiro (Brazil) was equally of opinion that, for the sake of clarity, the Committee should limit its discussion on article V to the question of individuals liable to punishment. The obligation of States to punish acts of genocide was dealt with in article VI, which had already been adopted (93rd meeting) while the question of national or international competence should be dealt with by article VII and should not be decided in advance by another article. For that reason the Brazilian representative preferred the Ad Hoc Committee text to the Belgian amendment, while admitting that, if the majority deemed it necessary, the expression “agents of the State” might be substituted for “heads of State.” Mr. Chaumont (France) associated himself with the representatives of the United States, the Netherlands and Brazil and regarded the Belgian amendment as open to criticism from three points of view. In the first place, according to the interpretation given by the author himself, the amendment almost completely precluded the possibility of

1642

A/C.6/SR.95

setting up an international court for the punishment of acts of genocide. The representative of France regarded the creation of such a court as the essential purpose of the convention on genocide, since, for the reasons already given, it was impossible to leave to each individual State the responsibility for punishing acts of genocide committed in its own territory. The convention would be a mere accumulation of entirely ineffective formulas, if such a court were not established within a reasonable period. On the other hand, the text proposed by the Belgian delegation referred to the punishment of acts, and that idea was not clear. The important thing was to punish those guilty of the crime and not to provide for abstract responsibility of a pecuniary nature, which did not fall within the scope of the convention. Finally, the Belgian amendment even failed to meet the requirements of the Swedish delegation, since it did not indicate that constitutional monarchs would be exempt from punishment. Furthermore, its formula was ambiguous and appeared altogether to eliminate the responsibility of rulers: the expression “agents of the State” might be interpreted to mean officials only and not the members of parliaments or heads of State, who exercised the real power. Both because it overstepped the framework of article V and because the terminology proposed was unsatisfactory, the Belgian amendment should, in Mr. Chaumont’s view, be set aside in favour of the Netherlands text or the text of the Ad Hoc Committee draft. Mr. Inglés (Philippines), while admitting that the principal objection raised to the text of article V was attributable to the absence of a constitutional process permitting the arraignment of the king before the courts of law in certain States, recalled that article VII, already adopted, made it obligatory for States to amend their legislation to ensure the application of the convention. It would appear therefore that the States concerned could and should either amend their constitutions or enact special legislation to fill the gap. Whatever the competence of national courts with regard to them, constitutional monarchs should not be in a position to evade all responsibility towards an international court, once established. It was for that reason that the representative of the Philippines was in favour of article V in the draft convention, which provided that any individual guilty of genocide should be punished, whoever he might be. In the

A/C.6/SR.95

1643

recent past, as at various periods in history, it was generally the heads of State who had committed genocide. It was therefore essential to provide for their punishment in future; their responsibility could not be nullified on the pretext that they governed in name only and acted solely on the advice of their ministers. In fact, constitutional monarchs always had the choice of opposing projects submitted to them; and if they acquiesced in such projects, they shared the responsibility for them. For that reason the expression “responsible rulers,” proposed by the Netherlands amendment, should be rejected and the phrase “agents of the State,” in the Belgian amendment, retained in the English text. For all those reasons, and because the Belgian amendment tended to introduce the idea of the responsibility of the State as distinct from the responsibility of the individuals which composed it, and because it declined to envisage the creation of an international penal court, the representative of the Philippines could not vote for it and preferred the text of the Ad Hoc Committee draft. Mr. Spiropoulos (Greece), Rapporteur, observed that only the first paragraph of the Belgian amendment should be discussed since the remainder related to article VII. He said that the debate on article V was in reality only concerned with the English translation of the word gouvernants, which appeared to be acceptable in French. The Netherlands amendment solved that difficulty, but that was mainly a question of style, which might be left to a drafting committee. Mr. Spiropoulos recalled that most delegations appeared to have reached an agreement (93rd meeting) to include a note in the report, exempting constitutional monarchs from responsibility, thus providing a complete solution of the problem. The Committee should therefore go on to discuss the United Kingdom amendment, which differed in substance from the draft convention. Mr. Federspiel (Denmark) thought the ideas underlying the Belgian and United Kingdom amendments represented a fresh and commendable approach towards the whole question of genocide. The Ad Hoc Committee’s draft dealt only with the punishment of genocide, without even going into the question of the court which would

1644

A/C.6/SR.95

impose punishment, the competence of that court, and the penalties it would impose; the Belgian and United Kingdom delegations, on the other hand, took a very realistic view and based their amendments on the organs already in existence, that is, domestic courts and the International Court of Justice. Moreover, they were not content simply to provide for punishment of the culprits, which they considered only a small part of what had to be done. They had brought the question into its proper domain, the responsibility of States, the measures to be taken in order to prevent commission of the crime, and measures to be taken to repair the damage caused to the victims. The Danish representative was therefore in favour of the Belgian amendment, subject to slight modifications, particularly with regard to the wording of the last clause, which needed clearer definition. Prince Wan Waithayakon (Siam) declared that his country, as a constitutional monarchy, was in the same position as Sweden, the Netherlands and the United Kingdom. He did not consider the wording suggested by the Netherlands and Belgian delegations satisfactory and proposed the expression “heads of Governments.” Mr. Kaeckenbeeck (Belgium) pointed out that his delegation’s proposed amendment did not start from the principle of the need for international criminal courts to judge crimes of genocide. The amendment tried to make the best possible use of existing courts, that is, the domestic criminal courts and the International Court of Justice. At the moment there was no international criminal court; there was not even a draft proposal for the institution of such a court. The establishment of a new international judicial organ involved so many difficulties that it might be assumed that it would be a long time before an international criminal court began to function. It was therefore necessary to be realistic, and make suitable use of the existing organs. Mr. Morozov (Union of Soviet Socialist Republics) thought that in drawing up an international convention, it was essential to take the interests of all Governments into account. Since certain delegations had expressed objections to the wording of article V, another wording would have to be found, which would satisfy them.

A/C.6/SR.95

1645

The USSR delegation thought that responsibility could not be imputed to heads of State who in fact exercised no power and were not responsible to their own courts for their acts. His delegation would be inclined to support any draft which stressed that only that particular category of heads of State was excluded from the provisions of article V. Mr. Fitzmaurice (United Kingdom) again emphasized the difficulties which the existing wording of article V raised for constitutional monarchies. It had been said, in support of that amendment, that constitutions should be modified with a view to bringing them into line with the convention. But it was not easy to introduce modifications into a constitution, especially on questions of that kind. Mr. Fitzmaurice associated himself with the remarks of the Danish and Belgian representatives, and observed that it was completely pointless to include heads of State in the various categories enumerated in article V. In the case of a head of State being guilty of genocide, there were two possible hypotheses; either he was a despot, who would not be punished by his own national courts; or he was a ruler who acted only with the advice of his ministers, in which case, as the Government was the real culprit, the ruler would not be arraigned by the courts of his country. Since there was no international criminal court, the provisions of article V were meaningless as far as heads of State were concerned, both on the national and on the international level. In that connexion, Mr. Fitzmaurice recalled that he had already pointed out how difficult it would be to arraign a head of State before an international criminal court, if such a court were set up. In those circumstances, the only provision that could be made was to arraign Governments guilty of genocide before the only existing international court: the International Court of Justice, which would not pronounce sentence, but would order the cessation of the imputed acts, and the payment of reparation to the victims. In support of the observations of the United Kingdom representative regarding the difficulty of modifying constitutions, Mr. de Beus (Netherlands) pointed out that the reason why certain delegations were opposed to the mention of heads of State in the categories of persons liable to punishment was that, according to the constitutions of the States concerned, heads of State were not responsible for the actions of the Government. They

1646

A/C.6/SR.95

could thus not be held responsible for such actions on the international plane, and it should be stated, in some way or other, that the provisions of article V did not apply to constitutional monarchs. The formula suggested by the representative of Siam was open to the same objections as the one in the Ad Hoc Committee text: in certain countries, the constitutional monarch would at the same time be the head of the Government. In reply to the representative of Denmark, Mr. de Beus recognized the importance of the questions raised by the Belgian amendment, but warned against the danger of confusing them with the question of the official position of the culprits, as specified in article V of the convention. In his opinion, those questions should be discussed in connexion with article VII of the convention. Prince Wan Waithayakon (Siam) then proposed the words “constitutionally responsible rulers.” Mr. de Beus (Netherlands), Mr. Petren (Sweden) and Mr. Fitzmaurice (United Kingdom) accepted that formula. The Chairman announced that a vote would be taken first on the first sentence of the Belgian amendment [A/C.6/252], that being the amendment furthest removed from the original text. If that amendment were rejected, a vote would be taken on the Netherlands amendment, as amended by the delegation of Siam. In reply to a question from the representative of Syria, the Chairman stated that the Syrian amendment would be considered later. Mr. Chaumont (France) pointed out that, if the formula suggested by the Siamese delegation were adopted, there could be no vote on the Syrian amendment. De facto Governments were not constitutionally responsible. The Chairman put to the vote the first sentence of the Belgian amendment. The amendment was rejected by 21 votes to 17, with 9 abstentions. Mr. Morozov (Union of Soviet Socialist Republics), remarking that the expression “responsible rulers” could not be interpreted otherwise than as

A/C.6/SR.95

1647

“constitutionally responsible rulers,” asked that the Netherlands amendment be voted on in parts. His delegation would abstain from voting on the word “constitutionally.” The Chairman put to the vote the word “constitutionally” which the delegation of Siam proposed should be added to the Netherlands amendment. By 19 votes to none, with 22 abstentions, the Committee decided to insert the word “constitutionally” in the Netherlands amendment. The Chairman then put to the vote the Netherlands amendment, thus amended, which read as follows: “Those committing genocide or any of the other acts enumerated in article IV shall be punished whether they are constitutionally responsible rulers, public officials or individuals.” The amendment was adopted by 31 votes to 1, with 11 abstentions. Mr. Fitzmaurice (United Kingdom) explained that he had voted for the amendment because it satisfied him as regards the responsibility of heads of State. He pointed out, however, that article V thus drafted applied only to genocide committed by individuals, and not to genocide committed by Governments; he drew attention to the second sentence of the amendment to article V proposed by his delegation [A/C.6/236 ]. Mr. Maktos (United States of America) said that he had abstained from voting because, in his opinion, the word “rulers” could not be applied to all heads of State, and, particularly, to the President of the United States of America. Mr. Sundaram (India) said that he also had abstained, not because he objected to the word “rulers,” but because he did not think the expression “constitutionally responsible rulers” necessarily excluded the heads of State of countries having a parliamentary regime. The Chairman opened the debate on the second sentence of the United Kingdom amendment to article V. Mr. Fitzmaurice (United Kingdom) explained that his delegation had proposed that amendment in order that the convention might contain a direct reference to the type of genocide which was most likely to occur,

1648

A/C.6/SR.95

i.e. genocide committed by a State or a Government. Since it was to be assumed that individuals acting on behalf of the State would not be punished by the courts of that State, it was essential to insert into the convention provisions to the effect that such acts would constitute a violation of the convention. Those provisions should be read in conjunction with the United Kingdom amendment to article VII of the convention [A/C.6/236/Corr.1], which completed the idea underlying the amendment to article VII by stating that the case would be submitted to the International Court of Justice, which would order the cessation of acts of genocide, and the payment of reparation to the victims. Mr. Maktos (United States of America) stressed the necessity of remaining within realistic bounds. The aim of the convention was to ensure the suppression of genocide and the punishment of the culprits. It should therefore not contain provisions regarding the payment of reparations to the victims; that question belonged to another branch of the law. Mr. Chaumont (France) agreed with the United States representative’s remarks. French law did not recognize the criminal responsibility of States or Governments, which were legal entities. While such entities could have financial responsibility, they could not be held criminally responsible. The French delegation desired to restrict the definition of genocide to crimes committed by rulers, but had no objection to stressing the principle of the responsibility of Governments in acts of genocide. It drew attention, however, to the fact that the principle of the criminal responsibility of rulers was stated in the first paragraph of article V. If, therefore, the provisions proposed by the United Kingdom delegation were designed to reiterate that principle, they were unnecessary; if their purpose was to provide for a type of responsibility other than the criminal responsibility of rulers, then they were out of place in a convention for the suppression of genocide. For all those reasons the French delegation would vote against the United Kingdom amendment. Mr. Kaeckenbeeck (Belgium) recalled that the Belgian amendment had been intended to create a link between articles V and VII and to introduce the possibility of recourse to the International Court of Justice. As that

A/C.6/SR.95

1649

amendment had been rejected, it would be necessary to adopt a text which would allow provision to be made for the intervention of the International Court of Justice. For that reason, the Belgian delegation heartily supported the amendment submitted by the United Kingdom. Under the provisions of article V, as then worded, individuals committing crimes of genocide, who were generally fanatics, could be punished. Their crimes were insignificant, however, in comparison with the crimes committed by Governments, which involved millions of human beings, and nothing in the text before them permitted action to be taken against Governments. The convention should provide for recourse to the International Court of Justice, which was the only international juridical body capable of rendering a mature, considered and impartial decision on the responsibility of the State, on its only conceivable responsibility. Such a decision would establish: (1) proof that the convention had been violated; (2) the obligation to comply with certain measures intended to bring about the cessation of the imputed acts or to prevent their repetition; (3) the obligation to compensate the injured parties for the damage suffered. The Belgian delegation would vote in favour of the United Kingdom amendment. Mr. Pérez Perozo (Venezuela) shared the opinions of the representatives of the United States of America and France with regard to the United Kingdom amendment. From a general point of view, it was difficult not to recognize the responsibility, national or international, of the State in the exercise of its functions. If it were recognized that the State was a legal entity, if it had rights and duties, it was obvious that it also had responsibilities. Since that principle had been admitted, why should the international criminal responsibility of the State be set forth in the convention? Why state that it had violated the convention, since action by an international court would be limited to ordering the cessation of the offences? The only punishment which could be imposed on a State would be the exaction of material reparations. It would not, however, have the effect which was the aim of all punitive sanctions, that is, it would not serve as an example, because the State would not be touched as would a private

1650

A/C.6/SR.95

individual in a similar situation, since the taxpayers would pay the required reparations. After the Second World War, it had been intended to prosecute individuals and not the German people; the Nürnberg Tribunal had convicted the important Hitlerian criminals and not the Government. Their conviction had had more effect on all supporters of aggressive wars than a moral condemnation of the German State. It was sufficient to have indicated in the convention the criminal responsibility of agents of the State, whatever the importance of their functions. It was useless to provide for the abstract sentencing of a legal entity which would not be affected by the moral or material aspects of the severe measures in the sentence. Having heard the remarks of the representatives of the United States, France and Venezuela, Mr. Fitzmaurice (United Kingdom) wished to make it clear that the part of his amendment relating to criminal responsibility had been withdrawn. The present proposal simply consisted in adding the second sentence of the original United Kingdom amendment to the text of article V, already adopted. Mr. Aleman (Panama) considered that the United Kingdom amendment did not add any practical provision to article V. The convention was a document of criminal law and not of civil law. The signatory States agreed to prevent and punish genocide, but the convention did not contain any provision that the States should undertake to fulfil specific obligations or functions. It was therefore difficult to provide for a “breach of the . . . convention.” It might be asked what was the meaning of such a provision, especially in view of the fact that the representative of the United Kingdom had stated that his delegation had no intention of claiming that States should be held criminally responsible for crimes of genocide. The representative of Panama thought that the United Kingdom delegation should explain the purpose of its amendment as precisely as possible; he also thought that another and clearer wording would be preferable. Mr. Dignam (Australia) pointed out that upon the adoption of the amended text of article V, the form of the United Kingdom amendment

A/C.6/SR.95

1651

should be modified, because the words “such acts” might give rise to a misunderstanding. The French text of article V would not give rise to any misunderstanding. Mr. Sundaram (India) recalled that in the preamble of the convention it was stated that the High Contracting Parties “agree to prevent and punish” the crime of genocide. It was therefore obvious that if a State committed crimes of genocide, after having signed the convention, such an act would constitute a breach of the convention. Many delegations had the same difficulty as he in understanding the meaning of the United Kingdom amendment. He thought that, in any case, the amendment should not be included in article V, which dealt with persons liable. Mr. Feaver (Canada) wondered why it should be necessary to say that States were committing a breach of the convention if there was no intention of punishing them. Such a provision would merely permit the invocation of the responsibility of the State in order to rule out the responsibility of the individual. Furthermore, if the courts decided that certain members of the Government were responsible, it was not advisable to take action against the Government as a whole, that is to say, against the other members who had not been found guilty. The Canadian delegation would vote against the United Kingdom amendment. Mr. Tazari [sic] (Syria) shared the point of view of the United Kingdom delegation. It was a question of providing for the international civil responsibility of States when they did not respect the convention. That responsibility involved totally different principles from those which defined criminal responsibility. A provision such as that proposed by the United Kingdom was to be found in all treaties, notably in the Versailles Treaty, which had provided for reparation for war crimes; the peace treaties signed in 1946 contained, in embryo, the idea expressed in the United Kingdom amendment. The representative of Syria considered that, when the competent court was not specified in a document, it was necessary to invoke the general principles of international law and have recourse to the International Court of Justice.

1652

A/C.6/SR.95

Mr. Medeiros (Bolivia) thought that after having adopted the principle of the responsibility of rulers, public officials and private individuals, it was very important to add a clause on the responsibility of States. It was obviously not a question of their criminal responsibility; it was simply necessary to establish that they had violated the convention, in order to make it possible for them to be brought before the International Court of Justice or even before certain organs of the United Nations, such as the Security Council. The representative of India had pointed out that the preamble of the convention made the United Kingdom amendment unnecessary; Mr. Medeiros thought that adoption of the amendment would be a useful contribution to the clarity of the text of the convention. The Bolivian delegation would vote for the United Kingdom amendment, because it was calculated to increase the ways and means of preventing and punishing genocide. Mr. Dihigo (Cuba) considered the United Kingdom amendment useful and necessary. When genocide was committed by Governments, the criminal responsibility of the individuals comprising the Government, who would be punished by the court, had to be considered, but it was also necessary to remember that they had acted as agents of the State and the responsibility of the State itself, a responsibility which was obviously not of a criminal nature, had to be considered. The United Kingdom amendment opened the way for action by an international court, and particularly by the appropriate organs of the United Nations, which could thus prevent genocide. The Cuban delegation would vote for the United Kingdom amendment. Mr. Spiropoulos (Greece) stated that he was not yet in a position to form a definite opinion, but he was inclined to vote against the United Kingdom amendment. Article V, which dealt with persons liable, was not the place for that amendment. The part of article V already adopted made no reference to a breach of the convention by individuals; there was, consequently, a fundamental difference in substance between the text of the article and the United Kingdom amendment.

A/C.6/SR.95

1653

As the representative of India had pointed out, the preamble of the convention stated that signatory States agreed to prevent and punish genocide. It was therefore unnecessary to repeat that principle in the text of the convention. The difference between “State” and “Government” was not very clear; a question of legal entities was involved there, while the text already adopted mentioned only natural persons. Mr. Chaumont (France) declared that his delegation could not accept the principles contained in the United Kingdom amendment. Indeed, under French law it was not possible to state that States or Governments could commit crimes. If the United Kingdom amendment implied the principle of the pecuniary responsibility of legal entities, as the representative of Syria had implied, the French delegation agreed that the convention should contain a special article on that question. The United Kingdom amendment did not, however, seem to suggest such an idea; it would have to be worded in a different way to show that the problem of the reparations to be granted to the victims of genocide was the question in mind. Mr. Chaumont pointed out that the text proposed by the United Kingdom seemed to suggest that, if the acts of genocide were not committed by States or Governments, they did not constitute a breach of the convention. That idea was contrary to the first part of article V. The French delegation could not vote for the United Kingdom amendment which it considered ambiguous. Mr. Maktos (United States of America) pointed out that the wording of the United Kingdom amendment led to misunderstanding, at least in so far as the English text was concerned. The United Kingdom delegation offered its amendment as an introduction to article VII. It requested the deletion of the text of the article proposed by the Ad Hoc Committee and the substitution of a text [A/C.6/236/Corr.1] which prejudged the question of the competent court and the authority of that body. Hence the United States delegation could not support the United Kingdom amendment.

1654

A/C.6/SR.96

Mr. Morozov (Union of Soviet Socialist Republics) shared the views of the representatives of the United States and France. He entertained the same doubts as to the purpose of the United Kingdom amendment. With regard to the measures which should serve as a basis for international co-operation, the USSR delegation thought they should be included in the convention, in article VIII for example, but felt that they were out of place in article V. Mr. Morozov was surprised at the conclusions drawn by the representative of Belgium, who supported the United Kingdom amendment, saying that to reject it would mean that it was desired to punish lesser crimes but not the more important crimes. The United Kingdom amendment had no relation to the provisions of article V, because it created a confusion between legal entities and natural persons. The delegation of the Soviet Union would therefore vote against the United Kingdom amendment. The meeting rose at 6 p.m.

NINETY-SIXTH MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 9 November 1948, at 11 a.m. Chairman: Mr. R.J. Alfaro (Panama). 45. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article V (conclusion) The Chairman requested the Committee to continue the discussion of the last sentence of the United Kingdom amendment to article V [A/C.6/236 ]. The last speaker on the list was the representative of Luxembourg. Mr. Pescatore (Luxembourg) expressed surprise that the United Kingdom proposal, as amended by the Belgian delegation, had met with such strong disapproval at the 95th meeting. Other speakers had already

A/C.6/SR.96

1655

shown the necessity of distinguishing between responsibility, jurisdiction and sanctions. Article V dealt with responsibility; article VII, VIII and X dealt with jurisdiction. The Ad Hoc Committee text did not raise the question of sanctions, which had been dealt with only in the USSR and Belgian amendments. The question under consideration was to decide who would be liable to punishment for the crime of genocide. According to the vote already taken, the Committee had decided that all individuals, whether they were constitutionally responsible rulers, public officials or private individuals, would be responsible for the act of genocide. The United Kingdom amendment extended responsibility from individuals to States and Governments, and that had been the reason for the opposition shown to the amendment in the Committee. The two main objections raised had been that physical acts of genocide could be committed by only individuals, and that no Government or State could be subject to penal sanctions. In answer to the first objection he pointed out that all acts by States or Governments could be reduced to acts by individuals. The responsibility might not apply in a primitive State but a modern State was a vast machine based on the division of work and responsibility. The acts of a State were not those of a single individual but of a whole system; that was the reason why genocide was always committed on a large scale. No one would presume that it would be possible to find every person responsible for anti-Semitic laws introduced in nazi Germany, or for the acts committed by the Gestapo. In such cases there would be no possibility of taking measures against individuals, and the whole system would have to be made responsible. The decisions of a State were frequently not the result of an individual will but the concurrence of the will of an assembly. After a decision had been taken by an assembly, who would decide on whom the responsibility rested? Genocide covered not only acts committed but also acts omitted or tolerated, for which it was always much more difficult to prove responsibility. The argument had been put forward that criminal sanctions were not applicable to States. While that was true, there were other sanctions which could be applied, such as the dissolution of a criminal police or the seizure of material goods and financial resources belonging to the responsible Government.

1656

A/C.6/SR.96

The responsibility of the States for the acts of their institutions and agents was not new under international law; there existed responsibility for executive, legislative and judicial acts. The convention should recognize that in addition to acts by individuals there were also composite acts which could be carried out only with the connivance of the State. Mr. Correa (Ecuador) supported the United Kingdom amendment. Although it differed somewhat from the original text, the amendment completed the idea expressed by the article drafted by the Ad Hoc Committee which established the responsibility of individuals but did not cover acts of genocide committed in the name of the State. There would be no difficulty in punishing individuals who were found to be accomplices and collaborators in the committing of a physical act of genocide, but the Committee should not forget that Governments, States and parliaments had made possible those acts of genocide. As the United Kingdom representative had pointed out, the responsibility of States was quite different from the penal responsibility of individuals. Although certain delegations doubted that States could be made responsible, there was no doubt that under the Charter of the United Nations, and under the system of interdependence existing among countries today, the States were subject to obligations which included respect for international obligations. Committing an act of genocide, therefore, in the name of a State was a breach of the convention and implied the application of at least moral, and possibly other, sanctions. The Committee should keep in mind the close relationship which existed between genocide and the problem of peace. A Government which had planned a campaign of destruction of certain groups would be a danger to international peace, and its policy should be investigated by the Security Council. The convention should, therefore, expressly declare that a violation of its terms might imply sanctions against the responsible State. Moreover, the convention was established not only to punish genocide but also to prevent it, and the application of sanctions might act as a deterrent to States which were potential offenders. Mr. Correa concluded by stating that he would vote in favour of the United Kingdom amendment.

A/C.6/SR.96

1657

Mr. Abdoh (Iran) could not support the United Kingdom amendment in the form in which it was drafted although, in principle, he was in agreement with the two ideas it contained: first, the civil responsibility of States and secondly, the necessity of utilizing the existing International Court of Justice in the field of genocide. However, the wording used presupposed that a State or Government might commit a crime, a theory with which the Iranian delegation was not in agreement. Although the representative of Luxembourg had cleverly tried to explain that a State could commit genocide, the analysis had shown that the responsibility could be broken down to individuals. The United Kingdom amendment also made a distinction between State and Government which was not clear to the Iranian delegate. The amendment was based on the hypothesis that in every State where genocide was committed by high officials of the Government, the penal responsibility of the Government was involved. The Iranian delegation did not agree with that principle and supported the idea that a Government would be held responsible when it had not fulfilled its obligation by ensuring the punishment of individuals guilty of genocide. In such cases, the States could be accused of having committed a breach of the convention and could be brought before the International Court of Justice. Mr. Abdoh concluded by stating that he could not vote in favour of the United Kingdom amendment because it failed to make a clear distinction between civil and penal responsibility, and he feared that the text might only create confusion. The question of the violation of the convention was covered by article X. Mr. Demesmin (Haiti) did not agree with the United Kingdom amendment that an act of genocide could be committed by a State. Such acts could only be committed by individuals on behalf of the State. Even if a State could commit an act of genocide, and thereby violate the convention, this would only fall under private law as violation of the convention was comparable to violation of contract. Violation by a State existed only if, after the act had been committed, the State refused to punish the perpetrators of that act. The acts, when committed, would not be a violation of the convention but acts of genocide. If a State did not punish the authors of the crime and thereby tolerated the acts, it could be accused of being

1658

A/C.6/SR.96

an accomplice and tried as such, but the representative of Haiti did not agree that a State could be tried or punished for an act of genocide. A breach of the convention could not be committed against the victims of genocide but only against the other nations parties to the convention. Mr. Kaeckenbeeck (Belgium) explained that his main reason for supporting the United Kingdom amendment to article V was that it constituted a necessary and useful introduction to the United Kingdom and Belgian amendments to article VII. Two different types of responsibility were envisaged which might, perhaps, require clarification. One was the penal responsibility of private individuals responsible for the act of genocide; the other was the international responsibility of States or Governments which had violated an international convention. The United Kingdom amendment could be considered as a link between articles V and VII. The Belgian representative pointed out that the countries which did not seem to favour the United Kingdom amendment were those which were not prepared to accept the jurisdiction of the International Court of Justice on the question of genocide. The Court was the only international court in existence; yet they referred to the jurisdiction of a court which was not yet in existence, and in fact there were no guarantees that it would ever be established. The adoption of the United Kingdom amendment was dependent on the attitude of the countries represented on the Committee towards international jurisdiction. Belgium, for its part, had no intention of accepting a convention referring to a non-existent international court, but it was willing to accept a convention referring to the International Court of Justice. Mr. Fitzmaurice (United Kingdom) said he would confine his remarks to the principal issues under discussion. He had been surprised at the confusion displayed in the approach to the problem. While everyone agreed that an act of genocide, if committed by a State or Government, was a breach of the convention, there appeared to be considerable difficulty in expressing that idea in the text of the convention itself. Certain delegations seemed to think that, while the underlying idea of the United Kingdom amendment was acceptable, article V was not the right place in which to include it. The United Kingdom delegation did not attach any special importance to the place in which the amendment

A/C.6/SR.96

1659

should appear in the convention. The idea of the responsibility of States or Governments, as well as the individual responsibility of private individuals, should be clearly expressed. Some delegations had stated that it was implicit in the convention that an act of genocide committed by a State or Government would be contrary to the terms of the convention. While he agreed that article I implied that the Governments themselves would not commit acts of genocide, Mr. Fitzmaurice thought it would be better to say so clearly, especially as the discussion in the Committee had shown how much doubt and confusion existed on the matter. If the Committee wished to deal with the responsibility of States, the convention should do so explicitly, particularly as the question was closely linked with the jurisdiction of the International Court of Justice. The latter had competence only where breaches of international law or of conventions had occurred, and it was desirable that the Court should have jurisdiction to rule that a State or Government had committed genocide. Mr. Fitzmaurice thought that article V was the right place for the insertion of the United Kingdom amendment because it dealt with the persons or entities who could commit genocide or who were responsible in some way for the act. Whereas previous articles had defined the act of genocide, article V determined which persons or entities could be held responsible for the act. In his view, the drafting of article V in its present form was incomplete because it dealt with only one category, namely, those who could be held criminally responsible as individuals; it did not deal with the responsibility of States or Governments. While it was true that States and Governments could not be made criminally responsible, they could have to answer to an international court for their actions under ordinary law. In order to complete the article, it would be necessary to add a provision on the explicit responsibility of States or Governments, which was not clearly set out in the convention. As the Luxembourg representative had pointed out, it was impossible to blame on any particular individual actions for which whole Governments or States were responsible. The latter could certainly act as separate entities. Mr. Fitzmaurice saw no danger, as had been suggested, that the United Kingdom amendment might serve as an escape clause for individuals trying to evade responsibility. His delegation’s proposal was not meant

1660

A/C.6/SR.96

as a substitution for article V but as an addition to it. When individuals were made responsible, and could be found, they would be punished. The United Kingdom amendment was intended to cover those cases where a whole State or Government was responsible for the crime, and where no international criminal court existed before which they could be brought. Individuals could not be accused of having committed a breach of the convention because a breach could be made only by a State. Finally, with regard to the objections raised by some delegations to the use of both the word “States” and the word “Governments,” Mr. Fitzmaurice said that as the two terms were generally used indiscriminately the best method seemed to be to mention both of them. Mr. Demesmin (Haiti) asked the United Kingdom representative whether this amendment would not destroy the harmony of article V which dealt with the criminal responsibility of individuals and to which it would add the non-criminal responsibility of States. Mr. Fitzmaurice (United Kingdom) replied that he did not think the amendment submitted by his delegation destroyed the harmony of article V; on the contrary it seemed to complete it by adding an essential element to the whole concept of the punishment of genocide. If the responsibility of individuals only were accepted, the provision would prove inadequate as it would not always be possible to bring the individuals concerned to justice. Where the State or Government was itself responsible for the act of genocide, it was evident that such State or Government would not punish the individual persons who had carried out its orders, and there existed no international criminal court before which they could be brought. Unless therefore provision was made in such cases for the direct responsibility of the Government or State itself before an international court of justice there would be an enormous gap in the convention. The United Kingdom proposal was intended to complete the article and render the convention effective. Upon the Chairman’s announcement that the United Kingdom amendment would be put to the vote, Mr. Maktos (United States of America) submitted a motion for the postponement of the vote. He stated that the question under consideration required careful thought, and the Committee would vote with a better understanding of the purpose of article V after it had reached a decision on article VII to which the United Kingdom

A/C.6/SR.96

1661

amendment was so closely linked. Mr. Maktos felt that he would not be able to vote on the United Kingdom amendment until a decision had been taken as to the court which would have jurisdiction on the matter, and the measures it would be able to take. Mr. Dignam (Australia) said he would be unable to vote until he were informed whether the words “such acts” in the United Kingdom amendment related only to “the other acts”, that is a portion of the original text of article V as drafted by the Ad Hoc Committee, or whether it related to the whole of it. The Chairman stated that he had two matters to place before the Committee. One was the proposal to postpone the voting which in the absence of any clear authority in the rules, he would have to submit to the Committee for decision. The other referred to the point raised by the Australian representative. If the United Kingdom amendment were adopted, it would be necessary to make it clear perhaps through the drafting committee, whether the term “such acts” referred to acts of genocide as specified in articles II and IV. Mr. Fitzmaurice (United Kingdom) explained that the United Kingdom amendment had been taken out of its original context and the question was then merely one of re-drafting. Even in the text before the Committee the words “such acts” referred to genocide itself as well as to the other acts enumerated in article IV. He agreed, however, to any re-drafting that the Committee might consider necessary. Mr. Fitzmaurice added that he had no objection to the postponement of the vote as proposed by the United States representative. Mr. Raafat (Egypt), supported by Mr. Messina (Dominican Republic), opposed the proposal for the postponement of the vote. He thought that the provisions of article VII would be based on those of article V and not conversely, as suggested by the United States representative. Mr. Federspiel (Denmark) supported by Mr. Kaeckenbeeck (Belgium) and Mr. Abdoh (Iran), suggested that a provisional vote should be taken on the principle underlying the amendment and the final decision as to how that principle would be worded could be postponed until after a decision had been taken with regard to article VII.

1662

A/C.6/SR.96

The Chairman thought the Committee should either take a vote on the actual text of the amendment or decide to postpone the vote. He called for a vote on the United States’ proposal for the postponement of the vote on the United Kingdom amendment. The proposal was rejected by 20 votes to 14, with 11 abstentions. The Chairman considered that the Committee could take a decision on the United Kingdom amendment on the understanding that, if it were adopted, certain drafting changes would have to be made to clarify the meaning. He called for a vote on the second sentence of the United Kingdom amendment to article V [A/C.6/236 ]. The amendment was rejected by 24 votes to 22. Mr. Abdoh (Iran) had agreed with the principle underlying the United Kingdom amendment but had voted against it in the form in which it had been submitted. Mr. Messina (Dominican Republic) had voted against the United Kingdom amendment because he thought it was contradictory to the first part of article V, as already adopted, and because of the fact that under the national legislation of his country, legal entities could not be held guilty of committing a crime. Mr. Amado (Brazil) explained that he had voted against the United Kingdom amendment because he considered it superfluous, and because it gave the impression that a State could be held guilty of the commission of a crime. Mr. Raafat (Egypt) explained that he had voted against the United Kingdom amendment because he considered that the idea was already adequately covered in the text of article V. If States and Governments were to be mentioned, the list should have been extended to include other corporate bodies. Mr. Maûrtua (Peru) had voted againt [sic] the United Kingdom proposal because he considered it incomplete as there was no existing international criminal tribunal competent to judge such cases. The matter might be studied by the International Law Commission, but it should not be dealt with in the convention before them.

A/C.6/SR.96

1663

Mr. Iksel (Turkey) had voted against the United Kingdom amendment, not because he objected to the idea set forth in it, but because he had felt that, even if the principle underlying the United Kingdom amendment to article VII were accepted, the amendment to article V was superfluous. The Chairman opened the discussion on the amendment to article V submitted by the Syrian delegation (92nd meeting). [sic] as the words, “heads of State” had been replaced by the words “constitutionally responsible rulers” in that part of article V which had already been adopted, the wording of the Syrian amendment would have to be altered accordingly. Mr. Tarazi (Syria) referred to the explanation of his amendment that he had given at the 92nd meeting. The purpose of his amendment was to make the text clearer and to draw a distinction between legal rulers elected by the people, those who took over the government because of the absence of legal rulers, and those who usurped authority. Mr. Spiropoulos (Greece) said that he understood the motives which had prompted the representative of Syria to submit his amendment, but he thought that the amendment was superfluous. It was obvious that de facto rulers would have the same responsibility as de jure rulers and usurpers of authority could be considered as private individuals. It was therefore unnecessary to add anything to the existing text. Mr. Saleh (Lebanon) agreed with the representative of Greece that it was unnecessary to include a specific mention of persons who had usurped authority. However, he supported the inclusion of the phrase “de facto heads of State” as, in his opinion, such de facto rulers might not be constitutionally responsible. Mr. Demesmin (Haiti) supported the Syrian amendment. In his opinion, persons who had usurped authority should be specifically mentioned as they might not have had the opportunity to commit the crime if they had remained private individuals. The Syrian amendment would therefore serve to complete and clarify the existing text. Mr. Federspiel (Denmark) was opposed to the Syrian amendment, as he thought it would only serve to make the text more obscure. If a de facto ruler were accused of committing genocide, by the time that judgment was pronounced, he would either have become a de jure ruler or he would

1664

A/C.6/SR.96

have returned to the status of a private individual. The same argument would also apply to persons who had usurped authority. It was therefore unnecessary to add anything to the existing text. Mr. Raafat (Egypt) agreed with the representative of Denmark. In his opinion, the wording which had already been adopted covered both de facto and de jure rulers, whereas usurpers were either de facto rulers or mere private individuals. Mr. Sundaram (India) was also of the opinion that it was unnecessary to add anything to the existing text. Mr. Morgan (Liberia) asked how the constitutionally responsible rulers of States were to be punished in view of the remarks which the United Kingdom representative had made indicating the practical impossibility of imposing criminal punishment on States and their rulers. Mr. Tarazi (Syria) explained that his amendment was only intended to clarify the text. He maintained that there was a definite distinction between heads of State, de facto heads of State and persons having usurped authority. His amendment had been intended to make that distinction clear and he had submitted it only for the sake of legal accuracy. He requested that his amendment be put to the vote by roll-call. The Chairman put the Syrian amendment to article V [A/C.6/246] to the vote. A vote was taken by roll-call as follows: Greece, having been drawn by lot by the Chairman, voted first: In favour: Haiti, Lebanon, Pakistan, Saudi Arabia, Syria. Against: Greece, India, Liberia, Luxembourg, Netherlands, New Zealand, Norway, Panama, Peru, Siam, Sweden, Turkey, Ukrainian Soviet Socialist Republic, Union of South Africa, Union of Soviet Socialist Republics, Uruguay, Venezuela, Yugoslavia, Australia, Bolivia, Brazil, Byelorussian Soviet Socialist Republic, Canada, Chile, Colombia, Czechoslovakia, Denmark, Dominican Republic.

A/C.6/SR.96

1665

Abstaining: Iran, Philippines, Poland, United Kingdom, United States of America, Afghanistan, Argentina, Belgium, China, Cuba, Ecuador, Egypt, El Salvador, France. The amendment was rejected by 28 votes to 5, with 14 abstentions. Mr. Manini y Ríos (Uruguay) explained that he had voted against the amendment because he considered that its substance was already covered in the existing text. Mr. Abdoh (Iran) said that he had abstained from voting for the reason mentioned by the representative of Uruguay. He requested the Rapporteur to include in his report the interpretation of article V accepted by the Committee, and to state specifically that the persons referred to in the Syrian amendment were covered by the terms of article V. Mr. Medeiros (Bolivia) explained that he had voted against the amendment because he considered it to be superfluous and he supported the request made by the representative of Iran that the Committee’s interpretation of article V should be included in the report. Mr. Tarazi (Syria) also supported that request. If that interpretation were included in the report, he would be satisfied that the principle underlying his amendment had been approved. Mr. Demesmin (Haiti) had voted in favour of the amendment because he considered it useful to make specific mention of usurpers. Mr. Pérez Perozo (Venezuela) said that he had voted against the Syrian amendment because, in reality, no tribunal would fail to condemn a ruler because he had usurped authority. Mr. Spiropoulos (Greece) said that his negative vote had not been due to any disagreement with the ideas contained in the Syrian amendment but to the fact that he considered those ideas to be adequately covered in the existing text. Speaking as Rapporteur, he agreed to include the Committee’s interpretation of the wording of article V in his report. The Chairman read the adopted wording for article V [A/C.6/256 ]:

1666

A/C.6/SR.96

Those committing genocide or any of the other acts enumerated in article IV shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

In the absence of any further amendments that text of article V was adopted. Mr. Petren (Sweden) pointed out that the discussion had brought no clarification concerning the status of members of parliament under the provisions of the article just adopted. His delegation would therefore conclude that the article did not impose any concrete obligation in that respect. He requested that his statement should be included in the Rapporteur’s report. Mr. Maktos (United States of America), though in sympathy with the point raised by the representative of Sweden, did not think it would be advisable to enumerate the particular groups of people to which the article would apply. The convention would be difficult enough to interpret in its existing form and the addition of further details would only serve it make it more complicated. Mr. Petren (Sweden) said that he would be satisfied if his statement were included in the report; he did not wish to open a discussion on the subject. Mr. Spiropoulos (Greece), Rapporteur, agreed, with the Committee’s consent, to include Mr. Petren’s statement in the report. Redrafting of Article VI At the invitation of the Chairman, Mr. Dignam (Australia) drew attention to the form of the English text in which article VI had been adopted at the 93rd meeting. His delegation had carefully considered that text and had come to the conclusion that it was ungrammatical and vague and that it did not represent the intention of the Committee or that of the USSR representative. He hesitated to criticize a text adopted by a majority of the Committee, although (probably in part due to a misunderstanding) less than half of the members had voted in favour of it. It was for that reason that his delegation submitted that the Committee should reexamine the text of article VI and, if possible, avoid the further criticism

A/C.6/SR.96

1667

which would be levelled at the convention if it should be found to be deficient. He read the adopted text of article VI [A/C.6/254 ]: The High Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of this Convention, and in particular, to provide effective penalties for the authors of the crimes mentioned in article IV.

After careful consideration of the discussion in the Ad Hoc Committee,1 he had come to the conclusion that the English text was ambiguous and felt that a court, in construing it, might even have to discard the last nine words. It was a cardinal principle of his country’s jurisprudence that a statute, on which a criminal prosecution might be based, should be free from ambiguity and uncertainty. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 10.

In his opinion, the present text might be construed much more narrowly than the text adopted by the Ad Hoc Committee, when the intention had surely been to enlarge that text. It was pointed out in the Ad Hoc Committee’s report that the words “to give effect to the provisions of the Convention” had been adopted because they were wider in meaning than the words used in the USSR amendment.1 The Sixth Committee had adopted a text which might well be construed as relating to penal measures only and not to the whole of the obligations of the States under the convention. He felt sure that that had not been the Committee’s intention. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 10.

His delegation therefore considered that the text should be redrafted. He suggested the following wording: The High Contracting Parties undertake, in order to give effect to the provisions of this Convention, to enact the necessary legislation in accordance with their constitutional procedures and to provide criminal penalties for the authors of crimes under this Convention.

1668

A/C.6/SR.96

The alteration in the first part of the sentence had been made because he believed that it had been the Committee’s intention to make it obligatory for the signatories to enact the necessary legislation as well as to provide the criminal penalties. The words “of such crimes” had been altered to the words “of crimes under this Convention” because the text would otherwise be meaningless. The absolute necessity for that last alteration demonstrated quite clearly that the Committee had not fully appreciated the meaning of the Ad Hoc Committee’s draft as amended by the Soviet Union proposal. Mr. Kaeckenbeeck (Belgium) agreed that the text had been badly drafted and that the insertion of the USSR amendment in the middle destroyed the balance of the article, but he thought that the draft proposed by the representative of Australia would alter the meaning. In his opinion, the USSR amendment should have been added at the end of the Ad Hoc Committee draft instead of inserted in the middle. He thought that the matter could be settled by a drafting committee and that it should not involve the reopening of the discussion in the Committee itself. Mr. Morozov (Union of Soviet Socialist Republics) agreed with the text suggested by the representative of Australia. When the Committee had voted on article VI, it had not had the final text before it. He had intended his amendment to be added at the end of article VI and the representative of Australia had pointed out quite rightly that its insertion in the middle altered the meaning. He also drew attention to the fact that, in the Russian text the word “effective” had been used before the words “criminal penalties”. Mr. Maktos (United States of America) moved the adjournment of the debate, as the matter was extremely important and could not be settled in a hurry. The meeting rose at 1 p.m.

A/C.6/SR.97

1669

NINETY-SEVENTH MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 9 November 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). 46. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article VI (conclusion) The Chairman called upon the Committee to settle the question of the drafting of article VI. He recalled that the representative of Australia had proposed (96th meeting) a text to replace the text of the Ad Hoc Committee as amended by the Soviet Union [A/C.6/254]. That text had been adopted by the Committee (93rd meeting), but its drafting was both ambiguous and incorrect. The representative of the USSR had approved the statement of the representative of Australia; the Committee was therefore faced with a simple question of drafting which could easily be settled. Mr. Morozov (Union of Soviet Socialist Republics) expressed the view that, without a long discussion, the Committee should be able to adopt a satisfactory draft. He pointed out that the summary record of the 93rd meeting clearly indicated that the Chairman had put to the vote “the Soviet Union amendment to the effect that the words ‘to provide criminal penalties for the authors of such crimes’ should be inserted at the end of article VI”. The Committee had adopted that proposal, which was in complete accord with the wishes of the USSR delegation. The English text of document A/C.6/254 was incorrect; it did not contain the word “effective” and did not correspond to the text upon which the Committee had agreed. The delegation of the Soviet Union believed that the Committee should decide to restore the text of article VI which had been adopted at the 93rd meeting. Mr. Zourek (Czechoslovakia) observed that the French text of article VI presented no difficulty; if the English text were incorrect, the procedure which had already been followed in similar cases should be adopted,

1670

A/C.6/SR.97

namely, the matter should be referred to the drafting committee which, on the basis of the French text, would ensure the concordance of the two texts. Mr. Dignam (Australia) commented that both texts were vague in that they used the expression “the authors of such crimes” (les auteurs de ces crimes). That was one of the reasons which had led him to propose a new text. The Chairman thought that the question to be settled was very simple: the text of article VI, as it appeared in document A/C.6/254, was incorrect; the Australian delegation had proposed simple drafting amendments which would make it satisfactory. The Chairman proposed that the Australian text should be put to the vote immediately. Mr. Kaeckenbeeck (Belgium) recalled that at the 96th meeting he had stated that the text submitted by Australia changed the meaning of article VI, which had already been adopted, and that he therefore could not vote for that text. The USSR amendment to the text of the Ad Hoc Committee provided for the insertion of an additional provision for purposes of clarification. That addition should be included in such a way that the general meaning of the article remained unchanged. The representative of Belgium stated that certain delegations had drafted a text which might prove satisfactory to the Committee; it would be advisable to consider it before voting on the text proposed by the Australian delegation. Mr. de Beus (Netherlands) stated that he had no objection to the text proposed by the Australian delegation. Nevertheless, since that text had raised difficulties, some delegations had drafted a new text which seemed to correspond more closely to the text of the Ad Hoc Committee as amended by the Soviet Union. The representative of the Netherlands read the new text which was distributed at the meeting. Mr. Federspiel (Denmark) noted that the USSR amendment contained the word “effective”; that word was very important and it would be well to include it in the new text which had been submitted to the Committee.

A/C.6/SR.97

1671

Mr. Dignam (Australia) stated that the new text which had been submitted was completely acceptable to him and that he would approve it if the delegation of the Soviet Union also agreed to it. Mr. Morozov (Union of Soviet Socialist Republics) stressed the fact that the Committee could decide only on the question of drafting, because the decision reached at the 93rd meeting on the principle of the Soviet Union amendment could not be changed except by a two-thirds majority. Mr. Morozov pointed out that the word “effective” appeared in the USSR amendment and he requested the insertion of that word in the proposed text. The Chairman put to the vote the text jointly drafted by several delegations, with the addition of the word “effective” [A/C.6/254/Rev.1]. The revised text of article VI was adopted by 36 votes to none, with 2 abstentions. Article VII The Chairman called for discussion of article VII of the draft convention. He recalled that the Committee had before it various amendments to the text of the Ad Hoc Committee, submitted by the following delegations: Uruguay [A/C.6/209]; Union of Soviet Socialist Republics [A/C.6/215/ Rev.1]; Belgium [A/C.6/217]; Iran [A/C.6/218]; United States of America [A/C.6/235]; United Kingdom [A/C.6/236/Corr.1]. In addition, the Committee had before it two draft resolutions presented respectively by the delegations of Iran [A/C.6/218] and the Netherlands [A/C.6/248]. Mr. Kaeckenbeeck (Belgium) recalled that his delegation had also presented an amendment to the United Kingdom amendment [A/C.6/252]; the Belgian amendment proposed a constructive solution of the entire problem of an international tribunal. Mr. Spanien (France) recalled that France had submitted an alternative draft [A/C.6/211] which the Chairman had stated would be considered in the course of the discussion. In view of that statement by the

1672

A/C.6/SR.97

Chairman, the Committee did not have a formal French amendment for its consideration. Henceforth, the French delegation would follow the normal procedure and submit the amendments which it considered appropriate. Nevertheless, Mr. Spanien requested that he should be allowed to submit an amendment [A/C.6/255] whereby the words “or by the international Criminal Court constitute as follows” would be substituted for the words “or by a competent international tribunal.” At the request of Mr. Correa (Ecuador), Mr. Kerno (Assistant SecretaryGeneral in charge of the Legal Department) stated that, notwithstanding a number of technical difficulties, the Secretariat would try to submit a synopsis of the amendments to article VII at the next meeting of the Committee. Mr. Morozov (Union of Soviet Socialist Republics) suggested that the Committee should consider the amendments by grouping those which had points in common. Thus several delegations had proposed the deletion of the final words of the text drafted by the Ad Hoc Committee, namely, “or by a competent international tribunal”. It would be advisable to consider those amendments first and to reach a decision on them before examining the other proposals. If the principle of those amendments were adopted, there would be no need to consider any other amendments which proposed that the international tribunal should be mentioned in article VII. Mr. Maktos (United States of America) supported the suggestion of the USSR representative. The Committee should first reach a decision on the principle of recourse to an international tribunal; it could perhaps consider next the drafts proposing the establishment of an international criminal court or reference of the question to the International Law Commission; finally it could consider the other amendments. Mr. Kaeckenbeeck (Belgium) concurred in the opinion of the representatives of the Soviet Union and the United States. He stated that the amendments of the United Kingdom and Belgium should be considered together and independently of the other amendments. Their fate must not be prejudiced by the adoption of prior decisions. Mr. Raafat (Egypt) expressed the view that the method which had been suggested was acceptable in that it proposed the grouping of the

A/C.6/SR.97

1673

amendments; first, however, there should be a general discussion which would enable all delegations to explain their views on the question as a whole. Mr. Abdoh (Iran) supported the suggestion of the representative of the USSR. He observed that it would be advisable to consider the draft resolutions submitted by the Netherlands and Iran at the same time as the deletion of the final words of article VII; certain delegations, indeed, wished to have those words deleted because the question of the establishment of an international tribunal had not been settled; that question, however, was dealt with in the two draft resolutions. The Chairman stated that the discussion would be devoted principally to the amendments proposing the deletion of the reference to an international tribunal, but that speakers could speak on other amendments which had been submitted. Mr. Raafat (Egypt) was of the opinion that the amendments before the Committee could be placed in three categories. In the first place, there were the amendments which restricted competence to national courts; some of those amendments recognized only the competence of the courts of the country in whose territory the act of genocide had been committed, while others advocated recognition of the competence of courts other than those of the country in whose territory the act had been committed, if extradition had not been requested. In the second place, there were the amendments which restricted competence to an international tribunal, even if acts of genocide were committed by private individuals. That principle was difficult to accept, at least for the time being. Between those two extremes, there were composite proposals for the recognition of the competence both of national courts and of an international tribunal. In that case two principal questions arose. What would be the competent international tribunal? How could a matter be referred from a national court to an international tribunal? To settle the first question, certain delegations proposed the establishment of an international criminal court, while others contemplated the establishment of a criminal division of the International Court of Justice. With regard to the second question, the United States proposed that the international tribunal should

1674

A/C.6/SR.97

be competent when national courts failed to act; the United Kingdom considered that national courts should be competent to deal with crimes committed by private individuals and the international tribunal with crimes committed by Governments. Having considered the various categories of amendments in general, the representative of Egypt stated that his delegation would support the United Kingdom amendment. Mr. de Beus (Netherlands) considered that the manner in which the punishment of genocide was to be organized was one of the most important questions which arose in connexion with the whole problem; unless that punishment was assured, the convention would have no real value. The difficulty was that, when genocide was committed, encouraged or tolerated by a State, the national tribunals would obviously not be in a position to punish the guilty. How could that deficiency be remedied? The Netherlands representative thought it necessary to distinguish between the responsibility of a State which violated a convention and the criminal responsibility of individuals who committed a crime. With respect to the first, there existed competent international tribunals, such as the International Court of Justice and international arbitration courts; with respect to the second, there was no international court with jurisdiction over individuals. The International Court of Justice, under Article 34 of its Statute, was not competent to try individuals. It could be seized only of disputes between States brought before it by a State; even in that case, its jurisdiction did not extend to the criminal field because the concept of the criminal responsibility of States was not yet generally accepted and because, even if it were accepted, there existed no supranational authority capable of enforcing judgments rendered against States. Mr. de Beus further remarked that three methods had been proposed to ensure the punishment of genocide committed or tolerated by a State. The first method was to leave such punishment entirely to national courts which would, of course, be competent to try only individuals who had committed the crime. The United Kingdom amendment approached the problem from the point of view of the responsibility of States, suggesting that the matter should be referred to the International Court of Justice; that suggestion fully took into account existing conditions. But the amendment was defective in two respects. Since individuals, under

A/C.6/SR.97

1675

the terms of that amendment, were to be tried by national courts, officials were ensured impunity, it being improbable that they would be prosecuted by the Government on whose orders they had acted; moreover, no provision was made in the amendment for cases where the penalties imposed by national courts upon those who were guilty of the crime were not sufficiently severe. The Uruguayan amendment made provision for the latter type of case by considering undue lenience on the part of national courts as a violation of the convention which could be brought before the International Court of Justice by any signatory State. The Netherlands delegation approved that amendment in principle, while reserving its position with respect to the procedure proposed. The second method was to declare that only an international tribunal was competent to punish acts of genocide. That was the method advocated in the French amendment. In theory, that method was the most effective of all; in practice, however, it was offset by the fact that no international criminal court yet existed and by the difficulty of establishing one in the near future. The third method, which fell between those two extremes, was that adopted in the draft of the Ad Hoc Committee; it included both kinds of punishment, by national and international tribunals. That system was usefully elaborated in the United States amendment, under which the jurisdiction of the international tribunal would be subject to a finding that national tribunals had failed in their duty. The Netherlands delegation took the following position in regard to the various problems raised: it felt that the criminal responsibility of individuals and the international responsibility of States should be dealt with separately, either in two different articles or in two distinct paragraphs in article VII; it supported the United Kingdom amendment, provided it were inserted either in article VIII or in article X and supplemented by provisions for the punishment of individuals whose acts had been committed with the participation or tolerance of the State; it was in favour of a provision such as that contained in the draft of the Ad Hoc Committee concerning the punishment of individuals, together with a reference to an international tribunal; it was greatly interested in the proposal contained in the French amendment to set up a criminal division of the International Court of Justice. However, as the question of setting up an international criminal court required very thorough study, the Netherlands delegation

1676

A/C.6/SR.97

urged the Committee to adopt its draft resolution requesting the International Law Commission to undertake that study. Mr. Inglés (Philippines) recalled having already stressed (95th meeting) that, if the convention were not to remain a dead letter, it was necessary to establish an international criminal court to ensure the punishment on an international level of those who might escape with impunity either because their national courts were not competent to deal with them owing to particular constitutional laws, or because they received favourable treatment thanks to the connivance or indifference of the national criminal courts. He fully agreed with the point of view of the French delegation, namely, that genocide was a collective crime of such proportions that it could rarely be committed except with the participation or the tolerance of the State; it would be paradoxical to leave to that same State the duty of punishing the guilty. It was true that no international criminal court as yet existed. Having duly noted that fact, the truly realistic approach would be to try to remedy that omission and thus to act in conformity with resolutions 96(I) and 180(II) of the General Assembly, which had declared genocide to be an international crime entailing not only national but international responsibility. The Philippine delegation supported the principle enunciated in article VII of the draft convention, namely, that international as well as national tribunals should be competent to deal with genocide. It would vote against any amendment rejecting that principle and would support all amendments or resolutions which would develop it further. Mr. Manini y Ríos (Uruguay) stated that the convention could not be effective unless it provided for an international tribunal to remedy any failure on the part of national courts to take punitive measures. It was in that spirit that his delegation had proposed its amendment offering a solution of the problem; it was, however, ready to accept any other satisfactory formula based on the same principle. There was no country, apparently, which did not already provide, in its penal code, for the punishment of acts constituting genocide. The con-

A/C.6/SR.97

1677

vention would therefore be devoid of meaning if, terming genocide an international crime, it did not organize its punishment on an international level. The fact that there did not yet exist an international criminal court capable of ensuring such punishment did not justify even the temporary abandonment of the principle of such punishment; that principle should be proclaimed immediately. It would, of course, take some time to carry it out in practice, as a text had to be prepared defining the competence and the procedure of the future tribunal, but the International Law Commission should be able to do that within a reasonable period. During the interval between the entry into force of the convention and the adoption of texts laying down the procedure of the international tribunal, article VII would serve as a warning to all those who contemplated committing genocide; they would know that they would not evade punishment, even though their trial might have to wait until the international machinery for that purpose had been set up. Mr. Bammate (Afghanistan) would vote in favour of the amendments proposing the deletion of the final phrase of article VII, concerning the competence of the international tribunal; the wording was unsatisfactory, since it gave no indication as to the nature of the tribunal, its composition or its procedure. At the same time he would in no way oppose the principle of international punishment. In theory, the setting up of an international tribunal seemed justified by the fact that genocide could not effectively be punished by national courts if it were committed – as was generally the case – with the connivance of the State. Moreover, it would be logical that an international crime should be punished on an international level. But logic and theory must be subordinated to practical considerations. Punishment on an international level could not in fact be achieved, at least not in the most serious cases, since it was impossible to see how a sentence pronounced by an international tribunal could be carried out. In those circumstances the prestige of the tribunal would soon be lowered and the very principle that genocide must be punished would be discredited. Moreover, many States appeared to be so jealous of the prerogatives of their national sovereignty that they might refuse to ratify the convention if it infringed too seriously upon those prerogatives.

1678

A/C.6/SR.97

The representative of Afghanistan summed up his argument by stating that article VII placed the Committee on the horns of a dilemma. On the one hand, it could confine itself to providing for punishment on a national level; that principle was apparently recognized by all States, but such punishment would often prove ineffective or inadequate. On the other hand, it could adopt the principle of punishment on an international level; but however desirable that method might be, its complete implementation appeared impossible to achieve in practice in the current condition of international law; furthermore, it might prevent many States from ratifying the convention. It was therefore necessary to find a compromise solution. Agreement appeared possible first, on the principle of punishment on a national level and, secondly, on the deletion of the final words of article VII, which lacked clarity. In addition, punishment should be carried to the international level, either by the adoption of a system of universal punishment, or by the conferment of jurisdiction upon an international tribunal, but in a manner which would not infringe upon the sovereignty of States and which would make possible, in practice, the execution of the sentences imposed. The Afghanistan delegation would study with interest any suggestions to that effect. Sardar Bahadur Khan (Pakistan) was of the opinion that the amendments aimed at deleting from article VII all reference to an international tribunal were not acceptable, as they would completely destroy the effectiveness of the convention. National courts were already competent to punish all the acts covered by articles II and IV of the draft convention; there was no need for the convention to confirm that fact. Moreover, as genocide was almost always committed with the complicity or the tolerance of a State, it was obvious that the courts in that State would not only be unable to prosecute the rulers, they would not even be able to prosecute those who had committed the crime. It was for that reason that the Pakistan delegation considered article VII of the draft convention of such importance. Provision for punishment on an international level was the only effective measure which would make it possible to punish the guilty and also, consequently, to prevent

A/C.6/SR.97

1679

the crime. The Pakistan representative pointed out that the preamble to the draft convention imposed on States the duty to prevent and punish genocide. That duty could not be fulfilled unless there existed an international criminal court which alone would be in a position to ensure the punishment of rulers. The Pakistan delegation would have preferred that the international tribunal alone should have jurisdiction over all cases of genocide, to the exclusion of the competence of all national courts in that respect; however, taking into account the opinions of other delegations, it was willing to recognize that national courts should also have jurisdiction, as laid down in article VII of the draft convention. It suggested, nevertheless, that rulers should be subject only to the international tribunal and that the States Parties to the convention should always be able to appeal to that tribunal from the judgements pronounced by national courts against officials and private individuals. Mr. Messina (Dominican Republic) recalled that his country, by concluding arbitration treaties and by signing the declarations provided for in Article 36 of the Statute of the International Court of Justice, had more than once demonstrated its conviction that recourse to an international tribunal was the best means of maintaining peace. Nevertheless, the Constitution of the Dominican Republic recognized the jurisdiction of national tribunals alone with respect to crimes committed in the territory of the Republic, and was consequently opposed to the very principle of sharing that jurisdiction with an international tribunal. Moreover, the delegation of the Dominican Republic feared that sentences pronounced by an international tribunal dealing with all the acts covered by articles II and IV of the draft convention might, in a number of cases, call forth or increase international tension. For these reasons, it would vote in favour of the deletion of the final words of article VII. Mr. Abdoh (Iran) explained that the amendment presented by his delegation provided, first, for the competence of national tribunals, secondly, for subsidiary universal punishment, and, finally, for the possibility of setting up an international criminal court after the International Law Commission had studied the modalities.

1680

A/C.6/SR.97

Until that criminal court came into being, the International Court of Justice might carry out, in the field of prevention and punishment of genocide, the part assigned to it in the United Kingdom and Belgian amendments. Measures taken by the International Court of Justice for the prevention of genocide could be even more effective than those of a criminal court, for fanatics of the type that usually committed genocide were not afraid of penalties under criminal law. Yet surely it was even more important to prevent genocide than to punish those guilty of it. The Iranian delegation proposed the deletion of the final words of article VII only for practical reasons; it was impossible to enunciate the principle of the competence of an international tribunal without at the same time defining its nature, its procedure and its relation to national courts, all of which would require long preliminary study. It should be remembered, moreover, that States were jealous of their national sovereignty and that they had readily recognized the jurisdiction of the International Court of Justice only because recourse to that Court was optional. It would probably be far more difficult to set up an international criminal court, because its jurisdiction would have to be compulsory. Mr. Dihigo (Cuba) recalled that his delegation had always been in favour of an international tribunal to punish genocide. It was of the opinion that, when the responsibility of States was involved, punishment of genocide on the national level could only be inadequate or ineffective. The Ad Hoc Committee on Genocide had recognized the principle of an international tribunal in article VII of its draft, but it had made no provision regarding the composition of that tribunal, its procedure and the laws it was to enforce. In those circumstances, the final words of article VII had no practical value and should be deleted. The deletion would not, however, rule out the possibility of an agreement on the principle of setting up an international criminal court, or on the principle of recourse to the International Court of Justice in cases where the responsibility of States was involved. The proposal of the Netherlands delegation to ask the International Law Commission to study the question of setting up an international tribunal, and the United Kingdom proposal to confer on the International Court of Justice competence to deal with certain types of cases, were both interesting and deserved attention.

A/C.6/SR.97

1681

In conclusion, the Cuban delegation would vote for the deletion of the final words of article VII, although it supported the principle of international jurisdiction. Mr. Tarazi (Syria) emphasized that his delegation favoured the international punishment of genocide but considered that jurisdiction should not be conferred upon the International Court of Justice because, according to its Statute, the Court could not pass judgment in the field of criminal law and, in other fields, its jurisdiction extended only over States, not over individuals. If it were desired that the competence of the International Court of Justice in respect to genocide should be recognized in the convention, the Statute of the Court would first have to be amended; but that question was not on the Committee’s agenda. Moreover, a special convention would be necessary to establish an international criminal court; in those circumstances, the Syrian delegation thought the Committee could declare itself in favour of the principle of the creation of an international court and leave the elaboration of a plan for the establishment of such a court to the appropriate organs of the United Nations. Mr. Demesmin (Haiti) pointed out that, since it has been recognized, in article I of the convention, that genocide was a crime under international law, it was unthinkable to leave the punishment of that crime to national courts alone. The constitutional provisions of certain countries or the principle of the national sovereignty of States could not be adduced as an argument against the principle of the international punishment of genocide. The United Nations had, indeed, been established so that each State might realize its responsibilities and duties as a member of the community of nations. Member States would fail in their duty if, by taking an uncompromising stand on the provisions of their Constitutions or the principle of their national sovereignty, they opposed the adoption of measures which proved to be necessary in the general interest. Nor could opposition to the establishment of an international criminal court be justified by the fact that such a court did not yet exist. If the text of article VII were maintained as it stood, the ratification of the convention would entail for the signatories the obligation to provide

1682

A/C.6/SR.97

for the establishment of such a court. Once the convention had been signed, the method of functioning of the court would be considered and its competence and powers decided. If, on the contrary, reference to an international tribunal in article VII were deleted, it would be necessary to amend the convention when a tribunal of that kind was established. Mr. Demesmin stressed the fact that reference to an international tribunal in article VII would not fail to have a salutary effect on authorities who wished to commit acts of genocide and who, in the absence of such reference, would be ensured impunity. Mr. Abdoh (Iran) pointed out to the representative of Haiti that there were other crimes, considered as crimes under international law, which were not, nevertheless, subject to international repression. He gave as examples, counterfeiting currency, the white slave traffic, and the circulation of obscene publications, which all came under the national jurisdiction of the States in whose territory the criminals were arrested. It might be concluded that genocide, like all those crimes, should be the object of subsidiary universal repression. Mr. Abdoh reserved the right to return to that question when the amendment which his delegation had proposed to article VII came up for discussion. Mr. Iksel (Turkey) said his delegation was in favour of any amendment to delete the last words of article VII. His delegation was of the opinion that national courts should be relied upon to try individuals who committed acts of genocide. The Turkish delegation realized that such punishment might be inadequate in cases where the crime was committed or tolerated by States or Governments, and it was disposed to consider the possibility of recognizing the jurisdiction of an international tribunal over such cases alone; but in cases where the crimes were committed by individuals, it insisted that national tribunals alone should have jurisdiction. Mr. Petren (Sweden) associated himself with the views expressed by the Netherlands representative and favoured the retention of the last words of article VII. He noted, however, an omission in the text of article VII. As it was drafted, that article did not seem to take into account cases where the national of a State committed an act of genocide on the territory of another State and

A/C.6/SR.97

1683

then returned to his own country. Under the provisions of article IX of the convention, the State of which the culprit was a citizen would not be obliged to extradite him. To guard against that possibility, the provisions of article VII of the convention should be supplemented. Mr. Fitzmaurice (United Kingdom) noted that numerous delegations recognized how illusory was the idea of the punishment of genocide on a national level; but he could not understand why those same delegations had nevertheless opposed (96th meeting) the amendment submitted by his delegation to article V of the convention. In the opinion of the United Kingdom delegation, article VII was completely useless. With regard to national jurisdiction, there were already other provisions in the convention, such as the preamble, article V and article VI, which affirmed the obligation of States Parties to the convention to punish genocide on the national level; and as to international jurisdiction, the mention of a competent international tribunal – which could only be an international criminal court – was useless since such a tribunal did not exist. Even if it did exist, it would be of as little use as national courts, for it was to be anticipated that culprits would not be handed over to it and that unless armed force were used it would be impossible to bring the perpetrators of an act of genocide to trial by that court. For that reason it was necessary to adopt a realistic approach and to have recourse, as the delegations of Belgium and the United Kingdom proposed, to the only existing international court in a position to enact measures capable of putting a stop to the criminal acts concerned and of awarding compensation for the damage caused to victims. The delegation of the United Kingdom opposed the adoption of article VII of the convention and in particular of the last words of that article. Mr. Amado (Brazil) recalled that even before the convention on genocide, certain crimes had been termed crimes under international law, either by conventions – as for example, in the case of the slave trade, traffic in women and children and traffic in narcotic drugs – or by custom, as in the case of piracy. For all those crimes, universal suppression was recognized and accepted. But, generally speaking, States still sought to reserve the right of judging their nationals, and it was unfortunately evident that the system of extradition still met with a variety of obstacles as a result of the anxiety of States to preserve their national sovereignty.

1684

A/C.6/SR.97

The organization of the international suppression of crimes developed pari passu with the organization of international co-operation and solidarity. Both were in a period of uncertainty. The time had not yet come to establish an international criminal court for, notwithstanding the contrary opinion of eminent jurists, there did not exist any international criminal law properly speaking; there existed, in each State, provisions of domestic law and it was by extension that it had become possible to speak of international criminal law. The doctrine of universal suppression was a very old one which had been formulated in the seventeenth century by Hugo Grotius, rightly called the father of international law; but it was far from having received general application in practice, for in practice the national jurisdiction of criminal law still obtained. The last words of article VII expressed merely a wish, an aspiration, and the delegation of Brazil thought they should be deleted in order that the convention might remain within the confines of reality. Mr. Medeiros (Bolivia) stated that his Government was in favour of an international court to deal not only with cases of genocide, but with every sphere of international law. It had given proof of that by signing the declaration provided for in Article 36 of the Statute of the International Court of Justice. Since genocide had been defined as a crime under international law, it should logically be punished on an international level. It must, however, be admitted that the arguments advanced against the adoption of the last words of article VII had a certain weight. The question of the repression of genocide was a field in which progress must be made slowly, without omitting to make use of the means available. If those considerations were borne in mind, the United Kingdom proposal was of undeniable utility, because it provided for recourse to the International Court of Justice in cases of genocide in which the responsibility of the State or Government could be established. It was inadequate, however, for it omitted cases of genocide committed by individuals and it should be supplemented in that respect. But as a result of the Committee’s vote on the amendment to article V submitted by the United Kingdom delegation, that proposal did not seem to have much chance of being adopted; in those circumstances it was advisable to consider the proposal of the Netherlands delegation, which would retain

A/C.6/SR.97

1685

article VII in its present form, but recommended that the International Law Commission be requested to consider whether it was desirable and possible to establish an international judiciary body with jurisdiction over perpetrators of genocide. The delegation of Bolivia would vote in favour of the United Kingdom proposal and, if that proposal were rejected, in favour of that of the Netherlands delegation. Mr. Arancibia Lazo (Chile) recalled that the principle of the national sovereignty of States had been considered for centuries as absolute, but, as a result of the evolution of the world and the evolution of ideas, it had had to make way for another principle, that of international solidarity in view of universal harmony. That principle had given birth to the United Nations, whose Members, by signing the Charter, had assumed the obligation, or at least the moral obligation, to renounce part of their national sovereignty when the general interest so required. The representative of Chile admitted that, in its present form, article VII had little practical significance, especially with regard to the competent international tribunal which was mentioned. It was obvious that in the absence of special provisions on the procedure to be followed and the law to be applied, such an international tribunal could not dispense justice. But that article contained the expression of a hope which must be realized sooner or later and, on that account, it deserved to be retained. Since its provisions were not incompatible with those of the Netherlands and United Kingdom proposals, there was no reason why both those proposals and article VII should not be adopted. For its part, the Chilean delegation would vote in favour of the retention of article VII. Mr. Sundaram (India) explained the reasons for which his delegation opposed the adoption of article VII which conferred jurisdiction, in the field of genocide, both upon the existing national courts and to a nonexistent international tribunal. The Government of India had already indicated that it could not subscribe to the establishment of an international criminal court without being in possession of details, in particular as to the composition of the court, the procedure to be followed before it, and the law to be applied.

1686

A/C.6/SR.97

Mr. Sundaram wished to make it clear that his delegation did not reject a priori the jurisdiction of an international court in cases an act of genocide was committed or tolerated by Governments; he observed, however, that, if two kinds of courts for the repression of the crime of genocide were envisaged, the cases when over which national courts would have jurisdiction and the cases which would have to be submitted to the international court must be clearly determined in advance. The Indian delegation would vote in favour of the Belgian, USSR and Iranian delegations’ proposal to delete the last words of article VII. It pointed out that if reference to a competent international tribunal were omitted, the provisions of article VII were useless, since States Parties to the convention had already, under the terms of the preamble and of article VI, assumed the obligation to suppress genocide on the national level. Mr. Spanien (France) drew the Committee’s attention to the danger there would be, once the principle of the responsibility of rulers had been admitted, in relying on national courts for the repression of genocide, a crime which was generally committed only by States or with their complicity. Article VII of the draft convention provided that in case of default on the part of national organs, the punishment of genocide should be ensured by an international body. The French delegation, considering the form of article VII unsatisfactory, proposed that the words: “or by a competent international tribunal” should be replaced by the words: “or by the international criminal court constituted as follows”, which would serve as an introduction to articles 4 to 10 of the French draft convention [A/C.6/211]. It was impossible to provide, as the Belgian and United Kingdom delegation proposed, that the International Court of Justice should pronounce judgment in cases of genocide committed by States or Government, for that Court had no jurisdiction whatsoever in the criminal field. Genocide was committed only through the criminal intervention of public authorities; that was what distinguished it from murder pure and simple. The purpose of the convention which the Committee was drawing up was not to punish individual murders, but to ensure the prevention and punishment of crimes committed by rulers. To that end it was necessary to have recourse to effective means, namely, to an international criminal

A/C.6/SR.98

1687

court. As no such court yet existed, the necessary measures should be taken to establish one. The French delegation was of the opinion that it was preferable for States to have their national sovereignty limited by law rather than by combined interests or by war. It appealed to members of the Committee not to confine themselves to words but to take appropriate action to ensure the effective punishment of genocide. The Chairman read out the list of speakers and, with the Committee’s assent, declared the list closed. He announced that voting would take place first on the amendments for the deletion of the last words of article VII, and explained that that vote would in no way prejudge the fate of the various amendments submitted. He suggested that the delegations of Belgium, the United States, France, the United Kingdom and Uruguay, which had all proposed amendments on the question of the international court, should meet unofficially to try and draft a single text. The meeting rose at 6.5 p.m. [sic]

NINETY-EIGHTH MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 10 November 1948, at 10.30 a.m. Chairman: Prince Wan Waithayakon (Siam). 47. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article VII (continued ) The Chairman announced that the discussion would be continued on the amendments submitted by the Union of Soviet Socialist Republics [A/C.6/215/Rev.1], Belgium [A/C.6/217] and Iran [A/C.6/218], which proposed the deletion of the words “or by a competent international tribunal” from article VII. Mr. Correa (Ecuador) said that the question of the general scope of the convention was involved in article VII. The convention might either

1688

A/C.6/SR.98

become no more than an interesting legal document or else an effective international instrument, and the General Assembly had naturally envisaged the latter of those two alternatives when it had decided that a convention on genocide should be drafted. The domestic jurisdiction of a State would not be effective in preventing the commission of the crime by the State itself. It was therefore essential that some form of international tribunal should be established to deal with such cases. He considered, however, that article VII, as it stood, was too vague and he therefore agreed that the last phrase should be deleted. In Mr. Correa’s opinion, the United Kingdom amendment was realistic in its approach to the matter and it would be possible to carry out its provisions without amending the Statute of the International Court of Justice. He therefore considered that the adoption of the United Kingdom amendment would provide a better solution than the establishment of a special international criminal court. The problem was an extremely important one and he hoped that all the amendments would be given careful consideration. If the Committee could not find a satisfactory solution, the International Law Commission should be asked to study the problem. Mr. Kaeckenbeeck (Belgium) said that his delegation had submitted two amendments. The first [A/C.6/217] was for the deletion of the words “or by a competent international tribunal” and the second [A/C.6/252] was an amendment to the United Kingdom amendment concerning the use that could be made of the only international tribunal in existence, namely, the International Court of Justice. He had proposed the deletion of the final words of article VII simply because there was no such competent international tribunal in existence. Belgium had no intention of signing a convention which purported to punish the dreadful crime of genocide by the mere mention of a nonexistent international criminal court. Neither could it agree in advance to submit to the jurisdiction of a court about whose statute, composition and procedure it knew nothing. It had been said that, without the final phrase, article VII would be useless. It was true that, as it stood, it was to a certain extent a repetition of provisions mentioned elsewhere in the convention. It was important,

A/C.6/SR.98

1689

however, to state clearly that persons charged with genocide should be tried by a competent tribunal of the State in the territory of which the act had been committed. Mr. Kaeckenbeeck was therefore in favour of the retention of the article with the deletion of the final phrase. He could not, however, agree to any proposal establishing a subsidiary universal punishment of the crime. The Belgian delegation would accept the proposal made by the representatives of the Netherlands [A/C.6/248] and Iran [A/C.6/218] that the question should be studied by the International Law Commission. Although he did not expect any miraculous results from such a study, he thought that it would be useful. With regard to the question of the part to be played by the International Court of Justice, Mr. Kaeckenbeeck observed that the fact that the Court was not competent to judge individuals had led some representatives to conclude that it could be of no service in connexion with the punishment of genocide. Although it was recognized that the commission of genocide would nearly always involve the complicity of a State, some representatives persisted in wanting to punish only individuals. That point of view lacked realism because none of the representatives who had supported it had been able to explain how the individuals could be brought to justice and proved guilty. The case of Nürnberg had been mentioned, but that was an exceptional example and it had been possible to hold the Nürnberg trials only after the unconditional surrender of Germany. The argument also showed a narrow conception of the problem as it envisaged only punishment, whereas prevention was really a more desirable goal. It was in connexion with prevention that the International Court of Justice could be useful, for it alone was competent to decide whether or not a State was guilty of violating the terms of the convention and to determine the necessary legal redress. The Court could in fact contribute in no mean degree to the prevention of genocide. The Committee should agree to have recourse to the only existing international tribunal, instead of referring to a tribunal which was not yet in existence. If the second and third paragraphs of the Belgian amendment [A/C.6/252] were adopted, recourse could be had to the International Court of Justice and the Security Council would be able to intervene, under Article 94 of the Charter, if a State should fail to comply with a judgment of the Court.

1690

A/C.6/SR.98

The International Court of Justice could not replace the international tribunal referred to in the existing draft of article VII, for its competence and aim were very different, but the Court had an important part to play and the Committee should recognize that fact. It had been suggested that the Belgian amendment would be more appropriate in connexion with article VIII, but the place for its inclusion was unimportant as long as its underlying principle was recognized and included in the convention. Mr. Zourek (Czechoslovakia) understood the motives which had prompted the suggestion that an international criminal court should be established. The question had been under consideration for many years, but he feared that representatives were allowing themselves to be too easily attracted by the idea without ascertaining first whether it was practicable. If an international criminal court were established it would have to be by means of an international convention and States would have to agree to submit to its jurisdiction. It was not likely that, in existing circumstances, States would be willing to accept such an obligation. The establishment of an international court would mean that States would have to extradite their own nationals and it had been shown during the discussion of article IX (94th meeting) that many States would be unwilling to alter their existing legal systems in order to make such provision. Even if it were possible to establish an international criminal court, it was doubtful whether such a court would really be able to function. One of the main arguments in favour of the establishment of such a court had been that rulers and high public officials would escape punishment if the matter were left entirely in the hands of national courts. It was hardly likely, however, that such rulers, if they were guilty of committing genocide, would allow themselves to be extradited so as to appear before an international tribunal, over which they would have no influence. If extradition were refused in such cases, it would be necessary to establish an international police force to make sure that the criminals would be arrested and brought to justice; international collaboration, however, had not yet reached the stage where such a force could be created. It was no use attempting to establish a court which would not be able to function properly, and the existing world situation should be taken into account.

A/C.6/SR.98

1691

The delegation of Czechoslovakia considered that the mandate of the International Law Commission already enabled it to study the question. Mr. Zourek supported the deletion of the last phrase of article VII. Mr. Lachs (Poland) said that the preceding discussion had shown that there were widely divergent views among representatives, views ranging from one extreme to another, from realism to optimism. The question of the establishment of an international criminal tribunal was extremely complex. He would have been among the first to urge the establishment of such a court if he had thought that the idea was really practicable. In existing circumstances, however, it seemed that the idea was not acceptable to all delegations and its inclusion in the convention might make it difficult for those delegations to sign the convention. It had often been pointed out that, in the ultimate resort, the responsibility for genocide rested with individuals. However, as the representative of the Netherlands had observed (97th meeting), the responsibility was in fact twofold, involving both individuals and States. In the case of States, their responsibility might be either direct, when they committed genocide, or indirect, when they aided and abetted or tolerated the commission of the crime. The aim of the convention was to be an effective instrument both for prevention and punishment, with the greater emphasis laid on prevention. If it came to punishment, however, the question arose as to whether it was practicable to bring a State before an international tribunal. In that connexion, Mr. Lachs mentioned statements made by international courts to the effect that there could be no question of resorting to an international court if that court had no jurisdiction to afford redress. He also mentioned another statement to the effect that an international court could have no jurisdiction unless the parties concerned consented thereto. In the case under discussion that basic requirement was lacking. Mr. Lachs therefore thought that, in existing circumstances, the convention would be more effective if it were to refer to the competent organs of the United Nations rather than to an international criminal tribunal. Mr. Pérez Perozo (Venezuela) referred to the note contained in the Ad Hoc Committee’s report1 stating that his delegation had opposed the inclusion of the final phrase in article VII, because it considered that “therein was a vague allusion to a possible international jurisdiction, the constitutive

1692

A/C.6/SR.98

elements of which are not known to the signatories of the convention”. That attitude had been confirmed by the support of several other delegations. It was, indeed, essential that States should know all the details of the obligations they were incurring before signing the convention. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 11.

Mr. Pérez Perozo would not refer to the question of national sovereignty, which was a matter to be decided by each individual State, but he wished to stress the practical obstacles which would hinder the establishment of an international tribunal. He had been impressed by the point raised by the United Kingdom representative (97th meeting) with regard to the impossibility of bringing rulers before an international court. In a document prepared by the Human Rights Division of the Secretariat to facilitate the work of the Ad Hoc Committee, it had been suggested that an international police force might be established by the Security Council to arrest rulers who were guilty of the commission of genocide.2 However, as Sir Hartley Shawcross had stated the previous year,3 the only means by which that might be achieved was by the waging of war. 2 3

See documents E/AC.25/8. See Official Records of the second session of the General Assembly, Sixth Committee, 42nd meeting.

Those representatives who argued that rulers guilty of the commission of genocide would go unpunished unless an international tribunal were established should realize that, even if such a court were established, it would not be effective in practice, at least not against powerful Governments. It should be remembered, however, that Governments, and especially bad Governments, did not last forever and, when they were overthrown, they would be called to account by the succeeding Government. The provisions of the convention would then be put into effect. The idea of establishing an international criminal court showed a completely unrealistic approach to the problem. Even the optional clause in Article 36 of the Statute of the International Court of Justice, which was an organ of the United Nations, had not yet been signed by all the Member

A/C.6/SR.98

1693

States and it was unlikely, therefore, that States would be prepared to accept the jurisdiction of an international criminal court which would be more extensive. Mr. Pérez Perozo recalled the Convention which had been drafted at Geneva in 1937 for the creation of an international criminal court for the prevention and punishment of terrorism. That problem had been far less complicated than the one before the Committee, and yet that Convention had been signed by only three States. In view of the existing international situation, the representative of Venezuela thought it would be better to postpone the establishment of an international tribunal to a later stage, when a greater measure of international collaboration might have been achieved. In the meantime it would be better to leave the punishment of genocide to national courts and to provide for recourse to the competent organs of the United Nations in the event of a violation of the terms of the convention. Mr. Demesmin (Haiti), replying to the statement made by the representative of Iran at the 97th meeting to the effect that, in various other conventions, the question of jurisdiction had been left to national tribunals, said that that was no reason why an international tribunal should not be established to deal with the question of genocide. The representative of Brazil (97th meeting) had considered the idea of an international tribunal to be a mere dream, but even if it were only a dream it would be better to attempt to put it into practice than to have no hope whatever of punishing rulers guilty of genocide. It had been recognized that genocide could be committed only with the connivance of the rulers of a State and it was perfectly possible to convict them by default and to punish them by means of international sanctions. The principle of national sovereignty had been invoked, but that principle was out of date and the idea of the interdependence of States was taking its place. It was only through international solidarity that anything could be accomplished in the modern world. In Mr. Demesmin’s opinion, it was absolutely essential to establish an international criminal tribunal if the convention were to be effective. Mr. Maktos (United States of America) said that the most important method of punishment would be lost if the final phrase of article VII were deleted. It was precisely because it had been felt that national courts

1694

A/C.6/SR.98

might not be sufficiently effective in the punishment of genocide that States had realized the need for an international convention on the subject. The United States amendment [A/C.6/235] provided for the intervention of an international court only in cases where the domestic tribunals might have failed to take the appropriate measures. The arguments advanced by the representative of Belgium were illogical because, while admitting that it was individuals who should be punished, the Belgian representative had then referred to the International Court of Justice, which had no jurisdiction over individuals. The chief aim of the convention, in the opinion, of the United States representative, was to punish individuals and it was therefore useless to refer to the International Court of Justice. Another objection which had been raised was that the draft of article VII, as it stood, was too vague. The Ad Hoc Committee had purposely drafted the provision relating to a competent international tribunal in vague terms because of the objection raised by the representative of Venezuela. It should be borne in mind that, in order to establish an international tribunal, a new convention would have to be drafted and States would have to submit to the jurisdiction of such a tribunal only after accepting and signing that convention. Mr. Maktos considered that it was not necessary to decide at once how people could be forced to appear before the international tribunal, or to solve all the details of the problem. The Netherlands delegation had made a useful suggestion in proposing that the problem should be referred to the International Law Commission for consideration. If the proposal for the deletion of the final phrase of article VII were adopted, there would not be any foundation for the establishment of an international tribunal and the convention would greatly suffer thereby. The United States representative objected strongly to the submission of the United Kingdom amendment to article VII as, in his opinion, that amendment had already been implicitly rejected with the rejection of the United Kingdom amendment to article V (96th meeting). It had then been decided that corporate bodies such as Governments and States should not be included in the list of those to be held responsible for the commission of genocide. If the United Kingdom amendment to article

A/C.6/SR.98

1695

VII were put to the vote, the United States representative would request that a two-thirds majority should be required for its adoption. Mr. Morozov (Union of Soviet Socialist Republics), in introducing his amendment [A/C.6/215/Rev.1], said that the amendments of the United States [A/C.6/235] and France (97th meeting) made no substantial alteration in the existing text. The United States amendment was a clarification of the circumstances in which cases should be submitted to an international court; it had already been submitted to the Ad Hoc Committee and rejected by five votes to one, with one abstention.1 The French amendment was purely a drafting amendment. 1

See Official Records of the second session of the General Assembly, Sixth Committee, 42nd meeting.

The Committee would be taking a wrong course by seeking a solution of the problem of punishing genocide by the establishment of an international tribunal. International jurisdiction was a violation of the sovereign right of every State to judge crimes committed in its territory; and the sovereignty of States was the very basis of the United Nations. There was no exception to that rule in the case of genocide. Those who desired an international criminal court were not really trying to combat genocide, for they had prevented the inclusion in the draft convention of a provision that recourse should be had to the Security Council.2 No action was in fact being taken to secure effective prevention of genocide, and there was a general refusal to adopt the measures which could be made effective under Chapter VI of the Charter. Co-operation between sovereign nations was essential in order to combat genocide. There were four elements in that co-operation: first, the condemnation of genocide as a crime against humanity; secondly, uniform agreement as to the nature of the crime; thirdly, the obligation imposed on the parties to the convention not only to punish the crime but to check it at its first stages; and fourthly, the consideration of every violation of the convention by the Security Council, since every act of genocide was a serious threat to peace and security. 2

See document E/AC.25/SR.9.

1696

A/C.6/SR.98

The French representative had said at the 97th meeting that the Committee should be judged by its deeds and not by words. On the basis of that criterion which were the States genuinely in favour of taking steps to ensure the punishment of genocide? Mr. Kaeckenbeeck (Belgium) protested against the version the United States representative had given of his arguments, which could only be described as a caricature. The Chairman granted the representatives of Peru, the United Kingdom and France permission to reply to remarks concerning them. Referring to the remarks of the United States representative, Mr. Maûrtua (Peru) observed that the Peruvian delegation, for its part, had adopted a perfectly consistent attitude in emphasizing the problem of the responsibility of States, a problem which the Hague Conference of 1930 had failed to solve. Mr. Maúrtua considered that the question should be submitted to the International Law Commission. Mr. Fitzmaurice (United Kingdom) expressed astonishment at the remarks made by the United States representative, which were a travesty of the arguments put forward at the current meeting by the Belgian representative and at the 97th meeting by himself in defence of their own amendments. Did the United States representative deny that genocide was committed by States and Governments? If he did, he was living in a fool’s paradise. If he did not, why did he object to a specific reference to States and Governments in article VII? The inclusion of such a reference gave the convention reality, since it would otherwise deal only with the punishment of individuals, who committed the less serious acts of genocide. Mr. Chaumont (France) recalled the USSR representative’s reference to the speech of the French representative at the 97th meeting. Mr. Chaumont was sure that in questioning the desire of certain delegations to take practical steps against genocide, the representative of the Soviet Union could not have had the French delegation in mind. He emphasized that the French delegation had already put forward a draft [A/C.6/211], in which the majority of articles dealt with the establishment of an international court.

A/C.6/SR.98

1697

It could not seriously be maintained that States and Governments should be left with the responsibility for the suppression of genocide. What would have been the result if the punishment of the war criminals had been left to the German people themselves? Mr. Chaumont did not consider that the French thesis had been defeated. One was never defeated in defending truth. Mr. Maktos (United States of America) said that two could play at the same game. He asked the United Kingdom representative whether he denied that individuals could be guilty of genocide. If individuals were not to be punished, the convention failed in its purpose. The reference to the International Court of Justice was based solely on the consideration that no other tribunal existed, although it was obvious that the Court was not competent to deal with cases of genocide. The Chairman put the amendments of the USSR [A/C.6/215/Rev.1], Belgium [A/C.6/217] and Iran [A/C.6/218] to the vote, inasmuch as they all proposed the deletion of the words “or by a competent international tribunal”. He pointed out that those voting in favour of the motion would be voting in favour of deletion. Mr. Chaumont (France) requested that the vote should be taken by roll-call. Mr. Raafat (Egypt) pointed out that the purpose of the three amendments was not the same. The amendment of the Soviet Union merely proposed the deletion of the last phrase of article VII, whereas the amendments of Belgium and Iran proposed the substitution of another phrase. The Chairman explained that the vote was solely on the question of deletion. A vote was taken by roll-call as follows. Costa Rica having been drawn by lot by the Chairman, voted first: In favour: Cuba, Czechoslovakia, Denmark, Dominican Republic, Ecuador, Honduras, India, Iran, Luxembourg, Mexico, Nicaragua, Panama, Poland, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics,

1698

A/C.6/SR.98

United Kingdom, Venezuela, Yugoslavia, Afghanistan, Argentina, Belgium, Brazil, Byelorussian Soviet Socialist Republic. Against: Egypt, France, Haiti, Netherlands, New Zealand, Norway, Pakistan, Philippines, Saudi Arabia, Sweden, Syria, United States of America, Uruguay, Australia, Bolivia, Canada, Chile, China, Colombia. Abstaining: Greece, Peru, Union of South Africa. The Committee decided, by 23 votes to 19, with 3 abstentions, to delete the words “or by a competent international tribunal” from article VII. Mr. Feaver (Canada) in explaining his vote, said that his delegation had voted against the proposal because the failure to provide for an international tribunal would defeat the very basis of the convention. Everyone was aware that serious cases of genocide were committed by Governments with which domestic courts were not competent to deal. The inclusion in the convention of a reference to an international tribunal would have served to compel action. The Canadian delegation deplored all action limiting the effectiveness of international organization or treaties. Mr. Chaumont (France) requested that the following declaration should be included in the record of the meeting: Just as it has taken twenty-five years for collective security to prevail, so the French delegation is convinced that an international criminal court will come into being. The French delegation considers the vote which has just taken place to be of extreme gravity. By rejecting the principle of international punishment, the Committee has rendered the draft convention on genocide purposeless. In these circumstances, France will probably find itself unable to sign such a convention.

Mr. Demesmin (Haiti), in explanation of his vote, said that he had voted against deletion on the ground that, without an international tribunal, it would be impossible to secure the punishment of genocide. Mr. Maktos (United States of America) expressed his complete agreement with the statement made by the representative of Canada. Mr. Raafat (Egypt) said that the vote had rendered the convention completely ineffective as far as the most serious cases of genocide were concerned. Like the French representative, he was doubtful whether his country would be able to sign the convention in that form.

A/C.6/SR.98

1699

Mr. Manini y Ríos (Uruguay) observed that after that vote, his delegation could proceed with the work only with reservations. Mr. Pescatore (Luxembourg) said that he had voted for deletion for purely technical reasons. In his opinion the idea of an international criminal court should be expressed in a resolution, not in the convention. Mr. Lachs (Poland) said he had voted for deletion for the same reason as the representative of Luxembourg. No useful purpose would be served by the inclusion of any provision with regard to an international tribunal at the current stage. Mr. Maûrtua (Peru) wished to point out that his abstention did not mean that he was opposed to an international tribunal. He hoped that it would ultimately be possible to set up an international criminal court. Mr. Kaeckenbeeck (Belgium) said that it would be erroneous to interpret the vote as implying a decision for or against an international penal court. The vote had been on a definite text. The vote on the Netherlands amendment would show the position of the delegations with regard to the principle. While unwilling to accept the wording of the draft prepared by the Ad Hoc Committee, the Belgian delegation was not opposed to the idea of an international tribunal. Mr. Fitzmaurice (United Kingdom) associated himself with the Belgian representative. He had voted for deletion not because he was opposed to an international tribunal in principle, but because an international criminal court did not exist and because it was impossible to vote for an organization as yet non-existent and whose powers were unknown. Mr. Aleman (Panama) associated himself with the statements made by the United Kingdom and Belgian representatives. Mr. Dihigo (Cuba) said he had voted for deletion for technical reasons, but was not opposed to the establishment of an international tribunal in principle. He pointed out that the paragraph as worded would have been absolutely ineffective until supplementary treaties or conventions had been signed. Mr. Manini y Ríos (Uruguay), speaking on a point of order, pointed out that the article as abridged gave a completely misleading idea of the object of the convention.

1700

A/C.6/SR.98

Mr. Dihigo (Cuba) expressed agreement with the representative of Uruguay. Since the general feeling of the Committee, appeared to be that the question of an international tribunal should be considered at some stage, he thought that the retention of the remainder of article VII might be an obstacle at that later stage. Mr. Abdoh (Iran) urged that the fate of article VII should not be finally decided until a vote had been taken on the Iranian draft resolution [A/C.6/218]. The Chairman ruled that the Iranian draft resolution should be discussed first. Mr. Spiropoulos (Greece), Rapporteur, stated that the Iranian draft resolution proposed that the International Law Commission should study the question of the creation of an international tribunal to deal with the crime of genocide only. The very similar Netherlands draft resolution [A/C.6/248] was wider in scope and referred to an international criminal tribunal to which crimes other than genocide might be submitted. Mr. de Beus (Netherlands) supported the Rapporteur’s statement. His delegation was sympathetic towards the Iranian draft resolution, but had put forward its own draft resolution because it felt that the task entrusted to the International Law Commission should not be confined to an enquiry into the establishment of a court to deal with genocide alone. There was a second difference between the two resolutions. In order to enable as many Governments as possible to vote in favour of the Netherlands resolution without binding themselves to accept the principle of an international tribunal, the request to be put to the International Law Commission was worded less precisely in the Netherlands resolution than in the Iranian resolution. If, however, the majority of the Committee preferred the Iranian resolution, the Netherlands delegation was quite prepared to accept it or to accept a compromise resolution. Mr. Abdoh (Iran), while appreciating the motives of the Netherlands delegation, thought that the Committee would be exceeding its powers in requesting the International Law Commission to study the matter of an international tribunal to deal with all crimes. Genocide was the only

A/C.6/SR.98

1701

item on the Committee’s agenda and in Mr. Abdoh’s view the resolution should apply to that alone. Mr. Manini y Ríos (Uruguay) pointed out that the Committee had not yet finished its discussion of the amendments to article VII. Mr. Maktos (United States of America) said that it was too late to discuss other amendments to article VII. The whole matter should be referred to the International Law Commission. The Chairman proposed that the Committee should discuss the Iranian draft resolution first on the ground that it had been submitted before that of the Netherlands. Mr. Demesmin (Haiti) said it was impossible to discuss amendments at that stage. International jurisdiction was now a dream of the past and everything said on the subject was a wreath placed on its tomb. The only thing that the Committee could do to remedy the situation was to adopt the French amendment (97th meeting). It was essential to substitute something for the phrase which had been deleted. Mr. Abdoh (Iran) said that he had voted for the deletion of the last part of article VII not because he rejected the idea of international jurisdiction; he was in fact anxious to leave the door open for the creation of an international tribunal. Explaining his delegation’s draft resolution, he expressed the view that it was not within the purview of the Sixth Committee to give a general mandate to the International Law Commission, as that subject did not figure on its agenda. The final paragraph of the Netherlands draft resolution, in his view, prejudged the decision of the International Law Commission. It was for that Commission to decide on the desirability of establishing a criminal division of the International Court of Justice or a separate international criminal court. Mr. Kaeckenbeeck (Belgium) considered that the purpose of the Netherlands and Iranian draft resolutions was identical. He greatly preferred the Netherlands amendment because it was impossible to set up a separate international tribunal for every crime. The idea was so impractical that it was doomed to failure from the start.

1702

A/C.6/SR.99

The Iranian representative had pointed out that the final paragraph of the Netherlands resolution would prejudge the decision of the International Law Commission. That could easily be avoided by the omission of the word “particular”, in that paragraph. Since the Netherlands resolution was broader than that of Iran, the Belgian representative was of the opinion that a vote should be taken on it first. The meeting rose at 1.5 p.m. [sic]

NINETY-NINTH MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 10 November 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). 48. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article VII (continued) The Chairman requested the Committee to continue the debate on the two draft resolutions submitted respectively by the Iranian delegation [A/C.6/218] and the Netherlands delegation [A/C.6/248]. Mr. Pérez Perozo (Venezuela) proposed that, in order to bring the views of the Iranian and Netherlands delegations into line, the following alteration should be made to the wording of the third paragraph of the Netherlands draft resolution: Requests the International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trial of individuals, whether private persons or officials, charged with the crime of genocide or other crimes over which that organ would have jurisdiction by virtue of international conventions.

Mr. Medeiros (Bolivia) pointed out that the Netherlands draft resolution, like that of Iran, was based on the provisions of article VII which the Committee had decided to delete (98th meeting). It would therefore be more logical to postpone examination of that draft until after a decision had been reached on the amendments submitted with a view to altering article VII or adding new provisions thereto.

A/C.6/SR.99

1703

Mr. de Beus (Netherlands) and Mr. Abdoh (Iran) stated that they would willingly accept the formula suggested by the Venezuelan representative which would form an integral part of their joint draft. Replying to the Bolivian representative’s remarks, Mr. de Beus pointed out that as a result of the Committee’s decision to delete the last words of article VII, the first part of the recital of the draft resolution had had to be re-drafted [A/C.6/248/Rev.1] so as to avoid allusion to article VII of the convention. Mr. Morozov (Union of Soviet Socialist Republics) speaking on a point of order, observed that the question covered by the draft resolution was entirely irrelevant once all reference to an international tribunal had been deleted from article VII. The Committee should confine itself to the drawing up of a convention on genocide. As the question of establishing an international criminal tribunal, or even the study of such a matter, had not been placed on the agenda of the current session, it should be decided that any resolution relating to that question was outside the Committee’s competence. On the other hand, it should not be forgotten that the idea at the basis of the draft resolution of Iran and the Netherlands, namely, the international suppression of genocide, had already been rejected by the Committee. For all those reasons the joint draft resolution should not be considered. Mr. Spiropoulos (Greece), Rapporteur, said that the question of the establishment of an international tribunal was certainly within the Committee’s competence since that matter had been studied by the Ad Hoc Committee on Genocide. That Committee had not thought it necessary to take up a definite stand on that question. The Sixth Committee did not have to take a definite decision either, and could decide to entrust other competent organs of the United Nations with the task of studying the possibility of setting up an international judicial organ for the purpose of punishing genocide or any other crime which would fall within the jurisdiction of that organ by virtue of international conventions. Mr. Raafat (Egypt) did not agree with the views expressed by the USSR representative regarding the competence of the Committee on the question of the joint draft resolution. Following the vote on the final words of article VII, (98th meeting) several delegations had explained that they had voted in favour of the deletion

1704

A/C.6/SR.99

of any mention of an international tribunal, because there did not yet exist an international criminal court which could try cases of genocide. It could be presumed, therefore, that if such a tribunal had existed, those delegations would have voted in favour of the retention of the text of article VII. The Committee’s decision to delete the final words of article VII had rendered the convention very defective. The defect would have to be remedied and the best way to do so would be to adopt the joint draft resolution. Prince Wan Waithayakon (Siam) explained that when he had presided over the 98th meeting, he had opened the debate on the draft resolution of the Iranian delegation after the vote on the final words of article VII, because he did not regard it as a new question. The delegation of Iran had, it was true, proposed the deletion of the final words of article VII, but the proposal was not for deletion alone; the proposal for deletion had been accompanied by another calling for study by the International Law Commission of the question of the establishment of an international criminal tribunal. It had therefore been logical to begin the study of the latter proposal immediately after the vote on the deletion of the final words of article VII. Mr. Maktos (United States of America) wished to place on record his approval of the procedure which had been followed at the 98th meeting. The Sixth Committee’s competence could not be more limited than that of the Ad Hoc Committee. The latter had contemplated the possibility of establishing an international criminal court as one of the means of ensuring the carrying out of the convention. If it were recognized that the Ad Hoc Committee could have proposed that the International Law Commission should be entrusted with the study of the establishment of such a tribunal, there was all the more reason for recognizing that the Committee could do so. Mr. Federspiel (Denmark) recalled that at the beginning of its work, the Committee had decided (66th meeting) not to submit any question dealing with genocide to the International Law Commission. The joint draft resolution should not, therefore, be given consideration.

A/C.6/SR.99

1705

The Danish delegation considered the draft resolution very attractive. It was its earnest desire that the question of the establishment of an international criminal court should be studied as soon as possible, but it felt that after the vote taken at the 98th meeting, the question as to whether it was advisable to establish such a court no longer arose. Mr. Federspiel drew attention to the revised wording of the first paragraph of the draft resolution [A/C.6/248/Rev.1] which conflicted with the decision taken by the Committee regarding the international punishment of genocide. Mr. Kaeckenbeeck (Belgium) did not agree with the Danish representative. The vote which had taken place at the 98th meeting had been on a definite text, but the question of principle had been reserved by the various amendments previously submitted. Certain delegations had been able to vote for the deletion of the final words of article VII in the knowledge that there were other means of safeguarding the principle of international punishment which they supported. They had deleted reference to an international tribunal because they had not wished to bind themselves to accepting a tribunal which did not exist and regarding which they had no detailed information. A large number of delegations, however, would be glad to see a highly competent committee undertake the detailed study of the possibility of establishing an international criminal court. If, in the future, agreement were reached on that question, great progress would certainly be made. In the opinion of the Belgian delegation, the question of the Committee’s competence did not arise. The Sixth Committee was perfectly within its right to examine the possibility of establishing an international criminal court. Mr. Spiropoulos (Greece), Rapporteur, supported the remarks of the Belgian representative. The text of the first paragraph of the draft resolution could well be amended in order to take account of the objection raised by the Danish representative; and he suggested the words “Considering that the discussion of the Convention . . . ” He formally moved the closure of the debate on the joint draft resolution.

1706

A/C.6/SR.99

Mr. Iksel (Turkey), emphasizing the importance of the matter under discussion, opposed the closure of the debate. He supported the remarks of the USSR representative and drew the Committee’s attention to the fact that in considering the joint draft resolution, the Committee was in fact taking up a new question on its own initiative, which it was not permitted to do under rule 89 of the rules of procedure. The Chairman put the motion for closure of the debate to the vote. The motion was adopted by 16 votes to 10, with 14 abstentions. The Chairman asked the Committee to vote on the joint draft resolution submitted by Iran and the Netherlands, and stated that a decision on that matter would by no means rule out the consideration of the other amendments to article VII of the draft convention. Mr. Morozov (Union of Soviet Socialist Republics) asked that the Committee should first consider his proposal that, in accordance with rule 89 of the rules of procedure, the joint draft resolution of Iran and the Netherlands should be declared out of order as it dealt with a matter which was not on the Committee’s agenda. The Chairman pointed out that by the fact of submitting that draft resolution to the Committee’s vote, he had recognized that it was in order because, although the question referred to did not appear explicitly on the agenda, it was directly connected with the draft convention. The ruling of the Chair could be changed only if it were appealed against, in accordance with rule 102 of the rules of procedure. Mr. Morozov (Union of Soviet Socialist Republics) appealed against the Chairman’s ruling. The Chairman put the appeal to the vote. The Chairman’s riding was upheld by 28 votes to 8, with 5 abstentions. Mr. Lachs (Poland) observed that the method adopted by the Committee consisted in the consideration, one after another, of the articles of the draft convention and of the amendments pertaining thereto. Since the draft resolution submitted by the Netherlands and Iran did not bear on any

A/C.6/SR.99

1707

of the articles and therefore could not be incorporated in the text of the draft convention, Mr. Lachs suggested that the vote on the draft resolution should not take place until after the adoption of the draft convention, to which it would be something in the nature of an appendix. The Chairman stated that the rules of procedure did not allow the postponement of a vote once the debate had been closed and the Committee had confirmed that the draft resolution was in order. Mr. Dihigo (Cuba) asked that a vote by roll-call should be taken on the joint draft in view of the fact that the votes in favour of the deletion of the final words of article VII seemed to have been interpreted as signifying opposition on principle to the establishment of an international court to deal with the crime of genocide. Mr. Kaeckenbeeck (Belgium) recalled the suggestion he had already made (98th meeting) that the word “particular” in the last paragraph of the draft resolution should be deleted, as it might mean that the International Law Commission would be bound to give priority to the study of the question of the establishment of a criminal division of the International Court of Justice. Mr. de Beus (Netherlands) and Mr. Abdoh (Iran) accepted the deletion of that word from their draft resolution. Mr. Federspiel (Denmark) felt that the deletion of that word would not change the sense of the paragraph and suggested that the words “pay particular attention to” should be replaced by the word “examine.” The Chairman said he could not take that amendment into consideration because it had not been submitted in time. Mr. Yuen-li Liang (Secretary of the Committee) pointed out that the joint draft resolution of the Netherlands and Iran [A/C.6/271] was based on documents A/C.6/248 and A/C.6/248/Rev.1 and on the Venezuelan amendment. Its text was as follows: The General Assembly, Considering that the discussion of the Convention on the prevention and punishment of the crime of genocide had raised the question of the desirability and possibility of having persons charged with genocide tried by a competent international tribunal,

1708

A/C.6/SR.99

Considering that in the course of development of the international community the need for trial of crimes by an international judicial organ will be more and more felt, Invites the International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trial of individuals, whether private persons or officials, charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions; Requests the International Law Commission in the accomplishment of that task to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice.

A vote was taken by roll-call. Canada, having been drawn by lot by the Chairman, voted first: In favour: Canada, Chile, China, Cuba, Denmark, Ecuador, Egypt, Greece, Iran, Lebanon, Luxembourg, Netherlands, New Zealand, Norway, Pakistan, Panama, Peru, Philippines, Saudi Arabia, Siam, Sweden, Syria, United Kingdom, United States of America, Uruguay, Venezuela, Yemen, Afghanistan, Australia, Belgium, Bolivia, Brazil. Against: Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Yugoslavia, Byelorussian Soviet Socialist Republic. Abstaining: Czechoslovakia, Dominican Republic, France, Haiti, India, Poland, Turkey, Union of South Africa, Argentina. The draft resolution was adopted by 32 votes to 4, with 9 abstentions. Mr. Chaumont (France) stated that the French delegation had abstained from voting because it failed to see why, after the Committee had voted against a principle, it should seek to initiate the study of the possible application of that principle. Nevertheless, considering that some of those who were opposed to an international tribunal had voted in favour of the resolution, the French delegation took note of the admission which the Commitee had thus made, namely, that an international tribunal was necessary. Mr. Agha Shahi (Pakistan) regretted that he had not been able to speak before the vote was taken, as he wished to point out that the draft reso-

A/C.6/SR.99

1709

lution was at variance with the text of article V, which had already been adopted (96th meeting), since it omitted the category of constitutionally responsible rulers from the enumeration of the offenders subject to international jurisdiction. He thought a correction was imperative and that the parenthetical clause should be altered to read as follows: “whether constitutionally responsible rulers, private persons or officials”. Mr. Demesmin (Haiti) had abstained from voting because, in his opinion, the first paragraph of the draft resolution contained an inaccuracy. Since the last phrase of article VII of the draft resolution had been deleted, it must be recognized that the convention no longer envisaged the possibility of establishing an international tribunal. In those circumstances the resolution had only a symbolic value, and was of little interest legally. Mr. Pérez Perozo (Venezuela) said he had voted for the deletion of the final words of article VII because his delegation was opposed, at that juncture, to the establishment of an international tribunal to try cases of genocide. However, as there was no reason why the International Law Commission should not study the problem for use at some period in the more or less distant future, he had voted for the draft resolution. If the International Law Commission reached positive conclusions, if the international situation improved, and if all States agreed to the establishment of an international criminal court, then the Venezuelan Government would also be able to consider the possibility of adopting the principle of punishment by an international tribunal. Mr. Amado (Brazil) expressed satisfaction at the result of the vote, which was an important step forward towards the establishment of an international criminal court. In that way, it would be possible for aspirations which had so long remained platonic to be translated into reality. Mr. Bammate (Afghanistan) asserted that there was no contradiction between the vote in favour of deleting the fast words of article VII and the vote in favour of the joint draft resolution. On the contrary, the latter vote was merely the natural and necessary complement of the former. Most of those who had advocated the deletion of those words had voted not against the principle of international punishment but against a vague formula which lent itself to a variety of misinterpretations. Such was, at all events, the motive of the Afghanistan delegation, which nevertheless

1710

A/C.6/SR.99

regarded the establishment of an international system of suppression as an ideal to be aimed at. The Afghanistan delegation had therefore voted for the draft resolution, in the hope that the International Law Commission would succeed in its work on that subject. Mr. Manini y Ríos (Uruguay), although he had voted for the draft resolution, regarded it as a make-shift, and regretted that the reference to an international tribunal had not been retained in the text of article VII; the convention on genocide would not become a reality until such an international tribunal had been established. Mr. Morozov (Union of Soviet Socialist Republics) considered that the decision of the majority of the Committee constituted an infringement of article 89 of the rules of procedure, which did not allow Committees to introduce new items on their own initiative. Mr. Agha Shahi (Pakistan) was afraid that, unless rulers were mentioned in the list of culprits enumerated in the draft resolution, the International Law Commission, interpreting its mandate in the strict sense, might refuse to, consider the competence of the international criminal court in respect to such rulers. In agreement with the Rapporteur, he asked the authors of the draft resolution and the Committee to insert the words “constitutionally responsible rulers” in the third paragraph of the draft resolution. He hoped that that proposal would raise no difficulties, since the Committee had already accepted the principle of the responsibility of constitutionally responsible rulers. Mr. Iksel (Turkey) said he had abstained from voting, not because his delegation was opposed to the establishment of an international criminal court, but because it did not approve the recital paragraphs of the draft resolution. The Chairman opened the debate on the Uruguay amendment [A/C.6/209], the United States amendment [A/C.6/235], the United Kingdom amendment [A/C.6/236/Corr.1] and the Belgian amendment [A/C.6/217]. Mr. Manini y Ríos (Uruguay) stated that, in view of the adoption of the draft resolution, he withdrew his amendment. That amendment aimed at the possible establishment of an international criminal court.

A/C.6/SR.99

1711

Mr. Kaeckenbeeck (Belgium) thought his amendment raised questions of vital importance which should be discussed in connexion with article VII, article VIII or article X. The Committee had already endorsed the principle of punishment by competent national courts, and had envisaged the possibility of establishing an international criminal court. Provision had still to be made for the part to be played by the International Court of Justice in the application of the future convention on genocide. He proposed that all delegations which had submitted similar proposals should meet and prepare a single draft to be submitted to the Committee for its consideration. Mr. Fitzmaurice (United Kingdom) drew attention to the United Kingdom amendment, which was similar in substance to the Belgian amendment That amendment raised a very important principle, which should be examined, if not in relation to article VII, then at least in relation to article VIII or article X. He agreed with the Belgian representative that it would be well to work out a joint draft. Mr. Maktos (United States of America) held that the United Kingdom amendment was not in order, in that it amounted to a proposal to go back on a decision already taken. The Committee had already rejected (96th meeting) the amendment proposed by the United Kingdom to article V of the convention, which meant that it had already taken a decision, on the substance of the amendment to article VII. He was therefore opposed to the discussion of the United Kingdom and Belgian amendments. Mr. Spiropoulos (Greece) Rapporteur, supported the suggestion that had been made to combine the United Kingdom and Belgian amendments in a single text. Mr. Fitzmaurice (United Kingdom) thought that contrary to the opinion expressed by the United States representative, the United Kingdom amendment was in order from every point of view. Those delegations which had voted against the United Kingdom proposal during the discussion

1712

A/C.6/SR.99

of article V, had done so only because they considered that that proposal should be discussed in relation to articles VII, VIII or X. Mr. Maktos (United States of America) stated that he would willingly have withdrawn his amendment in order to shorten the discussion if the other amendments had likewise been withdrawn. But as he could not foresee the nature of the joint text which it was proposed to submit, he was obliged to maintain his own amendment. Mr. Spiropoulos (Greece) Rapporteur, suggested that the Committee should not decide on the principle raised by the United Kingdom and Belgian amendments until it saw the joint text. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) suggested that the debate on the amendments relating to the role of the International Court of Justice should be postponed until the following day, and that discussion should be opened on the Iranian amendment [A/C.6/218], which raised a relatively simpler problem. The Chairman favoured the Belgian proposal. Pending the preparation of the joint text, he called upon the Committee to proceed to the discussion of the Iranian amendment. Mr. Morozov (Union of Soviet Socialist Republics) regretted that certain delegations were protracting the work of the Committee by submitting amendments which aimed at the reconsideration of decisions already taken. The United Kingdom and Belgian amendments aimed at reopening the debate on a question which had already been settled. Mr. Morozov asked the Chairman to request the representatives of those two countries to see that the joint text they proposed to submit did not envisage the reversal of decisions already taken. Mr. Correa (Ecuador) drew attention to the fact that the Iranian amendment consisted in the addition of a paragraph to article VII, and presupposed the adoption of that article. But certain delegations had proposed the deletion of article VII. In those circumstances, it would be advisable to vote on the first part of that article before proceeding to consider the Iranian amendment. The Chairman stated that a vote could not be taken on the article itself until all the amendments thereto had been considered.

A/C.6/SR.99

1713

Mr. Correa (Ecuador) repeated his proposal, and declared that his delegation would vote against article VII. Prince Wan Waithayakon (Siam) recalled that although some delegations had suggested the deletion of article VII, there had been no formal proposal to that effect. Mr. Manini y Ríos (Uruguay) was prepared to propose the deletion of article VII, which, in its amended form, and postulating as it did only the principle of punishment by national courts, might stand in the way of punishment by an international criminal court, when such a body was set up. The Chairman maintained that it was impossible to vote on the deletion of an article until all the amendments submitted thereto had been considered. Mr. Raafat (Egypt) noted a certain incompatibility between the Iranian amendment and the amendments submitted by the United Kingdom and Belgium. It was certain that delegations prepared to vote for one of those amendments could not vote for the other. In those circumstances discussion on the Iranian amendment should be postponed until the joint United Kingdom and Belgian amendment was available. He therefore proposed that the debate should be adjourned. Mr. Abdoh (Iran) saw no reason why the discussion on his amendment should not be opened immediately. He did not consider that amendment incompatible with the amendments presented by the United Kingdom and Belgium. Whereas those amendments provided only for punishment of genocide committed by rulers, his amendment provided for the punishment of acts committed by private individuals as well as by rulers. In conformity with rule 108 of the rules of procedure, the Chairman put to the vote the Egyptian delegation’s motion for adjournment. The motion was adopted by 15 votes to 11, with 14 abstentions. The meeting rose at 5.10 p.m.

1714

A/C.6/SR.100

HUNDREDTH MEETING Held at the Palais de Chaillot, Paris, on Thursday, 11 November 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). 49. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article VII (continued ) The Chairman invited the Committee to continue the debate on the amendments to article VII. Mr. Kaeckenbeeck (Belgium) announced that the delegations of the United Kingdom and Belgium had agreed upon a joint amendment [A/ C.6/258] dealing with the part to be played by the International Court of Justice; they proposed to submit that amendment when the Committee came to consider article X, which dealt with disputes concerning the interpretation of the convention. He regretted that the United States delegation had not been able to accept the amendment. He considered the new text simpler than the original drafts [A/C.6/236/Corr.1 and A/C.6/252], particularly because it omitted the provisions relating to orders of the Court, which certain delegations had found embarrassing and difficult to accept. He hoped that it would eventually be possible to obtain the approval of the United States delegation. He therefore suggested that consideration of that amendment should be deferred until article X came up for discussion. Mr. Fitzmaurice (United Kingdom) endorsed the Belgian representative’s remarks. The United Kingdom delegation would withdraw its amendment in favour of the joint text, which incorporated the most important provisions. The draft would be submitted as an amendment to article X. Mr. Fitzmaurice also regretted the United States delegation’s inability to give its approval to the amendment, and hoped that agreement might be reached before the discussion of article X. The Chairman called upon the committee to resume the consideration of the Iranian amendment to article VII [A/C.6/218].

A/C.6/SR.100

1715

Mr. Abdoh (Iran) said his delegation’s amendment was intended to remedy a deficiency in the system of punishment of genocide. The Ad Hoc Committee on Genocide, when discussing the principle of universal punishment, had proceeded from two misconceptions. In the first place, the Ad Hoc Committee had proceeded on the assumption that genocide was a crime committed by States.1 Admittedly, it had later rejected that idea and agreed that genocide could also be committed by individuals, whether private persons or officials.2 1 2

See document E/AC.25/SR.4. See document E/AC.25/SR.18.

Secondly, it had confused the principle of primary universal punishment with the principle of subsidiary universal punishment. Mr. Abdoh explained that primary universal punishment, which applied to offences under international law such as piracy, differed from subsidiary punishment in that the offender was tried by the State which had arrested him, whether or not a request for extradition was received from the State upon whose territory the offence had been committed. By contrast, under the principle of subsidiary punishment, a principle which dated from Grotius, the State was bound to extradite offenders and not to put them on trial unless extradition was not requested or was impossible; the principle was: “Aut dedere, aut punire”. While few legal systems recognized the principle of primary universal punishment, many admitted the principle of subsidiary punishment. The latter principle, indeed, was intended to ensure the punishment of the guilty party if it were impossible to secure his extradition. Mr. Abdoh recalled that the teachings of international law unanimously recognized that principle, as evidenced by the conclusions of the Institute of International Law and those of the two congresses held by the International Academy of Comparative Law at the Hague in 1932 and 1937. Furthermore, many penal codes, and in particular those of Brazil, a number of Latin-American countries, Turkey and Iran, established the same principle. The Ad Hoc Committee on Genocide had constantly borne in mind the principle of the sovereignty of States. That principle was in no way inconsistent with the principle of subsidiary universal punishment. If the State on whose territory the offence had been committed wished to try

1716

A/C.6/SR.100

the offender itself, it would request his extradition; if it expressed no such desire, it thereby tacitly renounced its right to try him. Juridically speaking, any offence against international law involved subsidiary universal punishment. Article IX of the draft convention provided for extradition at the request of the State in whose territory the crime was committed. That being so, it might be asked what would happen to an offender whose extradition was not requested. He would not be extradited or punished. Such situations had to be avoided. The answer to the assertion that the offender could be brought before an international tribunal was that no such tribunal existed yet, and that, even if it did exist, it would be logical to submit to it only serious cases in which rulers or large organizations were involved. It would therefore be of great value if the principle of subsidiary universal punishment were embodied in the draft convention, particularly for cases where the offender took refuge in a country other than that in which he had committed the offence and where his extradition was not requested, or where extradition was impossible for reasons of force majeure, or, finally, where the offender did not belong to the category of criminal leaders whose offences were serious enough to justify the intervention of an international court of law. Mr. Abdoh urged that that principle should be reintroduced into the draft convention, more especially as genocide, by its very nature, was a crime under international law, and had been defined as such by the General Assembly in its resolution 96(I). The Committee, having accepted that idea in article I, should provide for its application in article VII. The principle had also been laid down in the Secretariat draft prepared by three experts in international criminal law [E/447] but had been rejected by the Ad Hoc Committee. The international law and order which the Committee was trying to establish must be based upon a universal conception of justice. The establishment of an international court of law was not enough to achieve that end; the co-operation of national courts of law, acting in the name of that international conception of justice, had to be secured. The source of the jurisdiction vested in national courts was the need for maintaining order in their respective territories. Genocide, however, involved not only the law and order of the State on whose territory the crime was

A/C.6/SR.100

1717

committed, but also the law and order of all the States constituting the family of nations. Mr. Abdoh could not agree that the application of that principle might cause international tension. The State on whose territory the crime had been committed was still free to request the extradition of persons whom it did not wish to be tried in a foreign court. Moreover, the most serious cases would be tried by an international tribunal, subsidiary universal punishment being confined only to the least serious cases. Mr. Sundaram (India) drew attention to some ambiguities in the text of the Iranian amendment. First, it seemed incorrect to say: “if they have been arrested by the authorities of such States”, because, quite obviously, the reference was to States in which a criminal had taken refuge and not to those in whose territory the crime had been committed. Secondly, the expression “provided no request has been made for their extradition” did not cover cases in which extradition could not be requested. Who would bring the criminal to justice in such a case? Thirdly, the amendment contained no provision requiring the State in which the criminal was arrested to consult with the State in which the crime had been committed, before putting the criminal on trial. Without some such provision, the clause might easily lend itself to abuse and lead to hasty decisions. In any comparison between the universal punishment of genocide and the generally recognized suppression of piracy, it must be remembered that it was a peculiar feature of piracy that it was committed on the high seas and not in the territory of a State. But offences in connexion with the white slave traffic, circulation of obscene publications and the like resembled genocide in the particular respect under consideration. The Indian delegation was in agreement with the general principle on which the Iranian amendment was based. Genocide had, in fact, been defined as a crime under international law; in the absence of any provision in the draft convention to the effect that a person committing the crime of genocide in one country could be tried in the courts of another, that amendment was very important. The defects he had mentioned might be remedied if the text were worded in some such way as:

1718

A/C.6/SR.100

They may also be tried by the tribunals of any other State, party to the present Convention, in whose territory they may be found, provided no request for their extradition has been duly made, either by the State of which they are nationals or by the State in which the act was committed.

The Chairman suggested that the representatives of Iran and India should consult with each other with a view to preparing a joint text. Mr. Maktos (United States of America) protested against last-minute amendments as being likely to start lengthy discussion on a draft which had been before the Committee for a long time. Mr. Dignam (Australia) said it was better to consider last-minute amendments than to vote upon a defective text. The Australian delegation agreed with the substance of the Iranian amendment, but would like it to be more clearly and fully worded. Accordingly Mr. Dignam proposed that the words “and punished” should be inserted between the words “tried” and “by tribunals”. Similarly, after the words “if they have been arrested by the authorities of such States,” he suggested inserting “for the purpose of such trial”. Mr. Dignam also proposed that at the end of the amendment the word “request” should be replaced by the word “order”. The paragraph could then read as follows: They may also be tried and punished by tribunals in States parties to the present Convention other than those of the States in the territories of which, the act was committed if they have been arrested by the authorities of such States and provided no order has been made for their extradition.

If the Iranian amendment were modified in that way, the Australian delegation would support it. In reply to the United States representative, the Chairman said that whenever it was possible to improve a text which contained ambiguities it was desirable to do so. Mr. Bammate (Afghanistan) asked whether the principle of universal repression would also apply to rulers. If so, that provision would certainly meet with serious objections from many delegations because of its political implications. Mr. Petren (Sweden) wished first to make some comments on the text of article VII as it stood. Since article IX did not require countries to

A/C.6/SR.100

1719

extradite their own nationals, the provisions of article VII, under which the accused were to be tried by a competent tribunal of the State in the territory of which the act was committed, constituted no guarantee that the crime would be punished in every case. For that reason, it would be useful to insert a second paragraph of the kind proposed by the representative of Iran. There remained one further question. One of the acknowledged aims of the convention was to punish incitement to the crime of genocide. Supposing, however, that the crime of incitement was committed in a State not a party to the convention, and under the laws of which incitement was not regarded as a punishable crime, would a criminal who fled to another country, party to the convention, be punished for an act which was not punishable in the first country? In view of such cases, the Swedish delegation hesitated to accept the Iranian amendment. Mr. Raafat (Egypt) said his delegation was as anxious as any other that genocide should be punished, but could see a great danger in the adoption of the principle of universal repression. That principle had not yet been universally accepted, in spite of the examples which had been mentioned. In piracy, for example, questions of frontiers did not arise; but they did in genocide. There was another difference between genocide and the classic crimes against international law. Crimes such as piracy were generally committed by people coming from a particular stratum of society. Genocide was committed by or with the connivance of statesmen. Such persons might have enemies abroad as well as at home. It would be very dangerous if statesmen could be tried by the courts of countries with a political ideology different from that of their own country. The Egyptian delegation had complete confidence in the impartiality with which an international tribunal would punish genocide; it did not have the same confidence in the measures whereby the national courts of the country in which the criminal was apprehended would punish the crime. For all these reasons, his delegation would vote against the Iranian amendment.

1720

A/C.6/SR.100

Mr. Manini y Ríos (Uruguay) said his delegation would vote against the Iranian amendment. The principle of universal punishment should be considered in connexion with the wider problem of the preparation of a draft code of crimes against the peace and security of mankind, a matter which had been referred to the International Law Commission by virtue of resolution 177 (II) of the General Assembly. The punishment of genocide was primarily a matter for an international tribunal. If the principle of universal punishment were agreed to at that stage, there might be a tendency to forget how necessary it was that punishment should be ensured by an international tribunal. Mr. Manini y Ríos considered that the entire question should be dealt with in a special convention. Secondly, if it were remembered that the convention provided for the protection of political groups, it was apparent – as the Egyptian representative had said – that acceptance of the principle of universal punishment presented very grave dangers. Thirdly, the delegation of Uruguay would vote against the amendment because it felt that article VII should be deleted altogether. Mr. Maktos (United States of America) said that at that stage of development of international law, it was dangerous to extend the jurisdiction of national courts to include the punishment of offences committed on the territory of other States. Those who had opposed the principle of international punishment must a fortiori oppose the principle of universal punishment. If that principle were accepted, States would be unable to accede to a convention which was theoretically perfect but politically ill-advised. Mr. Maktos agreed with the representative of Egypt that punishment by an international court would be more impartial than punishment by the court of a State in which the criminal had been arrested. The Government of the United States, conscious of its responsibilities towards its nationals, had proposed [A/C.6/235] that the scope of the international tribunal should be limited strictly to cases of denial of justice. If the Government of the United States had thus wished to limit the jurisdiction of the international tribunal, it would a fortiori vigorously oppose the adoption of the principle of universal repression.

A/C.6/SR.100

1721

The comparison between genocide and other crimes against international law was interesting juridically, but not very helpful in practice. The foremost consideration was that the convention on genocide should be acceptable to States. Referring to incitement to genocide, which had been mentioned in that connexion, Mr. Maktos said that it was out of the question that the courts of a particular country should punish, as incitement to genocide, acts which in the native country of the arrested person were not considered to be criminal offences. The same applied to opinions expressed through the Press. It was inadmissible that a person should be punished in a country where he was arrested for having uttered certain opinions in his own country where the Press was free. The principle of universal punishment was one of the most dangerous and unacceptable of principles, and he hoped, consequently, that the Committee would reject it. Mr. Inglés (Philippines) welcomed the Iranian amendment; it filled a real need once the principle of the international punishment of genocide had been rejected. He would not prolong the debate by adding anything to the statement of the representative of Iran in support of that amendment, but felt bound to refute the arguments advanced by the Ad Hoc Committee for rejecting the principle of universal punishment. In the Ad Hoc Committee it had been argued1 that genocide implied the responsibility of the State on whose territory the crime had been committed, and that to permit foreign courts to try the offence would be an encroachment on the sovereignty of that State. But State sovereignty was not an absolute principle, for it could be waived. The State in whose territory the crime was committed could assert its sovereignty by requesting the extradition of the offender before he was tried by a foreign court; failure to exercise that right clearly constituted waiver of a sovereign right. In those circumstances, it could not be claimed that the Iranian amendment constituted a violation of State sovereignty. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 11.

1722

A/C.6/SR.100

It had also been argued1 that the courts of the various countries in the world did not all offer the same guarantees. It was obvious that the guarantees referred to were those to which the accused had a right. But surely the offender had only himself to blame if he fled from the place where he had committed his offence and proceeded to the territory of a State whose laws were more severe or whose courts offered him less guarantees. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 12.

Referring to the non-juridical arguments which had been advanced in the Ad Hoc Committee,2 namely, that genocide was distinguished from other crimes under international law in that it was likely to have political repercussions; that there was a danger that abuses might be committed or that foreign courts might proceed in a tendentious or arbitrary manner; and finally that dangerous international tension might result from the application of universal punishment, Mr. Inglés observed that the conferment of certain powers could not be opposed on the grounds that they might be abused, for no power existed which could not be abused. The Iranian delegation had introduced provisions on the extradition of offenders for the very purpose of lessening the danger of international tension. Furthermore, it must not be presumed that the States parties to the convention would show bad faith, because all international agreements should be based on the firm belief that the contracting parties would discharge their obligations with the utmost good faith. 2

Ibid.

The representative of the Philippines realized that the application of the principle of universal punishment might in some cases give rise to difficulties; but even if only one case could be imagined in which the Iranian amendment would achieve its purpose, namely, the punishment of genocide, that one case would be sufficient to justify the adoption of the amendment. Mr. Inglés was of the opinion that the request for extradition on the part of the State in the territory of which the offence had been committed should precede the institution of legal proceedings in the courts of the

A/C.6/SR.100

1723

State in which the offender had been arrested. Reasonable notice should also be given to enable States to exercise their sovereign right in requesting extradition. Mr. Inglés asked the representative of Iran whether he would be willing to alter his amendment in the following way: “ . . . provided that after reasonable notice to the State on whose territory the crime was committed, no request has been made for their extradition”. Mr. Spiropoulos (Greece) appreciated that jurisprudence would have taken a great step forward if the principle of universal punishment could be applied to the crime of genocide. But practical considerations should influence the Committee in reaching a decision on the problem before it. Of the seven members of the Ad Hoc Committee, four, including France, the Union of Soviet Socialist Republics and the United States of America, had opposed the principle of universal punishment. It was therefore questionable whether such a principle should be included in the convention at the risk of making it difficult for a number of States, including at least three great Powers, to ratify the convention. Although article IX of the convention provided that genocide would not be considered as a political crime for the purposes of the extradition of offenders, it was quite obvious that genocide was essentially a political crime and that, consequently, the courts of the various States could not be relied upon to ensure its punishment. The Iranian delegation had said that the object of its amendment was to remedy a deficiency in the machinery for punishing genocide. The real remedy, however, was not to adopt the principle of universal punishment, but to establish an international tribunal. Mr. Federspiel (Denmark) said that in principle his delegation was in favour of the universal punishment of genocide; however, for the reasons explained by the Egyptian and Greek representatives, it hesitated to vote for the Iranian amendment. Mr. Federspiel drew the Committee’s attention to the difficulties of interpretation to which article VII of the convention gave rise with respect to the determination of the place where the crime was committed. If, for example, radio propaganda were broadcast from one State, inciting the population of another State to genocide, it would be hard to determine

1724

A/C.6/SR.100

where the crime had been committed and by what courts the offenders should be tried. Mr. Messina (Dominican Republic), while appreciating the value of a system of universal punishment, spoke against the Iranian amendment, because, in view of the provisions of articles II and IV of the convention, the amendment might lead to abuses and injustice. Mr. Amado (Brazil) said the Brazilian penal code contained an express provision under which any offence which Brazil had undertaken to punish by international conventions was punishable. By acceding to the convention on genocide, Brazil would bind itself to punish any act of genocide, whether committed on Brazilian territory or elsewhere. Those opposing the principle of universal punishment claimed that the principle was inconsistent with the traditional tenets of international law. Mr. Amado disagreed with that argument; he recalled that, in contrast with the tendency which had appeared in the eighteenth century, nineteenth century legislation had extended the jurisdiction of national penal courts to cover offences committed abroad. As long ago as the Middle Ages it had been generally recognized that the courts of the State which apprehended the criminal were competent to try him and customary law had confirmed that principle. The representative of Egypt had said that offenders against international law, such as pirates and counterfeiters, came from a special class of society; but so did those committing genocide: they were drawn from the class of politicians, and were, to say the least, just as loathsome as counterfeiters or pirates. In reply to the representative of Greece, Mr. Amado pointed out that article IX of the convention expressly provided that genocide would not be regarded as a political crime. Only one argument of any weight had been advanced against the adoption of the Iranian amendment, namely, that if the principle of universal punishment were adopted, several of the great Powers would not accede to the convention. That was a political argument to which there was no reply. The delegation of Brazil, however, would vote in favour of the Iranian amendment, subject to the changes which had been proposed.

A/C.6/SR.100

1725

Mr. Fitzmaurice (United Kingdom) agreed that the punishment of genocide on a national scale alone was ineffective. Presumably in States which really enforced the punishment of genocide, the crime would not be committed whereas, in States where genocide was committed, there would, in fact, be no repression, since the crime could not have been committed without the connivance of the State itself. The United Kingdom delegation nevertheless opposed the Iranian amendment as incompatible with the principle of territoriality on which the jurisdiction of penal courts in the United Kingdom was based. Criminal courts in the United Kingdom did not punish British citizens for crimes committed abroad, and except in time of war, those courts could not punish aliens for crimes which they had committed outside the territory of the United Kingdom. Mr. Fitzmaurice agreed with the Danish representative that a number of difficulties would arise in the application of article VII as it stood. An act of genocide might, for instance, have been committed partly in one country and partly in another; it might have been committed in one country although the effects were produced in another. Furthermore, article VII did not expressly rule out the jurisdiction of all courts other than those of the State on whose territory the act of genocide was committed. If the Committee intended to grant exclusive jurisdiction to the latter courts, the wording of article VII should be altered. Some States might also wish to punish acts of genocide committed abroad by their own nationals. Under the terms of article VII that seemed impossible. Mr. Ti-tsun Li (China) said his delegation saw the need for the punishment of genocide on a national as well as on an international level. Since that crime was often committed with the connivance or the permission of the State, it was unlikely that, national courts would punish it effectively. The Committee had already decided against the principle of the international punishment of genocide by deleting the final words of article VII (98th meeting); if it also rejected the principle of universal punishment, the convention was likely to remain completely ineffective. Mr. Morozov (Union of Soviet Socialist Republics) said he appreciated the value of the discussion of the legal aspects of universal punishment but feared that it was beyond the scope of the Committee’s work.

1726

A/C.6/SR.100

It was wrong to apply automatically to the crime of genocide a penal system accepted in dealing with other crimes which also violated international law but were altogether different in character. Universal punishment was justified in the cases of traffic in women or piracy by the fact that it was often extremely hard, if not impossible, to determine the place where the crime had been committed. In the case of genocide, however, if judicial proceedings were to be instituted by the courts of the State in which the offender had been arrested, documents and witnesses would have to be asked for from the State on whose territory the crime had been committed; and it was to be expected that the latter State, jealous of its sovereignty, would not consent to surrender its penal jurisdiction to another State, since the principle of universal punishment was even more incompatible with the sovereignty of States than international punishment. Mr. Morozov agreed with the United States representative’s reasons for opposing the adoption of the Iranian amendment and urged the Committee not to include in the convention provisions which would make it unacceptable to many States. Mr. Maktos (United States of America) said the Committee should approach the problem realistically by rejecting the Iranian amendment. It would be wrong to jeopardize the ratification of the convention by a great many States by embodying therein, out of a desire for an ideal text, a principle which was excellent in theory but which would have little practical value since it was unlikely that criminals who had gone unpunished in their own countries would move to other countries where they would be liable to trial and punishment. It would be advisable, moreover, to await the conclusions of the International Law Commission before incorporating the principle of universal punishment into the convention. For if that principle were not included in the convention, and if the International Law Commission reached the conclusion that universal punishment was preferable to international punishment, it would be easy enough to adapt the convention to such a conclusion. But if the Commission decided that there should be an international tribunal and if the convention already contained the principle of universal punishment, it would be very hard to revise it in such a way as to bring it into line with the conclusions of the International Law Commission.

A/C.6/SR.100

1727

Mr. Pérez Perozo (Venezuela) recalled that in the Ad Hoc Committee, he and the representative of Lebanon had joined forces to advocate the principle of universal punishment.1 1

See document E/AC.25/SR.8.

In the current state of the world, Governments had to co-operate for the purpose of suppressing international crime; the existence of criminal organizations which engaged in the traffic of women and children, counterfeiting currency and other crimes was common knowledge. To combat such international offences, conventions had been established, most of which involved a certain limitation of national sovereignty, as did the Iranian amendment. Undeniably, genocide was a crime at least as outrageous as any other crime against international law and presupposed the connivance of many individuals; its punishment, therefore, required measures as far-reaching as those required in the case of other crimes against international law. The principle of universal punishment implied a certain limitation of State sovereignty since its application enabled national courts to punish crimes committed by foreigners on foreign soil; but the Iranian proposal specified that such tribunals would be competent only if no request had been made for extradition. That proviso should satisfy representatives who contended that State sovereignty must not be infringed. Failure by the State concerned to request extradition would mean that it did not wish to try the offenders. In that case the State which had arrested them should be empowered to try them, first, so that the crime should not remain, unpunished; secondly, in its own interests, since it would be dealing with dangerous criminals; and, thirdly, in the international interest. The United States representative’s objection relating to members of parliament or correspondents travelling abroad did not apply, in view of the provision dealing with extradition; the same was true of the Danish representative’s contention, because instances in which several courts might be asked to deal with the same case were very frequent. The representative of Venezuela suggested that the Iranian amendment could be made more comprehensive by the recognition therein

1728

A/C.6/SR.100

of the jurisdiction of the courts of the State of which the accused were nationals. He stated in conclusion that his delegation would vote in favour of the Iranian amendment. Mr. Abdoh (Iran) said that although his amendment had been opposed by many delegations, including those of the great Powers, he still wanted it to stand because the concept of subsidiary universal punishment was an important principle, and its adoption would constitute a great step forward in the field of international law. Referring to the comments made by the representatives of India, the Philippines and Australia on the drafting of his amendment, he said he would accept any suggestions likely to lead to a generally acceptable version. Arguments of various kinds had been advanced against the substance of the amendment. Some representatives had spoken of the practical difficulties involved in its application. That was undeniable; but similar difficulties could arise in connexion with any new application of legal principles. The representative of Egypt had claimed that those who committed genocide could not be likened to common-law criminals because they did not belong to the same class of society. Such a distinction was impossible because men must be judged by their actions, not by their rank in society; no distinction should be made between one criminal and another. It would be difficult, in the current state of world affairs, to apply subsidiary universal punishment to rulers because that would create many international complications. Accordingly, the delegation of Iran was prepared to accept any amendment to its draft which would exempt rulers from universal punishment. The representative of Greece had been wrong in saying that the convention stated that genocide was a political crime; it stated the contrary. The representative of Uruguay had said that if an international tribunal were set up, subsidiary universal punishment would be unnecessary. But the jurisdiction of the international tribunal would extend to cases other than those which fell within the scope of universal punishment. Serious cases, involving rulers or large organizations, should be dealt with by the international tribunal; subsidiary universal punishment could be confined to individuals, but such individuals must not go unpunished.

A/C.6/SR.100

1729

Mr. Abdoh pointed out that the United States proposal of 30 September 19471 had laid down the principle of universal punishment; he was surprised to note that the United States delegation had changed its views. 1

See document A/401/Add.2.

In conclusion, the representative of Iran declared himself ready to accept any drafting change likely to improve his amendment and also to limit the scope of universal punishment to individuals, by excluding rulers from it. He emphasized that his delegation regarded universal punishment only as subsidiary, not as primary. Mr. Spiropoulos (Greece) pointed out that although article IX of the convention, which dealt with extradition, stated that genocide should not be considered as a political crime, article II clearly implied that it was essentially a political crime. The exact meaning of the obligation imposed on States by article VII did not have to be defined, as the representative of Denmark maintained; that interpretation should be left to the courts. Article VII simply laid down that States parties to the convention were bound to punish those who committed crimes of genocide on their respective territories. It did not require them to punish their nationals for acts of genocide committed abroad, but it did not rule out such punishment. It was possible, in theory, that some States would adopt the principle of universal punishment; there was nothing in article VII to prevent that. The question remained as to whether such a concept was in accordance with the general principles of international law. Precedents of similar cases existed, for instance, the case of the Lotus. The representative of Greece pointed out, in conclusion, that article VII only required States to punish crimes of genocide committed on their own territories. Mr. Kaeckenbeeck (Belgium) said he had previously given his views on the question of universal punishment. He wished to draw the Committee’s attention to two points to which too little prominence had been given. The first was that if a national court proved to be ineffective, the joint amendment submitted by the United Kingdom and Belgium [A/C.6/258]

1730

A/C.6/SR.100

to article X would offer a better remedy than that offered by the application of universal punishment; the second was that it was doubtful whether the preparation of the convention on genocide was a proper occasion to attempt to introduce theoretical improvements into penal law. The dangers pointed out by several delegations should not go unheeded; the Belgian delegation, therefore, anxious to keep the practical aspects of the question in view, would vote against the Iranian amendment, whatever its form. Mr. Abdoh (Iran) was in favour of the amendment to article X submitted by the United Kingdom and Belgium, but thought that its scope of application was not the same as that of his own amendment. The intention of the joint amendment was to provide for the censure of any State failing to discharge its international obligations, whereas his own was designed to secure the punishment of individuals. As the Iranian delegation was prepared to exclude rulers from the scope of universal punishment, its amendment did not rule out the joint amendment; the two were complementary. Mr. Abdoh requested that the principle of universal punishment should be put to the vote, on the understanding that the text of the Iranian amendment might be subject to revision by the drafting committee with a view to incorporating therein the various amendments agreed to by his delegation. The Chairman pointed out that the principle of universal punishment had not been submitted to the Committee for its consideration and that the discussion had covered only the text submitted by the Iranian delegation. The vote should therefore be taken on that text, although it might, of course, undergo drafting changes if it were adopted. The Iranian amendment was rejected by 29 votes to 6, with 10 abstentions. Mr. Sundaram (India) said he shared entirely the Iranian delegation’s desire for the application of the principle of universal punishment; but he had not been able to vote for the amendment in the form in which it had been submitted as it could have lent itself too easily to abuse; he had therefore abstained from voting. The Chairman called upon the members of the Committee to take a decision on the text of article VII proposed by the Ad Hoc Committee,

A/C.6/SR.100

1731

as amended by the deletion of the words “or by a competent international tribunal” (98th meeting). Mr. Manini y Ríos (Uruguay) enquired whether article VII as amended meant that jurisdiction would be vested exclusively in the courts of States on whose territories crimes of genocide were committed. Mr. Dignam (Australia) enquired whether the provisions of article VII would apply only to States parties to the convention; if that were not so, he would abstain from voting. The Chairman said that when a text was clear, there was no need to attempt to interpret it. He pointed out that the text of article VII would be submitted to the drafting committee, which would be able to remedy its defects or refer any difficulties to the Committee. Article VII as amended was adopted by 21 votes to 10, with 15 abstentions. Mr. Fitzmaurice (United Kingdom) said he had abstained because the text of article VII could be interpreted in three different ways, and that ambiguity would not be removed by any drafting changes. Prince Wan Waithayakon (Siam) said he had abstained because he thought that article VII as amended had become useless. Mr. Dignam (Australia) said he had abstained for the same reasons as the representative of the United Kingdom. Mr. Maktos (United States of America), speaking as Chairman of the Ad Hoc Committee, explained that the text of article VII did not at all imply that States could not punish their nationals for crimes of genocide committed abroad. The only obligation imposed on them by article VII was to punish crimes of genocide committed on their own territory; such a provision was not restrictive. Mr. Maktos observed that the convention would apply only to States acceding thereto. Mr. Inglés (Philippines) said he had voted against the text of article VII because he felt that without a reference to an international tribunal or to universal punishment, the article was useless. Mr. Dihigo (Cuba) explained that he had voted against the text of article VII because he thought it unnecessary in view of the existence of

1732

A/C.6/SR.101

articles I and VI and because the text seemed to rule out any possibility of accepting the jurisdiction of an international tribunal. Mr. Raafat (Egypt) and Mr. Sundaram (India) said they had abstained because by the amendment to article VII, not merely that article but the whole convention had been weakened. Mr. Manini y Ríos (Uruguay), Mr. Guillen (El Salvador) and Mr. Lapointe (Canada) explained that they had voted against the text of article VII for the same reasons as the representative of Cuba. The Chairman announced that he had received the full eight-volume set of the American edition of the records of the Nürnberg trial. The collection had been sent to him, in his capacity as Chairman of the Committee, by Mr. Eugene Areoneanu to be placed at the disposal of the delegations at the third session of the General Assembly and in particular of the members of the Sixth Committee. The collection had been handed over to the library of the United Nations, where it was available to all delegations for reference. The meeting rose at 6 p.m.

HUNDRED AND FIRST MEETING Held at the Palais de Chaillot, Paris, on Thursday, 11 November 1948, at 8.30 p.m. Chairman: Mr. R.J. Alfaro (Panama). 50. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article VIII Mr. Dignam (Australia) asked for an explanation of the joint United Kingdom and Belgian amendment [A/C.6/258], which had been circulated at the 100th meeting, and which he found misleading in the form in which it stood. In reply to the Chairman, who pointed out that the amendment referred to article X which had not yet been discussed, Mr. Dignam pressed for an early explanation, which could be taken into account when the article was considered.

A/C.6/SR.101

1733

The Chairman, in introducing the discussion of article VIII, stated that there were five amendments before the Committee. An amendment by the United Kingdom [A/C.6/236 ] and another by Belgium [A/C.6/217] proposing the deletion of the article, a USSR amendment [A/C.6/215/ Rev.1] proposing the deletion of article VII and the substitution of that article by a new text, a French admendment [sic] [A/C.6/259], which was in fact an amendment to the USSR amendment, and, finally, an amendment by Haiti [A/C.6/249] proposing the addition of certain words to the Ad Hoc Committee draft. He suggested that a vote should first be taken on the question of deletion. Mr. Morozov (Union of Soviet Socialist Republics) held that the Soviet Union amendment should be discussed first, since it proposed both deletion and the substitution of a new text, and must be regarded as the amendment furthest removed from the original. If the Soviet Union proposal were rejected, the question of deletion could then be discussed, so that delegations might vote on deletion only. If the question of deletion were discussed first, the whole question would have to be discussed for a second time. The Chairman found it difficult to believe that a proposal for total deletion was not the furthest removed from the original proposal. He did not regard the USSR amendment as a new proposal, on the ground that the obligation to refer cases of genocide to the Security Council was not a real amendment or modification of the text of article VIII. He could, at most, allow a simultaneous discussion of the two proposals for deletion and the Soviet Union proposal. He suggested that they should deal first with the question of deletion, then with the Soviet Union amendment and finally with the Haitian amendment. Mr. Chaumont (France) agreed with the Chairman’s proposal that the amendments should be discussed simultaneously. He pointed out that the USSR amendment included both deletion and substitution. If, therefore, the vote were in favour of deletion, the substitution of a new text would not be precluded. Mr. Fitzmaurice (United Kingdom) held that in accordance with the definition given in the rules of procedure, the Soviet Union amendment was the one furthest removed from the original. The Committee should therefore begin by discussion of that amendment.

1734

A/C.6/SR.101

The Chairman ruled that the texts before the Committee should be discussed simultaneously. Mr. Fitzmaurice (United Kingdom), in introducing the United Kingdom amendment, said that he was not opposed to the principle embodied in article VIII. Under the provisions of the Charter, however, Members were already entitled to appeal to organs of the United Nations in case of need and it was, therefore, unnecessary and undesirable to repeat those provisions in a new convention. Mr. Spiropoulos (Greece) observed that article VIII contained nothing which was not contained in the Charter. He held the view that the USSR proposal was not entirely in accordance with the Charter. It referred to action under Chapter VI of the Charter, whereas it was doubtful whether action under that Chapter could always be taken in the case of any act of genocide. Mr. Morozov (Union of Soviet Socialist Republics) thought it was incorrect to say that the USSR amendment made article VIII unnecessary. Although the USSR amendment might repeat certain provisions of the Charter, it did not follow that it did so unnecessarily. The convention was in fact a concrete application of the ideas contained in the Charter. The basic thought underlying the convention was that every violation was of the greatest importance. Any act of genocide was always a threat to international peace and security and as such should be dealt with under Chapters VI and VII of the Charter. The USSR delegation was not pessimistic in regard to the United Nations’ ability to prevent and repress genocide. Chapters VI and VII of the Charter provided means for the prevention and punishment of genocide, means far more concrete and effective than anything possible in the sphere of international jurisdiction. The latter was a mere palliative, which gave the impression that some action was being taken. The obligation to bring a case of genocide to the attention of the Security Council would ensure that States did not evade their obligations. In conclusion, the representative of the Soviet Union expressed his agreement with the French amendment and suggested that the two amendments should be amalgamated to form a joint USSR and French proposal.

A/C.6/SR.101

1735

Mr. Chaumont (France) agreed with those who felt that article VIII, as it appeared in the Ad Hoc Committee draft, was unsatisfactory. The only important point it raised was the identity of the competent organs to which cases of genocide were to be referred. The objections raised by the United Kingdom and Belgium that such a text was completely redundant were entirely justified. The USSR amendment seemed to be acceptable because it applied to a specific case and imposed an obligation which was binding on all States which had signed the Charter. Discussing his delegation’s proposal, Mr. Chaumont said that reference to the Security Council did not obviate the necessity for reference to the International Court of Justice. The French delegation thought every possible step should be taken to secure the international punishment of genocide. Mr. Chaumont went on to read the text of the French amendment [A/C.6/259]: The High Contracting Parties may call the attention of the Security Council to the cases of genocide and of violations of the present Convention likely to constitute a threat to international peace and security in order that the Security Council may take such measures as it deems necessary to stop the threat.

In his opinion, it was obvious at a first glance that the amendment was in accordance with the Charter. In view of the doubt as to which Articles were applicable to cases of genocide, the French delegation had thought it better not to refer to any specific Chapter of the Charter. The French amendment was not intended to take the place of international jurisdiction but could fulfil a useful function in the prevention of genocide, since that jurisdiction did not exist. Mr. Kaeckenbeeck (Belgium), in introducing the Belgian amendment, said that article VIII added nothing to the Charter, which enjoyed far greater authority. He thought that the Soviet Union amendment [A/C.6/215/Rev.1] went a little too far in proposing that all cases of genocide and violations of the convention should be referred to the Security Council and in making

1736

A/C.6/SR.101

it obligatory to bring to the attention of the Security Council all violations. It was possible that cases of genocide might occur which did not constitute any threat to peace. The French amendment was more satisfactory, since it omitted the word “all” and referred only to cases likely to create a threat to peace. The text of the French amendment was therefore permissive since it did not impose a binding obligation to bring all violations of the convention to the attention of the Security Council. If it were desirable to draw attention to violations of the convention, it was essential that there should be a body to decide whether or not a violation had taken place. On the other hand, a State which would not abide by a ruling of the International Court of Justice would continue to violate the convention. Mr. Maûrtua (Peru) pointed out that to give the Security Council jurisdiction over the prevention and repression of genocide, would, in fact, be to give penal jurisdiction to that body. In his view the measures to be taken against genocide should be juridical and not political. Mr. Raafat (Egypt) noted that the United Kingdom and Belgian representatives had only the day before (98th meeting) secured the deletion of the last words of article VII and were now attempting to secure the deletion of a whole article dealing with recourse to international organizations. The retention of article VIII was vitally necessary since it was essential to include a reference to international organizations, if the convention were to be taken seriously. It had been said that article VIII was superfluous in view of the provisions already contained in the Charter. The convention was rather a concrete application of the provisions of the Charter. His delegation would vote in favour of the joint USSR and French amendment. Mr. Tarazi (Syria), in announcing that his delegation would vote for the joint USSR and French amendment, pointed out that the French amendment was closely in accordance with the Charter and particularly Article 24.

A/C.6/SR.101

1737

Mr. Maktos (United States of America) outlined the genesis of article VIII, which at a first glance appeared superfluous and in his own opinion was in fact superfluous. The first task of the Ad Hoc Committee had been the discussion of ten abstract principles submitted by the Soviet Union. In his capacity as Chairman of that Committee, he had objected to such a discussion1 on the ground that it would cause delay and the Committee had in fact sat for six weeks in place of two, as anticipated. 1

See document E/AC.25/SR.3.

When the Committee came to discuss the question of the submission of cases to the Security Council, members saw a danger in the obligatory submission of cases over which the Security Council might have no jurisdiction.2 The juridical reasons for the rejection of the proposal had been the impossibility of amending the United Nations Charter or of enlarging the powers of the Security Council by subsequent conventions. By way of compromise the phrase “any competent organ” had been adopted. The USSR proposal [A/C.6/215/Rev.1] was open to the same objections because it emphasized one organ only, a reference which was in any event superfluous. 2

See document E/AC.25/SR.20.

In his view the convention would be a better document if States were left to appeal to the council under already existing provisions of the Charter. Mr. Sundaram (India) asked, with reference to the French amendment, whether the intention was that all acts should be referred to the Security Council or only those “likely to constitute a threat to international peace,” that is, whether the latter phrase applied both to cases of genocide and to violations of the convention. Mr. Lachs (Poland) pointed out that the Committee had considered two possible measures for the punishment of genocide, first, recourse to an international tribunal and secondly, universal repression. Since it

1738

A/C.6/SR.101

had rejected those two possibilities, other means had to be taken to the same end. In such circumstances article VIII should not be deleted but reinforced. In order to punish the crime of genocide, provision had to be made for recourse to the organ of the United Nations best fitted to offer relief and enforce the convention. There would always be one party to the convention who would report cases of genocide and the permissive nature of the French version therefore involved no danger that all cases of genocide would be automatically brought to the attention of the Security Council. With regard to the problem of determining whether genocide had or had not been committed, he reminded the Committee that there had been many instances in which the Security Council had investigated the facts of cases submitted to it. The United States and Greek representatives had maintained that the Security Council was not competent to deal with all cases of genocide and that it was impossible to extend the Council’s powers. That was not the case. Since the Security Council had been set up, a number of international agreements had added considerably to the powers of the Council. Under the Peace Treaty with Italy, for example, the Security Council had been given extensive powers in the Free Territory of Trieste. Mr. Fitzmaurice (United Kingdom), referring to the point raised by the representative of India, said that, in his opinion, the phrase “likely to constitute a threat to international peace and security” in the French amendment to the text proposed by the USSR referred both to cases of genocide and to violations of the convention. With regard to the substance of that amendment, he pointed out that it was already covered by the provisions of Articles 24, 34, 35 (paragraph 1), 36 (paragraph 1) and 37 (paragraph 2) of the Charter and he saw no reason why those provisions should be repeated in the convention. Mr. Abdoh (Iran) said that, as there was no international criminal tribunal in existence and as the principle of universal repression had been rejected, he was in favour of including the provisions contained in the USSR amendment as amended by the French delegation. In that wording, however, the amendment seemed to lay undue emphasis on the powers of the Security Council to the detriment of those of the General Assembly.

A/C.6/SR.101

1739

According to the Charter, the Security Council and the General Assembly had equal powers to deal with threats to international peace and security. He therefore proposed that the words “or of the General Assembly” should be inserted after the first mention of the Security Council in the joint USSR and French amendment and that the last part of that amendment starting with the words “in order that” should be deleted. Mr. Maktos (United States of America) wished to make his position quite clear in view of the remarks made by the representative of Poland. In his opinion, the convention could not include provisions involving amendments to the Charter. If the joint USSR and French amendment were to have the effect of enlarging the powers of the Security Council, that would involve amending the Charter and if it were not to have such an effect, it was unnecessary to mention the already existing powers of the Security Council. If cases of genocide were brought before the Security Council, the whole question of the veto would be involved. It would also be contradictory to the provisions of article X of the draft convention which provided that disputes relating to the interpretation or application of the convention should be submitted to the International Court of Justice. If the joint USSR and French amendment were adopted, States might try to avoid submitting their disputes to the International Court of Justice, where they would be settled on purely legal grounds, and might instead submit them to the Security Council, where they would be settled on political grounds with a view to causing embarrassment to other parties. Prince Wan Waithayakon (Siam) agreed with the representative of the United Kingdom that the provisions of the joint USSR and French amendment were already covered in the Charter and that it was unnecessary to repeat them in the convention. He referred to Article 35, paragraph 1 of the Charter which stated that disputes could be brought to the attention of the Security Council or of the General Assembly. In mentioning the Security Council, alone, the joint USSR and French amendment was misleading if not actually contrary to the provisions of the Charter. He was therefore unable to support that amendment. Mr. Kaeckenbeeck (Belgium) referred to the statement made by the representative of Poland to the effect that article VIII should not only

1740

A/C.6/SR.101

be maintained but also reinforced. In his opinion, the joint USSR and French amendment would not have the effect of reinforcing the original draft of article VIII; on the contrary, it was a limitation of the provisions of that draft. In mentioning only the Security Council instead of all the competent organs of the United Nations, the amendment implied that the Security Council was the only organ that could be consulted in cases of genocide. Mr. Federspiel (Denmark) supported the remarks made by the representative of Belgium. Mr. Spiropoulos (Greece) replying to the representative of Poland, explained that he had said that the original Soviet Union amendment [A/C.6/215/Rev.1] was not in complete conformity with the provisions of the Charter, because it made it obligatory to report all cases of genocide to the Security Council, while the Charter provided for recourse to both the Security Council and the General Assembly. The amendment submitted by the French delegation to the original Soviet Union amendment had brought the text into complete conformity with the provisions of the Charter and in that respect it was admissible, although it did not add anything new to the convention. As the new text did not make it obligatory to report all cases of genocide to the Security Council but simply stated that the parties to the convention would have the right to do so, it could no longer be argued that its adoption would prevent States from reporting cases of genocide to other organs of the United Nations. He admitted that there was some precedent for conferring new powers on the Security Council through international conventions, but stated that, in such cases, the Security Council would have to be asked whether it wished to accept the new functions. Mr. Maûrtua (Peru) asked whether the adoption of the joint USSR and French amendment would mean that the measures taken by the Security Council would be considered sufficient and if so, whether the Security Council would apply penal as well as political sanctions. He queried further whether the convention would have to be amended if an international criminal tribunal were established in the future. Mr. Zourek (Czechoslovakia) emphasized the importance of including effective provisions for the implementation of the convention. In his

A/C.6/SR.101

1741

opinion, the most effective measures that could be taken would be to entrust the Security Council with the task of considering all cases of genocide. The Security Council was in permanent session and was therefore capable of swift and effective action. It was also the organ entrusted with the primary responsibility for the maintenance of international peace and security, under Article 24 of the Charter, and it was the only organ of the United Nations which had the power to impose effective sanctions. He also reminded the Committee that under Article 25 of the Charter the Members of the United Nations are under the obligation to accept and carry out the decisions of the Security Council. Some representatives seemed to fear that the joint USSR and French amendment laid undue emphasis on the Security Council, but it would not be of much practical use to have recourse to other organs in cases of genocide, when those other organs would not have the means at their disposal to take effective action. He supported the joint USSR and French amendment because he thought it would provide a very useful deterrent, but he was not in favour of the subsidiary amendment submitted by the representative of Iran. Mr. Lachs (Poland) said that the objections raised by the United States representative to reporting all cases of genocide to the Security Council would obtain even if cases of genocide were referred to the International Court of Justice. In reply to the representative of Greece, he said that it was possible to enlarge the powers of the Security Council through international conventions, without first consulting the Council. He had himself assisted in drafting the Statute of the Free Territory of Trieste, in which the Security Council’s powers had been extended without any prior consultation with the Council. The prevention of genocide was extremely important and if the commission of genocide were linked with threats to international peace and security, it would be a useful deterrent. Mr. Chaumont (France) replied to the various arguments raised in the course of the discussion. The representative of Belgium had stated that the joint USSR and French amendment was unnecessary as it imposed no obligations. It was, however, unnecessary to impose any obligation because the State on whose territory the act of genocide was committed would be

1742

A/C.6/SR.101

unlikely to call the matter to the attention of the Security Council; and whether the obligation were imposed or not, some other Member State would, in all probability, report the matter. It had also been argued that the joint amendment was unnecessary as it only repeated provisions already set forth in the Charter. The purpose of the amendment was, however, to emphasize the need for international punishment of genocide. The provision that cases of genocide could be reported to the Security Council would not replace the idea of an international criminal tribunal, but the adoption of the amendment would give recognition to the fact that genocide was likely to endanger the maintenance of international peace and security. The fact that the joint amendment repeated the provisions of the Charter was not sufficient reason for rejecting it. The joint United Kingdom and Belgian amendment to article X [A/C.6/258] added nothing to Article 36 of the Statute of the International Court of Justice. It was nevertheless a useful amendment and he intended to support it. The United States representative had said that the joint USSR and French amendment laid undue emphasis on the Security Council. However, it was surely better to mention the most important organ of the United Nations than to delete the article altogether, as proposed by some other delegations. The amendment was not in any way incompatible with article X as the International Court of Justice was to deal with disputes relating to the interpretation or application of the convention while the Security Council was to deal with threats to international peace and security. Moreover, no decision had yet been taken with regard to article X and it would therefore be better to make some provisions for international punishment in article VIII rather than to rely on the provisions of article X, which had not yet been adopted. With regard to the point raised by the representative of India, he said that the words “likely to constitute a threat to international peace and security” did apply to the cases of genocide as well as to violations of the convention. He was prepared to accept the insertion of the mention of the General Assembly as suggested by the representative of Iran, but he thought it would be better to insert it each time the Security Council was mentioned, rather than to delete the last part of the amendment.

A/C.6/SR.101

1743

In reply to the point raised by the representative of Peru, he said that there was nothing in the joint amendment to prevent the establishment of an international criminal tribunal in the future. Mr. Morozov (Union of Soviet Socialist Republics) endorsed the remarks made by the representative of France. It was not simply a question of repeating the provisions of the Charter. The underlying purpose of the joint amendment was to state in the convention that acts of genocide necessitated the intervention of the most important organ of the United Nations. It was essential to state clearly that acts of genocide were likely to bring about threats to international peace and security. He agreed with the representative of France that the General Assembly could be mentioned as well as the Security Council, as suggested by the representative of Iran, but he did not think it would be advisable to delete the last words of the joint amendment. If the joint amendment were rejected, he would vote in favour of the retention of the Ad Hoc Committee’s draft, for if no mention were made of the possibility of having recourse to the organs of the United Nations, the whole convention might prove ineffective. He requested that the joint amendment should be put to the vote by roll-call. Intervening on a point of order, Mr. Agha Shahi (Pakistan) observed that in his opinion the USSR-French-Iranian amendment to article VIII should be voted upon first, and not the Belgian and the United Kingdom proposals to delete the article. If the tripartite amendment were carefully studied, it would appear that it sought nothing more than to revise the text of article VIII in certain parts; it fell within the category of an amendment proper as defined in the last sentence of rule 119. The Pakistan delegation was of the view that a motion to delete an article could not be considered an amendment because the last sentence of rule 119 confined the definition of an amendment to such proposal as merely “deletes from” the text. In his view, it appeared that proposals for deletion would more properly fall under rule 120 of the rules of procedure, and hence the United Kingdom and the Belgian proposals to delete article VIII could not be voted upon first as rule 119 did not apply to them. He therefore requested that the USSR-French-Iranian amendment should first be voted upon and then the United Kingdom and the Belgian amendments should be taken up.

1744

A/C.6/SR.101

Mr. Abdoh (Iran) agreed to withdraw the second part of his amendment if the mention of the General Assembly were included after each mention of the Security Council in the joint USSR and French amendment. After some discussion as to which amendment should be put to the vote first, the Chairman ruled that the motion for deletion would be put to the vote first. That vote would determine the fate of the draft of article VIII submitted by the Ad Hoc Committee, but would not affect the decision on the joint USSR and French amendment. Whatever the result of the vote on deletion might be, the joint amendment would be put to the vote immediately afterwards. Mr. Gori (Colombia) challenged the Chairman’s ruling. In his opinion the deletion of the whole of the basic text could not be considered as an amendment and should not therefore be put to the vote. The question of deletion would be decided by the final vote on the article as a whole after all the amendments had been put to the vote. The Chairman called for a vote on the appeal of the Colombian representative. The Chairman’s ruling was sustained by 17 votes to 10, with 11 abstentions. In accordance with the request made by the USSR representative, the Chairman called for a roll-call vote on the proposal for the deletion of article VIII as set forth in the Ad Hoc Committee’s draft, submitted by the delegations of Belgium and the United Kingdom. A vote was taken by roll-call as follows: The Union of Soviet Socialist Republics, having been drawn by lot by the Chairman voted first: In favour: United Kingdom, United States of America, Uruguay, Belgium, Brazil, Canada, Cuba, Denmark, Dominican Republic, Ecuador, India, Luxembourg, Netherlands, New Zealand, Norway, Panama, Peru, Siam, Sweden, Turkey, Union of South Africa. Against: Union of Soviet Socialist Republics, Venezuela, Yugoslavia, Afghanistan, Australia, Bolivia, Byelorussian Soviet Socialist Republic,

A/C.6/SR.102

1745

China, Colombia, Czechoslovakia, France, Greece, Iran, Pakistan, Philippines, Poland, Syria, Ukrainian Soviet Socialist Republic. Abstaining: Chile. The proposal was adopted by 21 votes to 18 with 1 abstention. The meeting rose at 11.45 p.m.

HUNDRED AND SECOND MEETING Held at the Palais de Chaillot, Paris, on Friday, 12 November 1948, at 10.45 a.m. Chairman: Mr. R.J. Alfaro (Panama). 51. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Article VIII (conclusion) The Chairman stated that the representative of the USSR had asked to be allowed to make some comments before the vote was taken on article VIII of the convention. Mr. Morozov (Union of Soviet Socialist Republics) said that at the 101st meeting, the Committee had not heard all the statements by representatives in explanation of their vote with regard to the deletion of article VIII. Those explanations should be heard before a vote was taken on the second proposal to which the Chairman had referred. The USSR delegation had voted against the deletion of article VIII because it considered that the convention should contain some reference to the possibility of submitting any acts of genocide or violations of the convention to an authoritative organ of the United Nations. Mr. Morozov also wished to point out that, since the previous meeting, he had studied the joint USSR and French text with the Iranian additions (101st meeting), in the light of the terms of the Charter and he had unfortunately reached the conclusion that he was unable to accept the amendments submitted by the representative of Iran. Mr. Morozov

1746

A/C.6/SR.102

therefore withdrew the agreement he had rather hastily made at the 101st meeting as he could not accept the inclusion of the words “or the General Assembly” in the two places where the Iranian representative had inserted them. If the Iranian suggestion were adopted, the text of the joint USSR and French amendment would become ambiguous and would contradict Article 24 of the Charter. That article clearly stated that it was within the competence of the Security Council to take measures for the maintenance of international peace and security. The Iranian amendment suggested that the General Assembly should take measures which were exclusively within the competence of the Security Council. In view of those contradictory terms, which he had not noticed at the 101st meeting, he considered it necessary to request the deletion of the two Iranian additions to the joint USSR and French text. The Soviet Union delegation would not, otherwise, be able to vote for the amendment. Mr. Dignam (Australia) thought the Committee was confused. At the 101st meeting the majority had voted in favour of the deletion of article VIII in the belief that, if that article were deleted, a larger number of delegations would be able to vote for the amendment sponsored by the Soviet Union, France and Iran. The Australian representative no longer had the opportunity of supporting that amendment. The question of deleting article VIII should be reconsidered, particularly as some delegations had not clearly understood the implications of the vote. Mr. Raafat (Egypt) reminded the Committee that at the 101st meeting he had supported the joint USSR and French amendment. However, in the course of the discussion which took place subsequently, that amendment had been somewhat modified with the approval of both the French and the Soviet Union delegations. The Iranian proposal had not been discussed at the 101st meeting and, in his opinion, the insertion of the words “or the General Assembly” after “the Security Council” would not result in any substantial modification of article VIII. The original text of article VIII, as drawn up by the Ad Hoc Committee, was preferable to the joint USSR and French proposal as amended by Iran. If the Security Council were mentioned, he saw no reason why the Trusteeship Council and the Economic and Social Council should not also be included. Nevertheless, the Egyptian delegation would vote for the original text of the Ad Hoc Committee or the joint USSR and French text without the Iranian amendment.

A/C.6/SR.102

1747

Mr. Chaumont (France) wished first of all to make an observation on procedure in reply to a point raised by the Australian representative. In Mr. Chaumont’s opinion it was not possible to reopen a discussion on a question which had already been voted upon. According to rule 112 of the rules of procedure, such a decision could be taken only by the vote of a two-thirds majority of the Committee. With regard to the question of substance, the representative of France said that at the 101st meeting he had accepted the Iranian amendment in a spirit of conciliation because he hoped that the inclusion of that amendment might allow the Committee to adopt the joint USSR and French text by a large majority. He wished, however, to draw the attention of the Committee to the fact that the joint USSR and French text mentioned only the Security Council. If, however, the Soviet Union representative considered that the amended text of article VIII was contrary to the terms of the Charter, Mr. Chaumont was prepared to ask the Committee to vote on the joint USSR and French amendment as originally submitted, which mentioned the Security Council but not the General Assembly. Mr. Tarazi (Syria) pointed out that if the joint French and USSR amendment were rejected, the Committee would not be able to vote on article VIII in its original form, because at the 101st meeting the Sixth Committee had voted to suppress the original text of article VIII as drafted by the Ad Hoc Committee. Therefore the only question before the Committee was the consideration of the joint French and USSR amendment. Mr. Abdoh (Iran) regretted that he had heard only the end of the statement by the representative of the Soviet Union, but he concluded that the latter had withdrawn the agreement he had previously given to the amendment submitted by the Iranian delegation. After a recapitulation of what had taken place at the 101st meeting, Mr. Abdoh stated that he considered the discussion on the joint USSR and French proposal as modified by the Iranian amendment as having been closed. He would raise that question as a point of order and wished to hear the Chairman’s ruling on the matter. Mr. Iksel (Turkey) said that the joint USSR and French text, as amended by the Iranian delegation, had been submitted to the Committee at the 101st meeting as one amendment, the text of which had been agreed upon by the three delegations concerned. At the current meeting, however, that amendment had been submitted as two different amendments. Mr. Iksel

1748

A/C.6/SR.102

suggested that a vote should first be taken on the Iranian amendment. It was incorrect to believe that a vote could be taken on the deletion of article VIII and that in the event of its selection a vote could not again be taken on the Ad Hoc Committee text. If that assumption were correct, then the Committee would not be able to vote on any amendment to article VIII. Mr. Gori (Colombia) shared the views of the Turkish representative. In the state of confusion in which it found itself, the Committee did not know whether it had deleted article VIII or whether it would vote on it again. He had understood at the previous meeting that the procedure was to vote, first of all, on a joint United Kingdom and Belgian amendment for deletion of article VIII, followed by a vote on the joint USSR and French amendment, and then a vote on the text of the article itself. If the Committee decided that a vote could not be taken on the original text of the Ad Hoc Committee, such a decision would be against the rules of procedure, which laid down that amendments had to be voted upon before a vote was taken on the basic text. The Colombian representative drew the Committee’s attention to an error in the procedure which was being followed: a proposal for deletion was being considered an amendment. A proposal for the deletion of an article was not an amendment but a refusal to accept it. A motion could be considered as an amendment to a proposal only if it merely added to, deleted or revised part of that proposal. Mr. Gori concluded by proposing that the Committee should vote on the text of article VIII, which might prevent further confusion with regard to procedure. Mr. Spiropoulos (Greece), Rapporteur, said that the rules of procedure and the use of logic and common sense should help the Committee to come to a decision. A vote had been taken at the 101st meeting on the text drafted by the Ad Hoc Committee; that text was rejected. The Committee then agreed that it would vote on the joint USSR and French amendment as amended by the Iranian delegation. Both the French and the Soviet Union representatives had stated at the current meeting that they no longer agreed with the Iranian amendment. The Committee had therefore before it two amendments, the Iranian amendment which was to be voted on first, and then the joint USSR and French amendment. No useful purpose would be served by a general

A/C.6/SR.102

1749

discussion as to whether or not the vote taken at the previous meeting was correct. Mr. Demesmin (Haiti) pointed out that his delegation had also submitted an amendment to article VIII which had not yet been discussed. He would therefore appreciate it if the Chairman would open the discussion on his amendment. The Chairman stated that, at the 101st meeting he had put to discussion three amendments to article VIII, namely, the joint USSR and French amendment, the Iranian amendment and the Haitian amendment. The latter had not been discussed, possibly because the representative of Haiti was not present, but it had been placed before the Committee for discussion. After taking a vote on the procedure to be followed, the Committee had voted first on the question of the deletion of article VIII, which was approved by a majority vote. Some delegations, however, had voted for the deletion of the article in the belief that an agreement had been reached between the Soviet Union, France and Iran on a joint text. The vote on the amendment was not taken, however, because the representative of the Soviet Union had moved for an adjournment. At the current meeting the USSR representative had withdrawn his approval, and while it was true that the withdrawal might be considered out of order, the Chair would not wish to insist on maintaining an accord which apparently did not exist. In his opinion, the Committee should revert to the situation prior to the agreement reached between the representatives of the Soviet Union, France and Iran. In such an event, not only the representatives of the Soviet Union and France should be allowed to withdraw their amendment but also the representative of Iran. While the Chairman considered the Colombian representative’s observations pertinent, he was afraid that they could have been taken into consideration only when the rules of procedure were being drawn up. However illogical it might seem to certain delegations, a motion for deletion constituted an amendment according to the rules of procedure. For that reason a vote on deletion would have to be taken first, being the proposal furthest removed from the original proposal. The Chairman ruled that the Committee should vote first on the Iranian amendment, then on the joint USSR and French amendment, and then on the Haitian amendment. Any member of the Committee could appeal against that ruling.

1750

A/C.6/SR.102

With regard to a reconsideration of the vote taken on the deletion of article VIII, that question could, in accordance with rule 112, be decided only by the vote of a two-thirds majority of the Committee. Mr. Abdoh (Iran) asked whether the Soviet Union representative would be willing to accept the addition of the words “or the General Assembly” in both places where it had been inserted, or only in the second place. He had discussed the matter with the representatives of France and the USSR and both had agreed to the first amendment but not to the second. Mr. Morozov (Union of Soviet Socialist Republics) requested the Chairman to grant the Committee a recess of ten minutes in order to enable the representatives of France, Iran and the Soviet Union to come to a quick decision on the matter. Mr. Correa (Ecuador) appealed against the ruling of the Chair. The Chairman decided that before an appeal could be made against the ruling, the Committee should take the brief recess requested by the representative of the USSR. The Committee was adjourned for ten minutes. Mr. Chaumont (France) informed the Committee that the Soviet Union, Iranian and French delegations had come to an agreement on a joint text which read as follows: The High Contracting Parties may call the attention of the Security Council or, if necessary, of the General Assembly to the cases of genocide and of violations of the present Convention likely to constitute a threat to international peace and security, in order that the Security Council may take such measures as it may deem necessary to stop that threat.

Mr. Chaumont explained the main feature the new text was the addition of the words “or if necessary” which were inserted in order to meet the USSR representative’s objections that the responsibility for maintaining international peace and security rested with the Security Council. At the same time reference had been made to the General Assembly to meet the desires of those who wished to have mention of the Assembly made in article VIII, in accordance with Article 11 and 12 of the Charter. Mr. Chaumont felt certain that the new text could be adopted unanimously by the Committee.

A/C.6/SR.102

1751

The Chairman stated that the new text superseded two amendments to article VIII which were before the Committee, namely, the joint USSR and French amendment and the Iranian amendment. It was understood that no discussion would take place on the amendments as they had already been fully considered. Mr. Demesmin (Haiti) expressed the opinion that a vote could not be taken on an amendment which had not been discussed. The Chairman pointed out that the Haitian amendment had been placed before the Committee for discussion and had even been read at the 101st meeting, although unfortunately the Haitian representative was not present. As no representative had spoken in favour or against the Haitian amendment, he presumed that their minds had been made up on the subject and that they were ready to proceed to the vote. Mr. Maktos (United States of America) did not agree with the Chairman’s ruling. The new text submitted was entirely different from the original Ad Hoc Committee draft and the Committee could not vote on a different text before it had been discussed. In the first place, the problem would be sent to the Security Council for decision, and in view of the veto power which could be exercised there, Mr. Maktos did not think that the Committee could adopt the text. The Iranian amendment would at least place the General Assembly on an equal footing with the Security Council. In his opinion, the addition of the words “if necessary” was inconsistent with the terms of the Charter. According to Article 11 of the Charter, the General Assembly was not under an obligation to call the attention of the Security Council to all situations which were likely to endanger international peace and security, since it was also permitted to make recommendations with regard to any such questions to the States concerned. Mr. Dignam (Australia) shared the views of the representative of the United States that a vote could not be taken on a resolution which had not been circulated and the text of which was entirely different from the one which had been previously discussed by the Committee. There was considerable lip service given in the Sixth Committee to the General Assembly and to the principles laid down in the Charter, but the Committee was being asked, by implication, to undermine the authority of

1752

A/C.6/SR.102

the General Assembly and his delegation was therefore not willing to support such a proposal. At the 101st meeting the amendment had been on the point of being almost unanimously adopted by the Committee. He could find no satisfactory explanation for the change of attitude which had taken place in certain delegations overnight. The Australian representative concluded by stating that he was in favour of the retention of article VIII in its original form. Mr. Abdoh (Iran) stated that he supported the triple amendment and had nothing more to add on the point. Mr. Demesmin (Haiti) pointed out that the debate had been closed on the Haitian amendment during the preceding meeting when an agreement had been reached on the joint USSR and French proposal as amended by the Iranian delegation. In view of the fact that the Soviet Union withdrew its agreement to the Iranian amendment, the debate was not closed, and he considered that in those circumstances he might be allowed to speak on his amendment. The Chairman agreed that if the Committee decided to reopen the debate on the joint USSR and French proposal as amended by the Iranian delegation, debate would also have to be permitted on the Haitian amendment. He ruled that the debate could not be reopened. Mr. Chaumont (France) suggested that the Haitian amendment should not be ruled upon in connexion with the joint USSR and French proposal as amended by the Iranian delegation. The debate on the triple amendment could be considered closed, but the representative of Haiti should be allowed to speak in favour of his amendment. Mr. Demesmin (Haiti) appealed against the Chairman’s ruling. The Chairman put to the vote the proposal to reopen the debate on the Haitian amendment. The proposal was adopted by 19 votes to 11, with 10 abstentions. The Chairman then put to the vote the triple amendment of France, the USSR and Iran, as amended.

A/C.6/SR.102

1753

Mr. Morozov (Union of Soviet Socialist Republics) requested that the vote be taken by roll-call. The vote was taken by roll-call. Peru, having been drawn by lot by the Chairman, voted first: In favour: Poland, Saudi Arabia, Syria, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Yugoslavia, Byelorussian Soviet Socialist Republic, Czechoslovakia, Egypt, France, Haiti, Iran, Pakistan. Against: Peru, Philippines, Siam, Sweden, Turkey, Union of South Africa, United Kingdom, United States of America, Uruguay, Venezuela, Australia, Brazil, Canada, Chile, China, Cuba, Denmark, Dominican Republic, Ecuador, India, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Panama. Abstaining: Afghanistan, Argentina, Bolivia, El Salvador, Greece. The amendment was rejected by 27 votes to 13, with 5 abstentions. The Chairman pointed out that since the amendment had been rejected, there was no need to vote on the proposed Haitian amendment. Mr. Correa (Ecuador) had voted for the deletion of article VIII of the draft convention and against the triple amendment because the Charter wars quite clear as to the right on the part of Member States to appeal to organs of the United Nations, and it was unnecessary to restate those rights in another document. He had requested the right to explain his appeal from a ruling, and had pointed out that that procedure had been followed in the past, during the 93rd and 101st meetings of the Sixth Committee, for example. The Chairman stated that in the instances mentioned by the representative of Ecuador, the explanation by the representative submitting an appeal had been given before the appeal had been formally made, and the Chair had not been able to anticipate the intentions of the speaker. Mr. Chaumont (France) considered that by deleting the last phrase of article VII of the draft convention (98th meeting) and by rejecting the

1754

A/C.6/SR.102

triple amendment, the Committee had not only refused to seize United Nations organs of the crime of genocide, but had also removed the question from the jurisdiction of an international tribunal. Consequently, there was no body competent to deal with crimes of genocide. Mr. Dihigo (Cuba) had voted against the triple amendment because the provisions contained therein were already included in Articles 34, 35 and 37 of the Charter. Article X of the draft convention would give the International Court of Justice jurisdiction. If the Committee had adopted article VIII of the Ad Hoc Committee draft, competence in the question would have been given to two different organs. The delegation of Cuba favoured granting jurisdiction to the International Court of Justice in view of the fact that application of the veto in the Security Council often prevented that body from acting. Mr. Raafat (Egypt) considered that since the last part of article VII had been deleted, it would have been wise to approve the text of the composite amendment. In view of the fact that the triple resolution had been rejected, he questioned whether it was worth while to continue consideration of the Ad Hoc Committee draft. Mr. Ingles (Philippines) would have preferred the original text of article VIII of the draft convention prepared by the Ad Hoc Committee, which had been broader in scope than that of the triple amendment. He pointed out that the crime of genocide was reprehensible even when it did not involve a threat to international peace and security. The Philippine delegation would have supported the triple amendment in its original form as a compromise proposal but it had opposed the revised text, which would undermine the authority of some of the organs of the United Nations. His delegation had wished to preserve the rights of Member States to appeal to the organs they chose. Mr. Ti-tsun Li (China) had opposed the deletion of article VIII of the draft convention and had also voted against the triple amendment, because it was not as complete and comprehensive as the text of article VIII and did not impress the Chinese delegation as being an acceptable substitute for that article. Mr. Tarazi (Syria) had voted in favour of the triple amendment for the same reasons as those expressed by the representatives of Egypt and France.

A/C.6/SR.102

1755

Mr. Spiropoulos (Greece) had supported the text of the triple amendment without the addition of the words “or, if necessary, to the General Assembly” which, in his opinion, greatly modified the text. The addition of those words seemed to reduce the rights of the General Assembly as laid down in the Charter. He wished to point out, however, that the Security Council was not the only organ which could stop threats to peace. The General Assembly also had the right to recommend the employment of the measures provided for in Article 41 of the Charter. Mr. Pescatore (Luxembourg) did not agree with the representative of France when he said that by its rejection of the triple amendment, the Committee had excluded the jurisdiction of the organs of the United Nations. The Luxembourg delegation considered that the points mentioned in the triple amendment were already covered by the provisions of the Charter. Mr. de Beus (Netherlands) had favoured the deletion of article VIII of the draft convention and had opposed the triple amendment because his delegation considered that a restatement of rights which were already set forth in the Charter was superfluous and might even be harmful. Mr. Messina (Dominican Republic) had voted against the triple amendment because all the necessary provisions with regard to the question were contained in Article 33 of the Charter. Mr. Demesmin (Haiti) had voted for the triple amendment because he had believed it was indispensable to find some replacement for article VIII since trial by a competent international tribunal had been deleted from article VII. He pointed out that crimes of genocide did not necessarily have to involve a dispute between States, and provision for such a contingency should be made. The Haitian delegation might abstain from voting on the convention, because no competence in the matter would be left to the Security Council and the convention as it was then worded was ineffective. Mr. Pérez Perozo (Venezuela) stated that his delegation had originally favoured the Ad Hoc Committee’s text of article VIII. When that article had been deleted, the Venezuelan delegation had supported the original joint amendment, until the phrase “if necessary, the General Assembly”

1756

A/C.6/SR.102

had been added. It had then been obliged to reverse its decision and vote against the triple amendment. Mr. Sundaram (India) had voted for the delection of article VIII and had opposed the triple amendment. He agreed with the remarks made by the representative of the Netherlands. Mr. Maûrtua (Peru) had explained his reasons for opposing the proposal during the 101st meeting. Dual jurisdiction would involve political jurisdiction which, he feared, would prove detrimental to the convention, because it would impose new tasks on the already heavily burdened Security Council. Mr. Morozov (Union of Soviet Socialist Republics) stated that his delegation still favoured the triple amendment and would fight for the restoration of article VIII, because it was necessary to guarantee, in principle, the intervention of the United Nations for enforcement of the provisions of the convention. He did not agree that the addition of the words “or, if necessary, the General Assembly” modified the text substantially. He considered that there was good reason to review the decision which had been made to delete article VIII in its original form. If some States had voted against the triple amendment in its new form and article VIII as well, they should be given the opportunity to reconsider their decision. Although the original text of article VIII had not, in principle, been unacceptable to the USSR delegation, his delegation had voted in favour of deleting it in the hope that a better text could be drafted. The Soviet Union delegation was ready, however, to reconsider and vote in favour of the original text of article VIII as drafted by the Ad Hoc Committee. He proposed, therefore, that in accordance with the provision of rule 112 of the rules of procedure, the decision to delete article VIII should be reconsidered by the Committee. Mr. Maktos (United States of America) felt that rule 112 should be applied only in exceptional cases. He opposed the USSR proposal because it would mean that a member would have three opportunities to try to convince a Committee of his delegation’s point of view. Mr. Dihigo (Cuba) considered that an abnormal voting procedure had been followed with regard to article VIII and the amendments thereto.

A/C.6/SR.102

1757

If the triple amendment had been voted on first, the Committee would still have the text of article VIII before it for consideration. For that reason, although the Cuban delegation was opposed to both article VIII and the triple amendment, it believed that the Committee should be given the opportunity to reconsider its decision. Mr. Maúrtua (Peru) agreed with the remarks made by the representative of the United States and would oppose reconsideration of article VIII. The Chairman put to the vote the proposal to reopen consideration of article VIII. The representative of the Ukrainian SSR requested that the vote be taken by roll-call. Denmark, having been drawn by lot by the Chairman, voted first: In favour: Denmark, Egypt, El Salvador, France, Greece, Haiti, Iran, Norway, Pakistan, Philippines, Poland, Saudi Arabia, Sweden, Syria, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Uruguay, Venezuela, Yugoslavia, Afghanistan, Australia, Bolivia, Byelorussian Soviet Socialist Republic, China, Colombia, Cuba, Czechoslovakia. Against: Dominican Republic, Ecuador, India, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua, Peru, Siam, Turkey, Union of South Africa, United Kingdom, United States of America, Argentina, Canada, Chile. Abstaining: Brazil. The result of the vote was 27 in favour and 17 against, with 1 abstention. The proposal was not adopted, having failed to obtain the required two-thirds majority. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) complimented the Chairman on the skilful way in which he had handled the difficult questions of procedure which had arisen. With regard to rules 119 and 120 of the rules of procedure, he wished to state that the question of procedure with regard to amendments and proposals had been thoroughly discussed in Sub-Committee 3 of the Sixth Committee in

1758

A/C.6/SR.102

1947. Some delegations had suggested that no difference should be made between amendments and proposals and that they should all be grouped together. The Chairman and the Committee would then determine which was the furthest removed from the original proposal and therefore to be voted on first. That suggestion had not been accepted by the Sixth Committee or the General Assembly. It was for that reason that rules 119 and 120 had been written into the rules of procedure. He clarified the point that it is not the title which a delegation gave to its text which decided whether a motion was an amendment or a proposal. A motion was an amendment if it added to the original text of the proposal, deleted a part of the original proposal, or revised or substituted a part of the proposal. On the other hand, a motion for complete deletion or complete substitution was not an amendment within the meaning of rule 11 but a proposal in the sense of rule 120. Amendments were voted on in order, beginning with the furthest removed. Proposals were voted on in the order of their submission, unless the Committee decided otherwise. When there was a proposal for complete deletion and another for complete substitution, they were not amendments but proposals and should be voted on in the order of their presentation. When complete deletion was voted, it depended entirely on the will of the Committee to decide according to rule 120 whether a further vote should be taken on substitution. The new rules were much better than the rejected provisional rules. Nevertheless, their application might still give rise to difficulties. In the case under consideration, the difficulty stemmed from the fact that the Committee was confronted with a whole draft convention and not with relatively short proposals. The whole convention might be considered as a single proposal and in the case in point a proposal for the deletion of a whole article was an amendment to delete only a part of the whole. On the contrary, if each article were considered as a separate proposal, a motion for complete deletion or complete substitution of the article was not an amendment but a proposal to be dealt with according to rule 120. With regard to rule 102, Mr. Kerno fully supported the Chairman’s ruling. If a point of order were raised, the Chairman was obliged to give his ruling immediately, without a discussion. If his ruling were challenged, the appeal should immediately be put to the vote, without any discussion. The meeting rose at 1.05 p.m.

A/C.6/SR.103

1759

HUNDRED AND THIRD MEETING Held at the Palais de Chaillot, Paris, on Friday, 12 November 1948, at 3.15 p.m. Chairman: Mr. R.J. Alfaro (Panama). 52. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Article X The Chairman opened the discussion on article X. He recalled that the following delegations had submitted amendments to the text of the Ad Hoc Committee: Union of Soviet Socialist Republics [A/C.6/215/Rev.1]; Belgium [A/C.6/217 ]; United Kingdom [A/C.6/236 ]; Belgium and United Kingdom [A/C.6/258]. Two amendments had been proposed by India [A/C.6/260]1 and Haiti [A/C.6/263]2 to the joint amendment submitted by Belgium and the United Kingdom. 1

2

Amendment submitted by India: For the words “at the request of any of the High Contracting Parties” substitute the words “at the request of any of the parties to the dispute.” Amendment submitted by Haiti: Add at the end of the text “or of any victims of the crime of genocide (groups or individuals)”.

Mr. Fitzmaurice (United Kingdom) stated that he had withdrawn the original United Kingdom amendment [A/C.6/236 ], substituting for it the joint amendment [A/C.6/258]. In the absence of the representative of Belgium, it was impossible to say definitely whether the original Belgian amendment would be withdrawn, but Mr. Fitzmaurice thought that it had also been withdrawn in favour of the joint text. Mr. Dignam (Australia) observed that the decision to delete article VIII of the convention (101st meeting) prejudged the fate of any provision based on the principle contained in that article, namely, action by organs of the United Nations. Article X dealt with the settlement of disputes by the International Court of Justice, which was one of the competent organs of the United Nations covered by article VIII. Strictly speaking, therefore, the Committee should not discuss article X. If it did so it

1760

A/C.6/SR.103

should be for the definite purpose of rectifying the mistake of having deleted article VIII. The Australian delegation considered that a clause should be inserted in article X concerning organs of the United Nations other than the International Court of Justice, which could take useful action in suppressing genocide. The Chairman stated that all ideas expressed during the discussions should be studied; and, moreover, that the rejection of a text did not imply that its substance could not be incorporated in another article. Nevertheless, the Committee must confine itself to the consideration of the text of article X proposed by the Ad Hoc Committee, and of the amendments submitted thereto in accordance with the rules of procedure. Mr. Sundaram (India) thought that it would be better not to regard the original Belgian amendment [A/C.6/217 ] as withdrawn. The joint amendment submitted by Belgium and the United Kingdom constituted an addition to the matters likely to give rise to disputes which would be submitted to the International Court of Justice; that addition might lead certain delegations to reject the joint amendment. If the original Belgian amendment were withdrawn, the Committee would be obliged to adopt the text of the Ad Hoc Committee, whereas the Belgian text was preferable. Consequently, if the Belgian delegation withdrew its amendment, the Indian representative would reintroduce it on its own behalf in accordance with rule 73 of the rules of procedure. After a discussion on the question as to whether the Committee was still seized of the Belgian amendment, in the course of which the Chairman, Mr. Kerno (Assistant Secretary-General in charge of the Legal Department), Mr. Maktos (United States of America), Mr. Spiropoulos (Greece) and Mr. Raafat (Egypt) expressed their views, Mr. Abdoh (Iran) stated that if the original Belgian amendment [A/C.6/217 ] had not been withdrawn by its author, the Committee should examine it and put it to the vote; if, however, it had been withdrawn, the delegation of Iran would reintroduce it on its own behalf in conformity with rule 73 of the rules of procedure. The Chairman took note of the fact that the Belgian amendment had become an amendment submitted by Iran.

A/C.6/SR.103

1761

In reply to a question by Mr. de Beus (Netherlands), the Chairman stated that the second Belgian amendment [A/C.6/252] had been replaced by the joint amendment of the Belgian and United Kingdom delegations. He called upon the Committee to proceed to the general discussion of that joint amendment [A/C.6/258]. Mr. Maktos (United States of America) remarked that the joint amendment had been intended to replace the original amendments submitted by Belgium and the United Kingdom; it was, in principle, an improvement on those texts; it would therefore be better first to decide on the Belgian amendment. The representative of the United States accordingly made a formal motion that that amendment should be discussed first. The Chairman pointed out that the joint amendment was furthest removed in substance from the text of the Ad Hoc Committee; consequently, in conformity with rule 119 of the rules of procedure, the Committee should express its views on that amendment first. The Chairman ruled that the point of order raised by the representative of the United States was not in order and that the joint amendment must be examined first. Mr. Maktos (United States of America) appealed against the Chairman’s ruling. The Chairman put the appeal to the vote. The Chairman’s decision was upheld by 22, votes to 2, with 8 abstentions. Mr. Fitzmaurice (United Kingdom) reviewed the history of the joint amendment of Belgium and the United Kingdom. He recalled that during the debate on article VII (97th meeting), the United Kingdom delegation had submitted an amendment [A/C.6/236/Corr.1]; an amendment to that amendment had been proposed by Belgium [A/C.6/252]. The debate had clearly shown the Committee’s desire to confine the provisions of article VII to the responsibility of individuals. The United Kingdom and Belgium had therefore withdrawn their amendments to article VII and had worked out jointly a new text as an amendment to article X, which dealt with the jurisdiction of the International Court of Justice and which was thus a suitable point at which to insert the idea the two delegations had

1762

A/C.6/SR.103

in mind. The joint amendment [A/C.6/258] represented an attempt to combine the provisions of article X as it stood with the essential features of the Belgian and United Kingdom amendments to article VII, namely, the responsibility of States and an international court empowered to try them. The delegations of Belgium and the United Kingdom had always maintained that the convention would be incomplete if no mention were made of the responsibility of States for the acts enumerated in articles II and IV. At the 102nd meeting, during the discussion on the competence of national courts and the reference of disputes to the Security Council, the representative of the United Kingdom had been impressed by the fact that all speakers had recognized that the responsibility of the State was almost always involved in all acts of genocide; the Committee, therefore, could not reject a text mentioning the responsibility of the State. Mr. Fitzmaurice recalled the French representative’s statement, at the 101st meeting, to the effect that it was incomprehensible that Belgium and the United Kingdom should oppose the joint amendment which the USSR and France had offered to article VIII, since the former delegations were offering a similar amendment to article X. There was a very clear difference, however, between the French and USSR text and the Belgian and United Kingdom text: the former had contemplated provisions of an optional nature wherein, moreover, rights were conferred which were already laid down in Articles 34, 35, 36 and 37 of the Charter; whereas the joint Belgian and United Kingdom amendment proposed that reference to the International Court of Justice should be obligatory. The Court’s jurisdiction was compulsory only for a limited number of States which, in accordance with Article 36 of the Statute of the Court, had recognized it by an official declaration. The joint amendment to article X was intended to impose upon all States parties to the convention the obligation to refer all disputes relating to cases of genocide to the International Court. Mr. Chaumont (France) said he was in favour of the joint Belgian and United Kingdom amendment which corresponded in spirit to the views expressed from the very beginning by the French delegation with regards to the need for and importance of international punishment of genocide. It would certainly have been preferable to provide for such punishment on the direct basis of criminal law instead of confining its scope to States

A/C.6/SR.103

1763

alone on the basis of civil law; but, inadequate as it was, the joint amendment was preferable to the absence of any text confirming competence to an international court. In reply to a remark by the representative of the United Kingdom, Mr. Chaumont recognized that the joint amendment made the competence of the International Court of Justice compulsory, whereas the amendment to article VIII, proposed jointly by France, Iran and the USSR, provided for optional reference only. Nevertheless, as the representative of Poland had indicated (101st meeting), the option in question led, in practice, to an obligation. Mr. Chaumont felt that it would in any case be useful to reiterate, in the convention, a general provision of the Charter, such as Article 36, so as to make it applicable to the special case of genocide. While regretting the fact that the problem of the international punishment of genocide should be dealt with solely on the level of disputes between States, he hoped that the interpretation given on that matter by the International Court of Justice would interpret its functions in such a way as to enable it to extend its competence to all cases of genocide. Moreover, the representative of France was in no way opposed to the principle of the international responsibility of States as long as it was a matter of civil, and not criminal, responsibility. With regard to the amendments to the joint amendment, Mr. Chaumont could accept the one presented by India, which was merely a drafting matter, but not the text proposed by Haiti, which was incompatible with Article 34 of the Statute of the International Court of Justice. Mr. Raafat (Egypt) shared the view of the representative of France concerning the Indian and Haitian amendments, but he could not agree with him with respect to the joint Belgian and United Kingdom amendment. The latter introduced two changes in article X of the Ad Hoc Committee’s draft. The first consisted in introducing into the article the notion of the civil responsibility of States which, in the absence of a general organization for international punishment, would be approved by the Egyptian delegation. The second modification, however, which involved the deletion of the last section of article X of the draft, beginning with the words “provided

1764

A/C.6/SR.103

that”, was less satisfactory. That deletion doubtless reflected the desire to omit from that provision, as well as from article VII, any reference to a competent international court. It left, however, a lacuna, the serious disadvantages of which would be felt on the establishment of the international criminal court referred to in the draft resolution which the Committee had adopted at its 99th meeting on the initiative of the Netherlands and Iran, requesting the International Law Commission to study the problem. The last part of that article merely endorsed the rule that “the civil court must await decision by the criminal court”, which should also be applied in the field of international law. It was therefore essential that that part of article X should be retained; for that reason the delegation of Egypt would abstain from voting on the joint amendment. Mr. Chaumont (France) explained that he too opposed the deletion of that sentence, which he had not mentioned in his preceding remarks, thinking that it would not be discussed until the Committee came to the Belgian amendment [A/C.6/217 ], which had been reintroduced by Iran. Mr. Guerreiro (Brazil) observed that there were no serious objections to the joint amendment. Article VIII was unnecessary, as it merely proclaimed the rights already laid down in the United Nations Charter. Article X, on the other hand, introduced into the draft convention the compulsory jurisdiction of the International Court of Justice. That compulsory jurisdiction, in accordance with Article 36 of the Statute of the Court, applied only to the States which had signed a special declaration to that effect. Article X would thus supplement the provisions of the Statute in that respect. The delegation of Brazil was prepared to accept the joint amendment, provided the second part of article X of the draft remained deleted, so that it would conform to article VII, from which mention of a competent international tribunal had been deleted. If the International Criminal Court, whose establishment was under consideration, were to be created, it would be an easy matter to revise the convention so as to adapt it to the new situation. Referring to the amendments to the joint amendment, Mr. Guerreiro said that the Indian amendment related merely to a drafting point; the

A/C.6/SR.103

1765

amendment presented by Haiti, however, was contrary to the Statute of the International Court of Justice; consequently, in view of the express provisions in the Statute as to how and by whom the Court could be seized of a matter, he suggested to the authors of the joint amendment and to the Committee that they should simply delete the last phrase of the amendment, which would in no way alter its meaning. Mr. Spiropoulos (Greece) approved, in general, the principle of the joint amendment. He wondered, however, whether there was a difference between the application and the fulfilment of a convention and whether, therefore, it was necessary to retain both words in the text. Furthermore, the notion of the responsibility of a State did not seem to him very clear. What was meant was obviously not international responsibility for violation of the convention, which was already implicit in article I of the draft convention. The French delegation thought that the amendment related to the civil responsibility of the State; and that idea seemed to be confirmed by the original Belgian text [A/C.6/252] which referred to reparation for damage caused. If, however, that interpretation were accepted, the result would be that in a number of cases the State responsible for genocide would have to indemnify its own nationals. But in international law the real holder of a right was the State and not private persons. The State would thus be indemnifying itself. In spite of the criticisms he had just made, Mr. Spiropoulos would vote for the joint amendment. Mr. Pratt de María (Uruguay), while regretting that the principle of the establishment of an international criminal court had not been retained in the convention, favoured the joint amendment; he was, however, opposed to the Indian and Haitian amendments. Mr. Demesmin (Haiti) approved the principle of the joint amendment, to which he had himself proposed an addition. He would explain later the reasons for his proposal. Mr. Ingles (Philippines) recalled that during the discussion of article V (95th meeting), he had already stated that his delegation was opposed to any responsibility on the part of the State for acts of genocide, because under Philippine law a legal entity could have no criminal responsibility distinct from that of the various individuals of which it was composed.

1766

A/C.6/SR.103

True, the joint amendment did not specifically state that criminal responsibility was involved, but from the very nature of the convention, the purpose of which was the punishment of genocide, that idea could be inferred. In those circumstances, and since the clause might make it difficult for certain countries to ratify the convention, Mr. Ingles asked the Belgian and United Kingdom delegations to withdraw their amendment, for when they, as well as other delegations, had pointed out that their Governments could not accept the convention if it involved the responsibility of their monarchs, the Committee had borne their remarks in mind and had excluded from article V rulers who were not constitutionally responsible (95th meeting). If it had been agreed, at their request, that a constitutional monarch could not be guilty of genocide, why should they not agree that a State could not be responsible for that crime either? Moreover, it might be said that that question had already been settled when the Committee opposed introducing the idea of the responsibility of the State into article V (96th meeting). The Philippine representative could not accept the idea that a whole State should be stigmatized for acts for which only its rulers or its officials were responsible. When it was maintained that genocide was always committed with the complicity or tolerance of a State, what was meant was the rulers and the officials, namely, the persons who composed the State and not the State itself, the responsibility of which was inconceivable. For those reasons, the Philippine delegation would vote against the amendment, and, if it were adopted, would have to reserve its position in regard to the draft convention as a whole. Mr. Tarazi (Syria) thought the rule that a decision by a civil court must await a decision by a criminal court, which the Egyptian representative wished to see retained in article X, would not have to be applied in that matter. The criminal court would try individuals – rulers, officials or private persons – while the International Court of Justice would try only States. The civil and criminal courts would therefore not be prosecuting the same persons and no conflict of jurisdiction would arise. The Syrian delegation would therefore vote for the joint amendment as well as for the Haitian amendment, which it did not consider in any way

A/C.6/SR.103

1767

contrary to the Statute of the Court. There was in fact no reason why the signatory States should not, by means of a convention, also allow groups and individuals to bring before the International Court of Justice cases of genocide of which they had been the victims. Mr. Abdoh (Iran) supported the joint amendment submitted by Belgium and the United Kingdom. His delegation had always hoped that the declaration provided for in Article 36 of the Statute of the International Court of Justice would be signed by as many States as possible, so that the jurisdiction of the Court would become obligatory for almost all members of the United Nations. That very result, namely, an extension of the compulsory jurisdiction of the Court, would be attained in the special matter of genocide by the adoption of the joint amendment. The objections raised to the terms of the amendment were not serious. It was certain, for example, that the Court would have no difficulty in deciding in each specific case to whom the reparation for damage caused should be made. On the other hand, the Haitian amendment could not be retained, for it would result in a modification of the Statute of the Court in disregard of the rules governing such action which were laid down in the Charter. The representative of Iran associated himself with the suggestion of the Brazilian delegation, namely, that the last phrase of the joint amendment should be deleted. Thus a discussion on the Indian amendment would be avoided. He further thought that the second part of the text of article X of the draft convention could not be restored after the joint amendment, for if the reference to a competent international tribunal had been deleted from article VII, there was all the more reason for its deletion from article X. When the international criminal court was set up, that text, as well as other provisions, could then be changed to conform to the new situation. Mr. Maúrtua (Peru) thought it would be premature to include in the convention so loosely defined an idea as the responsibility of the State in regard to genocide. As the Greek representative had pointed out, if civil responsibility were meant, that would raise numerous problems, particularly the problem of the beneficiary of the indemnity. In those circumstances, before a decision was taken on such a delicate point,

1768

A/C.6/SR.103

it should be referred to specialists for study, and Governments should be given an opportunity to formulate their views after having taken all necessary advice. The part of the joint amendment which could be retained was that relating to the jurisdiction of the International Court of Justice in respect to the interpretation of the convention by means of advisory opinions. Speaking of the Haitian amendment, the representative of Peru held that it was incompatible with the Statute of the Court and should not be adopted. Mr. Lachs (Poland) shared the doubts of the Greek, Philippine and Peruvian delegations about the principle of the responsibility of States. Moreover, he objected to the joint amendment, on the one hand because it provided for the application of measures which in no way constituted direct means of international punishment of a crime such as genocide, and on the other hand because it conferred on the International Court of Justice competence in a field in which other United Nations organs could play a more effective role. The result of that amendment, as drafted, would be in effect that the Court had virtually exclusive jurisdiction in that field. It would be easy for a State guilty of genocide to invoke article X, thus amended, to contest the competence of the Security Council or of the General Assembly by alleging that the question raised constituted a dispute within the meaning of that article, and that it could be examined only by the Court. It would be more logical to do what the Committee had done in connexion with article VIII (101st meeting) and to let the provisions of the Charter itself operate freely, especially Article 96, according to which it was for the General Assembly and the Security Council to refer to the International Court of Justice if they deemed it necessary. In that case, there would be no more reason to retain article X than article VIII, since it would merely repeat provisions already contained in the Charter. In conclusion, the Polish representative considered the joint amendment submitted by Belgium and the United Kingdom amendment to be dangerous because it would confine international punishment to measures of uncertain efficacy and would constitute an obstacle to more forceful action by the Security Council and the General Assembly.

A/C.6/SR.103

1769

Mr. de Beus (Netherlands) observed that the objections made to the United Kingdom amendment during the discussion of article VII (97th meeting) were no longer valid. That amendment had been restored to its proper place, which was article X, and in its new form it envisaged also the indirect responsibility of the State resulting from the leniency of national courts towards individuals or groups guilty of genocide. Referring to the argument advanced by the Philippine delegation, the Netherlands representative hoped that the delegation would not adhere to its position. That position could perhaps be maintained if the criminal responsibility of the State were involved, but it seemed exaggerated if civil responsibility were meant and if it resulted in a rejection of the jurisdiction of the International Court of Justice even in connexion with the violation of the convention by a State. That was tantamount to denying the Court any jurisdiction whatsoever; yet such an argument was advanced by a country which had at first proposed that the United Nations should be in the nature of a world Gouvernment [sic]. Furthermore, Mr. de Beus did not find the arguments of the Polish representative very convincing. The competence of the International Court of Justice in no way ruled out that of the other organs of the United Nations. If the joint amendment were adopted, article X of the draft convention would constitute a direct application of Article 33 of the Charter, which stipulated in the first place the judicial settlement of disputes. Only if the question could not be settled in that way, should it be submitted to the Security Council by virtue of Article 37 of the Charter. Such was the normal order of the relationship between the International Court of Justice and the Security Council; such was the order provided for in the joint amendment. The Netherlands delegation would vote in favour of that amendment. Mr. Demesmin (Haiti) referred to the fact that several representatives who had been opposed to his delegation’s amendment had said that that amendment was inconsistent with the Statute of the International Court of Justice. But it was not a case of a dispute of an indeterminate nature, but of a special case calling for an exceptional law, and thus derogation from the ordinary law. The United Kingdom representative had himself declared that what was involved was an obligation not provided for in the Statute of the International Court of Justice as it stood. It seemed,

1770

A/C.6/SR.103

therefore, that if the Statute of the Court were inconsistent with the provisions of the Haitian amendment, it must also be inconsistent with the provisions contained in the joint amendment of Belgium and the United Kingdom. The French representative had said he would support any text which gave jurisdiction to the International Court of Justice. The Haitian amendment satisfied him on that point. Article 38 of the Statute of the International Court of Justice provided that: The Court . . . shall apply: a. International conventions, whether general or particular . . .

The convention with which the Sixth Committee was dealing was a particular convention coming within the scope of the Statute of the Court. The representative of Haiti pointed out that the joint amendment of Belgium and the United Kingdom envisaged State responsibility. The Committee, however, had rejected (93rd meeting) the principle of the criminal responsibility of the State. It was therefore a matter merely of civil responsibility. But there could be no civil responsibility before the culpability of the State was established. The Haitian delegation accepted the principle of civil responsibility because it regarded the convention as an exceptional law. The guilty State could be responsible under civil law only to the victims of the crime of genocide. It would be illogical for the plaintiff State to ask for damages unless the victims themselves benefited therefrom. The same principle applied if a State committed the crime of genocide against its own nationals. The representative of Haiti added that the crime of genocide could be committed without world peace being imperilled. That was why it was advisable to contemplate putting the principles of the United Nations into effect. The United Nations Charter, unlike the Covenant of the League of Nations, provided not only for respect on an international plane for the rights of States, but also for respect for the rights of individuals. Respect for human life should be guaranteed and it was for the International Court of Justice, in pursuance of a particular convention, to ensure that guarantee. Finally, it was unquestionable that the victims were best qualified to lay the matter before the International Court of Justice. Article 34 of the Statute of the Court provided that “The Court, subject to and in conformity with its rules, may request of public international

A/C.6/SR.103

1771

organizations information relevant to cases before it . . .” That Article proved that the Statute of the Court was not inconsistent with the provisions of the amendment submitted by the delegation of Haiti. Mr. Sundaram (India) pointed out that in the first amendment submitted by the United Kingdom delegation [A/C.6/236 ], it was laid down that the matter should, “at the request of any party to the dispute,” be referred to the International Court of Justice. In the joint amendment of Belgium and the United Kingdom [A/C.6/258] it was provided that: “Any dispute . . . shall be submitted to the International Court of Justice at the request of any of the High Contracting Parties”. The representative of India felt that that change of wording did not improve the text. It would be advisable, on the contrary, to replace that phrase by the words “at the request of any of the parties to such dispute”, as suggested by the Indian amendment [A/C.6/260]. The Egyptian representative had said that if the Committee adopted the joint Belgian and United Kingdom amendment, the last part of the text of article X proposed by the Ad Hoc Committee should be added. The representative of India considered that since the reference to an international criminal court had been omitted from article VII, and since it would be a long time before such a court was established, it was useless at that stage to provide against such a contingency in article X. Mr. Sundaram recalled, moreover, that the joint Belgian and United Kingdom amendment added the phrase “or fulfilment” and that the representative of Greece had said that there was no great difference between applying and fulfilling a convention. The representative of India felt, however, that the word “application” included the study of circumstances in which the convention should or should not apply, while the word “fulfilment” referred to the compliance or non-compliance of a party with the provisions of the convention. The word “fulfilment” therefore had a much wider meaning. The representative of India considered that the inclusion of all disputes relating to the responsibility of a State for any of the acts enumerated in articles II and IV would certainly give rise to serious difficulties. It would make it possible for an unfriendly State to charge, on vague and unsubstantial allegations, that another State was responsible for genocide within its territory.

1772

A/C.6/SR.103

The representative of India said that those were the reasons why his delegation could not accept the joint Belgian and United Kingdom amendment. Mr. Pescatore (Luxembourg) recalled that certain representatives had stated that the concept of responsibility in that field was still unclear and that it was not known who might claim rights to reparations following the perpetration of a crime of genocide. It seemed, however, that the principle that no action could be instituted save by a party concerned in a case should be applied in that connexion. Such responsibility would thus arise whenever genocide was committed by a State in the territory of another State. In that case, the State which had suffered damage would have a right to reparation. The joint Belgian and United Kingdom amendment gave the International Court of Justice the opportunity of deciding whether or not damages should be granted, and it would be for the plaintiff to prove the injury sustained. Mr. Maktos (United States of America) called attention to the fact that, when he had spoken previously on a point of order, he had had in mind the second Belgian amendment [A/C.6/252]; he had therefore asked that that amendment should be discussed first. As it was in fact the first Belgian amendment [A/C.6/217 ] which the Iranian delegation had reintroduced, it had been perfectly logical to begin by discussing the joint amendment, in accordance with the Chairman’s ruling. Mr. Agha Shahi (Pakistan) considered that the joint Belgian and United Kingdom amendment aimed at reviving the principle of an international court to sentence those responsible for the crime of genocide, a principle which the Committee had recently rejected (98th meeting). The representative of Pakistan considered, moreover, that that amendment had not been sufficiently clearly drafted. The expression “responsibility of a State”, in particular, was too abstract for such a matter as criminal law, which called for accuracy and clarity. According to that amendment, the State would have to be given a fictitious legal character, a convenient procedure in civil or commercial matters but not in criminal law nor, a fortiori, in the convention. The representative of France had said that it was difficult to interpret the expression “responsibility of a State”, because article X did not provide for the conviction of a State, but dealt with damage caused by the crime of

A/C.6/SR.103

1773

genocide and reparation for such damage. The representative of Pakistan was doubtful as to the advisability of dealing with civil responsibility in a document which referred solely to a criminal matter. He would have preferred the words used in article V referring to the constitutionally responsible rulers (95th meeting) rather than the words “responsibility of a State”. The former would make the text clearer and more accurate. Mr. Lapointe (Canada) asked the United Kingdom representative what was meant by “responsibility of a State”. Did it refer to civil or to criminal responsibility, or to both at the same time? He made that request because, when the Committee had discussed articles V and VII, the United Kingdom delegation had submitted an amendment [A/C.6/236, A/C.6/236/Corr.1] the purpose of which was to define the responsibility of States in respect to genocide. It then withdrew that amendment (100th meeting), on the ground that it would be more appropriate to submit it during the discussion of article X. If the United Kingdom delegation understood the responsibility of a State to mean criminal responsibility, it was reintroducing an idea that the Committee had rejected during the discussion of article V (93rd meeting). If not, it should be made clear that civil responsibility alone was intended. Mr. Zourek (Czechoslovakia) said that the Committee was discussing guarantees for the application of the convention. Those guarantees should be appropriate to the object of the convention, which was to ensure the prevention and punishment of the crime of genocide. Genocide was brought about by racial, national or religious hatred. That crime might be committed unexpectedly and on a large scale. Legal guarantees, however, seemed too slow to ensure the effective prevention of the perpetration of such a crime. The representative of Czechoslovakia observed that there was every reason to think that the human group concerned would be massacred before the completion of proceedings instituted with the International Court of Justice. The Czechoslovak delegation asked that supervision of the implementation of the convention should be entrusted to the Security Council, which had appropriate means at its disposal for stopping, should occasion arise, the perpetration of the crime of genocide. In that connexion Mr. Zourek regretted that the Committee had not retained article VIII as proposed by France, the USSR, and Iran (102nd meeting).

1774

A/C.6/SR.103

He considered that the clause contained in the joint Belgian and United Kingdom amendment would be inoperative. As the Polish representative had said, it might even prove dangerous, since it would make it impossible to resort in time to the other organs of the United Nations and, in particular, to the Security Council, which alone could intervene with the necessary speed in very serious cases. The Czechoslovak delegation would therefore vote against the amendment submitted by Belgium and the United Kingdom. Mr. Medeiros (Bolivia) recalled that, during the discussion on article VII, he had explained (97th meeting) the reasons for which he would vote for the United Kingdom amendment. The joint Belgian and United Kingdom amendment was all the more necessary since the Committee had refused to accept the principle of an international tribunal. The problem of the responsibility of individuals should be studied by the International Law Commission. The problem of the international responsibility of States should be submitted to the International Court of Justice. It would thus be possible to pass indirect sentence on individual acts. In accordance with Article 36 of its Statute, the Court would be able to decide whether the crime of genocide had been committed in the territory of a State. Once that fact had been established, the State concerned would have to punish the offenders. The international responsibility of States thus entailed practical results. The Bolivian representative thought that the joint Belgian and United Kingdom amendment considerably improved article X. On the other hand, the amendment submitted by the delegation of Haiti seemed inconsistent with Article 34 of the Statute of the Court. The Bolivian delegation would therefore vote against the Haitian amendment. Mr. Fitzmaurice (United Kingdom), replying to the Canadian representative, said that the responsibility envisaged by the joint Belgian and United Kingdom amendment was the international responsibility of States following a violation of the convention. That was civil responsibility, not criminal responsibility. The meeting rose at 5.55 p.m.

A/C.6/SR.104

1775

HUNDRED AND FOURTH MEETING Held at the Palais de Chaillot, Paris, on Saturday, 13 November 1948, at 10.50 a.m. Chairman: Mr. R.J. Alfaro (Panama). 53. Continuation of the consideration of the draft convention on genocide [E/794 ]: report of the Economic and Social Council [A/633] Appointment of a drafting committee The Chairman proposed the appointment of a drafting committee consisting of the following members: Belgium, China, Cuba, Egypt, France, Poland, Union of Soviet Socialist Republics, United Kingdom, United States of America. It was so agreed. Article X (continued ) Mr. Morozov (Union of Soviet Socialist Republics) stated that the joint United Kingdom and Belgian amendment [A/C.6/258] was not acceptable to the USSR delegation because its adoption would not prevent acts of genocide or violations of the convention. The purpose of the amendment seemed to be to prevent any country from submitting to the Security Council or to the General Assembly any complaint in regard to acts of genocide, thereby preventing the United Nations from taking quick action. The mass extermination of a human group could not be called a dispute between the parties to the convention and therefore could not be within the province of the International Court of Justice. Moreover, the Court was not the competent body to consider situations endangering the maintenance of international peace and security, since it did not have the means to prevent acts of genocide. The question under discussion was not the criminal but the civil responsibility which provided for damages for acts of genocide. The obligation to provide for damages could exist only as a result of the admission of the offence by the State which had taken part in the crime, and not by the rulers of the State.

1776

A/C.6/SR.104

The proposed amendment of the United Kingdom and Belgium was only an attempt to submit, in another form, an amendment to article V in order to reintroduce the idea of the criminal responsibility of States for acts of genocide. That idea had been rejected by the Committee (93rd meeting). Mr. Morozov hoped that the Committee would again show its reluctance to include such a provision in the convention. Mr. Messina (Dominican Republic) pointed out that when the Committee had discussed article V of the draft convention, the United Kingdom delegation had proposed [A/C.6/236 ] the addition of a paragraph providing that when crimes of genocide were committed by or on behalf of Governments, such acts should be considered a violation of the convention. He had opposed that amendment not only because it was contrary to the first part of article V, which had already been approved (95th meeting), but also because, according to the law of the Dominican Republic, a legal entity could not be considered guilty of a crime. The joint amendment to article X submitted by the United Kingdom and Belgium provided that any dispute among contracting parties should be submitted to the International Court of Justice at the request of one of the parties. That proposal appeared to reproduce the same views as were reflected in the United Kingdom addition to article V. The new joint amendment should not be included in the convention; even without its inclusion the International Court of Justice would be competent to deal with disputes among States and decide on violations or reparations. Since the States which would sign the convention were already parties to the Statute of the International Court of Justice, it would be sufficient for those which had not yet accepted the compulsory jurisdiction of the Court to accept it, in which case the jurisdiction of the Court would be even greater. Mr. Messina concluded by stating that his delegation would not vote in favour of the joint amendment submitted by the United Kingdom and Belgium. Mr. Ingles (Philippines) wished to reply to a direct allusion made at the 103rd meeting by the representative of the Netherlands. Article V had been amended by the Committee so as to exclude constitutional monarchs from its provisions, as some delegations had stated that their Governments would not be able to accept the convention if it included any provision

A/C.6/SR.104

1777

making constitutional monarchs responsible for acts of genocide. He wondered whether the Committee, having recognized in the convention the constitutional fiction that “the king can do no wrong”, was also going to accept the constitutional principle that “the State can do no wrong.” Some delegations might not be willing to be parties to the convention if it contained a provision holding States responsible for acts of genocide. The principle of State immunity would certainly be more justified than the fiction of monarchical irresponsibility if the purpose of the Committee in drafting the convention was to punish the real authors of genocide. The Philippine delegation favoured the text of article X as drafted by the Ad Hoc Committee because it recognized the right of contracting parties to bring a dispute as to the interpretation or application of the convention before the International Court of Justice. It was, however, against the joint amendment of the United Kingdom and Belgium, which would extend the jurisdiction of the Court to disputes relating to the responsibility of States for acts of genocide. Article V excluded the criminal responsibility of States for acts of genocide, and Mr. Ingles recalled that the Committee had rejected (96th meeting) the United Kingdom amendment supporting the idea that genocide might be committed by or on behalf of a State. The United Kingdom representative had implied at the 103rd meeting that his delegation had abandoned the concept of the criminal responsibility of States. It must be assumed, therefore, that the new joint amendment envisaged some sort of civil responsibility, the beneficiary of which was not specified. The fundamental purpose of the original text of article X was to provide for an agency for the settlement of disputes between States only with respect to the interpretation and application of the provisions of the convention. A breach of the convention by a signatory State would be an act of international delinquency but not a crime against international law. Although private persons might be held primarily responsible, as individuals, for acts committed by the State, that did not necessarily mean that States should be held directly responsible for the acts of private individuals. As had been pointed out by the United Kingdom representative (64th meeting), when a State was provoked by acts of genocide committed against its nationals, the only remedy was to resort to war, and the stakes were therefore higher than the award of pecuniary damages.

1778

A/C.6/SR.104

For those reasons, the Philippine delegation had supported the punishment of individuals only, either by national or international criminal courts, An award of damages would not be an adequate substitute for the punishment of the individual criminal. Mr. Lachs (Poland) said he was disturbed to notice how many delegations had shown readiness to accept the joint amendment. He had pointed out, at the 103rd meeting, the difficulty which would arise in the practical application of the suggested provision, which would not only not help but would constitute an obstacle to the prevention of genocide. Mr. Lachs disagreed with the reference made by the Netherlands representative (103rd meeting) to Article 33 of the Charter, inasmuch as that Article dealt with cases which might be settled by negotiation, mediation or other peaceful means. In his statement at the 103rd meeting, the United Kingdom representative had explained what he meant by “responsibility of a State”. Mr. Lachs pointed out that such responsibility implied the compensation due for a wrong committed, but that such questions should not be covered by a convention for the punishment of crimes. If genocide were committed, no restitution or compensation would redress the wrong. The convention would be rendered valueless if it were couched in terms which might allow criminals who committed acts of genocide to escape punishment by paying compensation. Mr. Raafat (Egypt) wished to reply to certain comments made on his statement at the 103rd meeting concerning the deletion of the last part of article X. The Iranian representative had said that the last part of article X should be deleted; Mr. Raafat pointed out, however, that although no international criminal court existed as yet, it would be advisable not to preclude the possibility of establishing such a court at a later date. The Committee, therefore, should not adopt the Iranian proposal [A/C.6/217] for the deletion of the second part of article X. Mr. Raafat requested that the joint amendment of Belgium and the United Kingdom should be divided into two parts and voted upon separately. Mr. Abdoh (Iran), referring to the amendment submitted by the representative of Haiti (103rd meeting), said that in his opinion it was contrary

A/C.6/SR.104

1779

to the terms of Article 34 of the Statute of the International Court of Justice. Turning to the question of the joint amendment submitted by Belgium and the United Kingdom, Mr. Abdoh said that it would not preclude the possible intervention of other competent organs of the United Nations, such as the Security Council or the General Assembly. When a case of genocide arose which was a threat to international peace and security, Chapters VI and VII of the Charter might be applied. Article 36 of the Statute of the Court permitted the intervention of that body in the cases referred to in the joint amendment. The Iranian representative felt that the amendment did not clearly determine the civil responsibility of States with regard to the crime of genocide; he would therefore appreciate a clarification by the United Kingdom representative on various points. When answering a question by the representative of Canada, the United Kingdom representative had said (103rd meeting) that he envisaged civil responsibility in his amendment. In international law, a State asked for reparation of damages inflicted on its nationals by another State; but in the case of genocide, it was a question of injuries inflicted on citizens by citizens of the same State. Mr. Abdoh wondered how the civil responsibility of the State would arise. Reparations could be paid to a State when its citizens had been the victims of an act of genocide in another State, but in some of the cases envisaged in the convention, it was difficult to determine which State would have the right to damages. The representative of Iran would also like to have the views of the representative of the United Kingdom on the nature of the damages, if a State were not directly but indirectly concerned, merely as signatory to the convention. If each State party to the convention were entitled to reparations, such a provision would obviously lead to abuse. The International Court of Justice could not inflict fines and, furthermore, Mr. Abdoh wished to know what would be the juridical basis for receiving such moneys. Mr. Fitzmaurice (United Kingdom) expressed surprise that certain delegations had argued that provision to refer acts of genocide to the International Court of Justice might be a hindrance to the punishment of the crime.

1780

A/C.6/SR.104

In reply to statements made by the representatives of the USSR and Poland (103rd meeting), he stated that reference to the International Court could not prevent the submission of a case of genocide to the Security Council if it threatened international peace and security. The reference of disputes as to the responsibility of States under the convention, or as to the interpretation of the convention, could not in any way affect the submission of cases to any of the competent organs of the United Nations. With regard to the questions put to him by the representative of Iran, Mr. Fitzmaurice wished to point out that he did not contemplate that a case of cash reparations would arise. The cases of reparation mentioned by the Iranian representative did not occur in acts of genocide, because the offences were generally committed by the State against its own nationals. An argument which had been put forward in the Committee was that to refer cases to the International Court of Justice would be useless because any action on its part would be taken too late and would not repair injuries already committed. The United Kingdom representative did not think that acts of genocide occurred suddenly; genocide was a process in which racial, religious or political groups were gradually destroyed. When it became clear that genocide was being committed, any party to the convention could refer the matter to the International Court of Justice. Should the Court decide that a breach of the convention had been committed, it could order punishment. In accordance with Article 94 of the Charter, Member States were legally bound to comply with the decisions of the International Court. Furthermore, Article 94, paragraph 2 of the Charter provided that if a State failed to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party might have recourse to the Security Council. The United Kingdom delegation had always taken into account the enormous practical difficulties of bringing rulers and heads of States to justice, except perhaps at the end of a war. In time of peace it was virtually impossible to exercise any effective international or national jurisdiction over rulers or heads of States. For that reason, the United Kingdom delegation had felt that provision to refer acts of genocide to the International Court of Justice, and the inclusion of the idea of international responsibility of States or Governments, was necessary for the establishment of an effective convention on genocide.

A/C.6/SR.104

1781

Mr. Fitzmaurice accepted the amendment submitted by the representative of India (103rd meeting). Mr. Spiropoulos (Greece) remarked that the Committee’s confusion on the article under discussion was due in the first place to the sentence in the joint amendment referring to the responsibility of States for acts covered by article II and IV of the convention; and in the second place to the statement made by the representative of France (103rd meeting) which, for the first time, introduced a reference to the civil responsibility of States. Article X embodied provisions which were not new and could be found in almost any other convention established after the First World War. As a general rule, the State was responsible for acts of genocide committed in its territory and that provision was covered by article I of the convention. If the crime were committed by private individuals, the State was not responsible unless it failed to take measures to punish the persons responsible. If public officials or rulers committed the crime, the State could not be held to be criminally responsible; it was responsible in cases of violation of international obligations. Genocide could be committed against the nationals of the State itself, or against aliens. If a State ordered the destruction of a minority group which included aliens, the convention was superfluous, because the principles of international law would in any case have been violated. The nationals of the State itself needed protection, not the aliens. The signatory States undertook only to prevent and punish the crime of genocide and would not assume any obligation as to the nature or extent of the reparations to be made. Mr. Demesmin (Haiti), replying to the arguments advanced by several representatives, to the effect that his amendment was contrary to the provisions of Article 34 of the Statute of the International Court of Justice, which proclaimed that only States could be parties in cases before the Court, cited Article 13 b of the United Nations Charter which mentioned the General Assembly’s responsibility for assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. That was surely a more vital obligation than the one contained in Article 34 of the Statute of the International Court of Justice, especially as Article 103 of the Charter stated that obligations under the Charter should prevail over any other obligations. The victims

1782

A/C.6/SR.104

of the crime of genocide were the persons most likely to wish to bring the matter before the Court and they should be given the opportunity to do so. The joint amendment submitted by the delegations of Belgium and the United Kingdom brought up the question of the responsibility of the State. The concept of the criminal responsibility of the State had already been rejected and without criminal responsibility there could be no civil responsibility. It had also been decided (100th meeting) that cases of genocide would be tried by national tribunals and no provision for establishing an international tribunal had been included in the convention. In those circumstances, the joint amendment was extremely weak and would not be very effective. In order to facilitate agreement, however, the representative of Haiti withdrew his amendment. Mr. Pratt de María (Uruguay), supported by Mr. Raafat (Egypt), requested that the joint amendment should be put to the vote in parts and that the phrase “including disputes relating to the responsibility of a State for any of the acts enumerated in articles II and IV” should be put to the vote separately. In reply to a question by the representative of El Salvador, the Chairman explained that the vote on the joint United Kingdom and Belgian amendment would not affect the issue as to the last part of article X as drafted by the Ad Hoc Committee. The original Belgian amendment [A/C.6/217 ] for the deletion of the last part of the article had been re-submitted by the representative of Iran (103rd meeting) and would be put to the vote afterwards whatever the result of the vote on the joint amendment. Mr. Chaumont (France) suggested dividing the amendment into three parts for the purposes of the vote. The first vote would be taken on the question of inserting the word “fulfilment”; the second on the phrase “including disputes relating to the responsibility of a State for any of the acts enumerated in articles II and IV”, and the third vote on the rest of the amendment would at the same time settle the question as to the deletion or retention of the last part of article X as drafted by the Ad Hoc Committee. Mr. Morozov (Union of Soviet Socialist Republics) did not agree to that method of voting. The first part of the joint amendment was exactly the

A/C.6/SR.104

1783

same as the first part of the original draft except for the addition of the word “fulfilment”. That part could not, therefore, be considered as an amendment and the only point that should be put to the vote was the question of adding the word “fulfilment” to the first part of the basic text. The second vote should be taken on the part of the joint amendment starring with the words “including disputes”. If any other procedure were followed, the Committee would be departing from its decision to take the Ad Hoc Committee’s draft as its basic text. Mr. Morozov reminded the Chairman that the Iranian amendment calling for the deletion of the whole of article X had not yet been discussed. The Chairman replied that amendments could not be divided for the purpose of comparing parts of them with parts of the original text. The joint amendment as a whole differed substantially from the basic text and it was only being divided for the purpose of the vote. In order to meet the point raised by the representative of the Soviet Union he ruled that a separate vote would be taken on the question of adding the word “fulfilment”. The rest of the joint amendment would then be put to the vote in parts, as requested by the representatives of Uruguay and Egypt. Mr. Morozov (Union of Soviet Socialist Republics) appealed against the Chairman’s ruling. The Chairman put the appeal to the vote. The Chairman’s ruling was upheld by 28 votes to 5, with 10 abstentions. Replying to a question by the representative of Cuba, the Chairman said that the fact of putting the joint amendment to the vote in parts did not affect his earlier ruling (103rd meeting) concerning the Iranian amendment calling for the deletion of the second part of article X as drafted by the Ad Hoc Committee. That amendment would be put to the vote in due course. He put to the vote the amendment submitted by the representative of India (103rd meeting) to the joint amendment of the United Kingdom and Belgium [A/C.6/258]. The Indian amendment was adopted by 30 votes to 9, with 8 abstentions.

1784

A/C.6/SR.104

The Chairman put to the vote the deletion of the word “fulfilment” from the joint amendment of the United Kingdom and Belgium. The deletion was rejected by 27 votes to 10, with 8 abstentions. The Chairman put to the vote the deletion of the words “including disputes relating to the responsibility of a State for any of the acts enumerated in articles II and IV” from the joint amendment of the United Kingdom and Belgium. The deletion was rejected by 19 votes to 17, with 9 abstentions. The Chairman put to the vote the joint amendment of the United Kingdom and Belgium as a whole, as amended by India. The amendment was adopted by 23 votes to 13, with 8 abstentions. Mr. Tsien (China) explained that he had abstained from voting because, although he approved of the idea of submitting disputes to the International Court of Justice, he did not think that the concept of the responsibility of the State should be included in the convention. The Chairman put the Iranian amendment [A/C.6/217] before the Committee. Mr. Demesmin (Haiti) said that, since the joint amendment had been proposed in substitution for article X as drafted by the Ad Hoc Committee, it would not be in order to put any further amendments to the vote. In his opinion, the Committee had adopted the final text of article X in adopting the joint amendment as a whole, and the Iranian amendment could no longer be considered. Mr. Chaumont (France) did not agree with that interpretation of the vote. He had voted in favour of the joint amendment only on the understanding that a further vote would be taken concerning the last part of article X. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) said that it had been made quite clear before the vote that the result of that vote would not prevent the Committee from taking a further decision concerning the last part of article X. The adoption of the joint amendment naturally meant that the Iranian amendment could not be discussed in the form of a deletion, but it would be perfectly in order to

A/C.6/SR.104

1785

discuss the question if some representative were to propose the wording of the last part of article X as an addition to the adopted text. The Chairman endorsed the explanation given by the Assistant Secretary-General. Mr. Demesmin (Haiti), supported by Mr. Iksel (Turkey), maintained the view that no further amendments should be discussed since the joint amendment had been adopted in substitution for article X. Mr. Morozov (Union of Soviet Socialist Republics) said that the rules of procedure had been systematically violated in the course of the voting in the Sixth Committee. When article VIII had been under discussion, the proposals for the deletion of that article had been put to the vote first, but that procedure had been abandoned in connexion with article X. He had challenged the Chairman’s ruling earlier in the meeting because he had foreseen that it would lead to confusion if the Committee were to consider part of the basic text as an amendment. He had voted against the joint amendment, but, since it had been adopted in substitution for the original text, there was nothing more to be done and no further amendments could be considered. The only way to rectify the matter would be to decide by a two-thirds majority to reverse the decision that had been taken and to recommence the voting in accordance with the rules of procedure. The Chairman said that he had always acted in accordance with the will of the Committee. In order to avoid lengthy debates, whenever a question of procedure had arisen he had made a ruling immediately, so as to enable representatives to challenge that ruling if they so desired. Whenever his ruling had been challenged it had always been upheld by the vote of a large majority of the Committee. The questions of procedure had thus always been settled in accordance with the will of the Committee itself. Mr. Spiropoulos (Greece), Rapporteur, said that the Committee had often had to deal with difficult texts giving rise to complicated questions of procedure and much time had been taken up in dealing with those points. In his opinion, the Chairman had followed the best possible course in dealing with questions of procedure. The meeting rose at 1.00 p.m.

1786

A/C.6/SR.105

HUNDRED AND FIFTH MEETING Held at the Palais de Chaillot, Paris, on Saturday, 13 November 1948, at 3.25 p.m. Chairman: Prince Wan Waithayakon (Siam). 54. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Composition of the Drafting Committee The Chairman proposed that the membership of the Drafting Committee should be increased from nine to eleven, and appointed the representatives of Australia and Brazil as members thereof. At the request of Mr. Amado (Brazil) and Mr. Morozov (Union of Soviet Socialist Republics), who suggested, respectively, the appointment of the representatives of Iran and Czechoslovakia and were seconded by Mr. Spiropoulos (Greece), the Chairman agreed to increase the membership of the Committee to thirteen. The representatives of Australia, Brazil, Czechoslovakia and Iran were appointed members of the Drafting Committee. Article X (conclusion) Mr. Morozov (Union of Soviet Socialist Republics) pointed out that at the 104th meeting the Committee had adopted a final text for article X, although some amendments to that article still remained to be considered. Those amendments could not be discussed unless the Committee first acknowledged that an error in procedure had occurred and that, in voting upon the joint Belgian and United Kingdom amendment [A/C.6/258], it had in fact intended to vote on part only of the text of article X of the draft convention. The USSR representative moved, therefore, on a point of order, that the votes on the joint amendment should be declared void and that a new vote should be taken; it would thus be possible to put to the vote the

A/C.6/SR.105

1787

other amendments to article X before proceeding to a vote on the article as a whole. The Chairman pointed out that the joint amendment, which substituted a new text for article X of the draft prepared by the Ad Hoc Committee, had been considered as an amendment to that article, not as a proposal. The Egyptian representative, when analysing the joint amendment (103rd meeting), had divided it into two parts, corresponding to the two parts of article X of the draft convention. First, that amendment involved a two-fold addition to the first part of the article: the addition of the word “fulfilment,” and the addition concerning “disputes relating to the responsibility of a State for any of the acts enumerated in articles II and IV.” Secondly, it implied the deletion of the second part of article X, beginning with the words “provided that no dispute”. The representative of Egypt had requested (104th meeting) a separate vote on the principle of that deletion. The Chairman had not given a ruling on that point, but when the representative of Iran had reintroduced (103rd meeting) the Belgian amendment [A/C.6/217], proposing the deletion of the second part of article X, the Chairman had ruled that a vote on the joint amendment would not prejudge the fate of the Iranian amendment nor the request of the Egyptian delegation. The issue before the Committee was whether the second part of article X should be deleted. Mr. Raafat (Egypt) confirmed that he had proposed that the deletion of the last part of article X, a deletion which was implicit in the joint amendment, should be voted on separately. He entirely agreed with the Chairman’s interpretation of the matter. Mr. Maktos (United States of America) considered that if any member were at all uncertain as to the correctness of the Committee’s decisions, it was preferable that such doubt should be disposed of. He therefore suggested that the USSR representative’s request should be taken into consideration and his wishes met. The Chairman pointed out that the delegation of the Soviet Union had not objected to a vote being taken on the joint amendment, and had raised no objection until after the first part of the amendment had been voted on. He therefore regarded the vote on that amendment as perfectly valid.

1788

A/C.6/SR.105

The Committee should take a decision upon the request submitted by the Egyptian representative concerning the last part of article X of the draft convention. Mr. Morozov (Union of Soviet Socialist Republics) reminded the Committee that, after a vote had been taken on the separate parts of the joint amendment, the Chairman had put article X as a whole to the vote, and the Committee had adopted the final text (104th meeting). Hence the Committee could not possibly go on to vote on the second part of that article unless it first invalidated the entire earlier vote. The only possible solution was to declare that vote void, to hold a fresh vote on the two parts of the joint amendment, proposing respectively the addition of the word “fulfilment” and the addition of the passage beginning “including disputes,” and then, without voting on article X as a whole, to vote on the remaining amendments to the article. If, however, the vote on article X were not declared void, the remaining amendments could not be put to the vote and the Committee would have to proceed immediately to consider another article. In any case, to vote on the second part of article X would be a tacit admission that the earlier vote was not valid. Respect for the rules of procedure required that it should be expressly recorded that the vote was invalid, and that was the object of the motion on a point of order submitted by the delegation of the Soviet Union. The Chairman said that after the representative of Haiti had spoken, the joint amendment as a whole had been put to the vote, not article X of the draft convention. As nobody had challenged that decision, the vote was valid, but it did not preclude a decision on the Egyptian request concerning a vote on the deletion of the second part of article X. That procedure would presumably satisfy all members, since it gave the Committee an opportunity to take a decision on the full text of article X of the draft convention. Mr. Fitzmaurice (United Kingdom) agreed with the Chairman that the last part of article X should be put to the vote. It had been understood that that part of the article would be considered, and some delegations, when voting upon the joint amendment, had certainly been influenced

A/C.6/SR.105

1789

by the fact that they would have an opportunity first to discuss, and later to vote upon, the deletion of that part of article X. The United Kingdom delegation would not vote in favour of retaining that part of the article, because it had always intended that the text of the joint amendment should replace the whole of article X. The USSR representative’s motion was unjustified; Mr. Fitzmaurice could see no reason for holding a second vote on the various parts of the joint amendment. Mr. Chaumont (France) said that after the vote on the two parts of the joint amendment, the Chairman had put the amendment as a whole to the vote, in pursuance of rule 118 of the rules of procedure. The French delegation, however, would not have agreed to that amendment if it had been intended as a substitute for the whole of article X; and the Chairman had expressly left it to be decided by a later vote whether or not the second part of the article should stand (104th meeting). Mr. Dihigo (Cuba) confirmed the Chairman’s statement, and recalled that before the vote, his delegation had been assured that the decision on the joint amendment would not preclude discussion on the second part of article X. No objection had been raised to the Chairman’s ruling. Mr. Spiropoulos (Greece), Rapporteur, concurred in the Chairman’s interpretation and suggested that the discussion should be terminated by a ruling from the Chair. Mr. Abdoh (Iran) proposed, as an alternative to the course suggested by the Rapporteur, that some member of the Committee should propose that the text of the second part of article X should constitute a separate article of the convention. Mr. Feaver (Canada) asked for clarification on two points of procedure. First, what exactly was a motion to delete an article? Was it a new proposal or an amendment? Secondly, when an amendment reproduced a substantial part of the original text and omitted others, should the vote be taken on the amendment as a whole or solely on the new words which it introduced into the original text or the deletions which it entailed?

1790

A/C.6/SR.105

Mr. Feaver considered that if the second course had been taken, as the representative of the Soviet Union had suggested, the confusion resulting from the vote on the joint amendment of Belgium and the United Kingdom would have been avoided. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) said the Committee’s difficulties in the discussion of the draft convention on genocide were largely due to the fact that the rules of procedure were too narrow for a debate of that kind. The rules provided only for relatively short proposals and amendments, and not for a text of the magnitude of a draft convention. Was the draft convention on genocide to be regarded as a single proposal, or was each article to be taken as a separate proposal? The procedure so far had been based upon the latter assumption; that had seemed the most practicable course. The answer to the Canadian representative’s questions was that under that procedure, a motion to delete or replace an article was a proposal and not an amendment. Admittedly the distinction was sometimes difficult to make, as in the case of the joint amendment of Belgium and the United Kingdom. The fact that it was called an amendment did not mean that it actually was an amendment. In any case, the priority which had been given it could be justified either under rule 119, if it were considered as the amendment furthest removed from the original text, or under rule 120, which authorized the consideration of proposals in the order in which they had been submitted. The Chairman’s decision had not been challenged, and therefore the Committee as a whole had agreed that the amendment should be taken first. It was true that the text of that amendment indicated that it was intended as a substitute for the whole of article X and, normally, once it had been adopted, the second part of the article could not be discussed. That, however, was not an absolute rule, because under rule 120 of the rules of procedure it was for the Committee to decide whether or not to vote on the next proposal. It was unquestionable, in the first place, that in reply to the question of the Egyptian and Cuban delegations, the Chairman had stated that a vote on that amendment would certainly not preclude the discussion of the Iranian amendment relating to the second part of article X and, in the second place, that the Chairman’s statement had not been challenged.

A/C.6/SR.105

1791

If that express reservation had not been made, it would probably have been correct to consider that the vote on the joint amendment had ruled out the other amendments. That vote had been valid and in order and could not be reconsidered by the Committee except in the circumstances provided for in rule 112 of the rules of procedure. Mr. de Beus (Netherlands) wished to point out that, at the 104th meeting, the Chairman had asked the Committee to take a decision on the joint amendment submitted by Belgium and the United Kingdom and had stated that, in conformity with rule 118 of the rules of procedure, he was putting the whole “article” to the vote. That must undoubtedly have been a slip of the tongue, since rule 118 referred to the division of proposals and since, moreover, the Chairman had always stated that, after consideration of the joint amendment of Belgium and the United Kingdom, the Committee would study the remaining amendments to article X. The Netherlands representative had not challenged the Chairman’s ruling because he had felt sure the Chairman had simply made a slip. Mr. Morozov (Union of Soviet Socialist Republics) thought that anything other than the results of the discussion was irrelevant. The Chairman’s words should not be interpreted, particularly in his absence; only what he had actually said should be taken into consideration since it had led the USSR representative to think that he was voting on article X as a whole. The Chairman, quite unintentionally no doubt, had made a mistake in procedure. No one, however, had challenged it. The alternatives were therefore either to agree that article X had been adopted and consideration of it was closed, or to admit that there had been a slight misunderstanding and that the vote on the joint amendment of Belgium and the United Kingdom was void. The Sixth Committee, which dealt with legal questions, could not infringe the rules of procedure and set such an unfortunate precedent. On the contrary, its duty was to rectify the mistake in procedure which had been committed. The Chairman ruled that the Committee should continue consideration of article X and come to a decision on the Iranian amendment which called for the deletion of the second part of the text proposed by the Ad Hoc Committee.

1792

A/C.6/SR.105

Mr. Morozov (Union of Soviet Socialist Republics) appealed against the ruling as contrary to the rules of procedure. Article X had been adopted as a whole; there was no sound reason for continuing to discuss it. The Chairman put the appeal to the vote. The Chairman’s ruling was upheld by 19 votes to 7, with 9 abstentions. The Chairman opened the discussion on the amendment submitted by the Iranian delegation [A/C.6/217]; the object of the amendment was to delete the second part of article X, beginning with the words “provided that”. Mr. Abdoh (Iran) stated that the second part of article X mentioned the reference of disputes to a competent international tribunal. That provision had been added to article X with the sole aim of avoiding possible clashes of jurisdiction between the International Court of Justice and the international criminal tribunal mentioned in Article VII. That was apparent from the Report of the Ad Hoc Committee on Genocide.1 Since the Committee had decided to delete from article VII the reference to an international tribunal, the second part of article X was superfluous. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 14.

The convention as it stood contained no reference to the jurisdiction of an international criminal tribunal, nor did such a tribunal exist as yet. Its establishment, to which Iran looked forward, would call for a special convention in which provisions relating to the jurisdiction of the various tribunals could be inserted; the convention on genocide could also be amended to cover the same points. The representative of Iran held that the Committee should concern itself primarily with the task of bringing the various articles of the draft convention into line with each other. Mr. Aleman (Panama) moved the closure of the debate in pursuance of rule 106 of the rules of procedure, as the Committee had been enlightened on the scope of the amendment.

A/C.6/SR.105

1793

Mr. Morozov (Union of Soviet Socialist Republics), speaking on a point of order, drew the Committee’s attention to the fact, that consideration of the second part of article X could not be allowed as it was out of order. When the Committee, in dealing with article VII, had taken a decision concerning an international criminal tribunal, it had prejudged the fate of all provisions relating to that tribunal. Since the jurisdiction of an international criminal tribunal had not been agreed to, there could be no question of any reference to it in another article of the convention. The second part of article X should therefore not be discussed. Mr. Maktos (United States of America), on the same point of order, agreed with the USSR representative; he did not think that the Iranian amendment should be put to a vote. The Chairman ruled that the Iranian amendment had to be voted on since, by its earlier vote, the Committee had reached a decision to that effect. He put the motion for closure to the vote. The motion for closure was adopted by 21 votes to 1, with 8 abstentions. The Chairman put to the vote the Iranian amendment [A/C.6/217] calling for the deletion of the second part of article X. The amendment was adopted by 22 votes to 8, with 6 abstentions. The Chairman opened the discussion on the Australian amendment [A/C.6/265], which provided for the addition of a second paragraph to article X, reading as follows: With respect to the prevention and suppression of acts of genocide, a Party to this Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter of the United Nations.

Mr. Tarazi (Syria) thought the amendment was not in order, in view of the Committee’s decision on article VIII relating to action by United Nations organs, and on the amendments to that article (101st meeting). The Australian amendment reintroduced the principle of article VIII. It

1794

A/C.6/SR.105

could not therefore be considered unless the Committee decided to do so by a two-thirds majority, in accordance with rule 112 of the rules of procedure. The Chairman agreed with the Syrian representative; the Australian amendment would not be discussed unless, by a two-thirds majority, the Committee decided otherwise. Mr. Dignam (Australia) said he had foreseen that his amendment would meet with that objection; he accepted the Chairman’s ruling, but hoped that the Committee would decide in favour of considering an amendment on such an important question. The discussion on articles VIII and X had shown that it was necessary to include in article X a provision relating to action by the United Nations, when it was remembered how the decision to delete article VIII had been secured. In the first place, two more votes would have been sufficient to constitute the two-thirds majority which would have made possible the resumption of the consideration of article VIII; moreover, several representatives had said they had voted against further consideration of the article solely for reasons of principle. If the Committee agreed to consider the Australian amendment, no lengthy discussion would be necessary. If that amendment were adopted, a provision would be inserted in the convention which would be a proof of general confidence in the organs of the United Nations. Mr. Maktos (United States of America) was quite ready to revise the position he had taken up at the time of the vote (102nd meeting) on the proposal to reconsider article VIII, as he did not wish to impede the study of a question involving a principle contained in the Charter. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) said rule 112 of the rules of procedure contained nothing expressly barring the reintroduction, in the course of the same session, of a proposal previously adopted or rejected. He drew the Committee’s attention, however, to the gravity of the precedent it would set by voting twice, almost in succession, on whether a proposal should be considered afresh. Such a procedure might have very important consequences. Should the Committee consider, however, that the question before it was so important as to justify that procedure, there was nothing in the rules of procedure against it.

A/C.6/SR.105

1795

Mr. Kovalenko (Ukrainian Soviet Socialist Republic) appealed against the Chairman’s ruling to the effect that the Australian amendment was not in order. Mr. Lachs (Poland) pointed out that the situation differed from that which had confronted the Committee in connexion with article VIII. The issue was not whether to reconsider a proposal, but whether, to study an amendment occasioned by the new circumstances which had arisen following the Committee’s decision on article X. Mr. Chaumont (France) agreed with the Polish representative. The Committee, when discussing article VIII (101st meeting), had been dealing with the Ad Hoc Committee’s text and the joint amendment submitted by the USSR and France. For article X, the Committee had adoptee a text fairly far removed from that of the Ad Hoc Committee. That new text placed a restrictive interpretation on the competence of certain international bodies. The case was therefore quite different from that of article VIII. Mr. Chaumont held that it was not a question of reopening discussion on the principle of article VIII, but simply of relating the basic idea of the joint amendment of Belgium and the United Kingdom to another, more general idea, which was contained in the Australian amendment. The question was whether or not the Committee agreed with the Chairman’s view. The appeal made by the representative of the Ukrainian Soviet Socialist Republic was fully warranted. The Chairman was overruled by 24 votes to 8, with 5 abstentions. Mr. Maktos (United States of America) explained that he had abstained because he was opposed to setting a dangerous precedent of the type mentioned by the Assistant Secretary-General. He felt, nevertheless, that the question under discussion was of fundamental importance. Mr. Davin (New Zealand) explained that he had voted in favour of upholding the Chairman’s ruling because he held that ruling to be correct. If, however, a vote had been taken on the question as to whether the item was to be reconsidered, he would have voted in favour of such reconsideration. Mr. Feaver (Canada) said he had voted in favour of upholding the Chairman’s ruling on the grounds that a dangerous precedent might be set by recognizing the possibility of reconsidering matters which had already

1796

A/C.6/SR.105

been decided by the Committee and renewed discussion of which had already been disallowed. He had no objection, however, to the Australian amendment, the substance of which was in keeping with certain provisions of the Charter. Mr. Messina (Dominican Republic) said he had abstained for the same reasons as the United States representative. He would have voted in favour of reconsideration if the question had been put to the vote in that form. Mr. Tarazi (Syria) explained that he had voted in favour of upholding the Chairman’s ruling because the rules of procedure stipulated that a two-thirds majority of the Committee was required for the resumption of the consideration of a proposal. The Syrian delegation, however, was in favour of the Australian amendment, just as it had already voted in favour of the amendment to article VIII submitted by the USSR and France (102nd meeting). The Chairman called upon the Committee to continue the discussion on the Australian amendment. Mr. Ti-tsun Li (China) supported the Australian amendment. He did not share the point of view of delegations which might oppose that amendment on the grounds that it merely reproduced certain provisions of the Charter. The text proposed by Australia was not a mere repetition of the Charter, since it applied specifically to the case of genocide; in any case, it was sound practice to restate principles which could only strengthen the convention. Moreover, the adoption of the Australian amendment would preclude all possible doubts or disputes regarding the competence of the organs of the United Nations in cases of genocide. The Chinese delegation would therefore give its full support to the amendment. Mr. Aleman (Panama) moved the closure of the debate on the grounds that the theory underlying the Australian amendment had been discussed at length at the 101st meeting. Mr. Fitzmaurice (United Kingdom) opposed the closure of the debate; he pointed out that some delegations which had voted against the Ad Hoc Committee’s text for article VIII (101st meeting) and against the joint

A/C.6/SR.105

1797

amendment thereto submitted by the delegations of France, Iran and the USSR (102nd meeting), might wish nevertheless to vote in favour of the Australian amendment. They should be given an opportunity to state their position. The Chairman put to the vote the motion submitted by the representative of Panama for the closure of the debate. The motion was adopted by 20 votes to 9, with 9 abstentions. The Chairman put the Australian amendment [A/C.6/265] to the vote. The amendment was adopted by 29 votes to 4, with 5 abstentions. Mr. Fitzmaurice (United Kingdom) said that although his delegation considered it unnecessary to include in the convention provisions conferring on the organs of the United Nations powers which they already possessed under the terms of the Charter, he had voted in favour of the Australian amendment in order that it might be clear, beyond any doubt, that the joint amendment of Belgium and the United Kingdom [A/C.6/258] did not imply that recourse might be had only to the International Court of Justice, to the exclusion of the other competent organs of the United Nations. Mr. Spiropoulos (Greece) said that, although he had voted in favour of the joint amendment submitted by France, Iran and the USSR he had abstained from voting because, the debate having been closed, he had been unable to obtain particulars as to the exact significance and scope of the Australian amendment, which seemed to conflict with the provisions of the first paragraph of article X. Mr. Sundaram (India) said he voted against the Australian amendment for the same reasons as the representative of Greece. Mr. Feaver (Canada) said he voted against the Australian amendment as he had voted against article VIII of the convention, which contained the same idea, because his delegation still believed that such provisions were mere repetitions. Mr. Dignam (Australia) said that, despite the votes taken at the 102nd meeting on the text of article VIII and on the proposal to reconsider the

1798

A/C.6/SR.105

question, his delegation had submitted the amendment because it felt that the question was very important; it assumed full responsibility for its action. The Australian delegation thought that rule 112 of the rules of procedure could be justifiably invoked whenever an important question was under discussion; it would not hesitate to exercise all the rights to which it was entitled under the rules of procedure. Mr. Dihigo (Cuba) said that, notwithstanding his earlier opposition to article VIII of the draft convention (101st meeting), he had voted for the Australian amendment because it did not reproduce the provisions of article VIII, paragraph 2 which, in his delegation’s opinion (102nd meeting), would have been likely to produce a clash of jurisdiction between the International Court of Justice and the other organs of the United Nations. Mr. de Beus (Netherlands) explained that he had voted for the Australian amendment because his delegation was anxious that the convention on genocide should be acceptable to the greatest possible number of Member States. He had voted against article VIII because he considered it unnecessary. A number of delegations, however, had deplored the disappearance of that article as a result of the rejection of the joint amendment submitted to it by the delegations of France, Iran and USSR; and furthermore the United Kingdom representative had said that the Australian amendment made it clear beyond doubt that the provisions of the joint amendment of Belgium and the United Kingdom did not exclude appeal to competent organs of the United Nations other than the International Court of Justice. In those circumstances, he had voted in favour of the Australian amendment. Mr. Maúrtua (Peru) explained that his delegation had voted against the Australian amendment as being unnecessary. Also, his delegation was reluctant to see the Committee set an unfortunate precedent by adopting a proposal on a question which it had formerly rejected. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department), answering Mr. Dignam, recalled that the rules of procedure had been adopted provisionally and that they had not been finally adopted until after they had been amended during the second session of the General Assembly. The rules of procedure were far from perfect, and the Secretariat

A/C.6/SR.105

1799

took note of any difficulties to which the application of their provisions gave rise, so that, if need be, the General Assembly might revise them. Mr. Maktos (United States of America) pointed out that the application of the rules of procedure had not caused any difficulty in the case of the Australian amendment. The United States delegation realized that the provisions of rule 112 must not be resorted to save in cases of exceptional importance. Mr. Maktos wished to make it perfectly clear that he had been ready to vote for reconsideration of the question dealt with by article VIII in order not to stand in the way of the majority vote of the Committee. At the request of Mr. Sundaram (India), the Chairman put to the vote article X of the draft convention, as amended by India (103rd meeting), by Australia and by Belgium and the United Kingdom [A/C.6/258]. Article X was adopted by 18 votes to 2, with 15 abstentions. Mr. Sundaram (India) explained that he had voted against because the provisions of the joint amendment of Belgium and the United Kingdom, which constituted the first paragraph of article X, were capable of being interpreted in a much wider sense than the authors of the amendment had themselves intended. By virtue of that article, States parties to the convention could be called before the International Court of Justice on the basis of vague accusations, for instance, that they had not carried out the provisions of the convention or that they were implicated in the acts set forth in articles II and IV. The Indian delegation would have been prepared to agree to the Ad Hoc Committee’s text of article X if its last part, which had become superfluous, had been deleted; but it could not approve the text of article X as adopted by the Committee. New article submitted by the USSR delegation The Chairman opened the discussion on the proposal submitted by the USSR delegation [A/C.6/215/Rev.1, paragraph 10] calling for the insertion in the convention of an article relating to the disbandment of organizations which aimed at stirring up racial, national or religious hatred and inciting to commission of acts of genocide.

1800

A/C.6/SR.105

Mr. Morozov (Union of Soviet Socialist Republics) said his delegation wished to complete the convention on genocide by an article which it would be logical to insert after article X and before the final clauses, since it imposed an additional obligation on the signatory States. His delegation’s reasons for proposing the additional article were the same as those which had determined its attitude towards various other articles of the convention; the Soviet Union believed that the main purpose of the convention was to prevent genocide and that, consequently, all the measures necessary to attain that end must be taken. If in any of the States, parties to the convention, organizations existed which aimed at inciting to racial, national or religious hatred, or at encouraging the perpetration of crimes of genocide, it would indeed be strange if those States were not under the obligation to disband them and to disallow their existence in the future. Mr. Morozov could not understand why the Ad Hoc Committee had rejected a similar proposal.1 He hoped that the delegations which were anxious to see the convention become an effective weapon in the fight against genocide would not fail to support the USSR proposal. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 14.

Mr. Maktos (United States of America) emphasized the danger involved in the adoption of the proposal. The object of the proposal was to prohibit the existence of certain organizations. But who was to determine whether a particular organization was or was not pursuing the ends indicated in the proposal? Both that proposal, and the amendment relating to propaganda aimed at provoking acts of genocide [A/C.6/215/Rev.1 paragraph 4 f ], could lead only to an increase in international tension, and would merely serve as pretexts to harass States parties to the convention. The Ad Hoc Committee had rejected a similar proposal submitted by the Polish representative; for reasons stated in the report, it had also rejected the proposal to reconsider the question. The convention contained the most far-reaching pledge by the signatories to prevent and prohibit the crime of genocide. Consequently, if a State

A/C.6/SR.105

1801

failed to perform its obligation, any other party to the convention could lay a complaint before the competent organ of the United Nations. Mr. Maktos urged the Committee not to include anything in the convention which would render it unacceptable to many Governments. It must not be forgotten that what was important was not to draft a theoretically perfect document, but to secure the greatest number of accessions to the convention. Mr. Davin (New Zealand) supported the views of the United States representative; his delegation opposed the article proposed by the delegation of the Soviet Union because it was very dangerous and likely to lead to many abuses. Mr. Fitzmaurice (United Kingdom) also opposed the adoption of the USSR proposal for the two following reasons. In the first place, it was not necessary to specify, as did the proposal, the measures which States must take in order to fulfil their general obligation to prevent and prohibit genocide, an obligation which they would have undertaken by signing the convention. In the second place, an article of the kind proposed by the delegation of the Soviet Union for insertion in the convention, would create difficulties for the United Kingdom and other countries which recognized the right of any organization, whether political or not, to hold meetings and to express its opinions freely, unless it advocated the use of violence and unless its activities were subversive in relation to the Government. The United Kingdom delegation feared lest such an article might enable a State to ask another to disband certain political organizations on the pretext that their activities were directed against certain racial groups or that they might encourage the perpetration of acts of genocide. It went without saying that the United Kingdom would regard as unlawful and would punish any activity on the part of an organization established on its territory if such activity came within the scope of the acts enumerated in article IV of the convention. Mr. Morozov (Union of Soviet Socialist Republics) countered the arguments advanced by the representatives of the United States and the United Kingdom by saying that his proposal, far from being dangerous, was designed to protect the most elementary human rights, the right to life and the right to liberty.

1802

A/C.6/SR.106

He expressed surprise that the domestic laws of certain States did not empower them to disband organizations aimed at inciting to the perpetration of genocide. States had no cause for alarm in respect to a provision of the type proposed by the USSR delegation; only criminal organizations, whose activities led to the commission of genocide, were likely to be endangered by the provision. The general obligation to punish genocide, which States would assume in signing the convention, was not enough. History had shown that the Nazi Party had existed long before crimes of genocide were committed; it was permissible to assume that if the existence of that Party had not been tolerated, the mass exterminations which had shaken the conscience of the world would not have taken place. Mr. Morozov urged the Committee to adopt the proposal submitted by his delegation and thus to render the convention more effective. The meeting rose at 6 p.m.

HUNDRED AND SIXTH MEETING Held at the Palais de Chaillot, Paris, on Monday, 15 November 1948, at 11.45 a.m. Chairman: Mr. R.J. Alfaro (Panama). 55. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] New article submitted by the USSR delegation (continued ) The Chairman invited members to continue the discussion on the USSR proposal. Mr. Khomousko (Byelorussian Soviet Socialist Republic), recalling that the main purpose of the convention was to prevent the perpetration of genocide, stressed the fact that the Soviet Union proposal was useful in that regard since it was designed to prevent acts of genocide by making their preparation impossible. Recent history had shown that the horrible crimes committed by Hitlerite Germany between 1939 and 1945 had been made possible only by the

A/C.6/SR.106

1803

tolerance which the world had shown towards organizations like the Hitler Jugend or Hitler Youth, whose purpose was to incite racial, national or religious hatred and to instigate massacres of entire human groups. The arguments advanced by the representatives of the United States and the United Kingdom against the adoption of the USSR proposal were wholly unconvincing. There was reason, therefore, to wonder whether their attitude was not motivated by a desire to protect organizations in their territory of the type to which the proposal referred. The Byelorussian delegation considered the Soviet Union proposal an invaluable contribution to the work of the Committee and would therefore give it full support. Mr. Lachs (Poland) stated that the proposal deserved very thorough study. Several countries, particularly of central and eastern Europe, which had been victims of atrocities committed by nazi organizations, had learned from bitter experience to profit by the lessons of the past. Because of that bitter experience, it was incumbent upon the Committee to give its attention to the problem of organizations whose purpose was to stir up hatred and incite to the commission of acts of genocide. If the Committee did not include the article proposed by the USSR delegation in the convention, and thus allowed certain organizations to carry on their criminal activities, the convention would certainly not achieve the results expected of it. In speaking against the USSR proposal, the United States representative had mentioned (105th meeting) fundamental human freedoms, in particular, freedom of the Press and information, and freedom of association. The Polish delegation had already had occasion to point out that restrictions on the criminal activities of certain organizations in no way encroached on fundamental human freedoms. Freedom of information was not the right to misuse information or to communicate distorted news; it was the right to spread truth, a right exercised within the limits of the law. Restrictions of the kind proposed by the Soviet Union delegation were aimed not at the freedom itself, but at the type of information disseminated. Those who had objected to the USSR proposal maintained (105th meeting) that it was dangerous, and might give rise to abuses. The representative of Poland referred to the armistice agreements with the Axis countries, which imposed on those countries the obligation to disband all fascist

1804

A/C.6/SR.106

organizations or organizations of a fascist character in their territory. Mr. Lachs also referred to the provisions of article 17 of the Treaty of Peace with Italy and article 8 of the Treaty of Peace with Finland, both concluded on 10 February 1947, which imposed the same obligation on those two countries. The fact that the Italian Peace Treaty included, in article 15, the obligation to ensure respect for all human rights and fundamental freedoms, including freedom of association, proved that the obligation to disband such organizations was not incompatible with the fundamental human freedoms. If the obligation contained in article 17 had constituted a derogation of the rights stated in article 15, the United States and the United Kingdom – which were so anxious to ensure free enjoyment of those rights – would never have agreed to sign the Treaty. The fact that the peace treaties had been concluded with former enemy countries could not be used as an argument because principles should not change according to the identity of the parties to a convention. The United Kingdom representative had stated (105th meeting) that, in view of certain provisions of his country’s domestic legislation, his Government would have difficulty in accepting the convection if it included the article proposed by the delegation of the Soviet Union. It might be wondered whether the provisions of article IV, sub-paragraph (b), dealing with conspiracy to commit genocide, did not present the same difficulties for his Government. The Polish delegation urged the inclusion of the article proposed by the USSR delegation in the convention because, in its opinion, the extremely dangerous nature of the crime of genocide made it imperative. In order to prevent a repetition of the crimes committed during the past twenty years, the organizations referred to in the article in question had to be declared illegal. Mr. Pérez Perozo (Venezuela) pointed out that the Committee’s task was not to draw up a penal code but to draft an international convention listing the acts which constituted genocide, and leaving it for each Government, party to the convention, to determine, in accordance with its sovereign rights, the punishment to be meted out to persons guilty of those acts. The Soviet Union proposal for the disbandment of organizations fostering genocide amounted to a specification, in the convention, of the punishment to be applied in a given case. The Venezuelan delegation was of the opinion that the convention should not lay down the punishment to be meted out to those guilty, of com-

A/C.6/SR.106

1805

mitting genocide, for the right to prescribe such penalties belonged to the legislature of each country, which would exercise it in conformity with the country’s general juridical principles. Under the provisions of article VI of the convention, the signatories undertook to apply effective punitive measures to those committing genocide. In the opinion of the Venezuelan delegation, it would not be advisable to go beyond these provisions and Governments should be left free to determine for themselves what punishments must be applied. Mr. Raafat (Egypt) noted that the USSR proposal was directly based on the idea contained in the text of article XI, of the draft convention prepared by the Secretary-General [E/447], which provided for the disbanding of any group or organization which had participated in any act of genocide mentioned in articles I, II and III. That idea had been taken up again in the Ad Hoc Committee by the Polish delegation,1 with the substantial change that in the new version a single act of genocide was sufficient to cause the disbanding of the organization. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 14.

That same principle reappeared in the Soviet Union proposal in a still more dangerous form, for the disbanding of the organization no longer depended on the juridically established fact of participation in the crime, but on two conditions: incitement to racial, national or religious hatred and incitement to the commission of genocide, these two conditions being required to exist concurrently, as indicated by the word et in the French text.2 2

In the English text the word is “or”.

The first condition was allied with the concept of propaganda for genocide, a concept which had been admitted to be too vague for inclusion in the convention. The second condition was therefore the determining factor in the application of the measures provided in the USSR proposal. If that interpretation were correct, then that condition was identical with conspiracy to commit genocide and with direct, public incitement to commit genocide; those acts were already mentioned in article IV of the convention, which applied as much to groups and organizations as to individuals guilty of the crime.

1806

A/C.6/SR.106

Consequently, in the light of article IV, an organization which incited to genocide would be punished under the provisions of the convention and the national courts inflicting the punishment would, at the same time, have to note the illegal character of the organization and disband it. If the legislation of certain countries made no provision for the latter action, it would have to be modified in accordance with the obligations prescribed in article VI of the convention. Such disbanding by legal means provided all the necessary guarantees for the organizations accused of incitement or conspiracy to commit genocide. The disbanding by administrative measures proposed in the Soviet Union resolution would, on the contrary, present serious danger, in that Governments could disband any opposition party without valid reason. For those reasons, the Egyptian delegation would not be able to vote in favour of the USSR proposal. Mr. Chaumont (France) thought the question raised by that proposal deserved thorough consideration. The convention would be incomplete if, while providing for the punishment of individuals guilty of genocide, it did not, at the same time, strike at organizations which had participated in it, and whose intervention usually gave that crime the collective character of a mass extermination of a human group. Nevertheless, the text of the proposal did not seem to harmonize completely with the considerations which had prompted its drafting. It was true that all delegations had been unanimous in their condemnation of propaganda for genocide but such propaganda was, nonetheless, outside the scope of the convention. The formula proposed by the Soviet Union was not sufficiently precise and could give rise to serious abuses. He would therefore suggest that the drafting of the proposal should be improved in the light of the Polish delegation’s statement, given in the Report of the Ad Hoc Committee,1 in which reference was made to participation in acts of genocide and not in one such act; he suggested that the USSR delegation should accept a text similar to that of article XI of the draft prepared by the Secretary-General [E/447]. He suggested the following text: 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 14.

A/C.6/SR.106

1807

The High Contracting Parties pledge themselves to take the necessary measures with a view to disbanding groups or organizations which have participated in acts of genocide.

The Chairman was of the opinion that the French and Soviet Union delegations should consider the possibility of drafting a joint proposal and submit a text to the Secretariat, which would then submit it to the Committee. Mr. Maktos (United States of America) expressed surprise at the French delegation’s delay in submitting a compromise amendment to a proposal which had been before the Committee for a long time. The amendment, which was not purely of a drafting nature but dealt also with a question of substance, had not been submitted through the regular channels. Replying to the representative of the Byelorussian SSR, Mr. Maktos stated that if his delegation had been really opposed to all prevention and punishment of genocide, it could easily have allowed the inclusion in the convention of all provisions which it considered excessive, with the assurance that the United States Congress would be unable to accept those provisions and would therefore be obliged to reject the convention in its entirety. The United States delegation could not, however, be accused of having followed that method because it had, on the contrary, always endeavoured to make the convention acceptable to its country, thereby showing its interest in the success of the Committee’s work. With regard to the substance of the question, the United States representative endorsed the objections raised by the representatives of Venezuela and Egypt. On the other hand, he contested the validity of the argument put forward by the Polish delegation which, reversing the natural order of logic, went from particular premises to a general conclusion. The fact that certain fascist organizations had been dissolved under the terms of certain peace treaties, did not necessarily lead to the conclusion that the convention should expressly provide for the disbanding of other organizations which had not committed the crime of genocide. In his opinion, the problem led to the following question: should the Committee include the USSR proposal in its convention or not? The reply could only be negative because that proposal was useless, too broad in scope and dangerous, and would inevitably lead to an increase in the

1808

A/C.6/SR.106

tension between States. The Commission on Human Rights had already, for that same reason, rejected a similar motion from the Soviet Union proposing the prohibition of so-called anti-democratic associations. Mr. Maktos concluded by stating that, from the technical point of view, the convention should not embrace any specific measures, since it could not enumerate them all, but that it should limit itself to setting forth general principles acceptable to the majority of the future contracting parties. Mr. de Beus (Netherlands) stated that his delegation could not accept the USSR proposal in its present form as it did not offer definite enough criteria for determining what organizations should be disbanded. However, in a spirit of conciliation and with the desire to satisfy certain delegations, he would willingly accept any other formula, more precise and narrower in scope, such as the clause proposed by the French delegation, which expressly envisaged participation in acts of genocide as a reason for disbanding the organizations in question. Mr. Kacijan (Yugoslavia) recalled that his delegation had repeatedly objected to the fact that the draft convention was almost exclusively repressive in nature. The General Assembly had, however, taken a very definite position in that respect by indicating that the principal aim of the fight against genocide was to prevent commission of the crime. The majority, not only in the Ad Hoc Committee but also in the Economic and Social Council and in the Sixth Committee, had preferred to follow another course by rejecting all proposals to include effective preventive measures in the draft convention. It was a measure of that nature that was included in the proposal submitted by the Soviet Union, a measure which was particularly effective for, as could be seen from recent cases of genocide, from which Yugoslavia had suffered so much, it was only the existence of fascist and nazi organizations that had made it possible for the crime to assume the monstrous proportions which had shocked the conscience of the world. The objection raised by the United States delegation was not at all convincing. There was no connexion between freedom of the Press and the measures to be taken against organizations which stirred up hatred and incited to the crime of genocide. If respect for freedom of the Press did not oblige the Government of the United States, and other Governments

A/C.6/SR.106

1809

which shared its point of view, to tolerate the existence, in their territory of associations which incited to acts which were crimes in common law, why should it prevent them from disbanding organizations whose purpose was the perpetration of genocide? For those reasons, the Yugoslavia delegation would vote in favour of the USSR proposal. Mr. Zourek (Czechoslovakia) felt that the Soviet Union proposal deserved very special consideration. Presumably, in the majority of cases, the crime of genocide would be committed by organizations. Experience showed that genocide involved the participation of whole groups – such as the Gestapo, the SA, and the SS, in the case of Hitler Germany – whose criminal activities could extend beyond genocide and become a danger to the maintenance of peace. The Charter of the International Military Tribunal of Nürnberg had admitted, in its articles 9 and 10, the principle of the “criminality of a group”. The Judgment of the Tribunal stated: “If satisfied of the criminal guilt of any organization or group, this Tribunal should not hesitate to declare it to be criminal because the theory of ‘group criminality’ is new, or because it might be unjustly applied by some subsequent tribunals. On the other hand, the Tribunal should make such declaration of criminality so far as possible in a manner to ensure that innocent persons will not be punished”. The Czechoslovak delegation thought it would be better to provide for preventive measures in the convention than to wait for thousands of human lives to be sacrificed and then take punitive measures. So that the convention should not be a purely academic work, it should include a provision with regard to organizations such as the measure proposed by the USSR. Mr. Zourek recalled that, by its resolution 96(I) on genocide, the General Assembly invited “the Member States to enact the necessary legislation for the prevention and punishment” of the crime of genocide. It should be noted, however, that the Committee had rejected all proposals to include in the convention any concrete provisions concerning legislation to be enacted by the States. On that point, the draft convention left a serious gap which would certainly be severely criticized. It was not possible to oppose the article proposed by the Soviet Union on the ground that certain national legislations did not permit the disbanding

1810

A/C.6/SR.106

of organizations or prevent their establishment; the convention imposed the obligation to punish the acts enumerated in articles II and IV, and the Member States should therefore “enact the necessary legislation” for the eventual modification of their constitutions, to enable them to disband organizations whose purpose was to incite to the commission of acts of genocide. Nothing in the text submitted by the USSR prevented the execution, by competent national tribunals, of the measures envisaged therein. In any case, there was nothing to hinder the assurance of all necessary guarantees to prevent any abuse. In reply to the observations of the United States representative, Mr. Chaumont (France) stated that the draft convention did not represent a perfect piece of work; it was constantly being modified by decisions taken on each article. Consequently, the attitude adopted with regard to a certain point would depend, in large measure, on the concrete results obtained in the preceding articles. The French delegation was struck by the theoretical and platonic nature of the convention which was being drawn up; all the provisions which would have allowed the effective repression of genocide on an international plane had been eliminated. In the case of the article proposed by the Soviet Union, the French delegation had demonstrated the same constructive spirit as it had shown throughout the discussions. The delegations which did not have a preconceived attitude with regard to the convention, should try to adapt their positions to the necessities of each situation, as an attempt had to be made to reconcile different views every time a delegation presented a proposal of special interest. It was with that conciliatory purpose that the French delegation had proposed an amendment to the USSR, text in the course of the current meeting. It would not give up its right to attempt such efforts at conciliation. Mr. Tarazi (Syria) considered that no State should permit the existence of organizations such as those referred to in the draft submitted by the Soviet Union. Nevertheless, in view of existing national legislations, the principle of freedom of association had to be taken into consideration. It was contrary to the principle of the right to freedom of association to permit the State, that is, the administrative or governmental authority,

A/C.6/SR.106

1811

to disband or prohibit organizations without any possibility on the part of the latter to defend themselves. Of course, when organizations were set up, they did not declare that their purpose was to stir up hatred and incite to the commission of the crime of genocide. It was on examination of their activities that reprehensible acts, liable to punishment under the penal code, were established. Consequently, it was the responsibility of courts and not of Governments to disband such organizations. The procedure of disbanding them by administrative measures might entail serious abuses. The Syrian delegation approved the principle which had prompted the USSR draft, but it felt that it would be difficult to include that principle in a concrete form in the text of the convention. For that reason, it would abstain from voting. Mr. Arancibia Lazo (Chile) thought there was no doubt that all delegations wished to present to their Governments a draft convention which would make it possible to fight against genocide in an effective manner. The differences of opinion expressed in the Committee were due to the opposition of two principles: respect for the right to freedom, and the right of the authorities to intervene to limit the exercise of that right. The Chilean delegation had never been able to support the Soviet Union proposals as they had always been based on an exaggerated application of the second principle. In the case then before the Committee, however, the Chilean delegation would support the delegations which approved the principle underlying the provision proposed by the USSR, as the existence of organizations whose purpose was to incite to or commit the crime of genocide could not be tolerated. Under the article proposed by the Soviet Union, it was simply a question of disbanding the organizations concerned. Each Government could carry out that measure, in accordance with its national legislation, through administrative or judicial channels. Such a measure was normal as it would be taken, if necessary, in respect of any criminal organization. The USSR proposal did not encroach on the right to freedom. It merely envisaged a normal limitation of the exercise of that right. When such a limitation was exercised in the general interest, it could not, on any grounds, be opposed.

1812

A/C.6/SR.107

The Chilean delegation would therefore vote in favour of the new article proposed by the Soviet Union. The meeting rose at 1 p.m.

HUNDRED AND SEVENTH MEETING Held at the Palais de Chaillot, Paris, on Monday, 15 November, 1948, at 3 p.m. Chairman: Prince Wan Waithayakon (Siam). 56. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] New article submitted by the USSR delegation (conclusion) Mr. Morozov (Union of Soviet Socialist Republics) recapitulated the arguments that had been raised at the 106th meeting against his proposal [A/C.6/215/Rev.1, paragraph 10]. He felt it particularly important to reply to those representatives who agreed in principle with his proposal but considered that its purpose was adequately covered by the provisions of articles II and IV. If that argument were followed to its logical conclusion, it might be said that it was sufficient simply to state that a campaign should be undertaken against genocide and to do nothing more about it. Articles II and IV contained no provisions for disbanding organizations whose aim was to stir up racial, national or religious hatred or incite to the commission of acts of genocide. A provision to that effect had been included in the Nürnberg Charter as a separate article and there was no reason why the same procedure should not be followed with regard to the convention on genocide. Another point, raised by the representative of Egypt among others, was that the administrative authorities should not be given the power to decide which organizations were aimed at incitement to commit genocide, and to disband them. However, the new article proposed by his delegation did not specify which authority should take that decision; it simply provided that such organizations should be disbanded and left it to each country to put the provision into practice in accordance with its own legal system.

A/C.6/SR.107

1813

He could not accept the amendment submitted by the representative of France (106th meeting) to the effect that only those organizations which had actually committed genocide should be disbanded. One of the main aims of the convention was the prevention of genocide and it was precisely with that aim in view that his delegation had submitted its proposal. If the French amendment were adopted, the element of prevention would be lost, leaving only the element of punishment. He felt sure that all those who really desired the effective prevention and punishment of genocide would vote in favour of his proposal. Mr. Chaumont (France) said that the main reason why his delegation had been unable to support the USSR proposal in its original form had been that its adoption would give Governments the power to disband organizations arbitrarily, even when such organizations had not actually committed acts of genocide. In his opinion, it would be dangerous to give Governments such extensive powers. He fully agreed that all organizations guilty of genocide should be disbanded and he had submitted his amendment in a spirit of compromise. He regretted that the representative of the Soviet Union had been unable to accept the compromise and, in view of that fact, he withdrew the amendment he had submitted at the 106th meeting. Mr. Maktos (United States of America) said that one of the chief aims of his delegation was that the convention should be accepted by as many countries as possible. In his opinion, the convention would have lost a great many supporters and might fail to be ratified if the amendment submitted by the representative of France had been adopted. He agreed with the argument of the representative of France concerning the danger of granting Governments the power to disband organizations even when such organizations were not guilty of any act of genocide. His delegation could not accept such a provision because, under his country’s Constitution, it was not possible to disband organizations by an administrative order without having any legal grounds for such action. Mr. Raafat (Egypt) referred to the USSR representative’s statement that his proposal did not specify what authority should decide whether or not an organization was aimed at incitement to genocide. In his opinion, the very fact that no specific provision was made constituted a serious danger.

1814

A/C.6/SR.107

If the proposal had stated that the decision as to which organizations should be disbanded would always be taken by a court of law, it would have been acceptable, but in the form in which it existed, it left the way open for Governments to disband organizations without any legal grounds for such action. The Chairman put to the vote the new article proposed by the USSR. The article was rejected by 25 votes to 7, with 6 abstentions. Article XI Article XI of the Ad Hoc Committee’s draft was adopted without discussion. Article XII The Chairman opened the discussion on article XII and the amendment submitted by the USSR delegation [A/C.6/215/Rev.1, paragraph 11]. Mr. Morozov (Union of Soviet Socialist Republics) said that the purpose of his amendment was to give to the Economic and Social Council rather than to the General Assembly the power to invite non-Member States to sign the convention, because the Economic and Social Council held two sessions annually while the General Assembly held only one. Mr. Maktos (United States of America) said that the same question had been raised in the Ad Hoc Committee1 and the USSR proposal had been rejected. The General Assembly was a sovereign body, while the Economic and Social Council had to submit its decisions to the Assembly for approval. It would, therefore, be more appropriate for the invitation to non-Member States to be sent by the Assembly and the question could well be settled in a single annual session. l

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 15.

Mr. Morozov (Union of Soviet Socialist Republics) explained that he had intended the Economic and Social Council to send the invitations itself without consulting the Assembly. There would, therefore, be no delay involved and, in his opinion, the Council was a sufficiently authoritative and representative body to carry oat that task.

A/C.6/SR.107

1815

Mr. Abdoh (Iran) thought that the question of sending invitations to non-member States had political implications and should therefore be settled by the General Assembly rather than by the Economic and Social Council, which was a technical, not a political organ. The Chairman put the USSR amendment to article XII [A/C.6/215/Rev.1] to the vote. The amendment was rejected by 21 votes to 5, with 12 abstentions. Mr. Tarazi (Syria) explained that he had voted in favour of the Soviet Union amendment in order to be consistent with the decision taken by the Committee (89th meeting) when the transfer of the functions and powers exercised by the League of Nations under the International Convention relating to Economic Statistics had been under discussion. In connexion with that convention it had been decided that invitations to non-member States should be sent by the Economic and Social Council and there was no reason why the Council should not be given the same function in relation to the convention on genocide. In the absence of any further amendments article XII of the Ad Hoc Committee’s draft was adopted. New article submitted by the United Kingdom delegation The Chairman opened the discussion on the new article submitted by the United Kingdom delegation [A/C.6/236] and the amendment to that article submitted by the delegation of the Ukrainian SSR [A/C.6/264]. Mr. Fitzmaurice (United Kingdom) said that his delegation had made its position clear during the discussion of item 2 of the agenda (88th and 90th meetings). It had been the custom during the last twenty or thirty years to include an article similar to the one proposed by his delegation in all multilateral treaties. It was only in recent years that any objections had been raised to that practice and those objections were based on purely political motives and designed to create difficulties for the colonial Powers. The draft convention under discussion covered new ground and dealt with a completely new offence. In most countries, therefore, new legislative measures would be required in order to put its provisions into practice.

1816

A/C.6/SR.107

Among the territories administered by the United Kingdom, some were completely self-governing in their internal affairs and it would be constitutionally impossible for the United Kingdom to accept the convention on their behalf without first consulting them. His delegation had, therefore, proposed the insertion of a new article to take that situation into account and he hoped that the Committee would accept his proposal. If such an article were not inserted, there would be a considerable, if not an indefinite, delay before his country and those territories for which it was internationally responsible could adhere to the convention. Mr. Kovalenko (Ukrainian Soviet Socialist Republic) said that he had submitted an amendment to the new article proposed by the United Kingdom delegation because he felt that it was extremely important for the convention to apply to all countries and especially to non-self-governing territories. In his opinion, the peoples of non-self-governing territories were most likely to become the victims of acts of genocide because they did not possess the highly developed organs of information necessary to inform the whole world immediately of the commission of the crime. When the question had been discussed on previous occasions, the supporters of the “colonial clause” had always raised the argument that it was necessary to consult the local administrations before accepting a convention on their behalf. However, it was extremely unlikely that any non-self-governing territory would not wish to benefit from the provisions of the convention so the main argument against his amendment was not very convincing. His amendment was in complete conformity with Articles 73 and 78 of the Charter and he hoped that it would be adopted by the Committee. Mr. Maktos (United States of America) said that his Government was prepared to extend the application of the convention to all the territories under its charge. Consequently his country was not involved in the question, but he thought that the arguments advanced by the United Kingdom representative were extremely reasonable. Mr. Morozov (Union of Soviet Socialist Republics) said he wished to ask the representative of the United Kingdom two questions on the answers to which the remainder of his speech would depend. He wished to know first how many of the territories for which the United Kingdom Government was responsible, enjoyed self-government and had

A/C.6/SR.107

1817

the power to decide the question of adherence to the convention, and how many did not enjoy that power? He asked also whether the United Kingdom delegation would accept the procedure proposed by the Ukrainian SSR so far as non-self-governing territories were concerned? If the Ukrainian proposal were not applicable, then the United Kingdom argument would carry no weight. Mr. Fitzmaurice (United Kingdom) stated that he was not personally a colonial expert and was not therefore in a position to give precise figures without further reference. He was, however, able to say that at least threequarters of the territories for which the United Kingdom was internationally responsible possessed systems of self-government and legislations. With regard to the application of the Ukrainian proposal, the United Kingdom representative said that its ab initio application to non-selfgoverning territories would be technically possible, but the United Kingdom Government did not choose to adopt that course. Some form of local administration did in fact exist in almost all such territories and it was not the practice of the United Kingdom Government to commit them in advance. Such a practice would not be consistent with Article 73 of the United Nations Charter, which had so often been misquoted against the United Kingdom. In that connexion he would draw the attention of the representative of the USSR to provisions a and b of that Article. In view of the United Kingdom Government, it was not right or proper to accept the principle of the convention, even in the case of non-self-governing territories, without prior consultation with those territories. Mr. Morozov (Union of Soviet Socialist Republics) emphasized that the convention on genocide was not a convention of the usual type. The question it covered could not automatically be resolved without specific reference to the position of colonial territories. Colonial policy had been a dark page in history even in pre-fascist times. The Committee did not wish to see those dark pages prolonged by a failure to extend the provisions of the convention on genocide to the colonial territories. The Committee should bear in mind that millions must not be allowed to remain outside the scope of the convention and left to the arbitrary action of the colonial Powers. If the United Kingdom representative were sincere – though neither his arguments nor conclusions appeared convincing or sincere – he would at

1818

A/C.6/SR.107

least be prepared to consider the possibility of extending the convention to colonial territories, a problem which could be resolved with ease. He apparently considered that there might be peoples who wished to become victims of genocide, a conclusion which could not be considered juridically founded. Mr. Spiropoulos (Greece) asked what the juridical position would be if the proposal submitted by the United Kingdom delegation were not accepted. If the United Kingdom signed the convention, did that imply the automatic application of its provisions in the territories administered by that State? If so, the object of the United Kingdom amendment was merely to simplify the application of the convention in the territories for which it was responsible. The text proposed by the Ukrainian SSR made it mandatory for the United Kingdom to apply the provisions of the convention in the territories for which it was responsible. Such a provision would impose on the United Kingdom an obligation not binding on other States and unlikely therefore to be acceptable to the United Kingdom. Mr. Maktos (United States of America) announced that his Government was prepared to extend the application of the convention to all territories where constitutional provisions permitted. As far as the arguments of the United Kingdom representative were concerned, if that State refused to sign the convention on the grounds that it was harmful, there would be no question of extending its provisions to colonial territories. On the other hand, if the United Kingdom considered the convention sufficiently harmless to apply to the United Kingdom itself, was it likely to refuse its application to dependent territories? Mr. Zourek (Czechoslovakia) pointed out that the convention was of a special type in that it introduced international penal norms. In such circumstances it was not possible to exempt territories administered by colonial Powers from its provisions. To do so would be contrary to article I of the convention, which laid down that genocide was a crime against international law. The Czechoslovak delegation would oppose the insertion of any clause to that effect. Mr. de Beus (Netherlands) stated that, as was generally known, an independent United States of Indonesia would come into existence in the

A/C.6/SR.107

1819

course of 1949. As a final step towards that goal, the Government of the Netherlands was committed to institute by 1 January 1949 an independent Federal Government of Indonesia, consisting wholly of Indonesians. Whether or not the independent Federal Government came into being before the Netherlands signed the convention on genocide, it would be for the Indonesians themselves to take their own decision with regard to adherence to the convention. Mr. Petren (Sweden) said that a State which committed an act of genocide on the territory of another State after having signed the convention, would undoubtedly be guilty of a violation of the convention. Should a colonial Power commit or tolerate an act of genocide in one of its colonies, the situation would be similar. If, on the other hand, there were independent authorities capable of exercising decisive influence in the colony concerned, it was difficult to see how the colonial Power could be held responsible. He therefore wondered whether it was really necessary to introduce a clause on that point. Mr. Raafat (Egypt) pointed out that the question of the colonial clause had already been discussed by the Committee in connexion with the transfer to the United Nations of functions and powers exercised by the League of Nations (80th, 90th and 91st meetings) and also in Geneva in connexion with the draft declaration of human rights.1 In the latter case it had been decided that the declaration of human rights should apply to all territories. He had himself assumed from the start that the convention would not apply to metropolitan territories only. 1

See document E/CN.4/AC.3/SR.8.

Faced with the two proposals, that of the United Kingdom and the Ukrainian SSR, he had no hesitation in favouring the latter. He did not misunderstand, the constitutional difficulties facing the United Kingdom. If, however, those difficulties really existed, why was it that the United Kingdom formula included the word “may,” with the result that it was uncertain whether the United Kingdom would in fact take the necessary action to extend the application of the convention to the territories for which it was responsible. While in no way doubting the good faith of the United Kingdom, he suggested that the words “shall undertake” should be substituted for the word “may”.

1820

A/C.6/SR.107

The Chairman requested the submission of that amendment in writing. Mr. Ingles (Philippines) expressed himself in agreement with the representative of Egypt. He had himself been about to put forward a similar compromise proposal, which would have taken the difficulties of the United Kingdom and of other metropolitan Powers into account. Mr. Tarazi (Syria) announced that, until the Egyptian amendment could be discussed, his delegation would support the amendment proposed by the Ukrainian SSR. He pointed out that genocide might be committed in colonial territories and the Ukrainian amendment made the necessary provisions for its punishment. Mr. Spiropoulos (Greece) thought that two questions were being confused. There was the social-humanitarian question of extending the application of the convention as widely as possible, a fact of which all Powers were aware. It was, however, necessary to bear in mind the juridical aspect of the question, namely that a State could not be forced to do anything it did not wish to do. The United Kingdom was entitled to accept or reject the convention both on its own account and on behalf of its colonial territories also. Mr. Abdoh (Iran) admitted that the Committee was faced with a dilemma. The arguments put forward by the Soviet Union were pertinent, namely that the convention was of a special nature and was intended to apply to all territories. On the other hand, the arguments of the United Kingdom appeared justifiable. Furthermore, the acceptance of the convention would not solve the question, since, if the United Kingdom did not accept its provisions, it could not be extended to colonial territories. The Egyptian proposal for the inclusion of a special undertaking by all members of the Committee might possibly be unacceptable. It would perhaps be better to have a draft resolution apart from the convention, recommending that Members of the United Nations administering dependent territories should take such measures as were necessary to enable the provisions of the convention to be extended to those territories as soon as possible. Such a procedure would leave the colonial Powers free to act in accordance with their constitutional procedures. Mr. Fitzmaurice (United Kingdom) agreed with the Greek representative on the juridical interpretation he had given to the question. In the opinion of the United Kingdom Government, any international convention to

A/C.6/SR.107

1821

which it had become a party could not be automatically extended to colonial territories. The new text submitted by the United Kingdom delegation provided measures by which the convention could be extended to other territories at a later stage. Mr. Fitzmaurice also agreed with his statement that there was no legal means of imposing on a metropolitan Government the obligation to extend a convention to colonial territories, particularly if those territories were, for internal purposes, self-governing. The United Kingdom representative found it difficult to reconcile the views frequently expressed by certain members that colonial territories should obtain a greater measure of self-government and independence, with some of the statements made in the course of the discussion. The United Kingdom Government was, in effect, being asked to impose its decisions on territories which had their own legislature, and that, of course, it could not do. There was no intention, in the United Kingdom text, to exclude any colonial territories from becoming a party to the convention. When the United Kingdom signed an international convention, the practice was to use every legislative measure at its disposal to recommend and persuade colonial territories to participate in that convention; as a rule those efforts were successful. There were, however, considerable technical difficulties involved in the convention on genocide because it implied not only rights but also obligations. The latter were of such a nature that a number of countries, including Members of the United Nations, might find it difficult to become a party to it. Even countries willing to accept the provisions of the convention would have to enact legislation to make it applicable. Mr. Fitzmaurice expressed some doubt that any Member of the United Nations would sign the convention unless it were subject to ratification or acceptance. With regard to the amendment submitted by the Egyptian representative, Mr. Fitzmaurice pointed out that it would have very much the same effect as the Ukrainian amendment. It would involve an undertaking by a metropolitan Government to extend the convention to all colonial territories as soon as the necessary constitutional procedure could be put into effect. That provision, however, did not entirely meet the case because, as he had already explained, certain colonial territories might not wish to adhere to the convention. With regard to the proposal submitted by the representative of Iran, Mr. Fitzmaurice said he was willing to accept it if the Iranian representative

1822

A/C.6/SR.107

would insert the words “and feasible” after “necessary,” so that the text would read “such measures as are necessary and feasible.” With regard to colonial policy, which the representative of the USSR referred to as a dark page in history, the United Kingdom delegation denied the moral authority of the Soviet Union Government to make any such statement, or to set itself up as a model of conduct before the world. Mr. Chaumont (France) said that the convention seemed to have become mainly theoretical, and he regretted that the articles so far adopted were not likely to prove very effective. The Committee should believe in the good faith of the colonial Powers and find a procedure which would be in accordance with the structure of their constitutions. In an attempt to harmonize divergent opinions, Mr. Chaumont suggested that the Committee should adopt the proposal submitted by the representative of Iran. That text would not only meet the objections raised by the United Kingdom representative but would also cover the points outlined by the representatives of the Ukrainian SSR, Egypt and the Philippines. In reply to a question by Mr. Chaumont, Mr. Rafaat (Egypt) agreed to withdraw his amendment in favour of the text submitted by Iran. The Chairman summed up the procedural position with regard to article XII. The Committee had before it the United Kingdom and the Iranian proposals, and the Ukrainian amendment to the former. According to the rules of procedure, the Ukrainian amendment should be voted on first. Mr. Ingles (Philippines) asked whether the United Kingdom delegation was willing to withdraw its amendment in favour of the proposal submitted by Iran. Mr. Fitzmaurice (United Kingdom) said that he was willing to accept the Iranian proposal but asked for clarification as he did not think that it replaced the United Kingdom amendment. The Iranian proposal was not in the form of a recommendation to extend the convention to colonial territories, but simply to provide the means by which that extension could be made. Mr. Spiropoulos (Greece) considered that the Iranian text was not incompatible with the United Kingdom amendment. The question was mainly one of procedure in terms of application which would allow the United Kingdom Government to extend the convention to its own territories.

A/C.6/SR.107

1823

Mr. Kaeckenbeeck (Belgium) agreed with the remarks of Mr. Spiropoulos. The purpose of the United Kingdom amendment was to provide measures allowing the greatest possible number of countries to become party to the convention. The belief that the word “may” conferred on each of the contracting parties a right, which it would not otherwise possess, not to extend the convention to its own territories was erroneous. Its real meaning was that a simple notification was all that was required for it to be considered on the international level that the terms of the convention extended to those territories; but no constitutional procedure or matters of domestic policy were involved. In supporting the Iranian proposal, he felt that it was on an altogether different plane from the United Kingdom amendment. There was no question of incompatibility between them. Mr. Kaeckenbeeck suggested that the Committee should vote first on the Ukrainian amendment, then on the United Kingdom proposal and, lastly, on the proposal submitted by Iran, as soon as that text had been circulated. Mr. Abdoh (Iran) shared the view expressed by the Greek representative and the Belgian representative that his text and the United Kingdom proposal were not incompatible. He felt that one complemented the other. In reply to a question by the Chairman, Mr. Abdoh (Iran) agreed to the insertion of the words “and possible,” requested by the United Kingdom representative. The Chairman put the amendment of the Ukrainian SSR to the vote. The amendment was rejected by 19 votes to 10, with 14 abstentions. The Chairman put to the vote the new article proposed by the United Kingdom. The new article was adopted by 18 votes to 9, with 14 abstentions. Article XIII Article XII of the Ad Hoc Committee’s draft was adopted without discussion. [Discussions pertaining to issues other than the Genocide Convention]

1824

A/C.6/SR.108

HUNDRED AND EIGHTH MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 16 November 1948, at 10.50 a.m. Chairman: Mr. R.J. Alfaro (Panama). 58. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Iranian draft resolution The Chairman invited the Committee to resume its discussion of the Iranian draft resolution [A/C.6/268], which read as follows: “The General Assembly recommends that Members of the United Nations administering dependent territories should take such measures as are necessary and feasible to enable the provisions of the present Convention to be extended to those territories as soon as possible.” Mr. Morozov (Union of Soviet Socialist Republics) held that the draft resolution did not provide a satisfactory solution for the situation arising from the insertion of the “colonial” clause in the text of article XII. He would therefore abstain from voting. The Chairman then put the Iranian draft resolution to the vote. The draft resolution was adopted by 22 votes to none, with 9 abstentions. Article XIV The Chairman opened the debate on article XIV of the draft convention and on the amendments to that article submitted by the delegations of the USSR [A/C.6/215/Rev. 1, paragraph 12], China [A/C.6/221] – proposing that the words “ten years” be substituted for the words “five years” – Belgium [A/C.6/217], the United Kingdom [A/C.6/236] and Uruguay [A/C.6/209]; the last three amendments proposed the deletion of the entire article. Mr. Kaeckenbeeck (Belgium) said that his delegation proposed the deletion of article XIV on the ground that it limited the period of the convention’s validity and made provision for denunciation by the contract-

A/C.6/SR.108

1825

ing parties. In his view, those two elements were contrary to resolution 96(1) of the General Assembly, which had proclaimed a principle of international law the essential character of which was its permanence. The convention should merely be the implementation of that principle, which it supplemented with the definitions and other provisions required for its application. Like the principle of prevention and punishment of genocide itself, the convention could not be temporary or subject to variations such as would result from its denunciation. The only modification which should be considered was a revision of the convention following upon the creation of the international criminal court, examination of which had been referred to the International Law Commission (100th meeting). Mr. Pratt de María (Uruguay) said it was difficult to imagine genocide as being an international crime only up to a certain date. The obligation to prevent and punish that crime could not be restricted by any time limits nor could it be subject to political or other variations. That was the reason for the Uruguayan proposal that article XIV should be deleted. Mr. Fitzmaurice (United Kingdom) stated that his delegation’s amendment was based on the arguments already adduced by the representatives of Belgium and Uruguay. Any provision for the termination or denunciation of the obligations arising from the convention appeared to him to be incompatible with the principles on which it had been based. Mr. Ti-tsun Li (China) mentioned an error in the text of his delegation’s amendment to article XIV of the draft convention. The proposal was to extend only the initial period from five years to ten, and it therefore applied to the first paragraph alone. The further successive periods were to remain at five years, as provided in the Ad Hoc Committee text. The Chinese delegation would have preferred the convention to be permanent, but recognized that present international practice made that impossible. In view, however, of the particularly atrocious nature of genocide, all civilized nations should pledge themselves to continue their efforts as long as possible to prevent and punish that offence against international law. Again, if it were borne in mind that the convention had taken about two years to prepare and that nearly another year might elapse before

1826

A/C.6/SR.108

the twenty ratifications or accessions required for its entry into force were received, a period of validity of five years only must be regarded as out of all proportion to the importance of the preparatory work involved in framing the convention. The Chinese delegation accordingly proposed that the initial period of validity should be increased to ten years. Mr. Chaumont (France), referring to the observations of the representative of Uruguay, stated that neither the expiry of the period of validity of the convention nor its denunciation would deprive genocide of its character as a crime under international law, since it had been described as such in General Assembly resolution 96(I), and the convention, in its first article, merely reaffirmed an already established principle. The adoption of article XIV would not affect that principle in any way. The representative of France regarded the article as useful because, when the international situation had developed sufficiently to permit the establishment of an international criminal court, fresh negotiations might be undertaken and a far from perfect convention might be replaced by provisions better adapted to the technical requirements of the effective repression of genocide. Moreover, there was reason to think that, as long as the convention remained in force, article XIV would give it a psychological element of stability, since it guaranteed automatic renewal for successive periods. Experience had in fact shown that the parties to a convention hesitated to denounce it when such a clause was included in the text. Mr. Maktos (United States of America) thought that article XIV was not concerned with a simple problem of procedure, but raised the very important theoretical question whether it was desirable for international conventions to contain a clause permitting of their denunciation. Since the international political situation was constantly developing, the principle of the permanence of conventions appeared to present more disadvantages than advantages. It was for that reason that the United Nations had encountered serious difficulties at San Francisco over the question of substituting the International Court of Justice for the Permanent Court at The Hague, since the Statute of the latter did not contain any clause providing for denunciation.

A/C.6/SR.108

1827

In view of the imperfect character of the convention on genocide, it was unlikely that certain States would be willing to enter into commitments in that entirely new field, without reserving the right to denounce the convention after a few years’ experience. To make the convention permanent would certainly constitute an obstacle to its ratification. In point of fact, if the contracting parties so desired, paragraphs 1 and 2 of article XIV of the convention would operate so as to make the convention permanent. The delegation of the United States would therefore vote for restricting the term of validity, and would accept the period of ten years proposed by China. If the principle of restriction were rejected, his delegation would then support the USSR amendment which permitted the parties to denounce the convention after giving one year’s notification. Mr. Morozov (Union of Soviet Socialist Republics) thought there was no need to dwell on the moral aspect of the reasons adduced for deleting article XIV. There was, first of all, no doubt that the convention was imperfect in very many respects and that the parties to it should therefore have the right to denounce it; secondly, a large number of States would refuse to ratify the convention if it were to be absolutely permanent, and thirdly, a denunciation clause should, in general, be included in international conventions in view of the very nature of these legal instruments. Mr. Morozov pointed out that his amendment represented an intermediate solution between the Ad Hoc Committee’s text and the proposals for the total deletion of article XIV. Without limiting the duration of the convention, the amendment envisaged the possibility of denunciation, such denunciation to take effect only one year after notification had been given. If its amendment were not adopted, the Soviet Union delegation would vote for the Chinese amendment and, if that were also rejected, it would accept the Ad Hoc Committee’s text. Mr. Kaeckenbeeck (Belgium) said that, although his delegation would have preferred no restrictions to be placed on the duration of a convention such as the one under consideration, it withdrew its amendment to avoid a lengthy debate on procedure and to meet the wishes of States which preferred to bind themselves for a definite period.

1828

A/C.6/SR.108

Mr. Fitzmaurice (United Kingdom) also withdrew his amendment for the reasons given by the Belgian representative. Mr. Pratt de María (Uruguay) also withdrew his amendment. He pointed out at the same time, in reply to the remarks of the French representative, that a special article of the convention (article XVI) dealt with the method of revising the convention. Mr. Abdoh (Iran) emphasized the necessity, particularly from a practical point of view, of retaining article XIV in the convention. The convention was admittedly far from perfect but the existence of provisions such as article XVI would enable improvements to be made in future. Furthermore, ratification of the convention would be facilitated if States were given the right to denounce it. Like the delegation of China, the delegation of Iran considered that the period of five years which the Ad Hoc Committee had envisaged was insufficient; it considered that the period of ten years proposed in the Chinese amendment satisfied every point of view and, for its part, the Iranian delegation would vote for that amendment. Mr. Raafat (Egypt) said that, if the USSR amendment did not lay down the maximum duration for the convention, it did not fix a minimum period either. There was, as a result, ground for apprehension that the adoption of that amendment would permit signatory States to remain bound for one or two years only. The Egyptian delegation considered that the convention should be valid for at least ten years, and for that reason it would vote for the Chinese amendment. Mr. Guerreiro (Brazil) said that his delegation favoured the insertion of a tacit renewal clause in the convention and was prepared to accept either the period of five years laid down in the text of the Ad Hoc Committee or the period of ten years proposed by the Chinese delegation. Mr. Maktos (United States of America) paid a tribute to the conciliatory spirit displayed by the delegations of Belgium, the United Kingdom and Uruguay. The Chairman, interpreting the views of the Committee as a whole, associated himself with the tribute paid by the representative of the United States.

A/C.6/SR.108

1829

He announced that a vote would first be taken on the amendment of the Soviet Union delegation as being the furthest removed from the original text, and secondly, on the amendment of the Chinese delegation. The USSR amendment was rejected by 14 votes to 8, with 18 abstentions. The Chinese amendment was adopted by 31 votes to none, with 10 abstentions. Mr. Ti-tsun Li (China) pointed out that, as a result of the adoption of his delegation’s amendment, the second paragraph of article XIV would have to be recast and the word “further” omitted. The Chairman said that the final version of the article would be prepared by the drafting committee. He then put to the vote article XIV, as modified by the Chinese amendment. Article XIV, as amended, was adopted by 38 votes to none, with 3 abstentions. Article XV The Chairman opened the discussion on article XV of the Ad Hoc Committee’s draft and on the amendments for the deletion of that article submitted by the delegations of Belgium [A/C.6/217], the United Kingdom [A/C.6/236] and Uruguay [A/C.6/209]. Mr. Pratt de María (Uruguay), Mr. Kaeckenbeeck (Belgium) and Mr. Fitzmaurice (United Kingdom) withdrew their amendments, as the adoption of article XIV had rendered it necessary to retain article XV. The Chairman put article XV of the Ad Hoc Committee’s draft to the vote. Article XV, was adopted by 34 votes to none, with 2 abstentions. Article XVI The Chairman opened the discussion on article XVI of the Ad Hoc Committee’s draft, on the amendment submitted by the USSR delegation [A/C.6/215/Rev.1, paragraph 13], and also on the proposal for the deletion of the article submitted by the Belgian delegation [A/C.6/217].

1830

A/C.6/SR.108

Mr. Kaeckenbeeck (Belgium) said that the situation had changed since his delegation had submitted its amendment. As the question of establishing an international tribunal had been referred to the International Law Commission, it would be advisable to provide for the possibility of revising the convention when the Commission had submitted its findings. In those circumstances, and in order to simplify the discussion, he withdrew his amendment. Mr. Morozov (Union of Soviet Socialist Republics) explained why his delegation had proposed its amendment. In the opinion of the Soviet Union delegation, the procedure for revising the convention should be more flexible, as a request for revision was generally only made in order to improve its provisions. If a State which desired revision were forced to secure the signatures of a certain number of other States, all kinds of delays and complications would ensue, a situation which should be avoided. Moreover, each Member of the United Nations was entitled to bring any question covered by the Charter before the General Assembly and there was no obligation to collect a minimum number of signatures. There was no reason for departing from that principle in the case of the revision of the convention on genocide. He drew attention to the fact that it would be the Economic and Social Council which would decide what action should be taken on requests for revision. The submission of any request for revision would not in any way prejudice the action that would be taken. In conclusion, he declared that the adoption of the provisions submitted by his delegation would certainly make ratification easier. Mr. Maktos (United States of America) pointed out that a request for the revision of an international convention had no chance of succeeding unless it had the support of a certain number of the signatories to that convention. He therefore favoured the retention of the text submitted by the Ad Hoc Committee. The question of revising the convention on genocide was a very important one, and it would consequently be advisable to make sure that a number of countries would support the revision before placing such a question on the General Assembly’s agenda. It would be better if the General Assembly,

A/C.6/SR.108

1831

rather than the Economic and Social Council, were to decide what action should be taken on requests for revision. No functions had been entrusted to the Economic and Social Council under the convention, whereas during the discussion on article XII (107th meeting), it had been agreed that the General Assembly should decide which non-member States should be invited to sign the convention. Moreover, it would be better for the revision of the convention to be carried out by the General Assembly, and thus by the Sixth Committee, which had drafted the convention and had all the relevant information at its disposal. Mr. Chaumont (France) thought that the USSR amendment should be divided into two parts: the first part granted each signatory State the power to request the revision of the convention, and the second part dealt with the competence of the Economic and Social Council. The United States representative had said that it would not be normal procedure for a single party to the convention to be able to bring about its revision. However, according to the Charter, each Member State was empowered to place before an organ of the United Nations any question which came within the competence of that organ. Moreover, a request for revision would undoubtedly be submitted with the aim of improving the convention and would thus be in conformity with the provisions of Article 13 a of the Charter, concerning the progressive development, of international law and its codification. On that point the Soviet Union amendment was therefore in complete conformity with the Charter. It should also be remembered that there was no question of bringing pressure to bear on any United Nations organ in order to insist on a revision of the convention. It would simply be a matter of suggesting that studies should be undertaken with a view to improving the convention. With regard to the second part of the USSR amendment, he recalled that the Committee had already decided, by its vote on article XII at the 107th meeting, that the competence with regard to the convention should lie with the General Assembly, and not with the Economic and Social Council. It would therefore be better to retain the second paragraph of the article as drafted by the Ad Hoc Committee. In conclusion, he requested that the amendment should be put to the vote in parts. His delegation would give its unreserved support to the first part, but would oppose the second.

1832

A/C.6/SR.108

Mr. Maktos (United States of America) pointed out that, in the Ad Hoc Committee’s draft, certain functions were assigned to the Secretary-General. In order to help the Secretary-General to carry out those functions and, above all, in order to avoid overloading the General Assembly’s agenda unnecessarily with requests which had no reasonable chance of success, the Ad Hoc Committee had thought it would be best to provide that any request for the revision of the convention should be submitted by at least one-fourth of the number of contracting parties. The provisions of article XVI had thus been inspired by practical considerations, since any Member State could, by virtue of a treaty and in a definite instance, waive a right to which it was entitled under the Charter. Although it should not be forgotten that each Member State was entitled to bring before any organ of the United Nations any question within its competence, it would be advisable, in the case of the convention under consideration, to provide that any request for revision should be supported by at least one-fourth of the number of signatory States. Mr. Abdoh (Iran) agreed with the representative of France that the amendment should be divided into two parts. With regard to the first part, the Committee should recognize the fact that requests for revision might be made with the purpose of weakening the effectiveness of the convention. Moreover, each request for revision would impair the stability of the convention, which was a very important factor from the psychological point of view. It would therefore be advisable if the signatory States were to waive one of their rights under the Charter and to agree not to insist on the consideration of requests for revision made by a single State. With regard to the second part of the amendment, his delegation agreed with the representative of France. The convention had been drafted by the General Assembly and it was therefore that organ rather than the Economic and Social Council which should decide on the advisability of revising the convention, as the Council was not a sufficiently representative body to take such a decision. Mr. Pescatore (Luxembourg) pointed out that, according to the Charter and rule 12(e) of the rules of procedure, any Member of the United Nations was entitled to propose the inclusion of an item in the General Assembly’s agenda. He therefore wished to ask the United States repre-

A/C.6/SR.108

1833

sentative, as Chairman of the Ad Hoc Committee and a supporter of the text proposed by that Committee, whether the provisions of article XVI would involve a derogation of a right granted under the Charter. If the answer were in the negative, the procedure set forth in article XVI would have no importance; if the answer were in the affirmative, his delegation would oppose the text submitted by the Ad Hoc Committee. Mr. Chaumont (France) explained that he proposed: first, that paragraph 1 of the Ad Hoc Committee’s draft should be replaced by the first sentence of the USSR amendment; secondly, that paragraph 2 of the Ad Hoc Committee’s draft should be retained. Mr. Morozov (Union of Soviet Socialist Republics) accepted the French delegation’s proposal and withdrew the second part of his amendment. In his opinion, it would be impossible to accept paragraph 1 of the Ad Hoc Committee’s draft, as its provisions were contrary to those of the Charter. The Soviet Union delegation did not wish to impair the stability of the convention; its intentions were indeed quite the opposite. However, that question did not arise just then, as his delegation was only attempting to preserve the rights to which each Member State was entitled under the Charter. Each signatory State could request the revision of the convention. The action which would be taken on such a request would depend on the nature of the request itself and on the attitude adopted by the competent organ before which the question was brought. The Chairman ruled that, as the proposal made by the representative of France had been accepted by the USSR representative, the Committee had before it a joint Soviet Union and French amendment to paragraph 1 of article XVI of the text submitted by the Ad Hoc Committee. Mr. Chaumont (France) thanked the USSR representative for having agreed to withdraw the second part of his amendment. He wished to draw the Committee’s attention to a very important point that had been raised by the representatives of the Soviet Union and Luxembourg. All the Members of the United Nations were obliged to respect the provisions of the Charter and Article 103 of the Charter provided that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations

1834

A/C.6/SR.108

under any other international agreement, their obligations under the present Charter shall prevail”. It was therefore impossible to include in the convention a derogation of the indisputable right of each Member to bring before the General Assembly any questions which that Member thought should be studied. Mr. Maktos (United States of America), replying to the question asked by the representative of Luxembourg, said that the Ad Hoc Committee’s draft would never have been submitted if its provisions had seemed to contradict those of the Charter. There was nothing in the Charter to prevent two or more States from giving up, under treaty, the exercise of a right to which they were entitled. Thus, the States signatories to the convention could give up their right to submit individual requests to the General Assembly for the revision of the convention. That limitation of the rights of Member States would obviously not apply to other questions. The Chairman put to the vote the joint USSR and French amendment. The amendment was adopted by 25 votes to 11, with 4 abstentions. The Chairman put to the vote the whole of article XVI, as amended. Article XVI, as amended, was adopted by 28 votes to none, with 10 abstentions. Articles XVII, XVIII and XIX The Chairman put to the vote articles XVII, XVIII and XIX of the Ad Hoc Committee’s draft in turn, no amendments having been submitted to any of those articles. Articles XVII, XVIII and XIX were adopted unanimously. Composition of the Drafting Committee (conclusion) As the representative of Cuba was unable to take part in the work of the Drafting Committee, the Chairman proposed that the representative of Uruguay should take his place. In the absence of any objections, the representative of Uruguay was appointed a member of the Drafting Committee.

A/C.6/SR.109

1835

The Chairman having proposed that the Committee should open discussion on the preamble to the convention, Mr. Chaumont (France) proposed the adjournment of the meeting, as the question was very extensive in scope and many amendments had been submitted. The motion for adjournment was adopted unanimously. The meeting rose at 12.35 p.m.

HUNDRED AND NINTH MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 17 November 1948, at 11.50 a.m. Chairman: Mr. R.J. Alfaro (Panama). 59. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Preamble The Chairman opened the discussion on the preamble to the Ad Hoc Committee’s draft and on the amendments thereto submitted by the delegations of the Union of Soviet Socialist Republics A/C.6/215/Rev.1, paragraph 1], China [A/C.6/221],1 Venezuela [A/C.6/261], and France [A/C.6/267]. The delegation of Iran had withdrawn its amendment [A/ C.6/218] and the amendment submitted by Belgium [A/C.6/217] referred solely to a question of drafting. 1

Chinese amendment: Delete the third paragraph of the preamble, beginning with the words: “having taken note of the fact . . .”

The Chairman asked the members of the Committee to express their views concerning the method of discussing the various texts submitted for their consideration. Mr. Morozov (Union of Soviet Socialist Republics) suggested that the preamble should be discussed paragraph by paragraph, a procedure which

1836

A/C.6/SR.109

the Committee had always followed when considering a particularly long and complicated article. The majority of the amendments, and that of Venezuela in particular, were divided in paragraphs corresponding to those of the draft text and it would be easy to discuss them parallel with the paragraphs of the basic text. Such a procedure would avoid any confusion in the discussion. Mr. Chaumont (France) also believed that it would be preferable to discuss the preamble paragraph by paragraph. Several of the amendments referred to different paragraphs of the basic text, each of which introduced a different idea into the convention. A discussion on the preamble as a whole would consequently be particularly difficult. Mr. Pérez Perozo (Venezuela) was not opposed to the procedure suggested by the representatives of the USSR and France, but he feared that such a piecemeal discussion might make consideration of his own amendment difficult, since it was intended to replace the preamble as a whole. Mr. Maktos (United States of America) expressed the view that the consideration of a text paragraph by paragraph was justified only if it would tend to expedite the work of the Committee. The Venezuelan amendment contained a unified and highly satisfactory text, which was likely to rally a great number of votes; consequently, it would be advisable to consider it as a whole and to put it to the vote as soon as possible. Mr. Agha Shahi (Pakistan) said that he generally favoured discussion paragraph by paragraph; however, in the present case, he would prefer a general debate on the whole of the basic text and on each of the amendments as a whole, since the various paragraphs were closely interrelated. The first paragraph of the French amendment, for instance, which qualified genocide as a crime against humanity, was so directly connected with the third paragraph, which related to the International Military Tribunal at Nürnberg, that it appeared difficult to consider one apart from the other without causing unnecessary repetition in the discussion. Mr. Morozov (Union of Soviet Socialist Republics) pointed out that the Committee had definitely decided (66th meeting) to use the text drawn up by the Ad Hoc Committee as the basis for the discussion of the convention on genocide. Unless the committee reversed its previous decision by a two-thirds vote, it could not use the Venezuelan amendment as the

A/C.6/SR.109

1837

basic text for discussions on the preamble, as some delegations desired. If the Committee did not reverse its previous decision, it would have to deal with the Venezuelan amendment as with all the other amendments and discuss it as the various paragraphs of the text submitted by the Ad Hoc Committee came under consideration. The Chairman, taking into account the views expressed, decided that the Committee would first of all proceed to a general discussion on the Venezuelan amendment, which was far removed both in substance and form from the text drafted by the Ad Hoc Committee and which could not, therefore, be considered in parts, simultaneously with the various paragraphs of the latter. The Committee would then consider the USSR and French amendments paragraph by paragraph, in relation to the corresponding paragraphs of the text drawn up by the Ad Hoc Committee, with the understanding that the Venezuelan amendment would not be put to the vote until after the closure of the debate on the preamble and on all the amendments relating thereto. Mr. Pérez Perozo (Venezuela) explained the reasons for which his delegation had decided to submit an amendment substituting a new draft for the preamble. In the first place, the Venezuelan delegation had always been of the opinion that the preamble to the convention should be as short as possible; that was why in the Ad Hoc Committee, it had supported a Chinese proposal which met that requirement.1 1

See document E/AC.25/SR.21.

In the second place, although his delegation approved the idea expressed in one of the earlier USSR proposals2 that the convention on genocide should be given a historical basis, it shared the view of the majority in the Ad Hoc Committee,3 believing that genocide could not be linked solely to the precedents set by fascist and nazi crimes, because genocide had been committed throughout history, long before the rise of fascism and nazism. 2 3

See document E/AC.25/7. See document E/AC.25/SR.22.

1838

A/C.6/SR.109

Finally, Mr. Pérez Perozo did not think that the preamble to the convention should include a reference to the Nürnberg Tribunal. The General Assembly, in its resolution 180(II), had decided that genocide would be the subject of a separate convention, while the International Law Commission would formulate the principles recognized in the Charter of the Nürnberg Tribunal. It had thus clearly indicated its intention to consider genocide as distinct from the crimes against humanity referred to in article 6 of the Charter of the Nürnberg Tribunal, which were prohibited in the latter not as genocide, but as crimes committed in connexion with war or with preparation for war; consequently, the Nürnberg Tribunal did not consider itself able to qualify as crimes against humanity, in the sense which its Charter gave to that expression, crimes of that nature committed before 1939. The acts prohibited by the Charter of the Nürnberg Tribunal did not correspond exactly to those which the United Nations intended to prevent and to make punishable through the convention on genocide; consequently there was no reason to include in the convention on genocide a reference to the judgment of the Tribunal. On the basis of those considerations, the Venezuelan delegation suggested that the text of the preamble given in the Ad Hoc Committee’s draft should be replaced by the text of the Venezuelan amendment, which in its first paragraph reiterated the three main elements of the General Assembly’s resolution 96(I); presented a sufficiently general historical basis in the second; and, in the third, insisted on the necessity for international collaboration in order to rid humanity of the scourge of genocide. Mr. Maktos (United States of America) considered that the Venezuelan amendment presented the advantage of being very concise, and contained all the essential elements which should be included in the preamble, while omitting controversial questions. Thus, by omitting the reference to the Nürnberg Tribunal, that amendment would satisfy the Chinese delegation, which was justly surprised that the Tokyo Tribunal appointed to try war-criminals in the Far East was not also mentioned in it. Furthermore, by omitting the reference to the Nürnberg Tribunal and by excluding from the convention the concept of “crime against humanity”, the amendment prevented any confusion between genocide, which was a specific crime directed towards the extermination of human groups, and the crimes mentioned in the Charter of the Nürnberg Tribunal, which were connected only with war. It was with

A/C.6/SR.109

1839

that in view, and in order to conform to the General Assembly resolution 180(II), that the Ad Hoc Committee had preferred to use the formula “crime against mankind”, specifying that its legal description distinguished it from similar acts prohibited by the Nürnberg Tribunal, since crimes against humanity would be dealt with by the International Law Commission, which had been given the task of drafting the principles promulgated at Nürnberg. But the distinction made by the Ad Hoc Committee had to be carried further and emphasized, and that was what the Venezuelan amendment did. Any definition which would identify genocide with crimes committed in time of war would merely serve to restrict the scope of the convention. Moreover, since the Nürnberg Tribunal had not given any definition of genocide, its decision could not be cited as a precedent in connexion with genocide. Genocide was a completely new concept, which harked back to resolution 96(I) of the General Assembly, and which did not need to be propped up by any precedents. For that reason, the Venezuelan amendment rightly gave credit to the General Assembly alone for having made genocide a crime under international law. It was also right to recognize that that crime had been committed at all periods of history, and to proclaim the will of the United Nations to liberate mankind from that crime through international co-operation in combating it. Mr. Manini y Ríos (Uruguay) was opposed to the idea of inserting a preamble at the beginning of a convention, because on the whole it merely complicated the text without contributing anything to it. Thus, the first paragraph of the preamble to the draft convention constituted a mere reiteration of the definition of genocide as a crime under international law, already contained in article I of the draft convention. Further, the reference, in the third paragraph, to the Military Tribunal at Nürnberg should be deleted, because, as the representatives of the United States and Venezuela had shown, it would alter the juridical scope of the convention. Finally, the fourth paragraph relating to international co-operation was superfluous, for everyone understood that international co-operation was necessary in order to prevent and punish genocide.

1840

A/C.6/SR.109

The only element which could perhaps be retained was the reference to the General Assembly’s resolution 96(I) in the first paragraph of the Venezuelan amendment, but in reality that too was superfluous, since everyone knew that the convention on genocide was based on that resolution. Mr. Raafat (Egypt) questioned the opinion expressed by the representative of Uruguay, and on the contrary, considered it essential that an important convention of that kind should be prefaced by a preamble. The Ad Hoc Committee’s preamble contained three elements: condemnation of acts of genocide, reference to recent instances of genocide, and an allusion to the Nürnberg Tribunal. The Venezuelan amendment [A/C.6/621] [sic] modified each of those elements. The Egyptian representative considered that the first paragraph of that amendment was better worded than the basic text, because, instead of limiting itself to a repetition of the condemnation of genocide mentioned in the first paragraph of the convention, it proclaimed, in a way, that the contracting parties confirmed the international character of the crime of genocide. Mr. Raafat also approved the deletion of any allusion to the Nürnberg Tribunal. With regard to the second paragraph of the Venezuelan amendment, he proposed that that should be supplemented by the second paragraph of the basic text, which would result in the following wording: “Recognizing that at all periods of history genocide has inflicted great losses on humanity, and having been profoundly shocked by many recent instances of genocide;”. That would give a clearer understanding of why, although genocide had been known since the most ancient times, recent and particularly serious instances of that crime had led the contracting parties to conclude a convention for its prevention and punishment. Mr. Dihigo (Cuba) shared the view of the Uruguayan representative; it would be better to have no preamble before the articles of the convention. If, however, the Committee decided to have a preamble, the Cuban representative would vote in favour of the Venezuelan amendment. That amendment contained a reference to resolution 96(I) on which the convention under discussion was based. Moreover, it made no mention of the Nürnberg trials; such a reference would be a mistake, as it would limit the scope of the convention.

A/C.6/SR.109

1841

Mr. Ti-tsun Li (China) stated that his delegation would vote in favour of the Venezuelan amendment because it contained essential ideas which should appear in the preamble to the convention, and eliminated the debatable points in the Ad Hoc Committee’s text. Mr. Maûrtua (Peru) said that his delegation had numerous objections to the French proposal to replace the third paragraph of the original text by a paragraph mentioning the judgment pronounced by the Nürnberg Tribunal. He emphasized that the Fifth Conference of the Inter American Bar Association had criticized the Nürnberg trials on purely technical grounds. The trials had been an improvization, made necessary by exceptional circumstances resulting from the war, and had disregarded the rule nullum crimen sine lege, which meant that any penal sanction must be based on a law existing at the time of the perpetration of the crime to be punished. Under international law, the Nürnberg trials could not constitute a precedent; for that reason, the Peruvian delegation would vote in favour of the Venezuelan amendment, though it would, however, prefer to see the second paragraph deleted. Mr. Fitzmaurice (United Kingdom) thought that the Venezuelan amendment was better than the Ad Hoc Committee’s text. The difficulties raised by allusion to the Judgment of the Nürnberg Tribunal were a further reason for voting in favour of the Venezuelan amendment, which did not mention that Judgment. Mr. Tarazi (Syria) declared his support for the French delegation’s text which proposed making a reference to the Judgment of the Nürnberg Tribunal. In reply to the declaration of the Peruvian representative, Mr. Tarazi added that although the judgment pronounced at Nürnberg contained certain juridical faults, its moral implications were nevertheless very high. He could not imagine that national legislations did not contain provisions for the punishment of deeds such as those for which the defendants at Nürnberg had been condemned. Consequently, the rule of nullum crimen sine lege had not been violated. He thought that not only should reference be made to the Judgment of the Nürnberg Tribunal, but also to the judgment which had just been pronounced by the International Tribunal at Tokyo.

1842

A/C.6/SR.109

Mr. Kaeckenbeeck (Belgium) said he did not think that a preamble could add anything to the articles of the convention. However, if the Committee decided to adopt a preamble, his delegation would vote for the Venezuelan amendment which he considered much better than the preamble drawn up by the Ad Hoc Committee. Mr. Abdoh (Iran) saw no use in adopting a preamble; it would add nothing to the provisions of the convention. However, should the Committee decide otherwise, the Iranian delegation would likewise vote in favour of the Venezuelan amendment. It did not refer to the Nürnberg Judgment, reference to which might result in confusion. Neither did it mention recent instances of genocide. Mr. Abdoh pointed out that Tamerlane and Genghis Khan had committed far more serious crimes of genocide than those perpetrated by the fascists and nazis. He considered that the purpose of the French amendment was to place genocide in the category of crimes against humanity. That idea had been rejected by the Committee from the beginning (68th meeting). Crimes against humanity were deeds perpetrated in connexion with crimes of aggression. Hence, that idea was connected with events in time of war. Resolution 180(II) of the General Assembly requested the Economic and Social Council to proceed with the completion of a convention on genocide, taking into account that the International Law Commission had been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal. Those principles were bound up with the Hague and Geneva Conventions, and were therefore closely linked with the state of war. It was for that reason that the Iranian delegation could not accept the French amendment. Moreover, Mr. Evatt had stated in the course of a speech he made on 25 August 1948 that the nations wanted a statute which was not only a Diktat laid down by the conquerors, but a treaty freely adhered to by sovereign States. That was the case with the convention under consideration and so the Iranian delegation would vote in favour of the Venezuelan amendment. Mr. Correa (Ecuador) stated that he had at first thought it unnecessary for the convention to be prefaced by a preamble. It must be remembered, however, that before it came into force, the convention would have to be ratified by the parliaments of the various countries. It would be well,

A/C.6/SR.109

1843

therefore, to explain to the world in general the reasons for which the convention had been drawn up. In that connexion, the Venezuelan amendment appeared to be satisfactory, as it was in keeping with the substance of the convention. Any reference to the Nürnberg Tribunal Judgment and to the crime of genocide committed by the fascists and nazis would result in limiting the scope of the convention. Mr. Morozov (Union of Soviet Socialist Republics) did not consider that the Chairman should have opened the discussion on the Venezuelan amendment, leaving aside the Ad Hoc Committee’s draft. The result of such action was that delegations which intended to defend that draft were obliged to hear their own point of view criticized even before they had been able to explain it. If the Committee considered the Venezuelan amendment to be a new proposal, it should be examined after the amendments to the Ad Hoc Committee’s text had been considered. The Venezuelan amendment was not a new proposal, however. It reproduced certain elements contained in the Ad Hoc Committee’s text and omitted others. For instance, it omitted, in the first paragraph, the phrase “ . . . genocide is a grave crime against mankind . . .”, and proposed a phrase to be found in the first article of the convention. The Venezuelan amendment omitted, in the second paragraph, the term “shocked” and substituted a text which was not satisfactory. Finally, the third paragraph of the Venezuelan amendment contained no new idea. For all those reasons, Mr. Morozov thought that the proposal furthest removed from the Ad Hoc Committee’s text was not the Venezuelan amendment, but the USSR amendment. He stated in conclusion that the Committee should examine the various points of the Venezuelan amendment simultaneously with the corresponding paragraphs of the Ad Hoc Committee’s draft. If the Chairman adhered to his decision, however, the Committee should vote first on the initial text and then on the Venezuelan amendment. Mr. Maktos (United States of America) pointed out that if a member of the Committee took exception to the Chairman’s decision, he should appeal against that decision at the proper time, but that he should not discuss it later.

1844

A/C.6/SR.109

The Chairman stated that he had never intended to disregard the Ad Hoc Committee’s text and the other amendments. Nor did he look upon the Venezuelan amendment as a separate proposal. He had simply said that that amendment was the one that was furthest removed from the Ad Hoc Committee’s draft. Finally, he stated that any member of the Committee had the right to ask that the Venezuelan amendment be voted on in parts. Mr. Pérez Perozo (Venezuela) said he did not understand why the USSR representative had stated that the Venezuelan amendment was, on the one hand, a new proposal, and that, on the other hand, it contained nothing new. If the first paragraph of the Venezuelan amendment did not mention a “grave crime against mankind”, that idea was, nevertheless, stated even more forcibly in the third paragraph of that amendment than in the initial draft. Mr. Spiropoulos (Greece), Rapporteur, recalled that several representatives had declared that the Nürnberg Tribunal had dealt only with crimes committed during the war. That Tribunal had, in fact, dealt with crimes committed in peacetime, crimes committed in war-time and crimes against humanity whether committed in peace- or war-time, as article 6(c) of the Nürnberg Charter showed. In the opinion of the Rapporteur, genocide belonged to the category of crimes against humanity, as defined by that article. Mr. Amado (Brazil) recalled that his delegation had been one of the first to oppose (63rd meeting) any reference to the Judgment of the Nürnberg Tribunal in the preamble to the convention. He thought that the Venezuelan amendment harmonized a number of ideas most satisfactorily and was worthy of his delegation’s support. He added that he would have preferred the convention to be without a preamble, since the general ideas expressed in the latter were already embodied in article I of the convention. He described as sheer repetition the following phrase in the Venezuelan amendment: “ . . . genocide is a crime under international law, contrary to the spirit and aims of the United Nations and which the civilized world condemns”. The heinous nature of that crime was quite evident and there was no need to refer to it again.

A/C.6/SR.109

1845

Despite that objection, however, the Brazilian delegation would vote in favour of the Venezuelan amendment. Referring to the Rapporteur’s interpretation of the Nürnberg Charter, Mr. Amado recalled that he himself had cited (63rd meeting) the opinion of Sir Hartley Shawcross, who had declared it necessary for genocide to be defined stricto sensu. All crimes might, to some degree, present features that would bring them into the category of crimes against humanity. Hence it was necessary to define genocide as a crime committed against a human group as such, in contrast to a war crime, the object of which was to eliminate the resistance of a group and not the group itself. Mr. Demesmin (Haiti) expressed himself in favour of the draft preamble proposed by the Venezuelan delegation in view of its very general scope. Mr. Azkoul (Lebanon) thought that the Venezuelan draft might provide a good basis for agreement among the various delegations, some of which held that the preamble should mention the Judgment of the Nürnberg Tribunal, while others considered that the preamble should underline the fact that genocide was bound up with nazism and fascism. The Lebanese delegation was of the opinion that it would be wrong and even dangerous to confuse genocide as defined by the convention with the crimes against humanity tried by the Nürnberg Tribunal. It was unable to accept the Rapporteur’s interpretation of sub-paragraph (c) of article 6 of the Nürnberg Charter. The crimes against humanity defined in that sub-paragraph were divided into two categories: first, the inhumane acts committed against any civilian population, before or during the war, and secondly, persecutions on political, racial or religious grounds, in execution of or in connexion with any crime within the jurisdiction of the Tribunal. It was obvious that genocide could not be included in the first category; nor could it be placed in the second, since, under the provisions of the first paragraph of article 6 of the Nürnberg Charter, the jurisdiction of the Tribunal extended to all persons who had acted in the interests of the European Axis countries. Therefore, if genocide were admitted to be one of the crimes against humanity defined in sub-paragraph (c), it would be necessary to await the formation of a new Axis before measures could be taken for its repression.

1846

A/C.6/SR.109

Furthermore, the words “before . . . the war” did not necessarily imply “in time of peace”; they should be interpreted as meaning the period of time immediately preceding the war and as constituting a period of preparation for the war. On the other hand, the provisions of the Nürnberg Charter made no stipulation that persecutions must have been carried out with the intent to destroy a definite group as such, which was one of the essential elements in the definition of genocide. For all those reasons, genocide should not be confused with the idea of crime against humanity, as defined in the Charter of the Nürnberg Tribunal. Mr. Spiropoulos (Greece), Rapporteur, withdrew the interpretation he had placed on article 6(c) of the Charter of the Nürnberg Tribunal, not because he doubted its correctness, but because he thought that the discussion should be limited exclusively to the proposed amendments to the preamble to the convention and should not concern itself with possible interpretations of the provisions of the Nürnberg Charter. Mr. Messina (Dominican Republic) said that his delegation supported the draft preamble proposed by Venezuela because it was concise and clear and contained no elements likely to limit the scope of the convention. He recalled that the Judgment of the Nürnberg Tribunal would be studied by the International Law Commission, which would draw the necessary conclusions from it. There was, therefore, no need to refer to the Judgment in the preamble to the convention. If that were done, there would be no good reason for omitting a similar reference to the Judgment of the International Military Tribunal set up for the trial of major war criminals in the Far East. Mr. Guillen (El Salvador) stated that his delegation, after studying all the amendments to the preamble to the draft convention, had decided to support the Venezuelan amendment, which met the requirements of the convention in the most satisfactory manner. The delegation of El Salvador was opposed to any mention of the Judgment of Nürnberg in the preamble to the convention. From a legal point of view, the principles established by the Nürnberg Tribunal should not be regarded as tantamount to principles of international law, since that

A/C.6/SR.109

1847

Charter was adopted solely to permit the trial, inter alia, of those guilty of acts for which previous legislation did not provide. For that reason it might be said that the Charter was not entirely in conformity with the principle that laws could not be made retroactive. A further reason against reference to the Nürnberg Judgment was the fact that the Charter of the Nürnberg Tribunal was drawn up in special circumstances, which permitted the victorious Powers to impose certain standards on the European Axis countries. Such standards could not be applied ipso facto in other circumstances. Since, in drawing up the convention on genocide, the Committee was engaged in work of a pre-eminently juridical nature, the delegation of El Salvador desired that there should be no mention of the Nürnberg precedent in the preamble. Mr. Chaumont (France) thought that the text proposed by the delegation of Venezuela, which contained nothing but a series of observations of a very general scope, was entirely incapable of providing an adequate substitute for the draft preamble of the Ad Hoc Committee. The first paragraph of the Venezuelan amendment consisted merely of a reference to resolution 96(I) of the General Assembly and a quotation of a part of its provisions. One might well ask why reference had not also been made to resolution 180(II), which specifically mentioned the Judgment of the Nürnberg Tribunal. The first paragraph, as drafted, repeated, in a different form, the contents of article I of the convention and therefore served no useful purpose. The other two paragraphs of the Venezuelan amendment substituted considerations couched in terms which might be described as sentimental for the text of the Ad Hoc Committee which sought to connect genocide with well known juridical concepts. The Committee would gain nothing by adopting such considerations in place of the Ad Hoc Committee’s draft. Mr. Chaumont reserved the right to reply to the arguments against the French amendment, when the latter came up for discussion. Mr. Zourek (Czechoslovakia) said that he failed to understand the opposition to all mention of the Nürnberg precedent in the preamble to the convention, particularly in view of the fact that the principles of

1848

A/C.6/SR.109

international law recognized by the Charter and Judgment of the Nürnberg Tribunal and by the Charter and Judgment of the International Military Tribunal for the trial of war criminals in the Far East had been unanimously confirmed first by the Sixth Committee and subsequently by the General Assembly in its resolution 95(I) [sic]. There was no doubt that the acts against which the convention on genocide was aimed, were identical with those which article 6(c) of the Charter of the Nürnberg Tribunal qualified as crimes against humanity. The fact that the Charter linked those crimes with others was not conclusive. Even if importance were attached to that fact, it must be admitted that where genocide was committed in the course of a war of aggression or in connexion with such a war, there was no doubt that it was a crime against humanity and of the most serious kind. Having regard to the fact that the convention was aimed against the commission of genocide both in war and in peace, it was clearly not permissible to qualify genocide as a crime against humanity when committed in connexion with a war of aggression, while refusing to do so, when its commission was not connected with such a war. War crimes were in reality crimes against humanity; the Judgment of Nürnberg drew a distinction between the two crimes, but nevertheless it dealt with both of them in one and the same chapter. Mr. Zourek challenged the Peruvian representative’s assertion that the Nürnberg trial had been an improvisation necessitated by exceptional circumstances arising from the war. In the opinion of the Czechoslovak delegation, the establishment of the Nürnberg Tribunal marked a most important stage in the development of international law. Replying to the representative of Iran, Mr. Zourek observed that the Charter of the Nürnberg Tribunal did not in any way represent a Diktat. The Tribunal had been set up by an agreement which was freely entered into by the four great Powers and to which nineteen States had freely expressed their adherence. It would never be possible to repress a crime, if criminals could not be tried without their own consent. For all those reasons, the delegation of Czechoslovakia could not support the Venezuelan amendment. Mr. Maúrtua (Peru), replying to the observations of the representatives of Syria and Czechoslovakia, said he in no way underestimated the value of the work accomplished by the Nürnberg Tribunal; it must, however, be

A/C.6/SR.110

1849

admitted that the Tribunal was an exceptional court, set up for a precise purpose. As a result, it could not serve as a precedent in drawing up a convention for the punishment of those who would be guilty of violating its provisions in the future. Mr. Dignam (Australia) pointed out that the word “thereinafter” in the last line of the English text of the Venezuelan amendment should be replaced by the word “hereinafter.” The Chairman stated that the drafting committee would bear in mind the Australian representative’s remark. The meeting rose at 1 p.m.

HUNDRED AND TENTH MEETING Held at the Palais de Chaillot, Paris, on Thursday, 18 November 1948, at 3 p.m. Chairman: Mr. R.J. Alfaro (Panama). 60. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Preamble (continued ) The Chairman opened the discussion on the USSR amendment [A/ C.6/273] to the amendment submitted by the delegation of Venezuela [A/C.6/261]. Mr. Morozov (Union of Soviet Socialist Republics) said that, in view of the Chairman’s ruling that the Venezuelan amendment was the furthest removed from the original text and should be discussed first, his delegation had submitted a new amendment supplementing the provisions of the Venezuelan amendment. He approved of the first paragraph of that amendment but thought that the second paragraph should be extended to include a reference to the events of the most recent period of history, events which had prompted the United Nations to draft a convention on genocide. The countries which had not suffered from the atrocities committed during the Second World War appeared willing to forget that

1850

A/C.6/SR.110

recent period of history, but, in his opinion, it was essential to refer to the fascist-nazi theory of racial superiority in order to give a complete definition of the crime of genocide. The purpose of the second part of his amendment was to include in the preamble a definition of the objective of the convention. The fact that the prevention and punishment of genocide was mentioned in article I was not sufficient reason for refusing to include it in the preamble, which was a general introduction to the convention. He explained that he was not withdrawing his original amendment [A/ C.6/215/Rev.1] to the basic text. If the Venezuelan amendment were voted on first and rejected, he reserved the right to introduce his own original amendment to the Ad Hoc Committee’s text. Mr. Pérez Perozo (Venezuela) regretted that he was unable to accept the amendment proposed by the representative of the Soviet Union. He had explained his delegation’s attitude to the substance of the first part of that amendment at the 109th meeting. In accordance with the General Assembly’s instructions, the convention was directed against genocide and not against fascism-nazism and other similar theories of racial superiority. If a convention directed against such theories had been drafted, his country would have been among the first to sign it. The statement that genocide was organically bound up with fascism-nazism was not historically accurate, as acts of genocide had been committed as recently as the previous year without having any connexion with such theories. With regard to the second part of the USSR amendment, he did not think it suitable for inclusion in the preamble. Moreover, it was already covered by the provisions of article I. Mr. Maktos (United States of America) reminded the members of the Committee of the part played by his country during the Second World War and stated that his remarks should not be taken to imply approval of the theories of nazism and fascism. He supported the arguments raised by the representative of Venezuela against the USSR amendment and said that he would vote in favour of the Venezuelan amendment, which had the advantage of being short and simple. If it were emphasized that genocide was organically bound up with fascism-nazism it would mean that acts of genocide committed from any

A/C.6/SR.110

1851

other motives might not be punishable under the convention. There was no need to mention ephemeral events in a convention which, he hoped, would remain in force for many years to come. It was to be hoped that all countries would eventually sign the convention and it would be easier for them to do so if no mention of the past activities of any particular country were included in the preamble. For those reasons his delegation was opposed to the Soviet Union amendment. Mr. Raafat (Egypt) saw no reason why the second part of the USSR amendment should not be adopted, especially as the Ad Hoc Committee had decided to mention prevention and punishment in the title of the convention. It was, therefore, perfectly logical that those ideas should also be included in the preamble. He did not, however, approve of the first part of the Soviet Union amendment. The words “recent events” might be taken to refer to events which were even more recent than those of the Second World War. He agreed with those representatives who had pointed to the inaccuracy of the statement that genocide was “organically” bound up with fascism-nazism. Even if that word were interpreted to mean “originally,” history proved its inaccuracy, for instances of genocide were to be found in the far more distant past, instances which had no connexion at all with theories of racial superiority. Mr. Abdoh (Iran) was also opposed to the first part of the USSR amendment and in favour of the second. He endorsed the arguments raised by the representative of Egypt and added that the crimes committed under the fascist and nazi regimes were directed solely against racial groups, while the convention on genocide was far broader in scope. Mr. Morozov (Union of Soviet Socialist Republics), replying to the representative of Egypt, explained that his amendment had been incorrectly translated. Instead of reading “while recent events provide evidence . . .”, it should read “while events of the last period provide evidence . . .” If that wording were considered in its proper context, the meaning would become quite clear. The purpose of his amendment was to emphasize the fact that, in the recent period of human history, acts of genocide had been caused by

1852

A/C.6/SR.110

fascism-nazism and other similar race “theories”. Such theories were still alive and active. They had given rise to acts of genocide in the past and might do so again in the future. It was therefore essential that some reference should be made to them in the convention. With regard to the argument that religious hatred was also a source of genocide, he replied that he had already made it clear, during the discussion on article II (74th meeting), that religious hatred was always bound up with national hatred. The Chairman closed the debate on the Soviet Union amendment to the Venezuelan amendment and opened the discussion on the original USSR amendment to the basic text [A/C.6/215/Rev.1]. In reply to a question asked by Mr. Dignam (Australia) the Chairman said that the USSR amendment would be discussed paragraph by paragraph in order to avoid confusion. Mr. Dignam (Australia) appealed against the Chairman’s ruling, as he thought it would be better to discuss the amendment as a whole. The Chairman put to the vote the Australian proposal to discuss the Soviet Union amendment as a whole. The proposal was adopted. Mr. Morozov (Union of Soviet Socialist Republics) withdrew certain parts of his amendment in view of the decisions taken by the Committee in connexion with the texts of the articles of the convention. The following parts were withdrawn: First, the proposal for the insertion of the words “directed towards the destruction of separate human groups on racial, nationalistic or religious grounds” after the words “grave crime against mankind” in the first paragraph. Secondly, the proposal for the insertion of the words “all civilized peoples are required both in peace and in war to take decisive measures” after the words “being convinced that” in the fourth paragraph. He also withdrew the words “or preparing the commission of ” from paragraph (c) of his amendment.

A/C.6/SR.110

1853

The remainder of his amendment would be put to the vote if the Venezuelan amendment were rejected. Mr. Zourek (Czechoslovakia) did not agree with the United States representative that the events referred to in the Soviet Union amendment were purely ephemeral. Ever since the tenth century crimes of genocide had been committed because of the theory of racial superiority. It was therefore essential that the connexion between genocide and that theory should be mentioned in the preamble to the convention. Mr. Maúrtua (Peru) did not think it would be advisable to include a reference to fascism-nazism and other similar race “theories” in the convention. The document was a legal one and should not, therefore, include political references. The actions of the Nazis had been based on political motives, but that was only one aspect of genocide and, if the USSR amendment were adopted, the scope of the convention would be reduced. Mr. Azkoul (Lebanon) understood the basic purpose which had prompted the delegation of the Soviet Union to submit its amendment. He agreed that some reference should be made to the events of recent history which had moved the United Nations to draft a convention on genocide. However, he thought the wording of the Soviet Union amendment might be dangerous as it seemed to exclude from the convention genocide committed for reasons other than doctrines of racial superiority. He suggested that the wording of the amendment submitted by his delegation to the Ad Hoc Committee1 might be adopted instead. 1

See Official Records of the Economic and Social Council, third year, seventh session, supplement No. 6, page 3.

The Chairman opened the discussion on the amendments submitted by the French delegation [A/C.6/267]. Mr. Chaumont (France) said that the discussion at the 109th meeting had shown that there was some misunderstanding with regard to his proposal that the precedent of the Nürnberg Tribunal should be mentioned. His first reason for insisting on that precedent was that the convention would never have been drafted if it had not been for the crimes committed under the nazi and fascist regimes. On that point the purpose of his

1854

A/C.6/SR.110

amendment was similar to that which had prompted the submission of the USSR amendment. The other reasons were based on legal factors. International law could advance only by degrees, especially where such, a complicated matter as criminal law was concerned. It was therefore extremely fortunate that a legal precedent did exist in the present case and reference should be made to that precedent in the convention. He did not agree with those representatives who objected that the procedure at Nürnberg had been improvised and he thought that such an attitude showed a certain ignorance of the facts. The objection had been raised against his amendment that the term “crime against humanity” was too intimately connected with the idea of war crimes for inclusion in the convention. The Nürnberg Tribunal had been established to deal with war criminals so it was only natural that the idea of crimes against humanity should be linked with that of war crimes, where the proceedings of that Tribunal were concerned. However, the Nürnberg Tribunal itself had considered the concept of “crime against humanity” to be independent, as was shown by the fact that two of the criminals brought before it had been condemned on the sole charge of crimes against humanity. There was, therefore, no reason why that distinct legal concept should not be used as a precedent for the convention under consideration. It had also been objected that an allusion to the Nürnberg Tribunal would restrict the scope of the convention. However, the mere fact that the idea of crimes against humanity had first been evolved at Nürnberg, did not prevent that idea from having a general significance once it was introduced into international law. The representative of Venezuela had drawn attention to the fact that General Assembly resolution 96(I) made no mention of the Nürnberg Tribunal. In reply to that statement, he pointed out that resolution 180(II) specifically enjoined upon the Economic and Social Council to take account of the fact that the International Law Commission had been charged with the formulation of the principles recognized in the Charter of the Nürnberg Tribunal. It was therefore obvious that the General Assembly considered that there was some connexion between the principles of the Nürnberg Charter and the problem of genocide.

A/C.6/SR.110

1855

In his opinion, the objections to his amendment arose primarily out of a certain ignorance of what had happened at Nürnberg, as the proceedings of that Tribunal had only been followed closely by the countries of Europe. He emphasized the fact that the principles of the Nürnberg Charter had been specifically approved by the General Assembly in resolution 96(I). The last two parts of his amendment followed logically from the first However, he was prepared to accept the idea of the USSR amendment as expressed in the wording proposed by the Lebanese delegation. The third part of his amendment had been proposed because his delegation considered that the wording of the Ad Hoc Committee’s draft, which referred to similar acts under a different legal description, was a contradiction in terms. Mr. Agha Shahi (Pakistan) said that his delegation could not accept the amendments to the preamble submitted by the representative of France. In his opinion, if genocide were described as a “crime against humanity”, it would be limited to the three fixed categories of crimes falling within the jurisdiction of the Nürnberg Tribunal and its definition would thus be confined to crimes committed against human groups in time of war. Such a restriction was contrary to the provisions of article I, as adopted by the Committee, which expressly declared that genocide was a crime under international law, whether committed in time of peace or in time of war. If it could be proved that the phrase “crime against humanity” was not confined to genocide perpetrated in time of war, the objections to the French amendment would be to a great extent removed. In his opinion, however, article 6(c) of the Charter of the Nürnberg Tribunal made it quite clear that the third category of crimes, namely “crimes against humanity”, was not independent but was to be construed with reference to crimes within the jurisdiction of the Tribunal, which meant those falling within the first two categories, “crimes against peace” and “war crimes”. In support of that opinion, he quoted from the book entitled Nazi Conspiracy and Aggression (Opinion and Judgment), which stated (page 84): “The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter.” It had been urged, in support of the first part of the French amendment, that it was desirable to establish a connexion between the convention under

1856

A/C.6/SR.110

discussion and the future work of the International Law Commission. His delegation did not think that the Committee should undertake such an onerous task, especially as General Assembly resolution 180(II) made it clear that the task of extending the scope of article 6(c) of the Nürnberg Charter, relating to “crimes against humanity”, so as to include cases of genocide committed in time of peace, was a function of the International Law Commission and not of the Sixth Committee. With regard to the third part of the French amendment, in which the legal precedent of the Nürnberg Tribunal was mentioned, he did not think that there was sufficient unity of principle underlying the convention and the Nürnberg Charter to justify any mention of a precedent. In the case of the Nürnberg Charter the sanction behind the trial and punishment of persons guilty of genocide lay in subjection of the vanquished to the will of the victors, while, in the case of the convention, the sanction lay in the voluntary acceptance of international obligations arising from covenants entered into freely by equal and independent sovereign States. He pointed out that some of the important principles of law laid down in the Charter and Judgment of the Nürnberg Tribunal, such as the principle of retroactivity, had not been incorporated in the convention. That fact was an additional proof that there was no great unity underlying the provisions of that Charter and those of the convention. It was, therefore, doubtful whether the Judgment of the Tribunal could be considered as constituting a precedent and his delegation would prefer to consider the convention as an independent document, without any reference to the Nürnberg Tribunal. Mr. Pérez Perozo (Venezuela) explained the reasons why his delegation was opposed to the French amendment. The Nürnberg Judgment was based on the decisions of an international military tribunal set up to punish important war criminals. Once that military tribunal had passed sentence, its competence ended. In the convention under discussion, persons guilty of committing genocide would be judged, not necessarily by military tribunals, but by the judicial organs of the signatory States. Punishment would be imposed on every type of criminal, whether ruler, public official or private individual. No special international tribunal would be established, because that idea had been rejected by the Sixth Committee.

A/C.6/SR.110

1857

The Nürnberg system was established for the punishment of crimes which had been divided into three categories: crimes against peace, war crimes, and crimes against humanity. A fourth group had been added, namely association for the common purpose of committing crimes of the former three categories. The convention under discussion, however, would be concluded for the sole purpose of preventing and punishing a crime defined by the name of genocide. The Nürnberg Tribunal punished the crimes cited above, but did not impose the specific obligation on the part of States to punish them in the future. In the convention, however, the signatory States would pledge themselves to prevent and punish genocide whenever it was committed and in whatever conditions. Mr. Pérez Perozo cited Professor Donnedieu de Vabres, legal representative of France before the Nürnberg Tribunal, with regard to two legal problems, namely the justifying effect of an order given by a superior authority, which the Tribunal excluded, and the retroactive effect of the penal provisions contained in the Statute of the International Military Tribunal (Traité de droit criminel et de législation pénale comparée, edition 1947, page 1022). In the convention, however, the principle that an order given by a superior authority did not exempt the person fulfilling that order from penal responsibility was not accepted. The principle of the retroactive effect of the penal provisions would not be applied either, because the signatory States undertook to enact the necessary legislation to prevent and punish genocide. Furthermore, the Nürnberg Tribunal dealt only with the punishment of crimes already committed, whereas the convention covered not only the punishment but also the prevention of genocide. The Nürnberg Charter dealt with crimes against humanity only when they were in some way related to crimes against peace or with war crimes. In that connexion, the Venezuelan representative quoted a paragraph from document E/AC.253/Rev.1 in which the Secretary-General expressed to the Ad Hoc Committee his opinion that genocide was considered a crime under international law irrespective of whether it was committed in time of peace or of war. Mr. Pérez Perozo concluded his remarks by quoting Professor Donnedieu de Vabres’ statement (ibid.) that the Nürnberg trials should not serve as a

1858

A/C.6/SR.110

model, or as a precedent, in administering international criminal justice in the future, since the circumstances which determined the composition, procedure and sanction of the Nürnberg Tribunal might then be viewed differently. The Venezuelan delegation concurred with that opinion and hoped, therefore, that the Nürnberg Judgment would not be used as a basis for the system which was to be established by the convention on genocide. Mr. Maúrtua (Peru) said that he had very little to add to the lucid statement made by the representative of Venezuela, but he wished to clear up one or two points raised by the representative of France. Mr. Maúrtua pointed out that he himself had used the term “improvisation” in regard to the Nürnberg Judgment (109th meeting). No one could deny that the Tribunal had been set up as a direct result of the war won by the Allies, and its establishment had been on the basis of certain principles to which opposition had existed for a long time. He could not agree with the French representative that European countries should be considered best informed on the provisions established by the Nürnberg Tribunal. Mr. Abdoh (Iran) said that in the light of the interpretation given at Nürnberg, the conclusion reached was that the Tribunal considered as crimes against humanity only those crimes committed in connexion with war. The decisions of the Nürnberg Tribunal had to be given careful consideration and, according to General Assembly resolution 95(I) [sic] of 11 December 1946, the Assembly had accepted the principles of the Judgment of the Nürnberg Tribunal, including its restrictive interpretation of crimes against humanity. The Military Tribunal of Nürnberg was not an international tribunal but only an inter-Allied tribunal, whereas the convention on genocide was an international instrument which, it was hoped, would be ratified by all the Members of the United Nations. The Nürnberg and Tokyo trials could not be considered as a valuable precedent because the decisions taken were based on principles which were still subject to controversy. For all those considerations, the Iranian representative supported the view that the convention on genocide should not include any reference to the Nürnberg Tribunal. The nature of the principles adopted at Nürnberg should be defined by the International Law Commission, which was the

A/C.6/SR.110

1859

body entrusted with the codification of those principles and the study of the establishment of an international tribunal. Mr. Dihigo (Cuba) stated that in 1946 his delegation had not supported a resolution of the United States delegation1 proposing that the General Assembly should approve the Nürnberg principles and should request the codification of those principles. 1

See Official Records of the second part of the first session of the General Assembly, 55th plenary meeting.

In 1947, the General Assembly had, by resolution 177(II), entrusted to the International Law Commission the task of formulating the principles of the Nürnberg Charter and the Cuban delegation had again opposed it with the explanation that those principles should be studied but not codified.2 Mr. Dihigo was glad to note that his delegation was not alone in opposing any reference to the Nürnberg principles. He did not think there was any doubt that those principles were of a controversial nature, and he was at a loss to understand why some delegations wished to see them accepted as a precedent and referred to in the convention on genocide. 2

See Official Records of the second session of the General Assembly, 123rd plenary meeting.

Mr. Dihigo concluded with the statement that his delegation would vote against the amendment submitted by the representative of France. Mr. Azkoul (Lebanon) said that, in view of the statements made by the representatives of Venezuela and Pakistan, he wished to draw the attention of the Committee to the recommendations contained in General Assembly resolution 180(II). That resolution invited the Economic and Social Council to prepare a convention on genocide taking into consideration the fact that the International Law Commission had been entrusted with the formulation of the principles of the Nürnberg Judgment. The Economic and Social Council should not therefore enter into the question of an interpretation of these principles or prejudge the decisions of the International Law Commission. If the French amendment were accepted, the Committee would be attempting to establish a legal definition of genocide and would be prejudging the work of the Commission.

1860

A/C.6/SR.110

Mr. Azkoul asked the representative of France whether he did not think that the convention would be of more value if it were based on the simple acceptance of the signatories rather than on a principle which was controversial and had been established by a tribunal the legal basis for which was also controversial, as that might prevent a number of delegations from becoming parties to the convention. Mr. Maktos (United States of America) said that the French representative’s proposal to substitute “crime against humanity” for “grave crime against mankind”, was intended to give the phrase a more limited meaning. With regard to the Nürnberg Tribunal, it was the special task of the International Law Commission to study those principles and make proposals for their codification, and the Committee could rest assured that those studies would not be neglected. As a result of the differences of opinion which existed in the Committee, he did not think it would be advisable to refer to the Nürnberg Tribunal in the preamble. His objections were the same as those he had expressed against any reference to nazism and fascism, because he had felt that it would limit the scope of the convention. The Venezuelan amendment was brief and very much to the point, and he would therefore support it. Mr. Chaumont (France) said it was unfortunate that the Committee should be meeting at the same time as the General Assembly, as the latter was taking up matters in which members of the Sixth Committee were directly concerned. He suggested therefore that the meeting should adjourn in order to give the members a chance to attend the plenary meeting of the General Assembly. Mr. Messina (Dominican Republic) opposed the adjournment because he considered that the question before the Committee had been discussed at length, and that the members should be in a position to express their opinion by a vote without further discussion. Mr. Raafat (Egypt) endorsed the remarks made by the representative of the Dominican Republic. The Chairman put to the vote the proposal of the representative of France to adjourn the meeting. The proposal was rejected by 15 votes to 13, with 3 abstentions.

A/C.6/SR.110

1861

Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) regretted that the Secretariat was unavoidably compelled to have Committees and the General Assembly meeting simultaneously. He added that, of course, any Committee was free to decide that it would adjourn or suspend its meeting in such event. Mr. Morozov (Union of Soviet Socialist Republics) wished to comment on the proposal submitted by the representative of France. He was surprised to observe that certain delegations were attempting to discredit the legal merits of the Nürnberg trials. The Committee should reject any such statements because the Nürnberg Judgment was the expression of justice demanded by the people of the whole world who had been shocked by the Nazi crimes. If the wording of the French text were adopted, it might give rise, as had been pointed out by the Venezuelan representative, to the application in certain countries of the principles of the Nürnberg Judgment, in preference to the provisions of the convention of genocide and without the codification of those principles which had been entrusted to the International Law Commission. The text drafted by the Ad Hoc Committee should be maintained because it did not establish a definition of legal principles. With regard to paragraph 2 of the French amendment, the Soviet Union delegation had submitted an amendment to that paragraph. [A/C.6/215/ Rev.1]. He hoped that the representative of France would not insist on the deletion of the second paragraph of the Ad Hoc Committee draft which stressed the moral approach, particularly if the USSR amendment were added. With regard to paragraph 1 of the amendment submitted by the representative of France, Mr. Morozov did not understand the reasons for replacing the words “grave crime against mankind”. He did not object to replacing “mankind” by “humanity”, but he felt that the word “grave” should be maintained. Mr. Tarazi (Syria) reiterated that the crime for which the accused persons had been punished by the Nürnberg Tribunal constituted acts which were punishable under all legal codes even before the establishment of that Tribunal. The Nürnberg Charter had been established under exceptional circumstances, and therefore a sentence passed by a tribunal set up under such conditions could not create law. Mr. Tarazi did not think

1862

A/C.6/SR.110

that a reference to the Nürnberg Judgment would make any change in the substance of the problem. The Committee had already voted on the various articles of the convention which would put into execution the ideas discussed in the Committee. The representative of Syria had not found the arguments put forward by the representative of France convincing. In laying down the law for the future, the Committee should not use as a basis specific judgments which were passed as a result of war, and which were taken under exceptional circumstances. As some previous speakers had stated, acts of genocide had always been committed, and were still being committed in certain parts of the world, even at a time which was considered as a period of peace. Mr. Tarazi concluded by stating that he supported paragraphs 1 and 2 of the French amendment, and proposed that in order to allow members to express their opinions clearly, the amendment of the representative of France should be voted upon in three separate parts. Mr. Chaumont (France) stated that the representatives of Iran and Pakistan had mentioned that article 6(c) of the Nürnberg Charter showed that there was a connexion between the notion of crimes against humanity and crimes committed in time of war. The fact was, however, that not all legal experts would agree on such an interpretation of that article. What was meant by the article was that, if the crimes against humanity had been committed in connexion with the war, they would be tried by the Nürnberg Tribunal. Mr. Chaumont felt that it was not for the Committee to pass judgment upon the decisions taken by the Nürnberg Tribunal, but to reaffirm the decisions of that Tribunal. That did not mean that the Committee would approve or adopt all the principles established by the Nürnberg Tribunal because the convention on genocide would not be based merely on those principles. In reply to the question put to him by the representative of the USSR, Mr. Chaumont stated that he was willing to withdraw his proposal to delete the second paragraph. With regard to the use of the word “grave”, he would agree with the Soviet Union representative’s suggestion that it should be maintained if it were inserted at the end of the sentence, which would then read: “ . . . which the civilized world condemns as grave”.

A/C.6/SR.110

1863

Mr. Ti-tsun Li (China) wished to comment on his delegation’s amendment [A/C.6/221] which proposed the deletion of the third paragraph of the preamble and the total elimination of any reference to the Nürnberg trials. If the Committee adopted the Venezuelan proposal, which the Chinese delegation supported, his argument would not apply; but, on the other hand, if the Committee decided to retain the text submitted by the Ad Hoc Committee, as well as reference to the Nürnberg trials, the Chinese delegation would reserve its right to submit a new amendment proposing that reference should also be made to the International Tribunal at Tokyo. Those trials were of much wider scope than those at Nürnberg, and the Tokyo Tribunal had just pronounced its judgment. In his opinion, that document was just as important as the judgment passed by the Nürnberg Tribunal and it was logical that if reference was made to one Tribunal, both organs should be mentioned. The Chairman explained the order and procedure which would be followed when voting on the amendments before the Committee. Mr. Morozov (Union of Soviet Socialist Republics) said that if the Chinese amendment proposing the inclusion of a reference to the International Tribunal at Tokyo was put to the vote, the USSR delegation would support it. Mr. Morozov requested that the Soviet Union amendment should be voted in parts, and that a vote by roll-call should be taken on paragraph 1. The Chairman put to the vote, by roll-call, paragraph 1 of the USSR amendment to the Venezuelan amendment [A/C.6/273]. A vote was taken by roll-call, as follows: The United Kingdom, having been drawn by lot by the Chairman, voted first. In favour: Yugoslavia, Byelorussian SSR, Czechoslovakia, France, Poland, Ukrainian SSR, Union of Soviet Socialist Republics. Against: United Kingdom, United States of America, Uruguay, Venezuela, Afghanistan, Argentina, Australia, Belgium, Brazil, Burma, Canada, Chile, China, Colombia, Cuba, Denmark, Dominican Republic, Ecuador, Egypt, Greece, Honduras, India, Iran, Lebanon, Mexico, Netherlands,

1864

A/C.6/SR.128

New Zealand, Norway, Pakistan, Panama, Paraguay, Peru, Saudi Arabia, Siam, Syria, Turkey, Union of South Africa. Abstaining: Yemen. The amendment was rejected by 37 votes to 7, with one abstention. The Chairman then put to the vote paragraph 2 of the USSR amendment. The amendment was rejected by 23 votes to 15, with 6 abstentions. The Chairman put to the vote the Venezuelan amendment [A/C.6/261]. The amendment was adopted by 38 votes to 9, with 5 abstentions. The Chairman announced that in accordance with the procedure followed in the vote, the other amendments did not need to be put to the vote and the Venezuelan amendment would replace the text of the preamble as drafted by the Ad Hoc Committee. The meeting rose at 6.10 p.m. [Discussions pertaining to issues other than the Genocide Convention]

HUNDRED AND TWENTY-EIGHTH MEETING Held at the Palais de Chaillot, Paris, on Monday, 29 November 1948, at 8.50 p.m. Chairman: Prince Wan Waithayakon (Siam). [Discussions pertaining to issues other than the Genocide Convention] 81. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee The Chairman declared open the debate on the Drafting Committee’s report [A/C.6/288] on the draft convention prepared by it [A/C.6/289], as well as on the amendments to that draft submitted by the delegations of the United States [A/C.6/295], India [A/C.6/299], and by the delegations of Belgium, the United Kingdom and the United States [A/C.6/305].

A/C.6/SR.128

1865

He pointed out that the delegations of Iran, Egypt and Uruguay proposed that the Committee should once more examine the question of the exclusion of political groups from the enumeration of groups protected under the convention on genocide. Mr. Arnado (Brazil), Chairman and Rapporteur of the Drafting Committee, made a statement on the Committee’s work. He began by emphasizing that the Committee had worked in an atmosphere of understanding and goodwill and that all decisions had been taken unanimously without having to be put to the vote. The Committee’s discussions had turned particularly on article V of the draft convention, the wording of which had satisfied none of the members. The terms gouvernants in French and “constitutionally responsible rulers” in English had, however, been retained, since the Sixth Committee itself had adopted them after much discussion (95th meeting). The delegation of Brazil considered the draft convention on genocide satisfactory. It would, however, vote for the exclusion of political groups from the list of groups protected by the convention, should the Committee decide to re-examine the question. Mr. Amado appealed to the members of the Committee to approve the draft convention which was submitted to them. It represented a fair compromise between extreme and conflicting points of view. Although it would not have the effect of immediately making away with appalling acts such as those which had stirred the conscience of humanity, it would none the less be an important landmark in the struggle against genocide. The Chairman called upon the members of the Committee to decide what procedure they wished to adopt in considering the draft convention prepared by the Drafting Committee. He suggested that the articles to which amendments had been submitted should be discussed. Mr. Tarazi (Syria) suggested that it would be expedient in the first place to consider the proposal that the question of political groups should be re-examined; according to rule 112 of the rules of procedure, that proposal must be adopted by a two-thirds majority. Mr. Morozov (Union of Soviet Socialist Republics) pointed out that some amendments were drafting amendments, whereas others, such as the Indian amendment to article VI and the joint proposal of Belgium,

1866

A/C.6/SR.128

the United Kingdom and the United States on article IX, were directly connected with the substance of the questions dealt with in the amended articles. In the circumstances, it was essential, before discussing the substantive amendments, to decide whether the Committee should proceed to re-examine the articles affected by the amendments and concerning which it had already taken decisions. Mr. Sundaram (India) agreed that two of the amendments submitted by his delegation were clearly drafting amendments, whereas the others could be considered as substantive. He had no objection to the procedure suggested by the representative of the Soviet Union; but thought it might perhaps be better to begin with the drafting amendments in order to save the Committee’s time. Mr. Kaeckenbeeck (Belgium) was unable to agree with the opinion of the representative of the USSR that the joint proposal of the Belgian delegation and the delegations of the United Kingdom and the United States could only be discussed after the Committee had decided to reexamine the question covered by article IX of the draft convention. The amendment was really a variant; it was true that it had been proposed somewhat late, but it had been arrived at as a result of serious attempts to find a compromise. The Belgian delegation considered that the Committee should decide, in the case of each amendment, whether it involved a drafting change only or touched upon questions of substance. Mr. Raafat (Egypt), reviewing the various amendments, pointed out that only the amendments submitted by the Indian delegation to articles II and XVII of the draft convention were concerned solely with the drafting of those articles. The amendments to articles II, III, VI and IX were substantive amendments which first of all required an affirmative decision of the Committee to re-examine those articles. He would propose that the draft convention prepared by the Drafting Committee should be examined article by article, but that articles to which there were no amendments should not be discussed. The Chairman, sharing the views of the representatives of Belgium and Egypt, ruled that the discussion should open on the proposal of the delegations of Iran, Egypt and Uruguay to exclude political groups from

A/C.6/SR.128

1867

the enumeration of groups accorded protection by the convention under the terms of article II. Mr. Amado (Brazil) wondered whether it were really necessary to discuss a question which had already been debated at great length and whether it would not be preferable to proceed immediately to a vote. The Chairman admitted that the question had been disposed of, but considered that it was desirable to give the authors of the proposal an opportunity to state the reasons which had led them to submit it. Mr. Raafat (Egypt) recalled that the Committee had not had an over-all view of the convention when it had decided that protection should be extended to political groups. Subsequently, during the consideration of other articles, the necessity of revising the provisions of article II of the convention had made itself felt, especially as it had then become clear that the inclusion of political groups among the groups protected by the convention would be a serious obstacle to the ratification of the convention by a large number of States. It was therefore primarily for practical reasons that the Egyptian delegation, together with the delegations of Iran and Uruguay, proposed the deletion of the mention of political groups from the provisions of article II. The Egyptian delegation would not recapitulate the theoretical reasons in favour of that deletion, since those reasons had been given at length during the debate on article II. Mr. Gross (United States of America) recalled that at the first reading of the draft convention on genocide he had advocated the inclusion of political groups among the groups to be protected by the convention. His attitude had then been governed by those historical reasons which had prompted the drafting of the convention, as well as by political considerations. Nevertheless, the United States delegation had since decided that it was necessary to reconcile two factors: on the one hand, the Committee must prepare a complete draft convention founded on just principles; on the other hand, the convention must be ratified by the greatest possible number of Governments. The United States delegation continued to think that its point of view was correct but, in a conciliatory spirit and in order to avoid the possibility that the application of the convention to political groups might prevent certain countries from acceding to it, he would support the proposal to

1868

A/C.6/SR.128

delete from article II the provisions relating to political groups. Furthermore, certain delegations considered that that point was closely connected with article VI of the draft convention. They had therefore decided against the principle of an international penal court, assuming that the competence of that court would extend to political groups. The United States representative reserved the right to state his point of view on that matter when article VI was re-examined by the Committee. In conclusion, he emphasized that the Committee must submit to the General Assembly a draft convention which could be ratified by all Member States of the United Nations. Once those ratifications were secured, it might be possible, should occasion arise, to make certain improvements in the convention and, in particular, to include political groups. Mr. Kaeckenbeeck (Belgium) thanked the United States delegation for the spirit of conciliation it had shown. In order to make easier the acceptance of the convention, the United States delegation had withdrawn from a position of principle which it had hitherto firmly defended. Other delegations could imitate that example of collaboration in connexion with other articles. Mr. Abdoh (Iran) also paid tribute to the conciliatory attitude of the United States delegation. He had submitted an amendment to exclude political groups from the protection provided in the convention in order to facilitate ratification of that convention by the various parliaments. The representative of Iran recalled in that connexion that in 1935 a convention on terrorism had been drafted under the auspices of the League of Nations and that only three States had ratified it. The others had abstained precisely because they had considered that that Convention had political implications. If that precedent were kept in mind and if it were desired that a large number of States should ratify the convention on genocide, it was desirable not to refer to political groups. Mr. Dihigo (Cuba) recalled that his delegation had been in favour (75th meeting) of the inclusion of political groups among the groups to be protected by the convention. Although he took into consideration the statements which had just been made, he nevertheless maintained his original position and would consequently abstain from voting on the question.

A/C.6/SR.128

1869

Mr. Dignam (Australia) spoke in favour of deleting any mention of political groups and considered that the Committee should re-examine article II. Mr. Tarazi (Syria) pointed out that if the Committee wished to reexamine article II, it would be necessary, according to rule 112 of the rules of procedure, to take two votes; one as to whether the article should be re-examined, and the other on the proposed amendment. The Committee had to take a decision on the first point by a two-thirds majority vote. Mr. Kaeckenbeeck (Belgium) had no doubts as to the soundness of the Syrian representative’s view, but thought that the Committee would save time by directly voting on the proposed modification of the text of article II by a two-thirds majority. Mr. Pescatore (Luxembourg) stated there should be two consecutive votes, since certain delegations, including his own, might wish to vote for re-examination of article II but to abstain on the substance of the amendment. Mr. Sundaram (India) asked the Chairman to decide, in view of the number of amendments submitted, whether each of those amendments would necessitate a re-examination of the relevant article and if so, whether, in the event of the Committee’s deciding by a two-thirds majority to proceed to the re-examination which was asked for, the decision on the amendment required a simple majority or a two-thirds majority. The Chairman stated that rule 112 clearly laid down that a two-thirds majority was necessary only for a decision to re-examine an article to which an amendment had been submitted. A decision on an amendment required only a simple majority. He then put to the vote the proposal that article II of the draft convention should be re-examined. The result of the vote was 26 in favour, 4 against, and 9 abstentions. The proposal was adopted, having obtained the required two-thirds majority.

1870

A/C.6/SR.128

Article II The Chairman put to the vote the joint proposal of Iran, Egypt and Uruguay to delete the mention of political groups from the enumeration contained in article II. The representative of Ecuador requested that the vote should be taken by roll-call. A vote was taken by roll-call as follows: The Union of South Africa, having been drawn by lot by the Chairman, voted first. In favour: Union of South Africa, United Kingdom, United States of America, Uruguay, Venezuela, Afghanistan, Argentina, Australia, Belgium, Brazil, Canada, Colombia, Denmark, Dominican Republic, Egypt, Greece, India, Iran, Mexico, Pakistan, Peru, Syria. Against: Burma, Chile, China, Ecuador, Netherlands, Philippines. Abstaining: Union of Soviet Socialist Republics, Yugoslavia, Byelorussian Soviet Socialist Republic, Cuba, Czechoslovakia, France, Luxembourg, New Zealand, Norway, Poland, Sweden, Ukrainian Soviet Socialist Republic. The proposal was adopted by 22 votes to 6, with 12 abstentions. Mr. Ti-tsun Li [sic] (China) pointed out that he had voted against both proposals. He believed that at a time of ideological strife, political groups stood in greater need of protection than national or religious groups. It would be more difficult for his country to approve the draft convention thus amended. The Chairman proposed that the Committee should consider the amendment to article II submitted by the Indian delegation [A/C.6/299]. Mr. Sundaram (India) observed that sub-paragraphs (a) to (d) inclusive of article II referred to specific groups. The definite article should therefore not suddenly be replaced by the indefinite article, since that would cause some confusion. Mr. Kaeckenbeeck (Belgium) supported the Indian amendment and believed that it was not necessary to take a vote on the question of the

A/C.6/SR.129

1871

re-examination of the sub-paragraph, since only a simple drafting change was involved. The Chairman put the Indian amendment to the vote. The amendment was adopted by 29 votes to one, with 7 abstentions. Mr. Gross (United States of America) said that his delegation withdrew its amendment to delete sub-paragraph (c) of article III [A/C.6/295]. The meeting rose at 10.50 p.m.

HUNDRED AND TWENTY-NINTH MEETING Held at the Palais de Chaillot, Paris. on Tuesday, 30 November 1948, at 10.30 a.m. Chairman: Mr. R.J. Alfaro (Panama). 82. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Article VI The Chairman recalled that the Committee had before it the following amendments to article VI as drafted by the Drafting Committee [A/C.6/289]: The Indian amendment [A/C.6/299], calling for the deletion of the whole article or, if such deletion were rejected, for the addition of a new paragraph; The United States amendment [A/C.6/295], calling for the addition, at the end of the article, the words “or by a competent international penal tribunal subject to the acceptance at a later date by the contracting party concerned of its jurisdiction”. Mr. Morozov (Union of Soviet Socialist Republics), basing his argument on rule 112 of the rules of procedure, was opposed to any proposal involving reconsideration of article VI because, before discussing the amendments

1872

A/C.6/SR.129

dealing wit the substance of the article, it would be advisable to know whether the Committee wished to reverse decisions it had already taken. In his opinion there could be no question of reconsidering an article which had already been adopted save for the purpose of improving the wording; but it was impossible to foresee how far a discussion undertaken for the purpose of improving the wording of that article would take the Committee. If article VI were deleted, the convention would no longer have any purpose, as the crime of genocide would no longer be punishable. The USSR representative therefore opposed the Indian proposal. Moreover, that proposal had already been discussed and rejected; the arguments which could be adduced in its favour and according to which article V was adequate, had already been rejected. Article V was concerned solely with the manner in which offenders should be brought to trial and did not specify the procedure. The Indian proposal was consequently unsound. In Mr. Morozov’s opinion there was not even any point in deciding to reconsider article VI, because the Committee would then be led to examine the second Indian proposal, which had already been the subject of lengthy discussion; it had been acknowledged that the right of any State to try one of its nationals was beyond all question. Article VI did not prejudice the territorial jurisdiction of the signatories to the convention; it merely provided that persons charged with the crime of genocide must be tried in the territory of the State in which they had committed the crime. The United States proposal was also unnecessary; it did not introduce any factor which had not been already discussed in the general debate. It merely sought to make offenders amenable to a court which did not yet exist; thus it could hardly be included in the convention. The establishment of the international penal tribunal had already been discussed at length and the Committee had settled the question by referring it to the International Law Commission [A/C.6/271]. Adoption of the United States proposal would amount to a decision to establish a competent tribunal. The position of the Soviet Union on the subject was well known. Mr. Morozov concluded by stating that there was no sufficient reason for deciding to reconsider article VI; such a decision would slow down the work of the Committee and would delay the adoption of the convention as a whole, by opening the door to a whole series of amendments.

A/C.6/SR.129

1873

The Chairman was in agreement with the USSR representative concerning the application of rule 112 of the rules of procedure. The Indian and United States amendments contained an implicit proposal for the reconsideration of article VI. In order to be accepted, such a proposal must receive the favourable vote of two-thirds of the members present and voting. Mr. Raafat (Egypt) recalled that at the 128th meeting the Committee had already adopted an amendment to article II of the draft convention. He thought it was always permissible to reverse a previous decision, but observed that before taking a decision on a proposal to reconsider a previous decision, it would be advisable to interpret rule 112 in its widest sense and allow the authors of the proposal to give their explanations, since otherwise the Committee would be unable to take a decision with full knowledge of the facts. Mr. Manini y Ríos (Uruguay) recalled that at the outset of its work (66th meeting) the Committee had decided to consider the draft convention on genocide in two separate readings. That being so, in his opinion rule 112 of the rules of procedure could not be applied too strictly, as a second reading had not yet taken place. The Chairman thought the general discussion could be considered as a first reading and the discussion in the Drafting Committee as a second. It could not be denied that the Committee was now being asked to reverse a previous decision. Mr. Gross (United States of America) recalled that rule 112 of the rules of procedure applied in cases where a proposal had been adopted or rejected. In view of the fact that the draft convention had been adopted only on a first reading and that its adoption or final rejection could be decided only after a second reading, he doubted whether a first reading could be considered as constituting the adoption or rejection of a proposal under the terms of rule 112. The representative of the United States wondered, moreover, whether rule 112 could not be interpreted as permitting the authors of a proposal for the reconsideration of a question already settled to introduce their proposal and explain their reasons. Such an interpretation seemed reasonable, otherwise the Committee might misjudge the motives of the authors of the

1874

A/C.6/SR.129

proposal. Mr. Gross thought rule 112 should not necessarily be interpreted as strictly as the representative of the Soviet Union suggested. The Chairman recalled that at the 128th meeting the Committee had decided that all amendments which might be proposed to articles of the draft convention would be considered as proposals for the reconsideration of points already settled. In answer to the United States representative, the Chairman voiced the fear that a second formal reading of the draft convention might take too long and might prevent the Committee from finishing its work by the scheduled date. The idea of a second reading in the Sixth Committee seemed to him unnecessary, his opinion being that the discussion in the Drafting Committee could be considered as the second reading. He thought it reasonable, however, that the authors of the proposal for the reconsideration of article VI should be given an opportunity to explain their reasons. Mr. Kaeckenbeeck (Belgium) recalled that at the 128th meeting a similar discussion had taken place. The view at that time had been that whereas some proposals were intended to secure the reconsideration of an article already adopted, others were simply drafting amendments. It had been decided that each proposal should be considered on its merits. A proposal entailing the reversal of a decision already taken could be adopted only by a two-thirds majority, whereas amendments dealing solely with the wording of an article could be adopted by a simple majority. The representative of Belgium held the view that the Committee would be wrong if it departed from that decision. With regard to the application of the rules of procedure, Mr. Kaeckenbeeck pointed out that several members of the Committee had shown a very conciliatory spirit. The underlying idea was that the Committee’s aim must be to make it possible for the greatest possible number of States to ratify the convention. It could not be denied that certain decisions taken by the Committee had aroused very varied feelings among members, and for that reason certain delegations were ready to make gestures of conciliation. There had been examples of that new attitude during the 128th meeting; in particular, the United States delegation had made the first great sacrifice by agreeing to the exclusion of political groups in order to ensure a wider ratification of the convention. It was evident, on the other hand, that the United States delegation had certain wishes, in particular, that mention of the international tribunal should not be entirely omitted.

A/C.6/SR.129

1875

The Belgian representative could not accept the Indian proposal for the complete deletion of article VI, but would be prepared to accept a compromise proposal. Prince Wan Waithayakon (Siam) agreed with the Belgian representative concerning the procedure adopted at the 128th meeting. He recalled that he had presided over that meeting and had allowed the authors of amendments to submit their proposals, on the general principle that every proposal should be introduced. Those submissions of proposals had led to a discussion which might have been considered general but which was not so in fact, for several members of the Committee had confined themselves to explaining how they would vote. The current discussion could therefore be considered as a series of explanations of votes prior to the voting. In his opinion the Committee should adopt the following procedure: in the case of each amendment, the Chairman should decide whether it was a drafting amendment which could be adopted by a simple majority, or whether it was an amendment on the substance of the question, in which case a two-thirds majority would be necessary, because adoption of such an amendment would constitute reversal of a decision already taken. Once the Committee decided by a two-thirds majority to reconsider a certain article, a simple majority would be sufficient for the adoption of any amendment. Mr. Morozov (Union of Soviet Socialist Republics) disagreed categorically with the interpretation of the rules of procedure suggested by the United States representative. If other representatives were permitted to do so, he saw no reason why he himself should not reintroduce USSR amendments which had already been rejected. In his opinion it was impossible to ignore the rules of procedure and the methods of conducting business upon which the Committee had repeatedly agreed. The representative of the Soviet Union recalled that not only had the draft convention been given a first reading, but the Committee had taken definite decisions concerning it. He did not understand how the United States representative could suggest that the discussion should be reopened; such a procedure would create so grave a precedent that it was to be feared that the consideration of the draft convention on genocide might be deferred until a subsequent session of the General Assembly. Referring to the permission granted to the authors of a proposal to explain their

1876

A/C.6/SR.129

reasons for introducing it, Mr. Morozov stated that that was an irregular procedure but, in a spirit of conciliation, he would not oppose it. In conclusion, the USSR representative recalled that the Drafting Committee had been unanimous in requesting that no amendment to the substance of article VI should be submitted during the consideration of that article by the Sixth Committee. Mr. Dignam (Australia) expressed his agreement with the Belgian representative regarding the procedure adopted by the Committee at its 128th meeting. Concerning the Drafting Committee’s wishes with regard to article VI, the Australian representative pointed out that that Committee had refrained from introducing amendments on the substance of the article, because that was not its function and because such amendments might well be proposed during the consideration of the article in the Sixth Committee. Mr. Amado (Brazil) was in complete agreement with the Australian representative. The Drafting Committee, over which he had presided, had kept to the rules of procedure and had not amended the substance of the articles it had studied. It was obvious, however, that problems concerning substance had arisen more than once. The representative of Brazil considered that it would be impossible to make the convention perfect and that it would be better to adopt a convention which was slightly imperfect rather than attempt to achieve an unattainable ideal. Mr. Sundaram (India) pointed out that the Committee in fact had before it no formal motion for the reconsideration of article VI. He had circulated a document envisaging that possibility but had not yet formally introduced such a proposal. The situation with regard to the United States proposal was the same. Mr. Sundaram suggested that the Chairman should allow either Mr. Gross or himself to speak, in order to introduce the proposal calling for the reopening of the discussion on article VI. Only after that proposal had been submitted would it be possible for members of the Committee who opposed it to speak on it, and only then could it be put to the vote. Mr. Khomussko (Byelorussian Soviet Socialist Republic) agreed with the USSR representative; he thought there was no valid reason for reconsidering article VI, which had already been thoroughly discussed.

A/C.6/SR.129

1877

The Chairman said that he was abiding by the procedure adopted at the 128th meeting. Mr. Gross (United States of America) formally proposed that discussion on article VI should be reopened in order that the Committee might have the opportunity to consider his amendment to that article. He did not intend to repeat the arguments already put forward during the general discussion; he would confine himself to mentioning two new factors which had led him to propose the amendment. The first factor was that a number of representatives had voted (100th meeting) against any mention of an international penal tribunal because of the wide scope which the protection of political groups would give the convention. But at the 128th meeting it had been decided to delete all mention of political groups from the convention. That was a new factor which could not but affect the United States proposal, for any mention of the principle of an international penal court raised special problems for certain States in view of the protection which had been granted to political groups. Other delegations, which had been in favour of the principle of establishing an international penal tribunal, had nevertheless voted against the original text of article VI,1 because they had not wished to bind themselves before the statute and powers of such a tribunal were known. 1

Article VII of the draft prepared by the Ad Hoc Committee.

The amendment proposed by the United States delegation took into account their anxieties and the condition provided for at the end of the article should dispel any fears. Mr. Gross summed up by saying that the two new facts which he had adduced, namely, the deletion of political groups from the list of groups protected by the convention; and the optional competence in matters of genocide of the future international penal tribunal, should dispel any doubts which his amendment might have raised. Mr. Morozov (Union of Soviet Socialist Republics) considered that the arguments advanced by the United States representative were hardly convincing. The first argument was based on a mere presumption, since, as far

1878

A/C.6/SR.129

as he knew, no delegation had rejected the principle of an international penal tribunal for fear of the protection which the convention provided for political groups. Again, the United States representative declared that the future international penal tribunal would be called upon to try only cases of genocide which had been referred to it by States which had recognized its jurisdiction. In spite of that restrictive condition it was nevertheless true that, by accepting the insertion of that provision in the convention, the contracting parties would implicitly be recognizing the principle of an international penal court. Mr. Morozov considered, therefore, that the amendment sought the reversal of the decision already taken, since it contemplated the establishment of an international penal tribunal which would be competent in cases of genocide even before the statute and powers of such a tribunal were known. It could not be denied that, despite the precautions with which it had been surrounded, that amendment stressed the necessity for establishing such a tribunal. The principle of an international penal court was incompatible with that of the sovereignty of States. The USSR delegation had not changed its attitude on that point; it was still of the opinion that genocide was within the province of the competent national tribunals alone, since the right of those who had been victims of genocide to undertake the punishment of the perpetrators of that crime must be safeguarded. Mr. Kaeckenbeeck (Belgium) considered that the consideration of each amendment to any given article should be preceded by a vote which would allow of fresh consideration of the article in question in the light of the point raised in the amendment. Mr. Raafat (Egypt) did not share that view, and stated that after any vote in favour of the reconsideration of an article, all amendments thereto should be held to be in order. Mr. Chaumont (France) endorsed the statement of the Egyptian representative and asked that the proposal for the reconsideration of article VI of the convention should be put to the vote. Mr. Sundaram (India) was also of the opinion that all amendments to one and the same article were equally in order once the reconsideration of the article had been decided by a vote.

A/C.6/SR.129

1879

Mr. Khomussko (Byelorussian Soviet Socialist Republic) supported the statements of the representative of the Soviet Union, and considered that the arguments advanced by the United States representative in favour of his amendment were unfounded. Mr. Litauer (Poland) shared the opinion of the representatives of the USSR and the Byelorussian SSR. He asked the Committee not to lose sight of the fact that the object of the convention was essentially practical, and that its ratification should be facilitated for the largest possible number of States. Mr. Litauer asked for a vote by roll-call. The Chairman put to the vote the proposal for the reconsideration of article VI of the convention to the vote, in accordance with rule 112 of the rules of procedure. A vote was taken by roll-call as follows: Nicaragua, having been drawn by lot by the Chairman, voted first. In favour: Norway, Pakistan, Panama, Paraguay, Philippines, Siam, Sweden, Syria, United Kingdom, United States of America, Uruguay, Yemen, Afghanistan, Australia, Belgium, Bolivia, Brazil, Canada, Chile, Colombia, Cuba, Denmark, Ecuador, Egypt, France, Greece, Haiti, Honduras, India, Iran, Luxembourg, Netherlands, New Zealand. Against: Poland, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Yugoslavia, Argentina, Burma, Byelorussian Soviet Socialist Republic, China, Czechoslovakia. Abstaining: Peru, Turkey, Venezuela, Dominican Republic, Ethiopia, Mexico. The result of the vote was 33 in favour, 9 against, with 6 abstentions. The proposal for the reconsideration of article VI of the convention was adopted, having obtained the required two-thirds majority. Mr. Chaumont (France), recalling that the French delegation had always been in the forefront in defending the principle of an international criminal

1880

A/C.6/SR.129

court, stated that he strongly supported the United States amendment. It was true that his delegation would have liked to have had an affirmation of the principle of compulsory international criminal jurisdiction, but in view of the apprehensions of certain delegations it would declare itself satisfied with the United States amendment. In order, however, to give the content of the amendment greater clarity, Mr. Chaumont proposed that the end should be altered as follows: “ . . . or by an international penal tribunal which shall have competence in respect of the contracting parties which shall have accepted its jurisdiction”. The Chairman recalled that it had been decided, at the 128th meeting, that a vote should be taken without any debate and that no new amendments were to be submitted; only explanations of votes were to be allowed. Prince Wan Waithayakon (Siam), while recognizing that amendments submitted at the last moment were not in order, pointed out that at the 126th meeting, over which he had presided, he had allowed a representative to submit a purely formal modification to a Bolivian resolution. He suggested therefore that the United States representative should be asked whether he would accept the modification proposed by the representative of France. Mr. Gross (United States of America) stated that he would accept the modification in question. Mr. Augenthaler (Czechoslovakia) held that as a result of the vote in favour of the reconsideration of article VI of the convention, that article should be discussed fully. Mr. Sundaram (India) shared that view, and asked for permission to explain his amendment. The Chairman stated that each speaker, when explaining his vote, would have an opportunity to express his delegation’s point of view. Mr. Sundaram (India) explained why he had presented his amendment to article VI. Under the terms of that article, as drafted by the Drafting Committee, the only competent tribunals would be those of the State in whose territory the crime of genocide was committed. Since the principle of territorial competence in penal questions was universally recognized,

A/C.6/SR.129

1881

the provisions of the article seemed superfluous. It was for that reason that he had proposed its deletion. If the deletion were not accepted, however, he would propose an additional paragraph providing for the extra-territorial competence of national tribunals, in other words, for the right of a State to try one of its own nationals for a crime of genocide committed abroad. Thus, if a national of country A committed the crime of genocide in country B and returned to country A, he should be amenable to the courts of the latter country. Otherwise, the unfortunate result would be that the criminal who had fled to his own country would remain unpunished, since he could not be extradited at the request of country B where he had committed the crime, nor would he be tried by the courts of his own country. With regard to the United States amendment, Mr. Sundaram was sorry he could not accept it, since his delegation had already opposed the inclusion in the convention of any vague allusion to an international criminal court and had, on the other hand, supported the proposal to refer the whole question to the International Law Commission (99th meeting). Mr. Kaeckenbeeck (Belgium) recalled that the Belgian delegation had also stated its opposition to any reference in the convention to an international criminal court, since it was not known what its specific powers would be. It had, however, supported the proposal to study the institution of such a court. Nevertheless, despite its earlier attitude, the Belgian delegation would agree to the United States amendment, not only in a spirit of conciliation, but because it considered that if no such reference were made, it would be necessary to revise the convention should an international criminal court be established. With regard to the terms of the amendment, Mr. Kaeckenbeeck thought it possible either to accept the French amendment or to amend the end of the text to read: “ . . . to the extent to which the contracting parties concerned shall have recognized its jurisdiction”. With regard to the Indian amendment, Mr. Kaeckenbeeck opposed the outright deletion of article VI, but realized that it needed some amendment in order that there might be no misunderstanding and to satisfy the Indian representative.

1882

A/C.6/SR.130

He therefore proposed that a small drafting group should be appointed to work out a final text. Mr. Abdoh (Iran) supported that proposal. The Chairman asked the representatives of Belgium, France, India and the United States of America to meet as a small drafting committee for the purpose of preparing the final text of article VI. The meeting rose at 1 p.m.

HUNDRED AND THIRTIETH MEETING Held at the Palais de Chaillot, Paris, on Tuesday, 30 November 1948, at 3.30 p.m. Chairman: Mr. R.J. Alfaro (Panama). 83. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Article VI (conclusion) The Chairman stated that the Committee had before it for consideration two amendments to article VI of the revised draft convention [A/C.6/289] proposed by the delegation of India [A/C.6/299], and a joint United States, French and Belgian text amending article VI. Mr. Sundaram (India) stated that in the light of the discussion which had taken place in the Committee at the 129th meeting, his delegation had decided to withdraw its proposal for the deletion of article VI [A/C.6/299, paragraph 2 (a)]. That proposal had been based on a desire to maintain the extraterritorial jurisdiction of States. That jurisdiction would, however, be protected if the Committee adopted his delegation’s second amendment to article VI [A/C.6/299, paragraph 2 (b)]. The Chairman observed that in view of the remarks made by the representative of India, the Committee would have to consider only two

A/C.6/SR.130

1883

amendments, the joint text proposed by the United States, France and Belgium and the second Indian amendment to article VI. The amendments, both of which consisted of an addition to the draft text, did not conflict with each other. Mr. Augenthaler (Czechoslovakia) stated that his delegation was particularly interested in ensuring that genocide should be declared an international crime and that it should be severely punished. Czechoslovakia had been one of the first victims of the Nazi campaign of terrorism, the aim of which had been to exterminate the Czechoslovak nation. Citing examples of the crimes committed in his country, he stressed his country’s strong desire to ensure the prosecution and punishment of the crime of genocide. The Czechoslovak delegation could not, however, support the United States proposal, which tended to confuse the interpretation of article VI. As the Polish representative had said at the 129th meeting, it was impossible to foresee what the composition or the competence of the proposed international penal tribunal would be. The word “or” in the United States proposal (129th meeting) might be interpreted to mean that the criminal would have the alternative of choosing whether he wished to be judged by a national or an international court, a circumstance that would be greatly to his advantage. The Czechoslovak delegation considered that to include in the body of the draft convention a reference to an international penal tribunal would prejudice the considerations set forth in draft resolution II following the draft convention [A/C.6/289], which provided that the International Law Commission should study the possibility and desirability of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction would be conferred upon that organ by international conventions. It was difficult to understand why the Sixth Committee was expressing distrust of municipal courts and attempting to restrict their jurisdiction, since any country ratifying the convention on genocide would undoubtedly intend to fulfil its obligations under that convention. The Czechoslovak delegation would oppose the United States proposal. The Chairman declared the list of speakers closed.

1884

A/C.6/SR.130

Mr. Petren (Sweden) pointed out with regard to the Indian amendment that the jurisdiction of a State over its own nationals was not the only case which should be considered. If the crime of genocide had been committed against nationals of one State on the territory of another State, and if the perpetrators of the crime were arrested in the territory of the State of which the victims were nationals, that State would undoubtedly have the right to punish the criminals within its own borders and should not be compelled to return the criminals to the other State for punishment. In such a case Sweden would take action against the criminals in accordance with the provisions of its penal code. Some reservations should be made by the Committee in the convention to cover the jurisdiction of the State over its nationals as well as cases of the other type which he had mentioned. His purpose might be achieved by the insertion of the words “in principle” after the words “acts enumerated in article III shall . . .” of article VI of the draft convention [A/C.6/289]. Such an addition would indicate that possible exceptions to the provisions of article VI might exist. Mr. Petren therefore proposed that the words “in principle” should be added to article VI of the draft convention. His delegation would vote for the proposed United States amendment to article VI. The Chairman requested the representative of France to introduce the joint text of the United States, France and Belgium. Mr. Chaumont (France) stated that the delegations of the United States, France and Belgium had just drawn up a text for article VI. That text was very similar to the one he had presented during the 129th meeting. It incorporated the idea of the United States delegation, by recognizing the existence of international criminal jurisdiction, which would not, however, be compulsory, and which would affect only the States that accepted its competence. It added at the end of article VI the following phrase: “or by such international penal tribunal as may have jurisdiction with respect to such Contracting Parties as shall have accepted the jurisdiction of such tribunal”. With regard to the Indian amendments, Mr. Chaumont was happy to learn that the first had been withdrawn. He could understand the Indian delegation’s desire to avoid ambiguity in the text of article VI, but he felt that it would be better to include an explanatory statement on the matter

A/C.6/SR.130

1885

in the report of the Rapporteur rather than to encumber the text of the article itself. The views of the French and Indian delegations differed in form only. Sardar Bahadur Khan (Pakistan) stated that he would not restate his Government’s position in the matter and would vote for the joint text. Mr. Abdoh (Iran) stated that his delegation would support the joint text, although it was not completely satisfactory. Since, however, it did not prejudge the question of the establishment of an international criminal tribunal and since its adoption would obviate the necessity of revising the convention so as to enable such a tribunal to be set up – a matter that was not always simple – the Iranian delegation would vote in favour of it. The remarks made by the representative of India with regard to his delegation’s second amendment, contained in paragraph 2 (b) of document A/C.6/299, were quite pertinent. He agreed with the representative of France, however, that it would be sufficient if an explanatory statement were included in the report of the Rapporteur, to the effect that the jurisdiction of the courts of a State over its own nationals was not excluded. Mr. de Beus (Netherlands) supported the joint text. When the original text of article VI of the draft convention had been discussed (97th meeting), his delegation had observed that adequate trial and punishment of the crime of genocide would be possible only through an international court. The fact that no such court existed had been given as a reason for deleting from the convention any reference to an international court. It did not seem logical, however, to rule a good solution out of consideration simply because no organ was as yet in existence which could put that solution into effect; it might be preferable instead to study the possibilities of creating the necessary organ. That, in effect, had been suggested in the draft resolution proposed by his delegation and the delegation of Iran [A/C.6/271] and adopted by the Committee. That draft resolution recommended that a study should be made of the possibility of establishing an international penal court. In those circumstances there was no reason to delete reference to such a tribunal from the convention. Serious complications might arise if no reference were made to such a court. The elimination of any mention of an international criminal

1886

A/C.6/SR.130

tribunal would mean that if, in the future, such a court were set up, it could not try cases of genocide until the convention on genocide had gone through the slow process of being amended. If, on the other hand, the joint amendment were adopted, the jurisdiction of such a court would be automatically operative for the countries which had ratified both the convention on genocide and the convention creating the international criminal court. For reasons of principle, therefore, as well as practical considerations, the Netherlands delegation would support the joint text. Mr. Fitzmaurice (United Kingdom) stated that the proposed joint text put his delegation in a rather difficult position. It consisted of two parts, one concerned with the jurisdiction and competence of municipal tribunals, and the other with the jurisdiction and competence of an international criminal tribunal. With respect to the second part of the article, he reminded the Committee that his Government had voted (98th meeting) against the text of the Ad Hoc Committee because no international penal court existed, because it might be some time before such a court would come into existence, and because, in those circumstances, it might be wiser to concentrate on other effective methods for the punishment of persons guilty of genocide. The United Kingdom delegation could not commit itself to supporting a court which did not yet exist and the scope of which was not known. The joint text which the Committee had before it, however, put the court on a hypothetical, facultative basis and did not compel the parties to accept its jurisdiction. For those reasons, his Government found it possible to accept that text. However, there was an inherent lack of consistency in the position of those representatives who favoured the inclusion of a reference to international criminal jurisdiction. If, as some representatives had stated, it was not possible to rely on national courts to punish crimes of genocide within their competence, how could those same courts be expected to obey the mandates of an international criminal court and surrender persons for trial before it? Such a court would of course have no means of bringing a person to trial unless the States concerned were willing to co-operate. Nevertheless the United Kingdom delegation would accept that part of the joint text referring to international criminal jurisdiction, as it was harmless.

A/C.6/SR.130

1887

With regard to the jurisdiction of national courts, however, Mr. Fitzmaurice would agree with the remarks of the representative of India. The article in question was unnecessary in view of the provisions of preceding articles, and moreover it was ambiguous. It was not clear from the wording of the article whether the territorial jurisdiction was exclusive or not. It seemed, however, that the Committee was in agreement that the jurisdiction referred to in the article was not exclusive. Instead of accepting the Indian amendment, however, an explanatory statement could be included in the report of the Rapporteur. The text of the article was so clearly ambiguous that any court would undoubtedly be forced to refer to its history in order to interpret the article correctly; Mr. Fitzmaurice considered therefore that some reference to the matter in the report was indispensable. Although his delegation felt that the article was not desirable from many points of view, he would not oppose its adoption and might even be able to vote in favour of it. Mr. Pérez Perozo (Venezuela) reminded the Commitee that at the 129th meeting his delegation had abstained from voting on the reconsideration of article VI because it did not wish to oppose the conciliatory spirit of many of the members of the Committee, a spirit which had produced such excellent results with regard to the phrase “political groups”. The Venezuelan delegation had given proof of its conciliatory spirit during the debate on the proposal that the question of the desirability and possibility of the establishment of an international penal tribunal should be submitted to the International Law Commission for study. On that question Venezuela had suggested a formula intended to reconcile seemingly irreconcilable points of view, which had been accepted (99th meeting). In the matter under consideration the Venezuelan delegation had also wished to demonstrate that it was prepared to consider any acceptable solution which might be proposed. The solution proposed, however, did not alter those aspects of the problem which the Venezuelan delegation had found unacceptable. It had opposed a vague reference to international jurisdiction in article VI. It had always maintained that it did not seem logical to say that States would bind themselves, through a legal instrument, to accepting an international court when all the details of the construction and operation of that court were

1888

A/C.6/SR.130

unknown. Nevertheless, the new formula submitted to the Committee included that same vague reference, and consequently, the Venezuelan delegation maintained its original objections to the article. It believed that the wisest course would be to allow the International Law Commission to consider the question of the possibility and desirability of establishing an international criminal tribunal and to wait for its report before taking any further decision. The Venezuelan delegation still considered that the institution of international criminal jurisdiction could only lead to unfortunate results, in view of the existing world situation. Friction might be created which could disturb the peace among nations. The establishment of international penal jurisdiction should be reserved for the future when international relations would be more favourable to such an institution. Such had been the position of the Venezuelan delegation from the very beginning of the debate on the question. Since, in the course of the discussion in the Sixth Committee, the Venezuelan delegation had noted that a majority of the Committee favoured the joint text under consideration, it would abstain from voting on the joint amendment in order not to obstruct the manifest will of the majority of the Committee. That abstention, however, in no way prejudged the attitude the Government of Venezuela might assume in the future with respect to the convention. Mr. Amado (Brazil) explained why his delegation would vote in favour of the joint amendment, although it had previously voted against the inclusion of a reference to an international criminal tribunal in the draft convention. He had originally voted against such a reference because he had considered it too vague and obscure, since no international criminal tribunal was actually in existence and the establishment of such a tribunal was a very complicated matter. The precedent of the Nürnberg trials had shown the difficulties inherent in the problem. The United Nations had entered a new stage in its activities when it had started to draft a convention on genocide and it should not attempt to hasten unduly the gradual development of international law. Moreover, the United Kingdom representative had quite rightly pointed out that a State would be unlikely to bring one of its subjects before an international tribunal, if it had omitted to punish the crime in its own national courts.

A/C.6/SR.130

1889

It had been for those reasons that he had voted against the inclusion of a reference to an international criminal tribunal in the body of the convention. Subsequently, however, the Committee had decided to adopt the draft resolution submitted by the delegations of the Netherlands and Iran recommending the International Law Commission to study the desirability and possibility of establishing an international criminal tribunal. In view of that decision, he was prepared to accept the joint amendment to article VI. He agreed with the representative of Iran that, if the convention contained no reference to the possibility of the establishment of an international criminal tribunal, it might have to be revised at a later date, when an international tribunal was eventually established. Mr. Ti-tsun Li (China) said that his delegation would support the joint amendment although it had voted against the reconsideration of article VI. There was no inconsistency in that attitude, because his delegation had always opposed the reconsideration of matters that had been fully discussed and decided by a majority vote. In that respect he paid a tribute to the USSR representative, who had shown a real spirit of co-operation in refraining, during the second reading, from reintroducing many amendments to which he had attached great importance during the first discussion. It was impossible to hope that the convention would receive the support of all fifty-eight Member States of the United Nations. Many of the changes which had been proposed in order to obtain the support of some delegations would only serve to lose that of others. It was therefore important not to sacrifice fundamental principles in the hope of achieving unanimity. His delegation had therefore consistently voted against the reconsideration of articles that had already been adopted. However, as the Committee had decided to reconsider article VI, he would support the joint amendment on its merits, for his delegation had always been in favour of the principle of the establishment of an international criminal tribunal. Mr. Raafat (Egypt) said that his delegation had been among those which had from the outset favoured the establishment of an international criminal tribunal. He was surprised that the delegations which had originally opposed any reference to such a tribunal should now put forward an

1890

A/C.6/SR.130

amendment to include it. He supported the joint amendment, although it mentioned the international tribunal only in a hypothetical manner, and he hoped that such a tribunal would eventually be established, because in his opinion the convention would be useless without it. From the point of view of substance, he considered the Indian amendment more important than the joint amendment and thought it should be included in the text of the convention itself rather than in the Committee’s report. He suggested that some words such as “without prejudice to the competence of the tribunals of the State of which the persons charged are nationals” might be used at the beginning of the article instead of the addition proposed by the representative of India. Mr. Morozov (Union of Soviet Socialist Republics) thought that the Committee was about to take a completely unprecedented decision. Even those representatives who had suddenly changed their attitude on the question should recognize the fact that it was impossible to include in the convention a reference to the jurisdiction of a non-existent tribunal. The Committee had already discussed all the difficulties involved in the establishment of an international criminal tribunal, and it had been agreed that it was impossible to take a decision on the matter at that time. However, some of the delegations which had originally opposed the inclusion of a reference to an international criminal tribunal in the text of the convention had changed their attitude and were attempting to force the Committee to take a premature decision on the matter. He could not understand why some representatives should suddenly insist on reference to an international criminal tribunal, when many of the concrete proposals for the effective and speedy punishment of the perpetrators of genocide, submitted by his delegation among others, had been rejected. In his opinion, no new arguments had been advanced to justify the inclusion of a new factor in article VI; he hoped, therefore, that the representatives would remain consistent with their earlier attitude and would vote with him against the joint amendment. Mr. Kaeckenbeeck (Belgium) regretted that the delegations should be blamed for inconsistency, since their main aim was to achieve a compromise which would be acceptable to as many States as possible. His delegation’s attitude had always been quite clear. He had opposed the

A/C.6/SR.130

1891

original reference to an international criminal tribunal because it had been so worded as to imply acceptance, in advance, of the jurisdiction of a tribunal which was not yet in existence. His delegation, however, had always agreed that the possibility of establishing an international criminal tribunal should be studied. His attitude was therefore not in the least inconsistent, and he had co-operated with the other authors of the joint amendment in a spirit of conciliation, since the only method of obtaining results in international affairs was to try as far as possible to achieve a compromise. As the resolution recommending the International Law Commission to study the desirability and possibility of establishing an international criminal tribunal had been adopted, it was clear that the majority of the Committee wished such a tribunal to be established and the first steps had been taken in that direction. It was therefore advisable to include a reference to such a tribunal in the convention, in order to avoid the necessity of revising it later on. Mr. Kaeckenbeeck thought that the amendment submitted by the representative of India was perfectly justified as the existing text of the article was ambiguous. The purpose of the article was to impose on the State in the territory of which the act was committed the obligation to bring the persons concerned to trial, but there was no intention to exclude the possibility of trial by any other competent tribunal. He agreed that something should be done to make the purpose of the article quite clear, but he felt that the text proposed by the Indian delegation did not cover all possible cases, as had been pointed out by the representative of Sweden. He had therefore suggested that the correct interpretation of the article should be included in the Committee’s report. If the representative of India did not agree to that suggestion, some further attempt should be made to achieve a compromise text. Mr. Litauer (Poland) did not think the convention should include a reference to an international tribunal which was not yet in existence and might never even be established. The inclusion of such a reference would oblige the contracting parties to assume an undertaking without knowing its exact implications. If an international tribunal were to be effective, its jurisdiction would have to be compulsory and it would then be based on principles contrary to those which constituted the foundation of the International Court of Justice.

1892

A/C.6/SR.130

Moreover, the provisions of article VI as worded in the joint amendment might easily be construed as an intervention in the domestic affairs of a State. In his opinion, it was obvious that every State should reserve the right to try all crimes committed in its territory. That fact was so self-evident indeed that it hardly needed mention in the convention. However, there might also be cases, such as the one mentioned by the representative of Sweden, in which a State might wish to try a crime committed outside its territory, if that crime concerned its own nationals. That point was very important and should be taken into consideration. He emphasized his delegation’s opinion that the introduction of the principle of an international criminal tribunal into article VI might constitute intervention in the domestic affairs of States and a violation of national sovereignty. He agreed that conciliation and unanimity were highly desirable, but those considerations should not be carried so far as to sacrifice questions of principle. He would therefore be obliged to vote against the joint amendment. Mr. Manini y Ríos (Uruguay) reminded the Committee that the text it was considering was a compromise. His delegation was among those which considered that the establishment of an international criminal tribunal with compulsory jurisdiction was essential if the convention were to be really effective. He was, however, prepared to accept the compromise text, which had at least the advantage of mentioning an international tribunal, although the acceptance of its jurisdiction was to be purely voluntary. He did not think any State could justifiably refuse to accept such a provision. In his opinion the convention would lack its most vital provision if no reference were made to an international criminal tribunal. He hoped that the joint amendment would be accepted for the time being and that an international tribunal with compulsory jurisdiction would eventually be established. Mr. Spiropoulos (Greece), Rapporteur, thought that the principle underlying the joint amendment had been sufficiently discussed and that the Committee should proceed to a vote on the question. He asked the Chairman to obtain the Committee’s approval of the suggestion that the interpretation of article VI implied in the Indian amendment

A/C.6/SR.130

1893

should be included in the report. He would himself be very pleased to include that interpretation in the report as it coincided with the opinion he had expressed at the time when the article had originally been under discussion; but the question was a serious one and the Committee would have to give its formal approval before he could agree to include the matter in the report. Mr. Dignam (Australia) felt that the text of the addition to article VI, as submitted in the joint amendment, was not quite clear. He asked the United States representative whether the following interpretation of that text was acceptable: “or by an international tribunal the jurisdiction of which extends to or is accepted by the contracting parties concerned”. Mr. Gross (United States of America) said that the amendment as presented had been drafted in French and translated into English. Although it was slightly removed from the French text, he would greatly prefer the Australian version, and suggested that the Committee might accept that version as the authentic text, from which the French translation could be prepared later. In reply to the observations of the Egyptian representative, he wished to make it clear that the United States delegation had not at any time been opposed to international penal jurisdiction in regard to genocide. The Egyptian representative appeared to have misunderstood the United States position on the point. Replying to the remarks of the USSR representative, he pointed out that the entire matter had been thoroughly considered and discussed, as had been recognized by the Soviet Union representative himself: there was therefore no question of urging the Committee to make a decision with undue haste. The USSR representative had contended that the very thoroughness with which the matter had been discussed and considered constituted in itself an argument against reconsideration. He recalled that the result of the vote originally taken by the Committee (98th meeting) on the question of international penal jurisdiction in regard to genocide had been very close, which served to show that the Committee had been fairly evenly divided in its opinion on the question. On the other hand, the original vote (75th meeting) on the question of including political groups within the scope of the draft convention had shown that a clear

1894

A/C.6/SR.130

majority of the Committee was in favour of doing so. Nevertheless, in order to obtain the largest possible degree of acceptability, the Committee had agreed (128th meeting) to reconsider the question and had in fact reversed the previous decision. No protest had been made in that connexion by the Soviet Union representative, and, although the USSR delegation had originally strongly opposed the inclusion of political groups within the scope of the draft convention, it had abstained from voting on the second occasion. The United States delegation would vote for the joint amendment, in the version suggested by the Australian representative. The Chairman announced that discussion of the item was closed. Mr. Petren (Sweden) withdrew the minor drafting amendment he had suggested earlier in the meeting. He supported the proposal that a statement with regard to the Indian amendment should be included in the Committee’s report, and felt that other exceptional cases should also be made the subject of comment there. Prince Wan Waithayakon (Siam) stated, in reply to the USSR representative’s remarks regarding consistency, that he had opposed the original text of the article, because it would have committed his Government to accepting the jurisdiction of a court which was not yet in existence and the statute of which had not been decided. The joint amendment, on the other hand, would give an opportunity to have full information in advance regarding the proposed court’s powers. There was, therefore, no inconsistency in his change of view, and his delegation would support the joint amendment. Mr. Kaeckenbeeck (Belgium) drew attention to the fact that the Australian version of the joint amendment was not a translation of the French text; it was the original version of the amendment. He therefore felt that the French text should be considered to be the authentic version, and it might be possible later to have a better English translation of it. Mr. Demesmin (Haiti) stated that his delegation had always favoured the idea of having an international penal tribunal, and therefore welcomed the reversal of the Committee’s decision on the point. The original objections to such a tribunal had been based on the grounds that it might infringe the sovereign rights of States. Those objections were no longer valid, as

A/C.6/SR.130

1895

the joint amendment provided for the voluntary acceptance of certain restrictions of those sovereign rights. He could not agree with the Venezuelan representative’s statement that the acceptance of the joint amendment might give rise to serious friction between States and thus prove a danger to international peace. He was of opinion that the necessity of taking action under the provisions of the article would arise only if serious friction already existed. It was true that previously there had been no international laws whereby the crime of genocide might be judged, but the setting up of the Nürnberg Tribunal had established a precedent in that respect, and yet objections were being raised to the establishment of an international penal court. It was generally recognized that without penal sanctions against genocide, the draft convention would be utterly useless. It was therefore obvious that a new international judicial organ was needed. He criticized the suggestion that a statement of the Indian amendment should be included in the Committee’s report and no further action taken upon it. It should be treated in a similar manner to all other amendments: it should be discussed and then voted upon. Mr. Raafat (Egypt) apologized to the United States representative for the ambiguity of his previous statement: it was well known that the United States delegation was not opposed to international penal jurisdiction in regard to genocide. Mr. Litauer (Poland) citing rule 109 of the rules of procedure, requested the immediate adjournment of the meeting in order that the Committee might be provided with a written text of the joint amendment before voting upon it. The motion for adjournment was rejected by 23 votes to 11 with 6 abstentions. Mr. Chaumont (France) concurred in the view expressed by the Belgian representative: he could accept only the French text as authentic, and hoped it might be found possible to improve the English version of it. The Chairman ruled that the vote would be taken on the text which had been submitted at the opening of the meeting: it might be possible later to improve the English version. No amendments could be accepted after the close of the debate.

1896

A/C.6/SR.130

Mr. Litauer (Poland) quoted the first part of rule 109 of the rules of procedure, by virtue of which he challenged the right of the Committee to vote upon the joint amendment, as it had not been submitted in writing on the previous day. The Chairman pointed out that, by virtue of the second part of rule 109, he was acting within his powers in putting the joint amendment to the vote. Mr. Sundaram (India) was accorded permission by the Chairman to make a short statement in connexion with suggestions which had been made regarding the Indian amendment. The purpose of his amendment was to safeguard the right of a State to prosecute its own nationals in cases where crimes were committed outside the State and the criminal afterwards returned to it. He fully concurred in the interpretation given to the amendment by the Rapporteur and would be prepared to withdraw it, if the Rapporteur were instructed to include a statement of his interpretation in the Committee’s report. Nevertheless, he felt it would have been preferable to embody such a safeguard in article VI itself, by the simple insertion at the beginning of the article, of the phrase: “Without prejudice to the extra-territorial rights of States over their nationals”. He would, however, submit to the Chairman’s ruling that a further amendments could be accepted. The Chairman noted that only the interpretation given by the Committee as a whole to the Indian amendment could be inserted in the report. Mr. Morozov (Union of Soviet Socialist Republics) pointed out that the first part of the joint text for article VI was exactly the same as that already adopted by the Committee. He therefore suggested that separate votes might be taken on the proposed addition to that text and on the article as a whole. It was so agreed. Mr. Litauer (Poland) requested that the vote on the proposed addition to article VI should be taken by roll-call. The Chairman put to the vote the joint amendment of the United States, France and Belgium.

A/C.6/SR.130

1897

The vote was taken by roll-call. Australia, having been drawn by lot by the Chairman, voted first. In favour: Australia, Belgium, Bolivia, Brazil, Burma, Canada, China, Colombia, Cuba, Denmark, Ecuador, Egypt, France, Greece, Haiti, Honduras, Iran, Mexico, Netherlands, New Zealand, Norway, Pakistan, Philippines, Siam, Sweden, Syria, United States of America, Uruguay, Afghanistan. Against: Byelorussian Soviet Socialist Republic, Czechoslovakia, Dominican Republic, India, Poland, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, Yugoslavia, Argentina. Abstaining: Peru, Union of South Africa, United Kingdom, Venezuela, Yemen. The amendment was adopted by 29 votes to 9, with 5 abstentions. The Chairman put to the vote article VI, as amended. Article VI, as amended, was adopted by 27 voles to 5, with 8 abstentions. Mr. de Marchena Dujarric (Dominican Republic) explained that he had voted against the joint amendment, because it was not compatible with the Constitution of his country. In reply to several observations, the Chairman stated that the question of inserting a statement in the report regarding the Indian amendment would be considered at the following meeting. Mr. Amado (Brazil) stated that his delegation supported the principle expressed in the Indian amendment and would be glad to see a statement regarding it embodied in the Committee’s report. The meeting rose at 6 p.m.

1898

A/C.6/SR.131

HUNDRED AND THIRTY-FIRST MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 1 December 1948, at 11 a.m. Chairman: Mr. R.J. Alfaro (Panama). 84. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Interpretation of Article VI The Chairman recalled that at the Committee’s 130th meeting the Indian delegation had agreed to withdraw that part of its amendment [A/C.6/299] which called for the addition of a paragraph to Article VI of the draft convention, on condition that it was stated in the Committee’s report that none of the provisions of article VI affected the right of any State to bring any of its nationals to trial before its own courts for acts committed outside its territory. The Committee must, of course, take a decision on that point. There being no objection, the Chairman ruled that the report should contain the required statement. Mr. Dignam (Australia) pointed out that on another occasion the Committee had refused to allow him to insert in the report the interpretation of an article already adopted, as it had felt that such action would be dangerous. The Chairman considered that the cases were not similar. It was no longer a matter of interpreting an article, but of noting that an amendment had been withdrawn because the author’s purpose in submitting that amendment had been met by the provisions of the article. Mr. Petren (Sweden) recalled that he had also asked [A/C.6/313] that mention should be made in the report that article VI did not limit the jurisdiction of a State on the territory of which the authors of a crime committed in another country were arrested, if the victims were nationals of that State.

A/C.6/SR.131

1899

The Indian delegation had wished to draw attention to the fact that the jurisdiction of the courts of a State in respect of crimes committed by nationals of that State must not be limited; the Swedish delegation wished that the jurisdiction of a State in respect of crimes committed against its nationals should also be explicitly safeguarded. The Swedish delegation would not submit any proposal if the report contained only a general statement to the effect that the sole purpose of the provisions of article VI was to ensure that States on the territory of which the act had been committed should punish the criminal. But if the report specified that article VI did not rule out the jurisdiction of the State over its nationals when they committed the crime outside its territory, the conclusion might be reached that that was an exception and the only one to the rule that the State on the territory of which the crime was committed had exclusive jurisdiction. In that case the Swedish Government would certainly find great difficulty in accepting the convention, which would compel it to renounce an essential principle of its national criminal law. It was for that reason that Mr. Petren asked the Committee to consider his proposal that the report should contain a statement regarding the case in point. Mr. Guerreiro (Brazil) observed that at the time the Indian amendment was discussed (130th meeting) it had been judged superfluous, as article VI imposed a minimum obligation on the State to punish a crime committed on its territory, but by no means prevented it from punishing a crime committed outside its territory if its national legislation permitted it to do so. Since the Committee had agreed to mention in the report the case raised by the Indian delegation, it should likewise acquiesce in the request of the Swedish representative. Mr. Guerreiro the more readily supported that request because Brazilian criminal law provided in certain circumstances for the competence of national courts in respect of crimes committed abroad and by aliens against Brazilian nationals. Express mention of that competence in the report would dispel any doubt at the time of the ratification of the convention by the Brazilian Parliament. Mr. Kaeckenbeeck (Belgium) agreed that article VI, which had given rise to lengthy discussion, satisfied hardly anyone, as it dealt with the question of jurisdiction which was always so difficult to settle. But it was for that very reason that it should not be amended further, even indirectly, by means of interpretations inserted in the report. If it were true that

1900

A/C.6/SR.131

the interpretation suggested by the Indian delegation was warranted, any other interpretation which widened the scope of that article might be dangerous, because it would thus be possible, by extension, to revert to the principle of universal punishment which the Committee had categorically rejected (100th meeting). Mr. Morozov (Union of Soviet Socialist Republics) asked that the Swedish proposal should be circulated to delegations in writing before any decision was taken. Mr. Augenthaler (Czechoslovakia) drew the Swedish delegation’s attention to the dangers inherent in its proposal. In the event that a new Germany became a party to the convention, it would be able to claim the right to try those who committed genocide outside its territory, on the basis of the interpretation contained in the Swedish proposal or in the Indian proposal. Mr. Sundaram (India) explained that he had wished merely to confirm the established right of every State to try its own nationals arrested on its territory for crimes committed abroad, and he recalled that no principle of international law allowed a State to be required to extradite its own nationals. It seemed, then, that the Czechoslovak representative’s example did not apply to the case envisaged by the Indian delegation. The Chairman ruled that the discussion of the Swedish proposal should be suspended until the Committee had received the written text. In reply to a question by Mr. Maktos (United States of America) Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) informed the Committee that it was not yet possible to know whether the convention on genocide could be signed in Paris; it depended on the date at which the draft was approved by the General Assembly. It might be that there would not be enough time to make the necessary arrangements for signature and that it would take place at Lake Success. Article IX The Chairman asked the Committee to consider the text of article IX of the draft prepared by the Drafting Committee and the amendments to that article, one proposed by the Indian delegation [A/C.6/299] and the other proposed jointly by the delegations of Belgium, the United Kingdom and the United States [A/C.6/305].

A/C.6/SR.131

1901

Mr. Sundaram (India) felt that if the Committee had to decide on the advisability of a reconsideration of article IX before discussing the amendments, a motion to that effect could be moved as well by the authors of the joint amendment as by the Indian delegation. Mr. Kaeckenbeeck (Belgium) thought, on the contrary, that it was for the Indian representative alone to ask for a reconsideration of article IX, as his amendment was an amendment of substance to the text adopted at the first reading (105th meeting). The joint amendment of Belgium, the United Kingdom and the United States was only an alternative drafting of that article; it was the result of a last minute compromise and its object was the deletion of the word “responsibility”, which appeared ambiguous to certain delegations. If the Committee preferred the second text to that of the drafting committee, it was free to adopt it without deciding to reconsider the article. The Belgian delegation, for its part, would accept either the original text or the alternative. Mr. Kaeckenbeeck pointed out an error in the English translation of the alternative text; the word “implementation” should be replaced by the word “fulfilment” which agreed with the French word exécution in the original text. Mr. Tarazi (Syria) considered that, in any case, the Indian amendment referred to the substance of the question and that the Committee should first decide whether it would reconsider the article. He therefore submitted a motion to that effect. The Chairman pointed out that, in accordance with article 112 of the rules of procedure, that proposal had priority and only two speakers opposing it could speak. Mr. Morozov (Union of Soviet Socialist Republics) recalled that his delegation had not voted for article IX as a whole because it could not accept certain parts of it (105th meeting). He was, however, of the opinion that an article should be reconsidered only if it were to be substantially improved. That was not the case, however, in so far as the Indian amendment and the joint amendment of Belgium, the United Kingdom and the United States were concerned. Although the latter amendment was merely a drafting amendment submitted for the sole purpose of satisfying certain delegations, the USSR representative considered that the Committee would be creating a dangerous

1902

A/C.6/SR.131

precedent in adopting it, as that would be tantamount to regarding the Drafting Committee’s text as a provisional draft which could be amended according to the taste of various delegations. In Mr. Morozov’s opinion the joint amendment was not confined to a drafting change, but might involve a real modification of the substance of the article, and it was for that reason that it had been rejected by the Drafting Committee. At all events, the change which the authors of the amendment proposed did not warrant a reconsideration of the article by the Committee. Mr. Raafat (Egypt) recalled that the text of article IX had already been discussed at length. The Committee had adopted that text only after an agreement had been reached between the Belgian and United Kingdom delegations. The Egyptian representative was thus surprised to see the same delegations submit a new text which appreciably altered the original text for which the Belgian representative had himself expressed his preference. Mr. Raafat emphasized, moreover, that if the joint amendment of Belgium, the United Kingdom and the United States were adopted, it might have unfortunate results. The Committee had decided (105th meeting) that disputes regarding a State’s responsibility should be referred to the International Court of Justice. According to that amendment, only those disputes which related to acts and not to the question of principle itself would be submitted to the Court. The representative of Egypt was therefore opposed to any reconsideration of article IX. If the Committee nevertheless decided on such reconsideration, he would vote against the joint amendment of Belgium, the United Kingdom and the United States. Mr. Maktos (United States of America), speaking on a point of order, said that in any case, as the Indian amendment concerned the substance of the question, it entailed reconsideration of article IX. He proposed that the Committee should close its discussion on the joint amendment, decide whether or not the amendment made a reconsideration of article IX necessary and, finally, vote on the question as to whether or not to reconsider the article. As the Chairman expressed a wish to put the question to the vote, Mr. Morozov (Union of Soviet Socialist Republics) pointed out that, in

A/C.6/SR.131

1903

order to vote on the motion for reconsideration of article IX, the Committee must know whether, by rejecting the motion, it would thereby be refusing to consider the joint amendment. That seemed obvious to him because, in his opinion, the amendment concerned the substance of the question. It would in any case be necessary to decide at the outset whether the amendment was substantive or not. Whatever the Chairman’s ruling on that point, a member of the Committee would be entitled to appeal against it and the Committee would thus decide first on the nature of the amendment. After that it could vote on the Syrian representative’s motion. Mr. Kaeckenbeeck (Belgium) shared the USSR representative’s view. He pointed out that – failing a decision on the preliminary question – he would not know whether, by voting against reconsideration of article IX, he would not thereby be voting against the joint amendment of Belgium, the United Kingdom and the United States. He approved of the initial text and of the compromise text – which in his opinion was only a drafting amendment – but he was opposed to reconsideration of article IX. Thus it was necessary to be quite clear whether the two proposed amendments entailed the reconsideration of the article. Mr. Fitzmaurice (United Kingdom) shared the view that before the Committee took a decision on the reconsideration of article IX, the Chairman should give a ruling on the question as to whether or not the joint amendment bore on the substance of the article. If the amendment were regarded as a drafting amendment, the United Kingdom representative would vote against reconsideration of article IX; if not, he would vote in favour of such reconsideration. Mr. de Beus (Netherlands) agreed with the remarks of the representatives of the Soviet Union, Belgium and the United Kingdom. Mr. Maktos (United States of America) recalled that the object of his point of order was the same. It would be preferable, nevertheless, for the Chairman to give a ruling on the nature of the joint amendment before the Committee voted on reconsideration of article IX. Any member of the Committee would then be able to appeal against the Chairman’s decision. Mr. Chaumont (France) recalled that whenever the question had arisen, the Committee had always voted first on reconsideration of an article

1904

A/C.6/SR.131

and then on the amendments to the article. It would be advisable not to change that procedure, for to do so would constitute a violation of the rules of procedure, particularly as it was often difficult to decide beforehand whether an amendment was one of substance or of form. He thought the joint amendment concerned the substance of article IX. Mr. Sundaram (India) supported the French representative’s statement. He believed that the two amendments bore on the substance of the article and required a decision by the Committee as provided for in rule 112 of the rules of procedure. Mr. Tarazi (Syria) said that because of the doubts expressed as to the nature of the joint amendment, it should be considered as one of substance. Prince Wan Waithayakon (Siam), referring to the French representative’s statement, pointed out that the established practice was that the Chairman ruled first on the nature of each amendment. If it were a drafting amendment, it was unnecessary for the Committee first to decide whether it would proceed to reconsider the article; if it were not, the Committee decided whether or not reconsideration was advisable. He thought the Committee should be clear as to the nature of the joint amendment before voting on reconsideration of article IX. The Chairman said that from the outset he had had good reason not to give a ruling on the nature of the joint amendment before the vote, was taken on reconsideration of article IX. Taking into account, however, the pertinent remarks of several delegations, the Chairman ruled that the amendment concerned the substance of the article. Thus it was provided in article IX that those disputes, among others, which concerned the responsibility of a State for genocide or for any of the acts enumerated in article III, should be submitted to the International Court of Justice. According to the joint amendment, on the other hand, the disputes would not be those which concerned the responsibility of the State but those which resulted from an accusation to the effect that the crime had been committed in the territory of one of the contracting parties. That being so, the Committee could not consider the joint amendment of Belgium, the United Kingdom and the United States or the Indian amendment unless it decided in favour of reconsideration of article IX.

A/C.6/SR.131

1905

The Chairman put to the vote the Syrian representative’s motion for reconsideration of article IX. The result of the vote was 16 in favour, 13 against and 11 abstentions. The motion was not adopted, having failed to obtain the required two-thirds majority. Mr. Maktos (United States of America) said that since the text of article IX was not to be changed, the United States Government considered it ambiguous and unsatisfactory. The United States representative reserved his Government’s position concerning the article. If the word “responsibility” referred to the civil responsibility of the State for injuries sustained by its nationals, the United States delegation must record its disagreement The word could not be taken to refer to the criminal responsibility of the State, since the Committee had already stated that such was not its intention (96th meeting). If it referred to treaty violations, the United States delegation must emphasize that the word added nothing to the meaning of the article. Mr. Spiropoulos (Greece) said he had voted for reconsideration of article IX out of courtesy towards the authors of the proposed amendment. He thought the United States delegation’s fears unfounded. In his opinion the provisions of the article were sufficiently complete to make it unnecessary to specify the nature of certain disputes, whether by means of the wording used in the text of the Ad Hoc Committee or by means of the alternative text contained in the joint amendment. Mr. Sundaram (India) recalled that he had already explained his delegation’s position concerning article IX. The retention of the terms “fulfilment” and “responsibility” would make it possible to submit to the International Court of Justice a large number of disputes arising out of vague accusations. The Indian delegation had no objection to make regarding the competence of the International Court of Justice, but it considered that the text of article IX would help to strain relations between States and was therefore contrary to the very purpose of the convention. That was why the delegation had voted against article IX in its original form (105th meeting) and had voted in favour of the request for reconsideration of the article.

1906

A/C.6/SR.131

Mr. Morozov (Union of Soviet Socialist Republics) said he had voted against reconsideration of article IX but that that vote in no way altered the USSR delegation’s attitude concerning the article itself, on which it had abstained from voting. Article XVII The Chairman opened the discussion on article XVII of the draft convention prepared by the Drafting Committee and on the Indian delegation’s amendment thereto [A/C.6/299]. In his opinion the Indian delegation’s amendment affected only the wording of the article and in order to consider the amendment the Committee need not first decide to reconsider the article. Mr. Sundaram (India) said that his delegation thought the text of article XVII would be clearer if it were drafted in six sub-paragraphs, corresponding to the six articles of the convention to which they referred. His delegation therefore proposed an alternative text. The Indian delegation had added to the text of article XVII, as adopted by the Drafting Committee, the provision contained in sub-paragraph (b) of its amendment, that provision being the necessary consequence of the adoption of article XII. On the other hand it had deleted the reference to article XIII, as that article did not deal with signatures, ratifications or accessions received by the Secretary-General; the only article to which a reference was needed in that respect was article XI. The Chairman put to the vote, as a whole, the amendment proposed by the Indian delegation. The amendment was adopted by 30 votes to none, with 3 abstentions. The Chairman then asked the Committee to vote on the Swedish delegation’s proposal to insert in the Sixth Committee’s report a statement on the interpretation to be given to article VI of the convention. That statement [A/C.6/313] read as follows: Furthermore, article VI should not be interpreted as depriving a State of jurisdiction in the case of crimes committed against its nationals outside national territory.

A/C.6/SR.131

1907

Mr. Maktos (United States of America) was opposed to the insertion requested by the Swedish representative. He pointed out that it was not the Sixth Committee’s duty to reconcile conflicts of law or to codify international law in the matter. Nor was it the Committee’s duty to decide what principles of private international law should be applied in given situations. Finally, a statement of the nature proposed by the Swedish delegation would involve the recognition by a legal committee of the right of a State to punish aliens for crimes committed outside the territory of that State. Mr. Raafat (Egypt) pointed out that, according to article VI of the convention, the courts of the State in the territory of which the crime of genocide was committed were the only ones competent to punish that crime. The object of the Indian amendment was to grant similar competence to the courts of States of which the accused were nationals, in view of the fact that they could not be extradited. The object of the Swedish proposal was to ensure recognition of the competence of the courts of a third State, that of which the victims of acts of genocide were nationals. That proposal raised serious problems of conflict of laws. Although from the human point of view the Egyptian delegation might vote in favour of the solution suggested by the Swedish delegation, from the legal point of view it thought that the question deserved more thorough consideration. Mr. Raafat drew the Committee’s attention to the fact that in the event that the Swedish proposal were adopted, the words “with regard to crimes” should be substituted for the words “in the case of crimes”. Mr. Tarazi (Syria) thought the Swedish delegation’s proposal entirely logical. He pointed out that the principle expressed therein appeared in a number of penal codes. As it was a question of a statement to be inserted in the report and not of an article to be added to the convention, there could be no objection to satisfying Sweden’s request. Mr. Tarazi proposed a slight drafting amendment to the statement which the Swedish delegation had submitted for insertion in the report. He suggested that the words “. . . the jurisdiction of the courts of a State with regard to crimes . . .” should be substituted for the words “. . . a State jurisdiction in the case of crimes . . .”. Mr. Petren (Sweden) willingly accepted the drafting amendments suggested by the representatives of Egypt and Syria.

1908

A/C.6/SR.131

He said that his delegation had submitted its proposal out of anxiety to ensure ratification of the convention by the Swedish Government. Sweden’s criminal legislation contained provisions permitting its courts to judge any person who committed a crime outside its territory if the victims were Swedish nationals. If the report mentioned only the case cited by the Indian delegation, it might be inferred that the jurisdiction of the tribunals of the State of which the victims were nationals was ruled out. Mr. Petren reiterated that he would not have pressed his proposal if the report of the Committee had not mentioned the Indian amendment. Mr. Spiropoulos (Greece) shared the views of the Egyptian representative. As the principle set forth in the Swedish proposal was generally applied in domestic criminal law, that proposal might have been accepted. But its adoption was not in accordance with the terms of article VII of the convention, because in cases where existing laws and treaties permitted the extradition of persons guilty of genocide, two States might claim the right to bring those criminals to trial: on the one hand, the State in whose territory the crime had been committed; and, on the other hand, the State of which the victims were nationals and which had succeeded in arresting the guilty persons. The result would be jurisdictional conflicts which would be extremely difficult to settle. Mr. Spiropoulos added that if existing laws and treaties did not permit the extradition of the guilty persons, it was obvious that, in the case envisaged by the Swedish delegation, the State of which the victims were nationals, and which had arrested the criminals, would have the right to bring them to trial, provided that its national legislation covered such an eventuality. Mr. Chaumont (France) stressed the importance of the problem of jurisdictional conflicts between different tribunals, which was one of the most difficult problems to solve in international relations. He pointed out that the rejection of the Swedish proposal would not eliminate the problem, which would have to be solved in accordance with the general principles of law and taking into account all the factors of each specific case. The Committee had already raised the problem of dual jurisdiction by agreeing to include the statement made by the Indian delegation in its report to the General Assembly. For the same reason, the Committee

A/C.6/SR.131

1909

should also agree to include the explanation proposed by the Swedish delegation. Mr. Maktos (United States of America) stated that if there were provisions in Swedish legislation, or in the laws of other countries, permitting the State whose nationals had been the victims of a criminal act to try the perpetrators of that act, that was not the case in the United States. The Committee could not interpret the provisions of article VI of the convention in the light of the domestic legislation of each Member State. The Indian delegation’s amendment involved two well known principles: the territoriality and the nationality of the perpetrator of the crime. Both those principles should be taken into consideration when determining which courts were competent to try the perpetrators of a crime. The Swedish proposal was based on a principle which was not so well known. The courts should be allowed to make their own decisions in accordance with the principles of existing law. Mr. Sundaram (India) suggested the following modification of the Swedish proposal in order that the Committee might find it easier to accept: “Furthermore, this article does not affect the right of any other State to bring to trial before its own tribunals any person apprehended in its territory for acts committed outside, provided that the State has such a right by virtue of its legislation and of treaties in force.” Mr. Fitzmaurice (United Kingdom) was opposed to the adoption both of the Swedish proposal and of the amendment suggested by the Indian delegation. He pointed out that the question of dual jurisdiction was one of the most difficult to settle and that many decisions had been taken on that point. It could not be solved by inserting an interpretation of article VI in the report. Mr. Fitzmaurice emphasized the danger of going beyond the two universally recognized principles according to which the jurisdiction of courts was based on the territoriality or the nationality of the perpetrators of a crime. To adopt the Indian suggestion would be tantamount to recognizing the principle of the universal punishment of genocide, which had been expressly rejected by the Committee. The meeting rose at 1.10 p.m.

1910

A/C.6/SR.132

HUNDRED AND THIRTY-SECOND MEETING Held at the Palais de Chaillot, Paris, on Wednesday, 1 December 1948, at 3.30 p.m. Chairman: Mr. R.J. Alfaro (Panama). 85. Continuation of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Interpretation of article VI (continued ) Mr. Kaeckenbeeck (Belgium) said that it would be difficult to include the text proposed by the representative of Sweden (131st meeting) in the Committee’s report. The interpretation of article VI, submitted by the representative of India and adopted by the Committee (ibid.), had been based on a principle which was universally recognized and was embodied in all legislations. The Swedish text, on the other hand, was based on a principle which was not generally accepted but was embodied only in some of the various national legal systems. Therefore, if the Swedish text were put to the vote as it stood, he would be obliged to vote against it. He agreed, however, that the question was important for those countries whose legal systems were similar to that of Sweden. The representative of Belgium thought the best solution would be to expand the text adopted at the 131st meeting and he requested that the meeting should be suspended for a few minutes in order that the representatives concerned might have the opportunity to seek agreement on a compromise text. The Chairman stated that the text adopted at the 131st meeting could not be altered without a formal motion for reconsideration. Mr. Kaeckenbeeck (Belgium) explained that he did not wish to submit a formal motion for the reconsideration of the text adopted at the 131st meeting unless an alternative compromise text could first be prepared, with the approval of the representative of India, who had submitted the original text (130th meeting).

A/C.6/SR.132

1911

Mr. Maktos (United States of America) referred to the proposal made by the representative of India at the 131st meeting that the text submitted by the representative of Sweden should be still further expanded. Mr. Maktos considered that that amendment would make the Swedish text even less acceptable, as its provisions would then be far too broad. The United States delegation felt that the Committee had made a mistake in agreeing to the insertion of the original Indian amendment in the report as an interpretation of article VI. Once one interpretation was introduced, others would naturally be submitted and he did not think that the Committee should make the further mistake of adopting the additional interpretation submitted by the representative of Sweden. He hoped that the decision taken at the 131st meeting might be reconsidered and he suggested that the representatives of India and Sweden might be satisfied by the insertion in the report of some such words as “article VI has no other implications”. Mr. Morozov (Union of Soviet Socialist Republics) thought that the Committee was assuming a task beyond its powers in attempting, in the short time at its disposal, to settle the difficult question of the conflict between the various legal systems of the different countries. Such an attempt was doomed to failure as the question was one of the most difficult in international law. The delegation of the USSR had always supported the view that the Committee should not attempt to interpret the texts already adopted. The text of the convention would inevitably be subject to a variety of interpretations and, even if the Committee adopted an interpretation of a certain article, that interpretation would not become part of the convention and would not be binding upon the signatories. Mr. Morozov had not raised any objection to the interpretation submitted by the representative of India, because he had seen that the majority of the Committee was in favour of that interpretation and because it was in conformity with the existing principles of international law. If that interpretation were enlarged, however, it would lead to great confusion. He therefore supported the request that the representative of India should consent to a reconsideration of the adopted text. The interpretation submitted by the representative of India was fully recognized by all countries and he did not think that there was any need to state it explicitly. In

1912

A/C.6/SR.132

any case, the Committee’s discussions would be recorded and the various interpretations would be made known in that way. Mr. Morozov therefore considered that it would be wiser to avoid including any specific interpretations in the report. Mr. Sundaram (India) said that he had originally submitted two alternative proposals [A/C.6/299]. The first had been for the deletion of article VI. He had made that proposal because he had foreseen that the article, as it stood, would give rise to difficulties, as it would rule out the possibility that persons charged with genocide could be tried by any tribunal other than that of the State in the territory of which the act was committed. Since, in article I, the contracting parties already undertook to prevent and punish genocide; and since the provision contained in article VI was simply the logical consequence of that undertaking, he had deemed it unnecessary that the convention should include a separate article to that effect. As the majority of the Committee, however, had favoured the retention of article VI, the Indian delegation had made its alternative proposal for the addition of a new paragraph to article VI designed to safeguard the extra-territorial jurisdiction of States, which was a recognized principle of international law. It had been stated that article VI would not affect that principle, but Mr. Sundaram considered that the provisions of articles V and VI were so worded as to rule out the jurisdiction of any courts other than those of the State in which the act of genocide was committed. That legal point was liable to be raised by the persons charged with genocide in order to avoid punishment. It was not sufficient, therefore, for the members of the Committee tacitly to agree that the provisions of article VI would not rule out the extra-territorial jurisdiction of States; some clear statement to that effect should be made. In order to conform to the will of the Committee, the representative of India had agreed to withdraw his proposal for the addition of a new paragraph to article VI and had requested its insertion in the report in the form of an interpretation. India intended to make it quite clear, when acceding to the convention, that it preserved its right to exercise extraterritorial jurisdiction notwithstanding the provisions of article VI. As other countries would also be affected, however, it had seemed advisable to include in the report a specific interpretation of the article in order to make the matter quite clear.

A/C.6/SR.132

1913

With regard to the Swedish proposal, Mr. Sundaram realized that the amendment he had suggested at the 131st meeting went beyond the requirements of the Swedish delegation and he therefore withdrew it. The question raised by the representative of Sweden was difficult; Mr. Sundaram hoped that it would be solved without any alteration of the text adopted at the 131st meeting. The Chairman, observing that the representative of India had not accepted the suggestion of the United States representative, ruled that the Swedish proposal would have to be put to the vote as it stood. The text of that proposal had been circulated and fully discussed and it would not be possible, therefore, to accept the introduction of a new text at that stage, especially as the reconsideration of an adopted text was also involved. Mr. Petren (Sweden) said that his country could not agree to alter its existing legal system and that the provisions of article VI, together with the interpretation adopted at the 131st meeting, would be a serious obstacle to ratification, unless a further addition were made. He supported the proposal made by the representative of Belgium that an attempt should be made to agree on a compromise text. If that procedure were not followed, he would be obliged to abide by his original proposal. Mr. Guerreiro (Brazil) appealed against the Chairman’s ruling on the Belgian proposal that the meeting should be suspended for a few minutes in order to enable the representatives concerned to agree on a compromise text. As the majority of the Committee appeared to favour that proposal; he thought that it should be put to the vote. The Chairman called for a vote on his ruling that no new text could be accepted at the present stage of the discussion. The Chairman was overruled by 25 votes to one, with 2 abstentions. Mr. Morozov (Union of Soviet Socialist Republics) explained that he had abstained from voting because he thought that it would be useless to alter the adopted text. He also thought that the submission of a new text would involve a waste of time, as the whole discussion would have to be reopened. In his opinion, it was impossible to reach unanimity on an interpretation of a text and, even if unanimity were reached, the interpretation might not have much value.

1914

A/C.6/SR.132

Mr. Maktos (United States of America) pointed out that he had contented himself with reserving his delegation’s position on the wording of article IX (131st meeting), because he objected to the practice of submitting interpretations. However, if the fresh interpretation submitted by the representative of Sweden were adopted, he would reserve the right to submit an interpretation in connexion with article IX. The meeting was suspended at 4.15 p.m. and resumed at 4.35 p.m. Mr. Petren (Sweden) stated that a text had been drafted which was acceptable to the delegations concerned. He paid tribute to the conciliatory talents of the representative of Belgium which had made it possible for such a text to be drawn up. Mr. Kaeckenbeeck (Belgium) declared that the preparation of a compromise text had been facilitated by the co-operative spirit shown by the representatives concerned. To reconcile the points of view of India and Sweden, the working group proposed that the Committee should request the Rapporteur to insert in his report, immediately before the Indian statement which had been approved at the 131st meeting, the following text [A/C.6/314]: Article VI contemplates exclusively the obligation of the State in whose territory acts of genocide have been committed. Thus, in particular, this article does not affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State.

The working group considered that such a text would give satisfaction to the members concerned, and hoped that the Committee would adopt its proposal. Mr. Sundaram (India) thanked the representative of Belgium for having devised a solution to reconcile the Swedish point of view with the Indian. The proposed text made it clear that article VI did not contemplate exclusively the obligation of the State in whose territory acts of genocide had been committed, and consequently did not rule out the competence of the State in cases such as those described by the representative of Sweden. The Indian delegation would support the proposed text, which would not involve reconsideration of the proposal adopted at the 131st meeting.

A/C.6/SR.132

1915

The proposed text was merely an addition to that proposal and could consequently be accepted by the Committee. Mr. Augenthaler (Czechoslovakia) did not quite understand the procedure the Committee seemed to be following in view of the fact that it had decided to include an interpretation of a vote in the report of the Rapporteur. In a similar case, the representative of the USSR had pointed out that the Committee could interpret a vote only by a unanimous decision. It would be contrary to the rules of procedure to take a decision and then, in the interpretation of that decision, to adopt a text which, in substance, might be diametrically opposed to the original decision. That argument had been advanced by the representative of the United States, who, as Chairman of the Ad Hoc Committee on Genocide, had ruled that there could be no question of an interpretation of a vote. Mr. Augenthaler would therefore request the Chairman to rule on the point. Prince Wan Waithayakon (Siam) stated that he would support the proposed text. He considered, however, that in view of the amended text of article VI, the word “exclusively” might be too strong. It could be replaced by the word “only”, or the proposed text could be modified to read “The first part of article VI contemplates the obligation of the State . . .”, and the word “exclusively” could then be omitted. Mr. Sundaram (India) agreed that the word “only” should be substituted for the word “exclusively”, as had been suggested by the representative of Siam. Mr. Kaeckenbeeck (Belgium) considered the suggestion of the representative of Siam to be quite pertinent since the proposed text referred in effect only to the first part of article VI. Mr. Morozov (Union of Soviet Socialist Republics) objected to considering and voting on the text of a new proposal without having the written text before him, because it was only through the consideration of a written text that a well-founded decision could be taken. From the translations at his disposal, he was led to conclude that the original proposal had been changed. It was not necessarily true that the addition of a phrase would not change the sense of the Indian proposal. In fact, he considered that a new idea with significant consequences had been introduced into the proposal.

1916

A/C.6/SR.132

Article VI provided merely that a State could try those guilty of crimes of genocide; it provided nothing more. It could be taken, however to imply that universal punishment might be admissible in certain circumstances; thus, although the principle of universal punishment had been rejected, the proposed text might provide a loophole for the introduction of that principle. An ambiguous text, even though as seemingly innocuous as the one before the Committee, might lead to several interpretations. There was the further danger that the addition of new sentences might imply the existence of new meanings in the text. For all those reasons the USSR representative would prefer to have the written text before him before proceeding to consider and vote on the proposal. A ruling should be made on the point raised by the representative of Czechoslovakia. To follow the practice of interpreting texts which had been adopted by the Committee was unacceptable and illogical. Any text obviously could be interpreted in several ways. It was not possible, however, to impose unanimous acceptance of those interpretations. No particular interpretation of the text of article VI, or of any other text, could be made compulsory. Each State would in any case study the text of the convention and interpret it in its own way. Mr. Morozov emphasized, however, that only the text of the convention itself and not the interpretations of that text was compulsory. Mr. Raafat (Egypt) requested the Chairman to give a ruling on the important point raised by the representative of Czechoslovakia, namely, whether the interpretation of a text must be adopted unanimously. Mr. Raafat felt that such a principle was dangerous, since the casting of one negative vote would suffice to prevent an interpretation by the Committee. The Egyptian delegation would like to be informed as to the scope of the new text, which purported to interpret article VI. The new proposal would seemingly admit the existence of several competencies: among others, that of the State where the crime had been committed; that of the State of which the victim was a national; and that of the State of which the criminal was a national. The vague terms of the text were a definite disadvantage.

A/C.6/SR.132

1917

Mr. Petren (Sweden) stated that he would prefer to preserve the word “exclusively” and to insert the words “The first part of article VI . . .” at the beginning of the proposed text. Mr. Kaeckenbeeck (Belgium) pointed out that the representative of Egypt had been discussing the question on the basis of an incorrect text. The proposal did not mention “competence” but “obligation”; consequently, the argument of the Egyptian representative was invalid. Mr. Raafat (Egypt) thought the fact that he had misunderstood the text which had been read out was ample proof of the danger of voting on a proposal before a written text was circulated. He suggested, therefore, that the discussion should be adjourned until the Committee received the written text. Mr. Maúrtua (Peru) had thought, when the Committee had voted on article VI (130th meeting), that the Indian amendment had been withdrawn. The Indian representative had only requested (130th meeting) that mention of the substance of that amendment should be made in the report of the Rapporteur. The representative of India had not dictated a special text to be inserted in that report. It did not seem logical to the representative of Peru that, after approving article VI, the Committee should still be discussing proposals relating to that article. He considered also that interpretation of legislation could be made only after the law had been applied. The Sixth Committee had obviously not wished to include the Swedish proposal in article VI of the convention. The proposed text before the Committee, however, seemed to be an attempt to secure the insertion of that proposal by including it in the report of the Rapporteur. The representative of Peru would therefore vote against the compromise text. Mr. Fitzmaurice (United Kingdom) appreciated the difficulty experienced by some delegations owing to the lack of a written text. He therefore supported the Egyptian representative’s suggestion that the discussion should be adjourned until a written text had been circulated; he suggested further that the Committee should pass to the next item of the agenda. The main purpose of article VI, in his view, was to establish the obligation of a State, in the territory of which an act of genocide was committed,

1918

A/C.6/SR.132

to endeavour to bring the criminal to trial. Difficulties had arisen during the discussion through efforts to specify what considerations, other than territorial jurisdiction, were to be applied in bringing to trial persons charged with genocide. The article was not intended to rule out extra-territoriality. Jurisdiction with respect to crimes was a subject which would be better left to the accepted principles of international law. The revised text of the Swedish proposal was based on the assumption that article VI was not intended to rule out other courts which might be competent, and the Indian statement already adopted specified, in particular, that the jurisdiction of a State of which the person charged with genocide was a national, was not ruled out. Mr. Guerreiro (Brazil) stated that, when article VI had been adopted, many delegations had interpreted it in the same way as was done in the revised Swedish proposal. Article VI was not intended to solve questions of conflicting competence in regard to the trial of persons charged with genocide; that would be a very long process. Its purpose was merely to establish the obligation of the State in which an act of genocide was committed. As it had already been agreed to include in the Committee’s report a statement regarding one particular case of legal competence in the matter, it would be advisable to accept the further clarification provided by the Swedish revised proposal. Mr. Guerreiro supported the United Kingdom representative’s proposal that the discussion should be adjourned and that the Committee should pass to the next item of the agenda. Prince Wan Waithayakon (Siam) called attention to the fact that the Committee had not yet finished consideration of the Drafting Committee’s report and had taken no decision on the draft convention as a whole. It would be advisable to do so before passing on to the next item of the agenda. The Chairman, in reply to the Czechoslovak representative, stated that there were no special rules of procedure dealing with interpretations of texts. Decisions on interpretations could therefore be adopted by the majority of the Committee. He pointed out that the report could state only that a majority of the Committee had placed a certain interpretation on a text: that interpretation could not be binding on the delegations which

A/C.6/SR.132

1919

had opposed it. Interpretations of texts had only such value as might be accorded to them by the preponderance of opinion in their favour. In view of the valid objections which had been raised, the Chairman ruled that the discussion of the revised Swedish proposal should be postponed until the following meeting. Mr. Augenthaler (Czechoslovakia) felt that the procedure of adopting an interpretation of a text by simple majority was dangerous. He recalled the observations on the subject which had been made by the United States representative to the effect that he regarded the adoption of an interpretation of a vote as prejudicial to the principle of equal treatment for all members of the Committee. Mr. Augenthaler deplored the fact that such a procedure had been decided upon. The Chairman called attention to paragraph 5 of the Drafting Committee’s report [A/C.6/288], in which it was recommended that the Sixth Committee should adopt the three draft resolutions contained in document A/C.6/289. He intended to put the three draft resolutions to the vote one after the other. Mr. Gross (United States of America) requested that the vote on draft resolution I should be taken by roll-call. The Chairman put to the vote draft resolution I and the annexed draft convention on the prevention and punishment of the crime of genocide, as submitted by the Drafting Committee [A/C.6/289] and as amended in respect of articles II [A/C.6/312], VI [A/C.6/310] and XVII [A/C.6/299]. A vote was taken by roll-call, as follows: Burma, having been drawn by lot by the Chairman, voted first. In favour: Burma, Canada, Chile, China, Colombia, Cuba, Denmark, Dominican Republic, Egypt, France, Greece, India, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Peru, Siam, Sweden, Syria, United States of America, Uruguay, Venezuela, Afghanistan, Argentina, Australia, Belgium, Bolivia, Brazil.

1920

A/C.6/SR.132

Abstaining: Byelorussian Soviet Socialist Republic, Czechoslovakia, Poland, Ukrainian Soviet Socialist Republic, Union of South Africa, Union of Soviet Socialist Republics, United Kingdom, Yugoslavia. The draft resolution and the draft convention were adopted by 30 votes to none, with 8 abstentions. Mr. Fitzmaurice (United Kingdom) stated that he had abstained from voting in order to indicate the United Kingdom Government’s reservation at that time in regard to the draft convention. He recalled that the United Kingdom Government, while forcibly condemning genocide as a crime, had considered it preferable not to go beyond the original General Assembly declaration on the matter contained in resolution 96(I), which made it clear that genocide was a crime under international law, a crime which Governments were called upon not to commit and to prevent as far as possible. The Government of the United Kingdom had always doubted the possibility of concluding a satisfactory convention on the matter and of effectively carrying out such a convention, if and when concluded. For that reason, the United Kingdom delegation had taken no part in the work of the Ad Hoc Committee which had prepared the first draft of the convention. When it had become clear, however, that the subject would be considered at the third session of the General Assembly, it had been decided to participate in the work and the delegation had moved a number of amendments to the draft text submitted. Those amendments had all been made for the purpose of stressing the main issue involved, namely the responsibility of States for acts of genocide committed or tolerated by them. The United Kingdom Government had always felt that the question had been approached from the wrong angle. The convention dealt almost entirely with the responsibility of individuals and the prevention and punishment of acts of genocide committed by individuals; whereas the only serious cases of genocide likely to occur would be committed by Governments themselves or with the active complicity or deliberate tolerance of Governments. There were virtually no provisions in the convention to deal with such cases of genocide; indeed it was implied therein that Governments would not themselves commit acts of genocide.

A/C.6/SR.132

1921

That aspect of the matter was not, however, of such serious moment as to prevent the United Kingdom Government from signing and ratifying the convention. But it was faced with a much more serious difficulty, namely, that new legislation would be required in order to give effect to the convention. The British Parliament was at that time fully occupied with urgent business, and it would be difficult to justify the introduction of new legislation designed to give effect to a convention which, as it stood, could never effectively prevent genocide on a serious scale. It should be noted that the United Kingdom Government did not oppose the convention and Mr. Fitzmaurice trusted the conclusion would not be drawn that a decision had already been taken not to sign and ratify it. He again stressed the serious constitutional difficulties of his Government in regard to the new legislation which would be required and which made it necessary for it to reserve its position in the matter. Mr. de Beus (Netherlands) drew attention to the fact that the wording of the second paragraph of resolution II, as submitted by the Drafting Committee [A/C.6/289/Corr.1], did not exactly convey the meaning of the original text which had been adopted. In order to restore the original meaning, he proposed that the words “recognition of the”, in the second line, should be deleted. Mr. Dignam (Australia), on behalf of the Drafting Committee, accepted the Netherlands amendment. The Chairman put to the vote draft resolution II, as submitted by the Drafting Committee and amended by the Netherlands representative. The draft resolution was adopted by 27 votes to 5, with 6 abstentions. The Chairman put to the vote draft resolution III, as submitted by the Drafting Committee [A/C.6/289]. The draft resolution was adopted by 29 votes to none, with 7 abstentions.1 1

The texts of the three draft resolutions and of the draft convention, as adopted by the Committee, are contained in document A/C.6/289/Rev.1.

Mr. Quijano (Argentina) asked whether it would be possible for the Secretariat to provide a Spanish version of the convention.

1922

A/C.6/SR.133

Mr. Kerno (Assistant Secretary-General in charge of the Legal Department) stated that copies of the convention would be distributed as soon as possible in the five official languages. A question had also been raised as to whether it would be possible to proceed to the signing of the convention at the current session of the General Assembly. After making enquiries on the subject, he had found that it might be possible to do so. In view of the short time available, however, it would not be possible to have the convention printed; typewritten copies in four of the official languages and a calligraphic copy in Chinese could, he thought, be provided. Mr. Kerno drew attention to the fact that before a representative could sign the convention on behalf of his Government, he had to have full powers to do so. For those representatives who had not already been accredited with full powers, he stated that it had been the practice for the Secretary-General to accept as credentials conferring provisional full powers a telegram signed by the Head or the Foreign Minister of the State concerned and followed by a confirmatory letter. He would remind representatives that they themselves would have to take the necessary steps in the matter. The meeting rose at 6 p.m.

HUNDRED AND THIRTY-THIRD MEETING Held at the Palais de Chaillot, Paris, on Thursday, 2 December 1948, at 11 a.m. Chairman: Mr. R.J. Alfaro (Panama). 86. Continuation of the discussion on the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee The Chairman invited those members of the Committee who so desired to explain their vote on draft resolution I and on the annexed draft convention for the prevention and punishment of the crime of genocide submitted by the Drafting Committee [A/C.6/289].

A/C.6/SR.133

1923

He reminded the meeting that, in accordance with the rule adopted by the Committee (81st meeting), speeches should be limited to five minutes; and he asked the delegations concerned to confine their remarks to an explanation of their vote. Mr. Morozov (Union of Soviet Socialist Republics) explained that his delegation had abstained from voting on the draft convention because that draft omitted a number of points which the USSR wished to see included. He stated, in that connexion, that his delegation wished to submit several amendments to the draft when it came up for debate at a plenary meeting of the General Assembly. Mr. Gross (United States of America) said his delegation had voted for the resolution and the annexed draft convention on genocide for the same reasons as those which had led his delegation to give most fervent support, from the very beginning, to the work of preparing an international convention for the prevention and punishment of that odious crime. He hoped that the convention could be signed during the third session of the General Assembly. Mr. Gross did not deny that his delegation was deeply disturbed by the fact that the draft convention had not received the unanimous approval of the Sixth Committee. Mr. Morozov’s statement that the Soviet Union delegation would propose amendments to the draft convention during the discussion in the plenary session of the Assembly served merely to increase the anxiety felt by the United States delegation, which had always been of the opinion that motions for a reconsideration of questions on which the Committee had already taken a decision should be submitted to the Committee itself. The United States delegation was therefore obliged to regard the attitude of the USSR delegation as an attempt to frustrate the painstaking and diligent work of the Sixth Committee. The United States delegation had spared no effort to obtain unanimous approval for the convention on genocide. It was for that reason that it had agreed to the omission of political groups among the groups to be protected by the convention; and the abstention of the Soviet Union and certain other States when the vote was taken (128th meeting) had come as a surprise. Mr. Gross hoped that all the members of the Committee would unite their efforts to ensure that the convention, which no one considered perfect, but which nevertheless represented the best possible

1924

A/C.6/SR.133

compromise, would receive the unanimous approval of all the Members of the United Nations. Finally, the United States representative made the following observations on certain provisions of the convention. Article IX stipulated that disputes between the contracting parties relating to the interpreation [sic], application or fulfilment of the convention “including those relating to the responsibility of a State for genocide or any of the other acts mentioned in article III” should be submitted to the International Court of Justice. If the words “responsibility of a State” were taken in their traditional meaning of responsibility towards another State for damages inflicted, in violation of the principles of international law, to the subjects of the plaintiff State; and if, similarly, the words “disputes . . . relating to the . . . fulfilment” referred to disputes concerning the interests of subjects of the plaintiff State, then those words would give rise to no objection. But if, on the other hand, the expression “responsibility of a State” were not used in the traditional meaning, and if it signified that a State could be sued for damages in respect of injury inflicted by it on its own subjects, then there would be serious objections to that provision; and the United States Government would have reservations to make about that interpretation of the phrase. With regard to article VII, relating to extradition, the United States representative declared that, until the United States Congress had passed the legislative measures necessary to bring the convention into force, the United States Government could not hand over any person accused of a crime by virtue of which he was not already liable to extradition under the terms of the existing laws. Moreover, the provisions of the United States Constitution relating to the non-retro-activity of laws were such as to prevent the United States Government from extraditing any person accused of a crime committed before the promulgation of the law defining that new crime. Mr. Litauer (Poland) speaking on a point of order, asked the Chairman if it was permissible for delegations, when explaining their vote, to criticize the vote of other delegations. Mr. Morozov (Union of Soviet Socialist Republics) pointed out that the United States, representative had acted contrary to the rules of procedure

A/C.6/SR.133

1925

in criticizing the attitude of the USSR delegation and giving it a tendentious interpretation, when explaining his own delegation’s vote. Mr. Morozov, while protesting against that interpretation, stressed the fact that his delegation’s sole purpose in proposing amendments to the draft convention was to improve the text of that convention, and to make it a more effective instrument for the prevention and punishment of genocide. The representative of the Soviet Union asked the Chairman to draw the attention of the members of the Committee to the fact that, when explaining their votes, they should limit themselves to explaining the reasons for their own vote, without embarking on criticism of the attitude of other delegations. Otherwise those who spoke first would be at a disadvantage with regard to the speakers who followed them and would be obliged to speak a second time. The Chairman recalled that at the beginning of the meeting, he had told the members of the Committee that they should make their statements as concise and relevant as possible; he hoped they would comply with his recommendations. Mr. de Marchena Dujarric (Dominican Republic) explained that the fact that he had voted in favour of the draft convention in no way implied that the delegation of the Dominican Republic repudiated the reservations it had expressed during the discussion of the draft, particularly with regard to the articles against which it had voted. Mr. Sundaram (India) said his delegation had voted in favour of resolution I and the draft convention although that draft contained one or two unsatisfactory features. His Government, however, reserved its position with regard to article VI and IX of the convention. It was possible, in fact, that the Indian Government might not be able to accept those two articles in toto, or without some reservations. Mr. Litauer (Poland) reminded the meeting of the active part his delegation had played in the preparatory work on the convention. Poland, which had lost six million of its citizens and made very heavy sacrifices during the Second World War, had hoped, with every right, that the convention would be drawn up in such a way as to constitute an effective weapon against genocide, and serve, first and foremost, to

1926

A/C.6/SR.133

prevent the repetition of that dastardly crime. It was for that reason that the Polish delegation had repeatedly stressed the need to ensure the preventive value of the convention. Mr. Litauer emphasized his Government’s disappointment at the way in which the war criminals who had committed the atrocities in Poland during the nazi occupation had been prosecuted and punished: only a few thousand criminals had been handed over to justice; others, including some of the most notorious, had resumed their place in the political life of Germany, or, on account of influential connexions, escaped the punishment they deserved. In view of those considerations, it was easy to understand that Poland simply could not conceive that half-measures would be effective for combating genocide in the future. In order that the convention should ensure the prevention of genocide, the Polish delegation had advocated the prohibition of propaganda against racial, religious and national groups; the prohibition of any organization the purpose of which was to incite to genocide; and the punishment of acts preparatory to such crimes. Unfortunately, such provisions had not been included in the convention. The Polish delegation had also asked that the definition of genocide should include the odious crimes aimed at the destruction of a nation’s art and culture. By voting against the suggestions of the Polish delegation, and the amendments which Poland had supported, the majority of the Committee had merely succeeded in reducing the scope of the convention to a considerable extent. The Polish delegation was still of the opinion that the only effective way to combat genocide was to take appropriate preventive measures. The important point was not to punish a few hundred or even a few thousand criminals after they had committed their crimes, but to take measures to ensure that there should be no repetition of the heinous crimes which had shocked the conscience of mankind. It was regrettable to note that the draft convention did not provide sufficient guarantees to that effect. That was why the Polish delegation, while recognizing that certain of the provisions of the draft convention were indisputably constructive, had felt that it could not vote in favour of the draft, and had been obliged to abstain.

A/C.6/SR.133

1927

Mr. Raafat (Egypt) said that his country which, with Panama and Cuba, had been one of the promoters of the convention on genocide in 1947,1 was pleased to see its work come to fruition at long last. 1

See document A/512.

In the opinion of the Egyptian delegation, the draft convention had certain gaps, the main ones being the omission of cultural genocide in the definition of the crime, and the absence of an international criminal court to judge offenders. Egypt had nevertheless voted in favour of the draft, for though it was imperfect, it was satisfactory, especially since, as a result of the Committee’s decision to re-examine article VI, the convention now contained a definite reference to an international criminal court. Mr. Chaumont (France) said that the fact that his delegation had voted in favour of the draft at the 132nd meeting should not be construed to mean that it considered the draft convention entirely satisfactory. The French delegation regretted that the definition of genocide contained no mention of the important part played by Governments in the perpetration of the crime; that the draft convention did not provide for the immediate establishment of an international criminal court; and that the reference to the Judgment of the Nürnberg Tribunal had been deleted. The French delegation was, however, convinced that the text approved by the Committee was the only text likely to receive the almost unanimous approval of the Members of the United Nations. The French delegation noted that the principle of an international criminal court, had irreversibly, become part of statute law. It was because that principle had been introduced that France was able to sign the convention. Without that principle, there would have been no real provision for punishment of Governments, and as a result there would have been some inconsistency in the convention. The French delegation sincerely hoped that the International Law Commission would draw up a statute for an international criminal court as soon as possible. Mr. Kacijan (Yugoslavia) stressed the fact that his delegation had been unable to approve the text of the draft convention. He regretted that the

1928

A/C.6/SR.133

Committee had not accepted the proposals which the Yugoslav delegation had made with a view to improving the text and bringing it into greater harmony with the real aim of the convention, namely, the prevention of genocide. The majority of the Committee had been against any mention, in the convention, of the erroneous doctrines which were at the root of the crimes of genocide perpetrated by the nazis and the fascists. The prevention of genocide could not be adequately ensured unless there was vigorous opposition to such doctrines of racial, national and religious hatred. Furthermore, the majority of the Committee had refused to recognize that the following acts could be considered as crimes: studies and research for the purpose of developing the technique of genocide; possessing or supplying material which made it possible to commit genocide; issuing instructions or orders and distributing tasks with a view to committing genocide; all forms of public propaganda tending to stir up national, racial and religious hatred or to provoke genocide. Lastly, the majority had refused to insert a clause providing that States would be under an obligation to dissolve existing organizations, and to prevent the setting up of new organizations, whose activities would stir up racial, national and religious hatred or encourage the perpetration of genocide. The Yugoslav delegation could not understand how the majority of the Committee could have refused to mention cultural genocide in the convention; cultural genocide was as much a reality as the physical annihilation of human groups, and its effects were just as destructive. History showed that biological genocide and cultural genocide were closely linked. All those reasons had led the Yugoslav delegation to abstain from voting. It could not vote in favour of a text which did not give sufficient guarantees against any future recurrence of genocide. Mr. Kaeckenbeeck (Belgium) said he had voted in favour of the draft convention. He wished, however, to reserve the position of his Government regarding the provisions relating to extradition. Indeed, the clause in question might give rise to some difficulties for the Belgian Government. Until changes had been made on that point, the Belgian Government would be able to implement the convention only to the extent allowed by Belgian legislation and the treaties to which Belgium was a party. Considerable time might elapse before such changes were made.

A/C.6/SR.133

1929

Mr. Amado (Brazil) reminded the Committee that his delegation had approved the draft convention. From the beginning of the discussion, his delegation had expressed its satisfaction on seeing that, in the convention on genocide, concrete form was given to the notions outlined for the first time in resolution 180(II) adopted by the General Assembly on 21 November 1947. The Brazilian delegation had always wanted a stricto sensu definition to be given of genocide, which was a specific crime aimed at the total or partial destruction of a racial, national or religious group. For that reason, it had noted with satisfaction that political groups were excluded from the list of groups protected by the convention, for such groups lacked the necessary elements of stability and cohesion. It was due, partly, to the efforts of the Brazilian delegation that the notion of cultural genocide was excluded from the draft convention: if cultural genocide had been included, some minorities might have used it as an excuse for opposing perfectly normal assimilation in new countries. His delegation regretted the rejection by the Committee of the principle of universal punishment. Realizing, however, the motives which had led some delegations to oppose that principle, it had not pressed unduly for the adoption of its own point of view. The Brazilian delegation had noted with satisfaction the decision taken regarding international criminal jurisdiction. Although its scope was relatively small, the decision did recognize the French delegation’s point of view, with which the Brazilian delegation associated itself. Referring to the Swedish proposal (132nd meeting), he emphasized that his delegation could interpret the first part of article VI only as entailing a minimum obligation for States to punish crimes of genocide committed in their territory; it did not exclude domestic legislative provisions providing for other cases coming within the general competence of the tribunals of the country concerned. Mr. Amado concluded by expressing his satisfaction with the text of the draft convention. Mr. Ti-tsun Li [sic] (China) said his delegation had voted in favour of the convention. However, he reserved his Government’s right to ratify or not to ratify the convention or to ratify it with certain reservations after a thorough examination of its text.

1930

A/C.6/SR.133

He wished to remind the Committee that his Government had, from the very beginning, approved the idea of an international convention for the prevention and punishment of genocide. Representatives of the Chinese Government had taken an active part in the preparation of the draft convention. The aim of all interventions made by Chinese representatives had been to make the convention as complete and as effective as possible. Unfortunately, his delegation felt that the text prepared by the Committee was neither complete nor effective; it was not sufficient to ensure the punishment of the heinous crime of genocide. For instance, it made no mention whatsoever of deliberate acts committed with the intent of destroying the language or the culture of a national, racial or religious group. What was still worse was that the clause of article II relating to political groups had, most unexpectedly, been rejected at the very last minute. That was most regrettable because of the fact that, although conflicts between nations in the world today were, for the most part, founded on ideological elements transcending national, racial or religious frontiers, political groups as such stood in greater need of protection by the convention on genocide than any other human group. Their exclusion from the convention would make it more difficult for the Chinese Government to accede to the convention. For all those reasons, and in view of the statements made by certain delegations, especially those of the United Kingdom and of the USSR, the representative of China wished to emphasize that his Government reserved its freedom of action regarding the signature and ratification of the convention on genocide. Mr. Abdoh (Iran) said he had been unable to take part in the vote. His delegation was glad to note, however, that it had been possible to complete a draft acceptable to the majority of Member States, including Iran. He hoped, therefore, that his Government would ratify the convention. In conclusion, he paid tribute to the Indian delegation and to some Latin-American delegations whose initiative in 19461 had resulted in the convention. 1

See Official Records of the second part of the first session of the General Assembly, Sixth Committee, 22nd meeting.

A/C.6/SR.133

1931

Mr. Maúrtua (Peru) recalled that his delegation had been one of the first to uphold the idea of the prevention and punishment of genocide. He had voted in favour of the draft convention although it did not come up to all the expectations of the Peruvian delegation. In particular, he did not regard the provisions of article III as adequate inasmuch as they did not refer to the preparatory phase of genocide. Furthermore, the inclusion of constitutional rulers side by side with private individuals among the persons liable raised serious difficulties with regard to punishment, which had not been solved by the revision of article VI. Moreover, the convention assimilated the crime of genocide to a crime under common law without specifying the difference between genocide and a political crime. In view of existing treaties, that point might lead to certain difficulties regarding extradition. Lastly, the imperative character of article IX, under which cases could be referred to the International Court of Justice by means of a unilateral request, seemed to him somewhat unsatisfactory. The Peruvian delegation therefore wished in due course to make some reservations concerning the draft convention. Mr. Tarazi (Syria) said he had approved the draft convention but wished to reserve the position of his Government regarding the signature and the ratification of the convention. Mr. Augenthaler (Czechoslovakia) emphasized that he had abstained not because he was in any way indifferent to the problem under discussion. On the contrary, the Czechoslovak delegation had always been in favour of a really effective convention. It feared, however, that the text adopted by the Committee did not ensure the prevention of genocide. Furthermore, the Committee had introduced an element of uncertainty by giving an official interpretation of certain articles after they had been adopted, especially when it had decided against reconsideration of those articles. Pending a decision by his Government, he had therefore had to abstain from voting as he could not, for all the reasons he had outlined, vote in favour of the draft convention. Mr. Spiropoulos (Greece), Rapporteur, stated that the representative of the Dominican Republic had asked that his statement, together with the

1932

A/C.6/SR.133

reservations contained therein, be included in the Rapporteur’s report. Mr. Spiropoulos noted that the Committee’s approval was required on that point. Furthermore, he wondered whether it would be appropriate for the full text of that statement to be inserted in the report. Mr. de Marchena Dujarric (Dominican Republic) agreed that only his reservation should be mentioned in the Rapporteur’s report, provided a full text of the statement was reproduced in the records of the meeting. In any case, the reservations would be made formally at the time the convention was signed. Mr. Spiropoulos (Greece), Rapporteur, said he would do as requested by the representative of the Dominican Republic. He pointed out that no other member had asked for his statement to be mentioned in the Rapporteur’s report. The Committee would have to take a separate decision each time such a request was made. Mr. Gross (United States of America) felt it would be awkward if the report mentioned only one statement. It would be preferable for the representative of the Dominican Republic to withdraw his request. Otherwise, the United States delegation would also ask for its reservations to be included in the report. Mr. Kaeckenbeeck (Belgium) said the Committee’s report should be as clear and concise as possible. If it were to contain all the statements made during the vote on the draft convention, the impression would be disastrous. The positions of various delegations would be outlined in the records of the meeting. It would be sufficient for the Rapporteur’s report to mention that some delegations had made reservations and explanatory statements regarding their vote and that both explanations and reservations could be found in the records of the meeting. Mr. Maúrtua (Peru) emphasized that his reservation had been of a preliminary character. It was for the various Governments to make reservations at the time of the signing of the convention. The Rapporteur should therefore merely mention the reservations made by certain delegations. Mr. Spiropoulos (Greece), Rapporteur, agreed with the Belgian representative. The statements made on the occasion of the vote on the draft convention would be included in the record of the meeting, but they had no legal significance. He wondered whether certain delegations had

A/C.6/SR.133

1933

fully realized the implications of the reservations they had made. Those reservations could be made at the time of the signature of the convention. However, if a Government made reservations regarding a convention, it could not be considered as a party to that convention unless the other contracting parties accepted those reservations, expressly or tacitly. Mr. Kaeckenbeeck (Belgium) thought that the point under discussion raised an interesting, though purely theoretical, legal problem. The Committee did not have to take a decision at that stage on whether reservations would prevent a State from becoming a party to a convention. In explaining their votes, some delegations had simply wished to reserve their Government’s freedom of action regarding the ratification of the convention. The Chairman stated that the representatives concerned, and the Rapporteur, were in agreement that the latter should briefly indicate in the Committee’s report that some delegations had reserved their Government’s position in respect of the draft convention on genocide. The purport of those statements would be recorded in the summary record of the meeting in the usual way. The Chairman felt that there was no necessity to open a discussion on the legal implications of the reservations which had been made. Interpretation of article VI (continued ) The Chairman invited the Committee to express its opinion on the joint proposal of the delegations of Belgium, India, the United Kingdom and Sweden (132nd meeting), which included a new draft of the Swedish statement to be added to the Indian statement in the Committee’s report. Prince Wan Waithayakon (Siam) pointed out that he had been opposed (132nd meeting) to the use of the adverb “exclusively” in the text, and that the delegations concerned had accepted his verbal amendment to replace the first few words of that proposal by the following text: “The first part of article VI contemplates the obligation . . .”. Mr. Kaeckenbeeck (Belgium) stated that, as a result of the suggestion made by the delegation of Siam, the beginning of the statement should now read as follows: “The first part of article VI contemplates only the obligation of the State in whose territory acts of genocide have been committed. Thus, in particular, this article does not affect . . .”.

1934

A/C.6/SR.133

Mr. Litauer (Poland) proposed three modifications in the text of the joint proposal. In the first place, he considered that the adverb “exclusively” could be deleted without in any way changing the meaning of the sentence. He then proposed a specific statement that article VI contemplated “the right and the obligation” of a State in whose territory acts of genocide had been committed. Lastly, he suggested combining the two parts of the statement into one single sentence by deleting the full stop which separated them and replacing the expression “Thus, in particular, this article . . .” by the words “and it does not affect . . .”. Mr. Petren (Sweden) could not support the Polish amendment as the deletion of the adverb “exclusively”, and the addition of the word “right” would considerably alter the meaning of the text. Mr. Sundaram (India) supported the opinion of the Swedish representative. He was opposed to the merger of the two sentences of the joint statement. Their value lay precisely in the juxtaposition of the general statement requested by the Swedish delegation with the specific interpretation which the Committee had agreed to include in the report on the initiative of the Indian representative (131st meeting). Mr. Raafat (Egypt) pointed out that the Committee had only been formally seized of one proposal, on which it must decide, without taking the verbal amendments submitted at the last moment into account. Mr. Chaumont (France) felt that the Committee should only take into consideration the purely drafting amendments suggested by the Belgian delegation. All other amendments which dealt with the substance of the question should be rejected, as proposed by the Swedish representative. Mr. Morozov (Union of Soviet Socialist Republics) stated that the interpretation of a text already adopted was difficult, and, once again, he expressed regret that the Committee should have thought it necessary to attempt it. In his opinion the text of the joint proposal was not clear, and in order to improve it, he asked the Committee to divide the Polish amendment into three parts, as follows: deletion of the adverb “exclusively”; addition

A/C.6/SR.133

1935

of the word “right”; and merger of the two sentences of which the statement was composed. Mr. Kaeckenbeeck (Belgium) pointed out that the joint proposal was a compromise text, and that it should not therefore be modified in substance. Only drafting amendments should be considered. The Chairman felt it was difficult to determine when an amendment dealt with the substance of the matter, and when it was simply a drafting change. He therefore thought that the Committee should express its opinion on the Polish amendment, which, according to the USSR motion, should be divided in three parts. The Chairman put to the vote the proposal to delete the word “exclusively”. The proposal was adopted by 13 votes to 5, with 16 abstentions. The Chairman put to the vote the proposal to add the words “the right and” before the words “the obligation”. The proposal was rejected by 15 votes to 10, with 8 abstentions. The Chairman put to the vote the proposal to combine the two parts of the text into a single sentence. The proposal was rejected by 18 votes to 7, with 8 abstentions. In reply to a question asked by Mr. Morozov (Union of Soviet Socialist Republics), the Chairman stated that, in his opinion, the words “exclusively” and “only” were synonymous and that the vote on the first part of the Polish amendment should logically entail the deletion of the word “only” in the new draft of the joint proposal. In any case, as that word had been inserted at the suggestion of the representative of Siam, it was for the latter to state whether or not he maintained his amendment. After an exchange of views between Mr. Chaumont (France), Mr. Kaeckenbeeck (Belgium), Mr. Morozov (Union of Soviet Socialist Republics) and Mr. Litauer (Poland), Prince Wan Waithayakon (Siam) withdrew his amendment. The Chairman invited the Committee to vote on the joint proposal, taking into account the drafting changes suggested by the Belgian delegation.

1936

A/C.6/SR.133

Mr. Morozov (Union of Soviet Socialist Republics) pointed out that the second sentence of the proposal should not be put to the vote, as the Committee had already decided that it should be mentioned in its report. The representative of the USSR requested that a roll-call vote should be taken on the first sentence. The Chairman pointed out that he had already decided that the Swedish proposal should be considered as an addition to the text before the Indian statement. His text stopped after the words: “Thus, in particular, . . .” and it was on that text that the Committee should take a decision. Mr. Kaeckenbeeck (Belgium) stated that the suggestion of the representative of the Soviet Union to vote only on the first sentence of the joint proposal was unacceptable. That proposal would lose its meaning completely if the Committee agreed to delete the words: “Thus, in particular, . . .” which formed an indispensable link between the two statements. A text could not be divided when its meaning was indivisible. Mr. Gross (United States of America) shared the views of the Belgian representative and felt that two sentences which were so closely linked in meaning should not be voted on separately. Mr. Morozov (Union of Soviet Socialist Republics) felt that, actually, the connecting formula placed at the beginning of the second sentence of the proposal expressed, in another form, the idea contained in the word “exclusively” which had already been eliminated by the Committee. In order that the Committee should be able to express a clear opinion, he therefore proposed that the Chairman should put to the vote, separately, the first sentence of the proposal, and then the beginning of the second sentence up to the text of the Indian statement. Mr. Chaumont (France) drew the Committee’s attention to the importance of the vote about to be taken, as it would decide the official interpretation of an essential article of the convention. He agreed with the United States representative that it would not be logical to vote separately on the two parts of the text of the proposal, as the division would completely alter its meaning. On the other hand, the second sentence of the article, as it was drafted, seemed to give domestic tribunals precedence over the international

A/C.6/SR.134

1937

criminal court. It would therefore be necessary to specify again that it was not the whole of article VI but only the first part which did not affect the right of the State to prosecute its nationals before its own courts for acts committed abroad. In that connexion, Mr. Chaumont proposed that the words “this article” should be replaced by the pronoun “it” which would refer to the first part of article VI. He added that the French delegation would not be able to vote for the proposal if the modification he had just put forward was not adopted by the Committee. Mr. Kaeckenbeeck (Belgium) pointed out that the Indian statement [A/C.6/299], which could not be further modified unless a re-examination of the text was decided upon by a two-thirds majority vote, started with the words: “Nothing in this article shall affect . . .”. He pointed out that the purpose of that wording was to avoid any specific reference to the second part of article VI concerning the competence of the international criminal court. Mr. Raafat (Egypt) proposed that, in view of the late hour, the meeting should adjourn. The motion for adjournment was adopted by 16 votes to 7. The meeting rose at 1.10 p.m.

HUNDRED AND THIRTY-FOURTH MEETING Held at the Palais de Chaillot, Paris, on Thursday, 2 December 1948, at 3.30 p.m. Chairman: Mr. R.J. Alfaro (Panama). 87. Conclusion of the consideration of the draft convention on genocide [E/794]: report of the Economic and Social Council [A/633] Text submitted by the Drafting Committee Interpretation of article VI (conclusion) The Chairman stated his intention of putting to a vote the proposed addition to the Indian statement (131st meeting), which had been

1938

A/C.6/SR.134

submitted by the Swedish delegation (132nd meeting). He pointed out that no further amendments to the Indian statement could be accepted, unless the Committee decided by a two-thirds majority to reconsider its previous decision. Mr. Spiropoulos (Greece), Rapporteur, recalled that the Committee had already adopted, for insertion in the report, the statement containing the Indian interpretation of article VI. In his view, it had been quite unnecessary to do so. If differences of opinion arose with regard to interpretation of provisions of the convention, the International Court of Justice would be asked to settle them; the Court’s interpretation of article VI would, he was sure, be the same as the Indian interpretation. The Swedish representative had deemed it necessary to propose an addition to the Indian statement, in order to safeguard certain rights embodied in Swedish legislation. Sweden was not the only country facing such a difficulty, and, in any case, the competence of the International Court of Justice in the interpretation of the convention should provide a sufficient safeguard in the matter. He therefore appealed to the Swedish representative to withdraw his proposal. Mr. Petren (Sweden) stated in reply that, as the Brazilian delegation was also interested in the proposal, he was unable to withdraw it without first consulting the Brazilian representative. Furthermore, as there did not appear to be any divergence of view on the substance of his proposal, he could see no reason why it should not be included in the report. Mr. Dignam (Australia) repeated his view, which he had expressed at the 131st meeting, that discussions on interpretations of proposals adopted by the Committee should not be allowed. He had discussed the point with several other delegations and the conclusion reached had been that the best course in the case under consideration would be to reverse the Chairman’s ruling, given at the 130th meeting, that the proposal to insert in the report a statement giving the Indian interpretation of article VI was open to discussion. The Chairman replied that, in accordance with the rules of procedure, he was obliged to put the Swedish proposal to a vote. Some delegations apparently believed that the Committee had been engaged in a discussion which was not in order. He would, therefore, be glad to take the opportunity to consult the Committee, if an appeal were made against his ruling on the Swedish proposal.

A/C.6/SR.134

1939

Mr. Dignam (Australia) formally appealed against the Chairman’s decision to put the Swedish proposal to a vote. The Chairman put the appeal to the vote. The Chairman’s ruling was upheld by 16 votes to 10, with 4 abstentions. The Chairman called attention to the fact that, if the Swedish proposal were adopted, the text of the Indian statement, which had previously been adopted, would require a small drafting modification to combine the two proposals. He then put to a vote the Swedish proposal for an addition to the Indian statement in the Committee’s report, reading as follows: The first part of article VI contemplates the obligation of the State in whose territory acts of genocide have been committed. Thus, in particular, . . .

The Swedish proposal was adopted by 18 votes to 6, with 8 abstentions. Mr. Sundaram (India) explained that he had voted in favour of the Swedish proposal on the assumption that no drafting changes would be made in the Indian statement. He considered that no such changes were required. Mr. Morozov (Union of Soviet Socialist Republics) stated that he had voted against the Swedish proposal. The USSR delegation did not consider itself bound by any interpretation of article VI adopted by the Committee, and, in particular, by the interpretation contained in the Swedish proposal. Mr. Abdoh (Iran) submitted a proposal in writing on behalf of his own and the Egyptian delegations. He suggested that it might be discussed at a later stage, when the Committee’s report was under consideration. The Chairman accepted the joint Iranian and Egyptian proposal. He then pointed out that, according to rule 82 of the rules of procedure, a vote would have to be taken on the Indian statement, as amended. Mr. Chaumont (France) recalled that, at the time the Indian proposal had been made, article VI had not yet been amended to provide for the

1940

A/C.6/SR.134

competence of an international penal tribunal in regard to genocide. The Indian delegation had therefore submitted its amendment to the first part of article VI only. The text of the statement, as amended by the Swedish proposal, was incompatible with the principle of international jurisdiction in regard to genocide. The effect of the interpretation, if adopted, would be that, in all cases of genocide, the competence of an international jurisdiction, when it had come into being, would be subject to the consent or the competence of the State in whose territory the act was committed or of which the person charged with the act was a national. Such an interpretation would completely nullify the competence of an international penal tribunal, as contemplated in article VI, and as a consequence, the French Government would find it extremely difficult to accede to the convention. The Chairman concurred in the French representative’s view that the Indian statement as amended was incompatible with the provisions of article VI. He pointed out, also, that the Swedish proposal had been amended so as to make it clear that it referred to the first part of article VI only. The Committee would be at fault if it adopted a text which might lay open to doubt the jurisdiction of an international tribunal, as contemplated in article VI. Mr. Kaeckenbeeck (Belgium) entirely agreed with the Chairman. Both the Indian and Swedish proposals had been adopted on the assumption that they referred to the first part of article VI only. In joining the two texts, it would therefore be sufficient if the words “nothing in this article” were replaced by “the first part of article VI”. He felt that in that instance the rules of procedure might quite well be waived, particularly as the change was merely a matter of drafting and not of substance. Mr. Raafat (Egypt) was in complete agreement with the Belgian representative’s view. The Chairman felt that the situation had been sufficiently clarified. He therefore put to the vote the Indian statement as amended by the Swedish proposal and altered in the light of the observations made by the previous speakers. The amended text, to be inserted in the Committee’s report read as follows:

A/C.6/SR.134

1941

The first part of article VI contemplates the obligation of the State in whose territory acts of genocide have been committed. Thus, in particular, it does not affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State.

The statement was adopted by 20 votes to 8, with 6 abstentions. Mr. Abdoh (Iran) stated that, in view of the amendment to the text of the Indian statement which had just been adopted, the purpose of the joint Iranian and Egyptian proposal had been satisfied. He would therefore withdraw that proposal. Mr. Sundaram (India) explained that he had abstained from voting on the amended text of his proposal, as he had intended his original interpretation to apply to article VI as a whole. It would be seen from the Committee’s records that the Indian interpretation had not been considered until after article VI as a whole had been adopted. The text as now adopted achieved the object the Indian delegation had had in mind, but he would still have preferred the original proposal, which he considered more specific. Prince Wan Waithayakon (Siam) stated that he had voted for the amended text of the Indian proposal. He had been quite clear on the point that the Indian statement referred to the first part of article VI only, and he recalled that he himself had proposed (132nd meeting) the addition of those words to the Swedish proposal. Mr. Morozov (Union of Soviet Socialist Republics) explained that he had voted against the amended text of the Indian statement because it did not convey the original sense of the Indian proposal, and because it included the Swedish proposal, to which his delegation was opposed. Mr. Kerno (Assistant Secretary-General in charge of the Legal Department), speaking in regard to questions of interpretation of the provisions of the convention, which had occupied so much of the Committee’s time, wished to make it clear that the convention would be open to interpretation by the States signatory to it. If differences of opinion arose in respect of any provision, the International Court of Justice would be the competent organ to give an interpretation of the text. If the text were ambiguous, the Court would no doubt consult the records of the discussion which had taken place on the text concerned. He stressed the fact, however, that that was only a secondary method of arriving at an interpretation: if the text

1942

A/C.6/SR.134

were unambiguous, the Court would base its opinion on an interpretation of the text according to the accepted principles of international law. It would therefore be seen that questions of interpretation were of relatively little importance just then. [Discussions pertaining to issues other than the Genocide Convention]

Table of Contents: Annexes

1943

UNITED NATIONS/NATIONS UNIES OFFICIAL RECORDS OF THE THIRD SESSION OF THE GENERAL ASSEMBLY, PART I SIXTH COMMITTEE ANNEXES TO THE SUMMARY RECORDS OF MEETINGS 1948 GENEVA TABLE OF CONTENTS with a list of such documents relevant to the summary records of the meetings of the Sixth Committee1 as are not published in the present volume Document No. A/C.6/206

A/C.6/207

A/C.6/208

Title

Allocation of items on the agenda of the third session: letter from the President of the General Assembly to the Chairman of the Sixth Committee Order of agenda items as adopted at the 62nd meeting of the Sixth Committee Proposal of the delegation of the Unites States of America

No. of agenda item2

Page

Reference to other sources3

1962

Mimeographed document only

32

Incorporated in 63rd meeting

1944

Table of Contents: Annexes

A/C.6/209

A/C.6/210 A/C.6/211 A/C.6/212

1 2

3

Uruguay: amendments to the draft convention on genocide (E/794) Note by the Secretary General France: draft convention on genocide Union of Soviet Socialist Republics: amendments to the preamble and article I of the draft convention on genocide (E/794)

32

1963

57 32

1964

32

Incorporated in A/C.6/215/ Rev. 1

See Official Records of the third session of the General Assembly, Part I, Sixth Committee. The numbers appearing in this column indicate the items on the agenda of the third session of the General Assembly to which the documents pertain. These items are reproduced in the classification of documents by agenda items which follows the table of contents (see page XIV). For the complete agenda of the session, see Official Records of the third session of the General Assembly, Part I, Plenary Meetings, pages LXVI to LXXII. Information concerning documents which are not included in the present volume will be found in this column. In every instance where documents have been incorporated in the text of the summary records of the meetings of the Sixth Committee, the number of the meeting is indicated. All documents bearing the symbol “A/. . .” will be found in Official Records of the third session of the General Assembly, Part I, Plenary Meetings, Annexes.

Document No. A/C.6/213

Title

Motion submitted by the delegation of the Philippines A/C.6/214 United States of America: amendments to the draft convention on genocide (E/794) A/C.6/215/ Union of Soviet Socialist Rev. 1 Republics: amendments to the draft convention on genocide (E/794)

No. of Page agenda item 32 1967

32

1968

32

1968

Reference to other sources

Table of Contents: Annexes

A/C.6/216

France: amendments to the draft convention on genocide (E/794) A/C.6/217 Belgium: amendments to the draft convention on genocide (E/794) A/C.6/218 Iran: amendments to the draft convention on genocide (E/794) and draft resolution A/C.6/219 Union of Soviet Socialist Republics: amendments to the draft convention on genocide (E/794) A/C.6/220 Netherlands: proposed text for article I of the draft convention on genocide (E/794) A/C.6/221 China: amendments to the draft convention on genocide (E/794) A/C.6/222 United Kingdom of Great Britain and Northern Ireland: amendments to articles II and III of the draft convention on genocide (E/794) A/C.6/223 Union of Soviet Socialist & Corr. 1 Republics: amendments to article II of the draft convention on genocide (E/794) A/C.6/224 France: amendments to and Corr. 1 the draft convention on genocide (E/794) A/C.6/225 Article II of the draft convention on genocide (E/794): synopsis of amendments

32

1945

Incorporated in 83rd meeting

32

1972

32

1975

32

Incorporated in 68th meeting

32

Incorporated in 68th meeting

32

1976

32

1977

32

1977

32

1978

32

1979 Mimeographed document only

1946

Table of Contents: Annexes

A/C.6/226 A/C.6/227

Draft resolution

Syria: amendment to article II of the draft convention on genocide (E/794) A/C.6/228 Norway: amendment to article II of the draft convention on genocide (E/794) A/C.6/229 Pakistan: amendment to article III of the draft convention on genocide (E/794) A/C.6/230 Sweden: amendment & Corr. 1 to article II of the draft convention on genocide (E/794) A/C.6/231 Venezuela: amendment to article II of the draft convention on genocide (E/794) A/C.6/232/ China: amendments to Rev. 1 article II of the draft convention on genocide (E/794) A/C.6/233 France: amendment to the final enumeration in article II of the draft convention on genocide (E/794) A/C.6/234 Syria: amendment to article II of the draft convention on genocide (E/794) A/C.6/235 United States of America: amendment to article VII of the draft convention on genocide (E/794)

46 32

Incorporated in 71st meeting 1983

32

Incorporated in 73rd meeting

32

1983

32

1984

32

1984

32

1985

32

Incorporated in 78th meeting

32

Incorporated in 81st meeting

32

1985

Table of Contents: Annexes

A/C.6/236 & Corr. 1

A/C.6/237 A/C.6/238

A/C.6/239

A/C.6/240

A/C.6/241

A/C.6/242

A/C.6/243

A/C.6/244

United Kingdom of Great Britain and Northern Ireland: amendments to the draft convention on genocide (E/794) Belgium: draft resolution Article II (second part) of the draft convention on genocide (E/794): synopsis of amendments United States of America: draft resolution France: amendment to the draft resolution of the United States of America (A/C.6/239) Peru: amendment to the amendment submitted by the Union of Soviet Socialist Republics A/C.6/223) to article II of the draft convention on genocide (E/794) Greece: amendment to article II of the draft convention on genocide (E/794) Iran: amendment to the draft resolution of the United States (A/C.6/239) India: amendments to article II of the draft convention on genocide (E/794)

32

1947

1986

30 32

1988 Mimeographed document only

30

30

32

Incorporated in 79th meeting

1991

32

Incorporated in 81st meeting

30

Incorporated in 80th meeting

32

Incorporated in 81st meeting

1948

Table of Contents: Annexes

A/C.6/245

Text adopted by the Sixth Committee for article II of the draft convention on genocide (E/794) A/C.6/246 Syria: amendment to article V of the draft convention on genocide (E/794) A/C.6/247 Sweden: amendment to article V of the draft convention on genocide (E/794) A/C.6/248 Netherlands: draft resolution concerning the establishment of an international criminal tribunal A/C.6/248/ Netherlands: revised Rev. 1 text for the first paragraph of the draft resolution concerning the establishment of an international criminal tribunal A/C.6/249 Haiti: amendment to article VIII of the draft convention on genocide (E/794) A/C.6/250 Haiti: amendment to the annex to the draft protocol contained in document A/C.6/210 A/C.6/251 Text adopted by the Sixth Committee for article IV of the draft convention on genocide (E/794)

32

1992 Mimeographed document only

32

Incorporated in 92nd meeting

32

Incorporated in 92nd meeting

32

1993

32

1994

32

1994

57

Incorporated in 90th meeting

32

1995 Mimeographed document only

Table of Contents: Annexes

A/C.6/252

Belgium: amendments to the United Kingdom amendments (A/C.6/ 236 and Corr. 1) to articles V and VII of the draft convention on genocide (E/794) A/C.6/253 Netherlands: amendment to article V of the draft convention on genocide (E/794) A/C.6/254/ Revised text adopted by Rev. 1 the Sixth Committee for Article VI of the draft convention on genocide (E/794) A/C.6/255 France: amendment to article VII of the draft convention on genocide (E/794) A/C.6/256 Text of articles I to VI of the draft convention on genocide (E/794) as adopted by the Sixth Committee up to 9 November 1948 A/C.6/257 Article VII of the draft convention on genocide (E/794): synopsis of amendments A/C.6/258 Belgium and United Kingdom of Great Britain and Northern Ireland: joint amendment to article X of the draft convention on genocide (E/794)

32

1949

1996

32

Incorporated in 93rd meeting

32

Incorporated in 96th meeting

32

Incorporated in 97th meeting

32

1997 Mimeographed document only

32

1999 Mimeographed document only

32

2004

1950

Table of Contents: Annexes

A/C.6/259

A/C.6/260

A/C.6/261

A/C.6/262

A/C.6/263

A/C.6/264

France: amendment to the amendments of the Soviet Union (A/C.6/ 215/Rev. 1) India: amendment to the joint amendment of Belgium and the United Kingdom (A/C.6/258) Venezuela: proposed text for the preamble to the draft convention on genocide (E/794) Proposed redraft of the draft protocols (A/639/ Rev. 1) amending the International Agreement of 18 May 1904 and the International Convention of 4 May 1910 for the suppression of the white slave traffic, and the Agreement of 4 May 1910 for the suppression of the circulation of obscene publications: note by the Secretary-General Haiti: addition to the joint amendment of Belgium and the United Kingdom (A/C.6/258) Ukrainian Soviet Socialist Republic: amendment to the United Kingdom proposal (A/C.6/226 and Corr. 1) for the addition of a new article to the draft convention on genocide (E/794)

32

Incorporated in 101st meeting

32

Incorporated in 103rd meeting

32

2004

61

32

32

Incorporated in 103rd meeting

2005

Table of Contents: Annexes

A/C.6/265

A/C.6/266 A/C.6/267

A/C.6/268 A/C.6/269

A/C.6/270

A/C.6/271

A/C.6/272 A/C.6/273

A/C.6/274

Australia: amendment to article X of the draft convention on genocide (E/794) France: draft resolution France: amendments to the preamble to the draft convention on genocide (E/794) Iran: draft resolution Text of articles VII to XIII of the draft convention on genocide (E/794) as adopted by the Sixth Committee Text of articles XIV to XIX of the draft convention on genocide (E/794) as adopted by the Sixth Committee Draft resolution adopted by the Sixth Committee

Draft resolution adopted by the Sixth Committee Union of Soviet Socialist Republics: amendments to the text submitted by Venezuela (A/C.6/261) for the preamble to the draft convention on genocide (E/794) Union of Soviet Socialist Republics: amendments to the draft resolution submitted by France (A/C.6/266)

32

61 32

32 32

1951

Incorporated in 105th meeting

2005

Incorporated in 108th meeting 2006 Mimeographed document only

32

2008 Mimeographed document only

32

Reproduced in A/C.6/248 and A/C.6/248/ Rev. 1 Identical with A/C.6/268

32 32

61

2009

1952

Table of Contents: Annexes

A/C.6/275/ Belgium: draft question Rev. 1/ to be submitted to the Corr. 1 International Court of Justice A/C.6/276 Syria: draft resolutions A/C.6/277 France: amendment to the draft question proposed by Belgium (A/C.6/275/Rev. 1/ Corr. 1) for submission to the International Court of Justice A/C.6/278 France: amendment to draft resolution A submitted by Syria (A/C.6/276) A/C.6/279 Egypt: draft resolution and Corr. 1 A/C.6/280 United Kingdom of Great Britain and Northern Ireland: amendments to the draft question submitted by Belgium (A/C.6/275/ Rev. 1 Corr. 1) A/C.6/281 Uruguay: draft & Rev. 1 & resolution Rev, 2 A/C.6/282 France: amendment to the draft resolution submitted by Egypt (A/C.6/279)

69

69 69

69

69 69

69

69

Table of Contents: Annexes

A/C.6/283

A/C.6/284

A/C.6/285

A/C.6/286

A/C.6/287

A/C.6/288 A/C.6/289 & Corr. 1

United Kingdom of Great Britain and Northern Ireland: supplementary proposal aimed at combining the intentions of the draft question proposed by Belgium (A/C.6/275/ Rev. 1/Corr. 1) and of the French amendment (A/C.6/277) to that draft Union of Soviet Socialist Republics: amendments to the final paragraph of the draft resolution submitted by Egypt (A/C.6/279) France and Iran: draft resolution amending the draft question proposed by Belgium (A/C.6/ 275/Rev. 1/Corr. 1) for submission to the International Court of Justice Colombia: proposal for the establishment of a sub-committee Greece: amendment to the Colombian proposal (A/C.6/286) Report of the Drafting Committee Draft resolutions and draft convention on genocide proposed by the Drafting Committee

69

69

69

69

69

32

2010

32

2011

1953

1954

Table of Contents: Annexes

A/C.6/290 A/C.6/291

A/C.6/292

A/C.6/293

A/C.6/294

A/C.6/295

A/C.6/296 A/C.6/297 A/C.6/298

Iran: draft resolution Belgium: revised draft question for submission to the International Court of Justice Venezuela: addition to the revised draft question proposed by Belgium (A/C.6/291) for submission to the International Court of Justice Greece: amendment to the revised draft question proposed by Belgium (A/C.6/291) for submission to the International Court of Justice Belgium, Colombia, France, Greece, Iran, Syria, United Kingdom of Great Britain and Northern Ireland, Uruguay, Venezuela: combined text of their various proposals United States of America: amendments to draft resolution I of the Drafting Committee (A/C.6/289 and Corr. 1) Chile: draft resolution Egypt: draft resolution Afghanistan: amendments to the Bolivian proposal (A/609)

24(b) 69

69

69

69

32

42 31 47

Reproduced in A/749

2017 Incorporated in 128th and 129th meetings

Table of Contents: Annexes

A/C.6/299

A/C.6/300

A/C.6/301

A/C.6/302

A/C.6/303

A/C.6/304 A/C.6/305

A/C.6/306

A/C.6/307 A/C.6/308

India: amendments to draft resolution I proposed by the Drafting Committee (A/C.6/289 and Corr. 1) Ecuador: amendments to the Bolivian proposal (A/609) Union of Soviet Socialist Republics: amendment to the Bolivian proposal (A/609) China: amendments to the Bolivian proposal (A/609) France: amendments to the Bolivian proposal (A/609) Bolivia: revised draft resolution Belgium, United Kingdom of Great Britain and Northern Ireland, United States of America: alternative draft of article IX of the draft convention on genocide (A/C.6/289 and Corr. 1) Iran: amendment to the Bolivian revised draft resolution (A/C.6/304) Draft resolution adopted by the Sixth Committee Netherlands: amendment to the amendment of Iran (A/C.6/306)

32

1955

2018

47

47

Incorporated in 125th meeting

47

Incorporated in 125th meeting

47

Incorporated in 125th meeting

47 32

2019

47

Incorporated in 127th meeting

47

Reproduced in A/748/Rev. 1 Incorporated in 127th meeting

47

1956

Table of Contents: Annexes

A/C.6/309

A/C.6/310

A/C.6/311

A/C.6/312

A/C.6/313

A/C.6/314

A/C.6/315

A/C.6/316 A/C.6/317

France: amendment to the draft resolution of Egypt (A/C.6/297) Text of article VI of the draft convention on genocide (A/C.6/289 and Corr. 1) as adopted by the Sixth Committee United Kingdom of Great Britain and Northern Ireland: amendments to the draft resolution submitted by Chile (A/C.6/296) Text of article II of the draft convention on genocide (A/C.6/289 and Corr. 1) as adopted by the Sixth Committee Sweden: proposal to be added to the Indian statement in the Committee’s report Sweden: new proposal to be added to the Indian statement in the Committee’s report Uruguay: amendments to the draft resolution submitted by Chile (A/C.6/296) Australia: draft resolution France: amendments to the Uruguayan amendments (A/C.6/315)

31

Mimeographed document only

32

2020 Mimeographed document only

42

32

2021 Mimeographed document only

32

Incorporated in 131st meeting

32

Incorporated in 132nd meeting

42

42 42

Table of Contents: Annexes

A/C.6/318

A/C.6/319

A/C.6/320

A/C.6/321 A/C.6/322

A/C.6/323

A/C.6/324

France and Uruguay: joint amendments to the Uruguayan amendments (A/C.6/315) to the draft resolution submitted by Chile (A/C.6/296) France and Uruguay: amendment incorporating the amendments contained in document A/C.6/315 and A/C.6/318 to the draft resolution submitted by Chile (A/C.6/296) Letter dated 8 December 1948 from the President of the General Assembly to the Chairman of the Sixth Committee Memorandum by the Secretary-General Argentina: amendments to the rules of procedure of the General Assembly Union of Soviet Socialist Republics: proposal concerning the modification of rule 44 of the rules of procedure of the General Assembly Letter dated 9 December 1948 from the chief of the delegation of the Union of Soviet Socialist Republics to the President of the General Assembly and covering note by the SecretaryGeneral

1957

42

42

41

Reproduced in A/799

41

See A/799

41

41

41

Reproduced in A/C.6/324

1958

Table of Contents: Annexes

A/C.6/325

China: proposal for the amendment of rule 44 of the rules of procedure of the General Assembly

41

Documents reproduced or listed in this volume classified by items of the agenda of the third session of the General Assembly to which they pertain No. of agenda item 24(b)

30

31

Item of the agenda

Documents

Agreements with specialized agencies: Approval of supplementary agreements with specialized agencies concerning the use of the United Nations laissez passer: report of the Secretary-General Registration and publication of treaties and international agreements: report of the SecretaryGeneral Privileges and immunities of the United Nations: report of the Secretary-General: (a) Headquarters Agreement; (b) General Convention on the privileges and immunities of the United Nations

A/C.6/290

A/C.6/237, A/C.6/239, A/C.6/240, A/C.6/243

A/C.6/297, A/C.6/309

Table of Contents: Annexes

32

Genocide: draft convention and report of the Economic and Social Council

1959

A/C.6/208, A/C.6/209, A/C.6/211, A/C.6/212, A/C.6/213, A/C.6/214, A/C.6/215/Rev. 1, A/C.6/216, A/C.6/217, A/C.6/218, A/C.6/219 and Corr. 1, A/C.6/ 220, A/C.6/221 and Corr. 1, A/C.6/222, A/C.6/223 and Corr 1, A/C.6/224 and Corr. 1, A/C.6/225, A/C.6/227, A/C.6/228, A/C.6/229, A/C.6/230 and Corr. 1, A/C.6/231, A/C.6/232 and Corr. 1 and Rev. 1, A/C.6/233, A/C.6/234, A/C.6/235, A/C.6/236 and Corr. 1, A/C.6/ 238, A/C.6/241, A/C.6/242, A/C.6/244 and Corr. 1, A/C.6/ 245, A/C.6/246, A/C.6/247, A/C.6/248, A/C.6/248/Rev. 1, A/C.6/249, A/C.6/251, A/C.6/252, A/C.6/253, A/C.6/254/Rev. 1, A/C.6/255, A/C.6/256, A/C.6/257, A/C.6/258, A/C.6/259, A/C.6/260, A/C.6/261, A/C.6/263, A/C.6/264, A/C.6/265, A/C.6/267, A/C.6/268, A/C.6/269, A/C.6/270, A/C.6/271, A/C.6/272, A/C.6/273, A/C.6/288, A/C.6/289 and Corr. 1, A/C.6/295, A/C.6/299, A/C.6/305, A/C.6/310, A/C.6/312, A/C.6/313, A/C.6/314

1960

Table of Contents: Annexes

41

Proposal for the adoption of Spanish as one of the working languages of the General Assembly: report of the Secretary-General Violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter: item proposed by Chile Permanent invitation to the Director-General of the Organization of American States to assist at the sessions of the General Assembly: item proposed by Argentina Permanent missions to the United Nations: item proposed by Bolivia

42

46

47

57

61

Transfer to the United Nations of functions and powers exercised by the League of Nations under the International Convention relating to Economic Statistics signed at Geneva on 14 December 1928: item proposed by the Economic and Social Council Transfer to the United Nations of the functions exercised by the French Government under the Agreement of 18 May 1904 and the Convention of 4 May 1910 for the suppression of the white slave traffic and under the Agreement of 4 May 1910 for the suppression of obscene publications: item proposed by the Economic and Social Council

A/C.6/320, A/C.6/321, A/C.6/322, A/C.6/323, A/C.6/324, A/C.6/325 A/C.6/296, A/C.6/311, A/C.6/315, A/C.6/316, A/C.6/317, A/C.6/318, A/C.6/319 A/C.6/226

A/C.6/298, A/C.6/300, A/C.6/301, A/C.6/302, A/C.6/303, A/C.6/304, A/C.6/306, A/C.6/307, A/C.6/308 A/C.6/210, A/C.6/250

A/C.6/262 and Corr. 1, A/C.6/266, A/C.6/274

Table of Contents: Annexes

69

Reparation for injuries incurred in the service of the United Nations: item proposed by the SecretaryGeneral

1961

A/C.6/275, and Rev. 1 and Rev. 1/Corr. 1 and Rev. 1/Corr. 2, A/C.6/ 276, A/C.6/277, A/C.6/278, A/C.6/279 and Corr. 1, A/C.6/ 280, A/C.6/281 and Rev. 1 and Rev. 2, A/C.6/282, A/C.6/283, A/C.6/284, A/C.6/285, A/C.6/286, A/C.6/287, A/C.6/291, A/C.6/292, A/C.6/293, A/C.6/294

1962

A/C.6/206

OFFICIAL RECORDS OF THE THIRD SESSION OF THE GENERAL ASSEMBLY, PART I SIXTH COMMITTEE ANNEXES DOCUMENT A/C.6/206 Allocation of items on the agenda of the third session Letter from the President of the General Assembly to the Chairman of the Sixth Committee [Original text: English] [27 September 1948] The General Assembly, at its 142nd plenary meeting held on 24 September 1948, decided to allocate the following items of the agenda of the third session to the Sixth Committee for consideration and report: 1. Transfer to the United Nations of the functions and powers exercised by the League of Nations under the International Convention relating to economic statistics signed at Geneva on 14 December 1928: item proposed by the Economic and Social Council. 2. Transfer to the United Nations of the functions exercised by the French Government under the Agreement of 18 May 1904 and the Convention of 4 May 1910 for the suppression of the white slave traffic, and under the Agreement of 4 May 1910 for the suppression of obscene publications: item proposed by the Economic and Social Council. 3. Approval of supplementary agreements with specialized agencies concerning the use of the United Nations laissez-passer: report of the Secretary-General. 4. Genocide: draft convention and report of the Economic and Social Council. 5. Permanent missions to the United Nations: item proposed by Bolivia. 6. Registration and publication of treaties and international agreements: report of the Secretary-General.

A/C.6/209

1963

7. Privileges and immunities of the United Nations: report of the Secretary-General: (a) Headquarters Agreement; (b) General Convention on the Privileges and Immunities of the United Nations. 8. Violation by the Union of Soviet Socialist Republics of fundamental human rights, traditional diplomatic practices and other principles of the Charter: item proposed by Chile. 9. Permanent invitation to the Director-General of the Organization of American States to assist at the sessions of the General Assembly: item proposed by Argentina. 10. Reparation for injuries incurred in the service of the United Nations: item proposed by the Secretary-General. Let me assure you of my readiness to be of assistance to you and please accept my best wishes for the success of your Committee in its work. (Signed ) Herbert V. Evatt President of the General Assembly

DOCUMENT A/C.6/209 Agenda item 32 Uruguay: amendments to the draft convention on genocide (E/794) [Original text: Spanish] [1 October 1948] Article II In the introductory paragraph, substitute the words “racial or religious” for the words “racial, religious or political”, and the words “on grounds of the national or racial origin or religious belief of its members” for the words “on grounds of the national or racial origin, religious belief, or political opinion of its members”. In sub-paragraph 3, replace the words “aimed at causing their deaths” by the words “likely to cause death, disease or a weakening of such members generally”.

1964

A/C.6/211

Article VII Substitute the following for the existing text of the article: Persons charged with genocide or any of the other acts enumerated in article IV shall be tried by the competent tribunals of the State in the territory of which the act was committed. Should the competent organs of the State which is under a duty to punish the crime fail to proceed to such punishment effectively, any of the Parties to the present Convention may submit the case to the International Court of Justice, which shall decide whether the complaint is justified. Should it be proved that there has been such failure as aforesaid, the Court shall deal with and pronounce judgment on the crime of genocide. For this purpose the Court shall organize a Criminal Chamber.

Articles III, XIV and XV Delete these articles.

DOCUMENT A/C.6/211 Agenda item 32 France: Draft convention on genocide [Original text: French] [1 October 1948] Article 1 The crime against humanity known as genocide is an attack on the life of a human group or of an individual as a member of such group, particularly by reason of his nationality, race, religion or opinions. It is committed, encouraged or tolerated by the rulers of a State. It may be committed and punished in times of war or peace. Its authors or their accomplices shall be responsible before International Justice.

A/C.6/211

1965

Article 2 Any attempt, provocation or instigation to commit genocide is also a crime. Article 3 Genocide shall be punished by the International Criminal Court. Article 4 The International Criminal Court shall sit at the Hague. Its composition and the status of its judges are the subject of an annex to the present draft. Article 5 The International Criminal Court shall include an International Prosecutor’s Office with its seat at The Hague and remaining in permanent contact with the organs of the United Nations, the General Assembly, the Security Council, the Economic and Social Council and the Secretariat. The composition of this International Prosecutor’s Office and the status of its members are defined in an annex to the present draft. Article 6 All indictments shall be addressed to the International Prosecutor’s Office. Before the opening of legal proceedings, an inquiry shall be ordered by the International Prosecutor’s Office, which shall be fully empowered to name those conducting the inquiry, to determine its procedure and to ensure, in the absence of a contrary decision, the secrecy of its meetings. According to the findings of the inquiry and in the absence of guarantees or agreements, the International Prosecutor’s Office shall open proceedings before one or more judge-rapporteurs, appointed by the Court from amongst its members, who shall preside over an investigation to be conducted in the presence of the State whose rulers or nationals are implicated.

1966

A/C.6/211

In the absence of a contrary decision by the judge-rapporteur or rapporteurs, the investigation shall be held in secret. Article 7 According to the conclusions of the investigation, and in the absence of guarantees or agreement, the dossier shall be passed to the Court by the judge-rapporteur or rapporteurs, who may not themselves pronounce judgment. In the absence of a contrary decision by the Court, the proceedings before the Court shall be public. Before passing any sentence, the Court may, particularly in cases where the proceedings have gone by default, make an informal or official recommendation to the State whose rulers or nationals are accused. The Court shall pronounce judgment in public. Judgment may include a penal sentence on the authors and accomplices and, where appropriate, provision for reparations to the victims, whose safety the Court shall be empowered to secure in advance and at any stage of the proceedings, in cases of necessity and urgency, by means of conservatory measures. Article 8 Each Member of the United Nations signatory to the present Convention undertakes to comply with the decisions of the International Criminal Court. Article 9 Cases of non-compliance with the award may be brought before the Security Council by any Member of the United Nations and the Council may make recommendations or decide on the measures to be taken to ensure the execution of the judgment. Article 10 Any action calculated to impede the execution of the judgment may be considered as an act of aggression under Article 51 of the Charter.

A/C.6/213

1967

Article 11 The present Convention shall be ratified by the signatory States in conformity with their respective constitutional procedures. Ratifications shall be deposited with the Secretary-General of the United Nations. Article 12 The present Convention shall come into force on the day following the receipt by the Secretary-General of at least . . . ratifications. Article 13 Any Member of the United Nations may accede to the present Convention. Article 14 States ratifying the present Convention after its entry into force shall be bound by its provisions as from the date on which they deposit their respective ratifications.

DOCUMENT A/C.6/213 Agenda item 32 Motion submitted by the delegation of the Philippines [Original text: English] [2 October 1948] Resolved that the Sixth Committee take up, immediately after the conclusion of the general debate on the subject, the draft convention on the punishment of genocide prepared by the ad hoc committee of the Economic and Social Council, article by article; Resolved further, that the decisions taken by the full Committee on each and every article of the said draft convention, and all its resolutions, be referred afterwards to a sub-committee with a view to the preparation of the final draft of an international convention on the punishment of genocide incorporating the decisions and resolutions of the full Committee, for submission to the General Assembly.

1968

A/C.6/215/Rev.1

DOCUMENT A/C.6/214 Agenda item 32 United States of America: amendments to the draft convention on genocide (E/794) [Original text: English] [4 October 1948] Article II In the introductory paragraph, between the words “religious” and “or political group” insert the word “economic”; and between the words “religious belief ” and “or political opinion”, insert the words “economic status”. Article III Delete. Article IV Delete sub-paragraph (c).

DOCUMENT A/C.6/215/REV. 1 Agenda item 32 Union of Soviet Socialist Republics: amendments to the draft convention on genocide (E/794) [Original text: Russian] [9 October 1948] Preamble The text of the preamble should read as follows (italicized passages represent additions):

A/C.6/215/Rev.1

1969

The High Contracting Parties, Declaring that genocide is a grave crime against mankind directed towards the destruction of separate human groups on racial, nationalistic or religious grounds, which is contrary to the spirit and aims of the United Nations, which the civilized world condemns, and which is a blot on the countries where such crimes, propaganda and incitement to their commission are still practised; Having been profoundly shocked by many recent instances of genocide, which is organically bound up with fascism-nazism and other similar race theories which preach national and racial hatred, the domination of the so-called higher races and the extermination of the so-called lower races; Having taken note of the fact that the International Military Tribunal at Nürnberg in its judgments of 30 September–1 October 1946 has punished under a different legal description certain persons who have committed acts similar to those which the present Convention aims at punishing; and Being convinced that all civilized peoples are required both in peace and in war to take decissive measures for the prevention and punishment of genocide and to suppress and prohibit the stimulation of racial, national and religious hatred and to punish severely persons guilty of inciting, committing or preparing the commission of the aforementioned crimes and that to this end international co-operation is necessary; Hereby agree to prevent and punish the crime as hereinafter provided.

Article I Delete, since its subject matter will be fully covered if the modifications to the text of the preamble are accepted. Article II In the introductory paragraph, substitute for the words “racial, religious or political group”, the words “racial or religious group”, and substitute for the words “racial origin, religious belief or political opinion of its members”, the words “racial origin or religious belief of its members”. Substitute the following for sub-paragraphs 1 to 4: 1. The physical destruction in whole or in part of such groups; 2. The deliberate creation of conditions of life aimed at the physical destruction in whole or in part of such groups.

1970

A/C.6/215/Rev.1

Article IV Add, after sub-paragraph (d ), the new sub-paragraphs (e) and ( f ) as drafted hereunder; the existing sub-paragraph (e) will accordingly become sub-paragraph (g). The proposed wording of the new sub-paragraphs (e) and ( f ) is as follows: (e) The preparatory acts for committing genocide in the form of studies and research for the purpose of developing the technique of genocide: setting up of installations, manufacturing, obtaining, possessing or supplying of articles or substances with the knowledge that they are intended for genocide; issuing instructions or orders and distributing tasks with a view to committing genocide; ( f ) All forms of public propaganda (Press, radio, cinema, etc.) aimed at inciting racial, national or religious enmities or hatreds or at provoking the commission of acts of genocide.

Article V The existing text of this article is to become paragraph 1 of the article; it is to be completed by the addition of paragraph 2, as follows: Command of the law or superior orders shall not justify genocide.

Article VI The article should read as follows: The High Contracting Parties undertake to enact the necessary legislative measures, in accordance with their constitutional procedures, aimed at the prevention and suppression of genocide and also at the prevention and suppression of incitement to racial, national and religious hatred, to give effect to the provisions of this Convention, and to provide criminal penalties for the authors of such crimes.

Article VII Delete the words “or by a competent international tribunal”.

A/C.6/215/Rev.1

1971

Article VIII Delete the existing paragraphs 1 and 2 and substitute the following: The High Contracting Parties undertake to report to the Security Council all cases of genocide and all cases of a breach of the obligations imposed by the Convention so that the necessary measures may be taken in accordance with Chapter VI of the United Nations Charter.

Article X Delete this article. Complete the draft convention by adding the following article: The High Contracting Parties pledge themselves to disband and prohibit any organizations aimed at inciting racial, national or religious hatred or the commission of acts of genocide.

Article XII In paragraph 1, substitute the words “Economic and Social Council” for the words “General Assembly”. Article XIV Replace the existing text by the following: The present Convention may be denounced by a written notification addressed to the Secretary-General of the United Nations. Such notification shall take effect one year after the date of its receipt.

Article XVI Delete paragraphs 1 and 2 and substitute the following: A request for the revision of the present Convention may be made at any time by any State signatory to the Convention by means of a notification in writing addressed to the Secretary-General. The Economic and Social Council will decide what action should be taken regarding such a request.

1972

A/C.6/217

DOCUMENT A/C.6/217 Agenda item 32 Belgium: amendments to the draft convention on genocide (E/794) [Original text: French] [5 October 1948] Preamble 1. First word: for “declaring” read “recognizing”. Note. A declaration of principle was made in 1946. The consequences that follow derive from recognition of this same principle. 2. Last paragraph: replace by the words: “Hereby agree as follows”. Note. The undertaking to prevent and punish the crime of genocide should be contained in the operative part of the convention rather than in the preamble. For this reason article I should read as follows: Article I The High Contracting Parties undertake to prevent and punish the crime of genocide,

instead of the present wording. Note. This wording, which is determined by the definition of the crime of genocide contained in the following article, is an improvement on article I of the draft, which merely repeats the principle of the unanimous resolution of 19461, without making it more effective. If necessary, this principle could be referred to in the preamble. 1

See resolutions adopted by the General Assembly during the second part of its first session, No. 96(I).

A/C.6/217

1973

Article II Replace by the words: The following are crimes of genocide: 1. Murder, 2. Impairing physical integrity, 3. Inflicting enforced measures or conditions of life, aimed at causing death, 4. Imposing measures intended to prevent births within the group, Where such acts are committed with intent to co-operate in destroying a national, racial or religious group on grounds of national or racial origin or religious belief.

Note. 1. This definition omits the political group. 2. It is unnecessary to refer to deliberate acts, since the existence of particular intent, which is expressly stipulated, implies deliberation. Article III Omit, with a view to inclusion among provisions for the protection of human rights. Such transfer could be noted in a resolution. Article IV Replace by the words: “In addition to the crime of genocide as defined in article II the following acts shall also be punishable: (a) (b) (c) (d)

Direct and public incitement to commit genocide; Conspiracy to commit genocide; Attempts to commit genocide; Complicity in crimes of genocide.

1974

A/C.6/217

Article V Replace by the words: Persons guilty of the crime of genocide as defined in article II or of the punishable acts enumerated in article IV shall be brought to justice, whether, they be heads of State, public officials or private individuals.

Article VI The proposed amendment does not affect the English text. Article VII Delete the words “or by a competent international tribunal”. Note. No such tribunal exists. Article VIII Delete. Note. Redundant. What is permitted under the Charter should not be permitted in different terms in a convention. Article IX For the first paragraph substitute the following: The crime of genocide as defined in article II shall not be considered as a political crime exempt from extradition.

The second paragraph remains unchanged. Article X After the first four lines, delete the remainder of the article beginning with the words “provided that”. Articles XIV, XV and XVI Delete.

A/C.6/218

1975

DOCUMENT A/C.6/218 Agenda item 32 Iran: amendments to the draft convention on genocide (E/794) and draft resolution [Original text: French] [5 October 1948] Article I Incorporate the idea of article I in the preamble. Article II Delete the words “political” and “political opinion”. Article III Delete the whole article. Article IV Delete paragraph (c) concerning “Direct incitement in public or in private . . .”. Article VII Delete the words “by a competent international tribunal”. Add a new paragraph, worded as follows: They may also be tried by tribunals other than those of the States in the territories of which the act was committed, if they have been arrested by the authorities of such States, and provided no request has been made for their extradition.

Draft resolution concerning the establisment [sic] of an international tribunal competent to deal with the crime of genocide Whereas genocide is a grave crime against mankind which the civilized world condemns,

1976

A/C.6/221

Whereas punishment must be meted out for the crime of genocide wherever and by whomsoever committed, and Whereas if a competent international tribunal were established, it could deal with crimes of genocide and mete out punishment to the guilty, The General Assembly Recommends the International Law Commission, after inviting the opinions of all Governments of Members on this question, to undertake the necessary studies with a view to preparing a draft convention on the establishment of an international tribunal competent to deal with the crime of genocide.

DOCUMENT A/C.6/221 Agenda item 32 China: amendments to the draft convention on genocide (E/794) [Original text: English] [6 October 1948] Preamble Delete the third paragraph. Article II Sub-paragraph 2 should read as follows: Impairing the physical or mental health of members of the group.

Article XIV In paragraphs 1 and 2, replace the word “five” by the word “ten”.

A/C.6/223 and A/C.6/223.Corr.1

1977

DOCUMENT A/C.6/222 Agenda item 32 United Kingdom of Great Britain and Northern Ireland: amendments to articles II and III of the draft convention on genocide (E/794) [Original text: English] [7 October 1948] Article II In the introductory paragraph, delete the words “on grounds of the national or racial origin, religious belief, or political opinion of its members”. Amend sub-paragraph 2 to read as follows: “Causing grievous bodily harm to members of the group”. In sub-paragraph 3, substitute the words “intended and likely to cause” for the words “aimed at causing”. Article III Delete.

DOCUMENT A/C.6/223 & Corr. 1 Agenda item 32 Union of Soviet Socialist Republics: amendments to article II of the draft convention on genocide (E/794) [Original text: Russian] [7 October 1948] The USSR delegation proposes the following amendments to the text of article II as supplementary to the amendments to that article contained in document A/C.6/215. Article II should be worded as follows: For the purposes of the present Convention, genocide shall be understood to mean any of the following acts punishable by law aimed at the physical destruction of racial, national (or religious) groups committed on racial, national (or religious) grounds:

1978

A/C.6/224 and A/C.6/224/Corr.1

(i) The physical destruction in whole or in part of such groups; for example, mass murder or individual executions on racial, national (or religious) grounds; the infliction of physical injury or pursuit of biological experiments; the prevention of births by means of sterilization and enforced abortion; (ii) The deliberate creation of conditions of life for such groups as is aimed at their physical destruction in whole or in part.

DOCUMENT A/C.6/224 & Corr. 1 Agenda item 32 France: amendments to the draft convention on genocide (E/794) [Original text: French] [8 October 1948] Article II Replace the first paragraph by the following: Genocide is an attack on life directed against a human group, or against an individual as a member of a human group, on account of the nationality, race, religion or opinions of such group or individual.

Add thereafter: It is committed, encouraged or tolerated by the rulers of a State.

Article V For the existing text, substitute the following: Genocide, as defined in the foregoing articles, shall de deemed to mean acts committed, encouraged or tolerated by the rulers of a State.

A/C.6/225

1979

Document symbol: A/C.6/225 Best copy available United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

UNRESTRICTED A/C.6/225 8 October 1948 ORIGINAL: ENGLISH FRENCH Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE: DRAFT CONVENTION (E/794) AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL ARTICLE II: SYNOPSIS OF AMENDMENTS* Underscored words represent the proposed additions; bracketed material, [ ], represents proposed deletions.

1980

A/C.6/225

Text of Article II as proposed by the Ad Hoc Committee on Genocide (E/794)

Amendments proposed by the Delegation of France (A/C.6/224)

In this Convention genocide means any of the following deliberate acts . . .

Substitute for the first paragraph of Article II the following: Genocide is an attack on life directed against a human group, or against an individual as a member of a human group, on account of the nationality, race, religion or opinions of such group or individual.” *** Add between the first and second paragraphs: “It is committed, encouraged, or tolerated by the heads of a State”.

committed with the intent to destroy a national, racial, religious or political group . . . on grounds of the national or racial origin, religious belief, or political opinion of its members . . . (1) killing members of the group

Amendments proposed by the Delegation of Uruguay (A/C.6/209

delete “political”

delete “political”

delete “political opinion”

delete “political opinion”

(2) impairing the physical integrity of members of the group (3) inflicting on members of the group measures or conditions of life aimed at causing their deaths

(4) imposing measures intended to prevent births within the group.

Amendments proposed by the Delegation of the U.S.S.R. (A/C.6/215

(3) inflicting on members of the group measures or conditions of life likely to cause death, disease or a weakening of such members generally

delete (1) – (4) and substitute the follow-following: “i. The physical destruction in whole or in part of such groups: “ii. The deliberate creation of conditions of life aimed at the physical destruction in whole or in part of such groups.”

Amendments proposed by the Delegation of the U.S.S.R. (A/C.6/223) “For the purposes of the present Convention, genocide shall be understood to mean any of the following criminal acts aimed at the physical destruction of racial, national (or religious) groups committed on racial, national (or religious) grounds

Substitute: “(i) The physical destruction in whole or in part of such groups for example, mass murder or individual executions on racial, national (or religious) grounds; the infliction of physical injury or pursuit of biological experiments; the prevention of births by means of sterilization and enforced abortion; “(ii) The deliberate creation of conditions of life for such groups as is aimed at their physical destruction in whole or in part.”

A/C.6/225

Text of Article II as proposed by the Ad Hoc Committee on Genocide E/794

Amendments proposed by the Delegation of the U.S.A. (A/C.6/214)

In this Convention genocide means any of the following deliberate acts . . .

Amendments proposed by the Delegation of Belgium (A/C.6/217)*

Amendments proposed by the Delegation of Iran (A/C.6/218)

Amendments proposed by the Delegation of China (A/C.6/221)

1981

Amendments proposed by the Delegation of the U.K. (A/C.6/222)

(The following are crimes of genocide: (a) . . ., (b) . . ., (c). . ., (d). . .)

Committed with the intent to destroy a national, racial, religious or political group . . .

add after “religious” “economic”

On the grounds of the national or racial origin, religious belief, or political opinion of its members . . .

add after “religious belief ”: “economic status”

“Where such acts are committed with intent to co operate in destroying a national, racial or religious group on grounds of national or racial origin or religious belief.”**

delete “political”

delete “political opinion”

(1) killing members of the group

The following are crimes of genocide: (a) Murder

(2) impairing the physical integrity of members of the group

(b) Impairing [the] physical integrity [of members of the group]

delete this phrase

substitute “impairing the physical or mental health of members of the group”.

substitute “Causing grievous bodily harm to members of the group”.

1982

A/C.6/225

Table (cont.) Text of Article II as proposed by the Ad Hoc Committee on Genocide E/794 (3) inflicting on members of the group measures or conditions of life aimed at causing their deaths (4) imposing measures intended to prevent births within the group * [Illegible]. ** [Illegible].

Amendments proposed by the Delegation of the U.S.A. (A/C.6/214)

Amendments proposed by the Delegation of Belgium (A/C.6/217) (c) Inflicting [on members of the group] enforced measures or conditions of life, aimed at causing death.

Amendments proposed by the Delegation of Iran (A/C.6/218)

Amendments proposed by the Delegation of China (A/C.6/221)

Amendments proposed by the Delegation of the U.K. (A/C.6/222) substitute for “aimed at causing” “intended and likely to cause”.

A/C.6/229

1983

DOCUMENT A/C.6/227 Agenda item 32 Syria: amendment to article II of the draft convention on genocide (E/794) [Original text: English] [12 October 1948] In the introductory paragraph, substitute the words “In this connexion genocide is” for the words “In this Convention genocide means”.

DOCUMENT A/C.6/229 Agenda item 32 Pakistan: amendment to article III of the draft convention on genocide (E/794) [Original text: English] [13 October 1948] The article should read as follows: In this Convention, genocide also means any of the following acts committed with the intent to destroy the religion or culture of a religious, racial or national group: 1. Systematic conversions from one religion to another by means of or by threats of violence. 2. Systematic destruction or desecration of places and objects of religious worship and veneration and destruction of objects of cultural value.

1984

A/C.6/231

DOCUMENT A/C.6/230 & Corr. 1 Agenda item 32 Sweden: amendment to article II of the draft convention on genocide (E/794) [Original text: English and French] [13 October 1948] The introductory paragraph should read as follows: In this Convention genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.

DOCUMENT A/C.6/231 Agenda item 32 Venezuela: amendment to article II of the draft convention on genocide (E/794) [Original text: English] [13 October 1948] The introductory paragraph should read as follows: In this Convention genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, racial or religious group as such.

A/C.6/235

1985

DOCUMENT A/C.6/232/Rev. 1 Agenda item 32 China: amendments to article II of the draft convention on genocide (E/794) [Original text: English] [18 October 1948] The introductory paragraph should read as follows: In this Convention, genocide means any of the acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group as such, including the following.

Sub-paragraph 2 should read as follows: Impairing the physical or mental health of members of the group.

DOCUMENT A/C.6/235 Agenda item 32 United States of America: amendment to article VII of the draft convention on genocide (E/794) [Original text: English] [16 October 1948] Add the following sentence to the existing text: Jurisdiction of the international tribunal in any case shall be subject to a finding by the tribunal that the State in which the crime was committed had failed to take appropriate measures to bring to trial persons who, in the judgment of the court, should have been brought to trial or had failed to impose suitable punishment upon those convicted of the crime.

1986

A/C.6/236 and A/C.6/236/Corr.1

DOCUMENT A/C.6/236 & Corr. 1 Agenda item 32 United Kingdom of Great Britain and Northern Ireland: amendments to the draft convention on genocide (E/794) [Original text: English] [16 October 1948] Article IV Amend sub-paragraph (e) to read as follows: Deliberate complicity in any act of genocide.

Article V Amend this article to read as follows: Criminal responsibility for any act of genocide as specified in articles II and IV shall extend not only to all private persons or associations, but also to States, governments, or organs or authorities of the State or government, by whom such acts are committed. Such acts committed by or on behalf of States or governments constitute a breach of the present Convention.

Article VII Delete this article because, in the first place, there is no international criminal court and, secondly, the reference to national courts is unnecessary in view of article VI, and substitute for it the following: Where the act of genocide as specified by articles II and IV is, or is alleged to be the act of the State or government itself or of any organ or authority of the State or government, the matter shall, at the request of any other party to the present Convention, be referred to the International Court of Justice, whose decision shall be final and binding. Any acts or measures found by the Court to constitute acts of genocide shall be immediately discontinued or rescinded and if already suspended shall not be resumed or reimposed.

A/C.6/236 and A/C.6/236/Corr.1

1987

Article VIII Delete. Note. These matters are already provided for in the Charter of the United Nations. Article IX In paragraph 1 substitute the phrase “for purposes of extradition” for the phrase “and therefore shall be grounds for extradition”. Article X Amend this article to read: In addition to the cases contemplated by article VII of the present Convention, all disputes between the High Contracting Parties relating to the interpretation or application of the Convention shall, at the request of any party to the dispute, be referred to the International Court of Justice.

Note. (i) The reference to article VII is to that article as amended above by the United Kingdom. (ii) The last part of article X is omitted because there is no international criminal court. New article to be inserted after article XII Any High Contracting Party may, at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that High Contracting Party is responsible.

Articles XIV and XV Delete these articles.

1988

A/C.6/238

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

UNRESTRICTED A/C.6/238 18 October 1948 ORIGINAL: ENGLISH Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE: DRAFT CONVENTION (E/794) AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL ARTICLE II (Second part): SYNOPSIS OF AMENDMENTS* *Underscored words represent the proposed additions; bracketed material [] represents proposed deletions.

A/C.6/238

Amendments proposed by the delegation of the U.S.S.R. (A/C.6/ 215/Rev. 1)

Amendments proposed by the delegation of the U.S.S.R. (A/C.6/223)

Amendments proposed by the delegation of Belgium (A/C.6/217)

(1) Killing members of the group;

Delete (1) – (4) and substitute the following:

Substitute:

(a) Murder

(2) Impairing the physical integrity of members of the group;

“i. The physical destruction in whole or in part of such groups:

“(i) The physical destruction in whole or in part of such groups for example, mass murder or individual executions on racial, national (or religious) grounds; the infliction of physical injury or pursuit of biological experiments; the prevention of births by means of sterilization and enforced abortion;

(b) Impairing [the] physical integrity [of members of the group]

Text of article II as proposed by the Ad Hoc Committee on Genocide (E/794)

(3) Inflicting on members of the group measures or conditions of life aimed at causing their deaths;

(4) Imposing measures intended to prevent births within the group

Amendments proposed by the delegation of Uruguay (A/C.6/209)

1989

(3) Inflicting on members of the group measures or conditions of life likely to cause death, disease or a weakening of such members generally

(c) Inflicting [on members of the group] enforced measures or conditions of life, aimed at causing death.

“ii. The deliberate creation of conditions of life aimed at the physical destruction in whole or in part of such groups.” “(ii) The deliberate creation of conditions of life for such groups as is aimed at their physical destruction in whole or in part.”

1990

A/C.6/238

Text of article II as proposed by the Ad Hoc Committee on Genocide (E/794)

Amendments proposed by the delegation of China (A/C.6/232/Rev.1)

Amendments proposed by the delegation of the United Kingdom (A/C.6/222)

Substitute “impairing the physical or mental health of members of the group”.

Substitute “Causing grievous bodily harm to members of the group”.

Amendments proposed by the delegation of Syria (A/C.6/234)

(1) Killing members of the group; (2) Impairing the physical integrity of members of the group; (3) Inflicting on members of the group measures or conditions of life aimed at causing their deaths;

Substitute for “aimed at causing” the words “intended and likely to cause”.

(4) Imposing measures intended to prevent births within the group Add to Article II a paragraph (5) with the following text: “(5) Imposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent illtreatment.”

A/C.6/241

1991

DOCUMENT A/C.6/241 Agenda item 32 Peru: amendment to the amendment submitted by the Union of Soviet Socialist Republics (A/C.6/223) to article II of the draft convention on genocide (E/794) [Original text: French] [20 October 1948] Delete from sub-paragraph (i) of article II as proposed by the USSR the words which appear in italics below: The physical destruction in whole or in part of such groups for example, [by] mass murder or individual executions on racial, national (or religious) grounds, the infliction of physical injury or the pursuit of biological experiments, the prevention of births by means of sterilization and enforced abortion.

1992

A/C.6/245

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

UNRESTRICTED A/C.6/245 23 October 1948 ORIGINAL: ENGLISH FRENCH Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE – DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Text adopted by the Sixth Committee for article II of the draft Convention (E/794) In this Convention genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, religious or political group, as such: (1) Killing members of the group; (2) Causing serious bodily or mental harm to members of the group; (3) The deliberate infliction of conditions of life for such groups as are calculated to bring about their physical destruction in whole or in part; (4) Imposing measures intended to prevent births within the group; (5) Forced transfer of children to another human group.

A/C.6/248

1993

DOCUMENT A/C.6/248 Agenda item 32 Netherlands: draft resolution concerning the establishment of an international criminal tribunal [Original text: English] [28 October 1948] The General Assembly, Considering that article VII of the Convention on the Prevention and Punishment of the Crime of Genocide foresees the possibility of having persons charged with genocide tried by a competent international tribunal, Considering that in the course of development of the international community the need for trial of crimes by an international judicial organ will be more and more felt, Requests the International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trial of individuals, whether private persons or officials, charged with crimes over which jurisdiction will be conferred upon that organ by international conventions, Requests the International Law Commission in the accomplishment of that task to pay particular attention to the possibility of establishing a criminal chamber of the International Court of Justice.

1994

A/C.6/249

DOCUMENT A/C.6/248/Rev. 1 Agenda item 32 Netherlands: revised text for the first paragraph of the draft resolution concerning the establishment of an international criminal tribunal [Original text: English] [9 November 1948] Considering that the Convention on the Prevention and Punishment of the Crime of Genocide has raised the question of the desirability and possibility of having persons charged with genocide tried by a competent international tribunal.

DOCUMENT A/C.6/249 Agenda item 32 Haiti: amendment to article VIII of the draft convention on genocide (E/794) [Original text: French] [28 October 1948] In paragraphs 1 and 2, after the words “A Party to this Convention”, add the words “or any victims, group or individuals”.

A/C.6/251

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

1995

UNRESTRICTED A/C.6/251 4 November 1948 ORIGINAL: ENGLISHFRENCH Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE: DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Text adopted by the Sixth Committee for article IV of the draft Convention (E/794) The following acts shall be punishable: (a) (b) (c) (d) (e)

Genocide as defined in article II; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in any act of genocide. -----

1996

A/C.6/252

DOCUMENT A/C.6/252 Agenda item 32 Belgium: amendments to the United Kingdom amendments (A/C.6/236 and Corr.1) to articles V and VII of the draft convention on genocide (E/794) [Original text: French] [6 November 1948] Article V This article should read as follows: The States Parties to the present Convention shall ensure the punishment of the acts enumerated in article IV, whether their authors are agents of the State or not.

Article VII This article should read as follows: Any dispute relating to the fulfilment of the present undertaking or to the direct responsibility of a State for the acts enumerated in article IV may be referred to the International Court of Justice by any of the Parties to the present Convention. The Court shall be competent to order appropriate measures to bring about the cessation of the imputed acts or to repair the damage caused to the injured persons or communities.

A/C.6/256

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

1997

UNRESTRICTED A/C.6/256 9 November 1948 ORIGINAL: ENGLISH FRENCH Dual distribution

Third session SIXTH COMMITTEE GENOCIDE – DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Text of articles I to VI as adopted by the Sixth Committee (up to 9 November 1948) Article I The High Contracting Parties confirm that genocide is a crime under international law, whether committed in time of peace or of war, which they undertake to prevent and to punish. Article II In this Convention genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, religious or political group as such: (1) Killing members of the group; (2) Causing serious bodily or mental harm to members of the group; (3) The deliberate infliction of conditions of life for such groups as are calculated to bring about their physical destruction in whole or in part; (4) Imposing measures intended to prevent births within the group; (5) Forced transfer of children to another human group. Article III Deleted.

1998

A/C.6/256

Article IV The following acts shall be punishable; (a) (b) (c) (d) (e)

Genocide as defined in article II; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in any act of genocide.

Article V Those committing genocide or any of the other acts enumerated in article IV shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Article VI The High Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of this Convention, and in particular, to provide effective penalties for the authors of the crimes mentioned in article IV.

A/C.6/257

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

1999

UNRESTRICTED A/C.6/257 9 November 1948 ORIGINAL: ENGLISH/ FRENCH Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE – DRAFT CONVENTION (E/794) AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Article VII: Synopsis of Amendments (E/794, A/C.6/209, A/C.6/215/Rev.1, A/C.6/217, A/C.6/252, A/C.6/218, A/C.6/235, A/C.6/236/Corr.1, A/C.6/248, A/C.6/255).

2000

A/C.6/257

Text of Article VII as proposed by the Ad Hoc Committee on Genocide (E/794)

Uruguay (A/C.6/209) U.S.S.R. Belgium (A/C.6/217) Iran (A/C.6/218) (A/C.6/215/Rev.1)

Persons charged with genocide or any of the other acts enumerated in Article IV shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal.

Substitute: Persons charged with genocide or any of the other acts enumerated in Article IV shall be tried by the competent tribunals of the State in the territory of which the act was committed. Should the competent organs of the State which is under a duty to punish the crime fail to proceed to such punishment effectively, any of the parties to the present Convention may submit the case to the International Court of Justice which shall decide whether the complaint is justified. Should it be proved that there has been such failure as aforesaid the Court shall deal with and pronounce judgment on the crime of genocide. For this purpose the Court shall organize a Criminal Chamber.

Delete: “… or by a competent international tribunal”.

Delete: “. . . or by a competent international tribunal”. (A/C.6/252 (paragraphs 2 and 3)) Any dispute relating to the fulfilment of the present undertaking or to the direct responsibility of a State for the acts enumerated in Article IV may be referred to the International Court of Justice by any of the parties to the present Convention. The Court shall be competent to order appropriate measures to bring about the cessation of the imputed acts or to repair the damage caused to the injured persons or communities.

Delete: “. . . or by a competent international tribunal”. Add a new paragraph as follows: They may also be tried by tribunals other than those of the States in the territories of which the act was committed, if they have been arrested by the authorities of such States, and provided no request has been made for their extradition. DRAFT CONVENTION CONCERNING THE ESTABLISHMENT OF AN INTERNATIONAL TRIBUNAL COMPETENT TO DEAL WITH THE CRIME OF GENOCIDE. WHEREAS genocide is a grave crime against mankind which the civilized world condemns; WHEREAS punishment must be meted out for the crime of genocide wherever and by whomsoever committed; and WHEREAS if a competent International Tribunal were established, it could deal with crimes of genocide and mete out punishment to the guilty; THE GENERAL ASSEMBLY RECOMMENDS

A/C.6/257

2001

Table (cont.) Text of Article VII as proposed by the Ad Hoc Committee on Genocide (E/794)

Uruguay (A/C.6/209) U.S.S.R. Belgium (A/C.6/217) Iran (A/C.6/218) (A/C.6/215/Rev.1)

The International Law Commission, after inviting the opinions of all Governments of Members on this question, to undertake the necessary studies with a view to preparing a draft convention on the establishment of an International Tribunal competent to deal with the crime of genocide.

2002

A/C.6/257

United States (A/C.6/235)

United Kingdom (A/C.6/236/Corr. 1)

Netherlands (A/C.6/248)

France (A/C.6/255)

Insert a new sentence after the words: “. . . international tribunal”, the Article to read as follows: Persons charged with genocide or any of the other acts enumerated in Article IV shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal. Jurisdiction of the international tribunal in any case shall be subject to a finding by the tribunal that the State in which the crime was committed had failed to take appropriate measures to bring to trial persons who, in the judgment of the court, should have been brought to trial or had failed to impose suitable punishment upon those convicted of the crime.

Substitute: Where the act of genocide as specified by Articles II and IV is, or is alleged to be the act of the State or Government itself or of any organ or authority of the State or Government, the matter shall, at the request of any other party to the present Convention, be referred to the International Court of Justice whose decision shall be final and binding. Any acts or measures found by the Court to constitute acts of genocide shall be immediately discontinued or recinded and if already suspended shall not be resumed or reimposed.

DRAFT RESOLUTION CONCERNING THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL TRIBUNAL THE GENERAL ASSEMBLY, CONSIDERING that Article VII of the Convention on the prevention and punishment of the crime of genocide foresees the possibility of having persons charged with genocide tried by a competent international tribunal, CONSIDERING that in the course of development of the international community the need for trial of crimes by an international judicial organ will be more and more felt, REQUESTS the International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trial of individuals, whether private persons or officials, charged with crimes over which jurisdiction will be conferred upon that organ by international conventions,

At the end of the article, delete the words “or by a competent international tribunal” and substitute: “or by the international Criminal Court constituted as follows.”

A/C.6/257

2003

Table (cont.) United States (A/C.6/235)

United Kingdom (A/C.6/236/Corr. 1)

Netherlands (A/C.6/248) REQUESTS the International Law Commission in the accomplishment of that task to pay particular attention to the possibility of establishing a Criminal Chamber of the International Court of Justice.

France (A/C.6/255)

2004

A/C.6/261

DOCUMENT A/C.6/258 Agenda item 32 Belgium and United Kingdom of Great Britain and Northern Ireland: joint amendment to article X of the draft convention on genocide (E/794) [Original text: English and French] [10 November 1948] Replace article X by: Any dispute between the High Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including disputes relating to the responsibility of a State for any of the acts enumerated in articles II and IV, shall be submitted to the International Court of Justice at the request of any of the High Contracting Parties.

DOCUMENT A/C.6/261 Agenda item 32 Venezuela: proposed text for the preamble to the draft convention on genocide (E/794) [Original text: English] [13 November 1948] The High Contracting Parties, Considering that the General Assembly of the United Nations has declared in its resolution 96(I) of 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and which the civilized world condemns; Recognizing that at all periods of history genocide has inflicted great losses on humanity; and Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required; Hereby agree as hereinafter provided:

A/C.6/267

2005

DOCUMENT A/C.6/264 Agenda item 32 Ukrainian Soviet Socialist Republic: amendment to the United Kingdom proposal (A/C.6/236 and Corr. 1) for the addition of a new article to the draft convention on genocide (E/794) [Original text: Russian] [12 November 1948] Substitute the following for the text proposed by the United Kingdom: The application of the present Convention shall extend equally to the territory of the State acceding to the Convention and to all territories in regard to which that State performs the functions of the governing and Administering Authority (including Trust and other Non-Self-Governing Territories).”

DOCUMENT A/C.6/267 Agenda item 32 France: amendments to the preamble to the draft convention on genocide (E/794) [Original text: French] [15 November 1948] 1. In the first sub-paragraph, substitute the words “crime against humanity” for the words “grave crime against mankind”. 2. Delete the second sub-paragraph. 3. Substitute the following for the third sub-paragraph: Having taken note of the legal precedent established by the judgment of the International Military Tribunal at Nürnberg of 30 September–1 October 1946.

2006

A/C.6/269

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

UNRESTRICTED A/C.6/269 15 November 1948 ORIGINAL: [illegible] Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE – DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Text as adopted by the Sixth Committee for articles VII to XIII of the draft Convention (E/794) Article VII Persons charged with genocide or any of the other acts enumerated article IV shall be tried by a competent tribunal of the State in the territory of which the act was committed. Article VIII Deleted. Article IX 1. Genocide and the other acts enumerated in article IV shall not be considered as political crimes for the purpose of extradition. 2. Each party to this Convention pledges itself to grant extradition in such cases in accordance with its laws and treaties in force. Article X Any dispute between the High Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including disputes relating to the responsibility of a State for any of the acts enumerated in articles II and IV, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

A/C.6/269

2007

With respect to the prevention and suppression of acts of genocide, a party to the present Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter of the United Nations. Article XI The present Convention of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of . . . . . . . . Article XII 1. The present Convention shall be open until 31 . . . . . . . . . . 194 . . . for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. 2. After 1 . . . . . . . . 194 . . the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State that has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Any High Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that High Contracting Party is responsible. Article XIII 1. The present Convention shall come into force on the ninetieth day following the receipt by the Secretary-General of the United Nations of not less than twenty instruments of ratification or accession. 2. Ratification or accession received after the Convention has come into force shall become effective as from the ninetieth day following the date of deposit with the Secretary-General of the United Nations.

2008

A/C.6/270

United Nations Nations Unies UNRESTRICTED GENERAL ASSEMBLY ASSEMBLEE GENERALE A/C.6/270 17 November 1948 ORIGINAL: ENGLISH FRENCH Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE – DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Text as adopted by the Sixth Committee for articles XIV to XIX of the draft Convention (E/794) Article XIV 1. The present Convention shall remain in effect for a period of ten years dating from its entry into force. 2. It shall remain in force for further successive periods of five years for such Contracting Parties that have not denounced it at least six months before the expiration of the current period. 3. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Article XV Should the number of parties to this Convention become less than sixteen as a result of denunciations the Convention shall cease to have effect as from the date on which the last of these denunciations shall become operative. Article XVI 1. A request for the revision of the present Convention may be made at any time by any State signatory to the Convention by means of a notification in writing addressed to the Secretary-General. 2. The General Assembly shall decide upon steps, if any, to be taken in respect of such request.

A/C.6/273

2009

Article XVII The Secretary-General of the United Nations shall notify all Members of the United Nations and non-member States referred to in Article XII of all signatures, ratifications and accessions received in accordance with Articles XII and XIII, of the date upon which the present Convention has come into force, of denunciations received in accordance with Article XIV, of the abrogation of the Convention effected as provided by Article XV, and of requests for revision of the Convention made in accordance with Article XVI. Article XVIII 1. The original of this Convention shall be deposited in the archives of the United Nations. 2. A certified copy thereof shall be transmitted to all Members of the United Nations and to the non-member States referred to under Article XII. Article XIX The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

DOCUMENT A/C.6/273 Agenda item 32 Union of Soviet Socialist Republics: amendments to the text submitted by Venezuela A/C.6/261) for the preamble to the draft convention on genocide (E/794) [Original text: Russian] [18 November 1948] 1. After the words “has inflicted great losses on humanity”, insert a comma and add the words “while recent events provide evidence that genocide is organically bound up with fascism-nazism and other similar race ‘theories’ which preach racial and national hatred, the domination of the so-called higher races and the extermination of the so-called lower races.” 2. After the words “from such an odious scourge”, add the words “and to prevent and punish genocide”.

2010

A/C.6/288

DOCUMENT A/C.6/288 Agenda item 32 Report of the Drafting Committee [Original text: English-French] [23 November 1948] 1. At its 104th meeting, held on 13 November 1948, the Sixth Committee appointed a Drafting Committee to consider the text of the draft convention on the prevention and punishment of the crime of genocide (E/794). 2. The Drafting Committee met on 16 November 1948 and elected as Chairman and Rapporteur the representative of Brazil, The Committee held four meetings during the period from 16 to 22 November 1948. 3. The Committee examined, article by article, the text of the draft convention on genocide as adopted by the Sixth Committee. It examined also the text of the preamble to the convention, as adopted by the Sixth Committee at a later stage, and drew up the text of a draft resolution recommending the adoption by the General Assembly of the draft convention on genocide. In addition, the Committee examined the texts of the draft resolutions adopted by the Sixth Committee dealing with the study of the question of an international criminal jurisdiction (A/C.6/271) and with the application of the convention on genocide with respect to dependent territories (A/C.6/272). 4. Article V in the text of the draft convention was the object of a lengthy discussion in the Drafting Committee. The Committee was aware of the difficulty of using in the French text of Article V the expression gouvernants and, in the English text, “constitutionally responsible rulers”. It felt, however, that in view of the fact that those expressions had been adopted by the Sixth Committee only after prolonged debates, it would not be possible for the Drafting Committee to make any change on that point. In fact, the Committee was unable to agree on a drafting change which would give satisfaction to all its members. 5. The Drafting Committee therefore recommends to the Sixth Committee the adoption of the three draft resolutions contained in document A/C.6/289.

A/C.6/289 and A/C.6/289/Corr.1

2011

DOCUMENT A/C.6/289 & Corr. 1 Agenda item 32 Draft resolutions and draft convention on genocide proposed by the Drafting Committee [Original text: English-French] [23 November 1948] I The General Assembly Approves the annexed Convention on the prevention and punishment of the crime of genocide and proposes it for signature and ratification or accession in accordance with its article XI. ANNEX Convention on the prevention and punishment of the crime of genocide The contracting Parties, Having considered the declaration made by the General Assembly of the United Nations in its resolution 96(I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world; Recognizing that at all periods of history genocide has inflicted great losses on humanity; and Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required; Hereby agree as hereinafter provided:

2012

A/C.6/289 and A/C.6/289/Corr.1

Article I The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. Article II In the present Convention genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, religious or political group, as such: (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; (e) Forcibly transferring children from one human group to another. Article III The following acts shall be punishable: (a) (b) (c) (d) (e)

Genocide; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide. Article IV

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Article V The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide

A/C.6/289 and A/C.6/289/Corr.1

2013

effective penalties for persons guilty of genocide or any of the other acts enumerated in article III. Article VI Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed. Article VII Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force. Article VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. Article IX Disputes between the Contracting Parties relating to the interpretation, application or fulfilment 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 at the request of any of the parties to the dispute. Article X The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of . . . . Article XI The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any

2014

A/C.6/289 and A/C.6/289/Corr.1

non-member State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Article XII Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible. Article XIII On the day when the first twenty instruments of ratification have been deposited, the Secretary-General shall draw up a procès-verbal and transmit a copy of it to each Member of the United Nations and to each of the non-member States contemplated in article XI. The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession. Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession. Article XIV The present Convention shall remain in effect for a period of ten years dating from its coming into force. It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.

A/C.6/289 and A/C.6/289/Corr.1

2015

Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Article XV If, as a result of denunciations, the number of parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective. Article XVI A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request. Article XVII The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of all signatures, ratifications and accessions received in accordance with articles XI and XIII, of the date upon which the present Convention has come into force, of denunciations received in accordance with article XIV, of the abrogation of the Convention effected as provided by article XV, and of requests for revision of the Convention made in accordance with article XVI. Article XVIII The original of the present Convention shall be deposited in the archives of the United Nations. A certified copy of the Convention shall be transmitted to all Members of the United Nations and to the non-member States contemplated in article XI.

2016

A/C.6/289 and A/C.6/289/Corr.1

Article XIX The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force. II The General Assembly, Considering that the discussion of the Convention on the Prevention and Punishment of the Crime of Genocide has raised the question of the desirability and possibility of having persons charged with genocide tried by a competent international tribunal; Considering that in the course of development of the international community, there will be an increasing recognition of the need of an international judicial organ for the trial of certain crimes under international law; Invites the International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions; Requests the International Law Commission, in carrying out this task, to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice. III The General Assembly recommends that Parties to the Convention on the Prevention and Pnishment [sic] of the Crime of Genocide which administer dependent territories should take such measures as are necessary and feasible to enable the provisions of the Convention to be extended to those territories as soon as possible.

A/C.6/295

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

2017

UNRESTRICTED A/C.6/295 25 November 1948 ORIGINAL: ENGLISH Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE – DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL United States: Amendments to the draft resolution proposed by the Drafting Committee (A/C.6/289) ARTICLE III The following acts shall be punishable; (a) (b) [(c) (d) (e)

Genocide; Conspiracy to commit genocide; Direct and public incement to commit genocide;]* Attempt to commit genocide; Complicity in genocide. ARTICLE VI

Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international penal tribunal subject to the acceptance at a later date by the contracting party concerned of its jurisdiction. * Bracketed words represent proposed deletions; underscored material represents proposed additions.

2018

A/C.6/299

DOCUMENT A/C.6/299 Agenda item 32 India: amendments to draft resolution I proposed by the Drafting Committee (A/C.6/289 and Corr. 1) [Original text: English] [27 November 1948] 1. Article II In sub-paragraph (e), for the words “from one human group to another” substitute “of the group to another group”. 2. Article VI (a) Delete this article. (b) Alternatively, if deletion is not accepted, add the following paragraph to the article: Nothing in this article shall affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State.

3. Article IX (a) For the words “application or fulfilment” substitute “or application”. (b) Delete the words “including those relating to the responsibility of a State for genocide or any of the other acts enumerated in article III”. 4. Article XVII Redraft this article as follows: The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following: (a) Signatures, ratifications and accessions received in accordance with article XI; (b) Notifications received in accordance with article XII;

A/C.6/305

2019

(c) The date upon which the present Convention comes into force in accordance with article XIII; (d) Denunciations received in accordance with article XIV; (e) The abrogation of the Convention in accordance with article XV; ( f ) Notifications received in accordance with article XVI.

DOCUMENT A/C.6/305 Agenda item 32 Belgium: United Kingdom of Great Britain and Northern Ireland, United States of America: alternative draft of article IX of the draft convention on genocide (A/C.6/289 and Corr. 1) [Original text: French] [27 November 1948] Disputes between Contracting Parties relating to the interpretation, application or implementation of this Convention, including disputes arising from a charge by a Contracting Party that the crime of genocide or any other of the acts enumerated in article III has been committed within the jurisdiction of another Contracting Party, shall be submitted to the International Court of Justice at the request of one of the parties to the dispute.

2020

A/C.6/310

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

UNRESTRICTED A/C.6/310 30 November 1948 ORIGINAL: ENGLISHFRENCH Dual Distribution

Third session SIXTH COMMITTEE GENOCIDE – DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Text of article VI as adopted by the Sixth Committee Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the acts was committed, or by such international penal tribunal as may have jurisdiction with respect to such Contracting Parties as shall have accepted the jurisdiction of such tribunal.

A/C.6/312

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

2021

UNRESTRICTED A/C.6/312 1 December 1948 ORIGINAL: ENGLISHFRENCH Dual distribution

Third Session SIXTH COMMITTEE GENOCIDE – DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Text of article II as adopted by the Sixth Committee In the present Convention genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such; (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; (e) Forcibly transferring children of the group to another group.

2022

A/760

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

UNRESTRICTED A/760 3 December 1948 ORIGINAL: ENGLISH Dual Distribution

Third session GENOCIDE: DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Report of the Sixth Committee Rapporteur: Mr. J. Spiropoulos (Greece) 1. In resolution 96(I) of 11 December 1946, the General Assembly, at the second part of its first session, affirmed that genocide is a crime under international law which the civilized world condemns. At the same time the Assembly requested the Economic and Social Council to undertake the necessary studies with a view to drawing up a draft Convention on the crime of genocide to be submitted to the second regular session of the General Assembly. 2. The Economic and Social Council, by resolution 47(IV) of 28 March 1947, instructed the Secretary-General to prepare, with the assistance of experts, a draft Convention on the crime of genocide. 3. In accordance with this instruction, the Secretary-General prepared a draft Convention which, on 7 July 1947, was transmitted to Member Governments for their comments and which, together with the comments received, was submitted to the second regular session of the General Assembly. 4. By resolution 180(II) adopted on 21 November 1947, the General Assembly, at its second session, reaffirmed its former resolution on the crime of genocide and requested the continuation of the work begun by the Economic and Social Council concerning the suppression of this crime, including the study of the draft Convention prepared by the Secretariat. 5. Accordingly, the Economic and Social Council, at its sixth session, established an ad hoc Committee, composed of the representatives of seven Member States, to draw up a draft Convention on genocide for consideration at the next session of the Council. The ad hoc Committee

A/760

6.

7.

8.

9.

10.

2023

met at the headquarters of the United Nations during the period from 5 April to 10 May 1948 and prepared a report containing a draft Convention on the prevention and punishment of the crime of genocide (E/794). At its seventh session, the Economic and Social Council decided, by resolution 153(VII) of 26 August 1948, to transmit to the third session of the General Assembly the report of the ad hoc Committee and the draft Convention together with the records of the proceedings of the Council at its seventh session on this subject (E/SR.180, E/SR.201, E/SR.202, E/SR.218 and E/SR.219). The General Assembly, at its 142nd plenary meeting held on 24 September 1948, decided to refer this matter to the Sixth Committee for consideration and report. At its 63rd meeting, held on 30 September 1948, the Sixth Committee began the consideration of this item by a general discussion, after which it decided (1) to examine, article by article, the text of the draft Convention drawn up by the ad hoc Committee; (2) to begin with article I, leaving the preamble to be discussed last of all; and (3) to refer the decisions of the Committee with respect to the various articles and the preamble to a drafting committee charged with the preparation of a final draft. The text of the draft Convention prepared by the ad hoc Committee was examined by the Sixth Committee from its 67th to 110th meetings, held between 5 October and 9 November 1948. The text revised by the Drafting Committee was examined by the Sixth Committee from its 128th to 134th meetings, held between 29 November and 1 December 1948. Several articles, especially those of a substantive character, gave rise to prolonged discussions and divergent opinions, and a considerable number of amendments was submitted to the Committee. In the present report, only those articles are referred to which to a special degree retained the attention of the Committee. In dealing with article II of the draft Convention, which defines the acts of genocide, the Committee had, in particular, to resolve three important problems. In the first place, the question arose whether the acts of genocide should be explicitly enumerated in the article, as was done in the text prepared by the ad hoc Committee, or whether a general definition of genocide should be adopted, as proposed in an amendment submitted by the representative of France (A/C.6/211). The Committee, at its 72nd meeting, decided on the principle of

2024

A/760

enumeration, the amendment submitted by the representative of France having been withdrawn. Secondly, the question arose whether political groups should be included in the groups to be protected by the Convention, as proposed by the ad hoc Committee, or whether these groups should be excluded from the article. At its 75th meeting, the Committee decided to retain political groups, the vote being 29 in favour to 13 against, with 9 abstentions.* Thirdly, the question arose whether, as motives of the acts of genocide, the Committee should retain the words “on grounds of the national or racial origin, religious belief, or political opinion of its members”, proposed by the ad hoc Committee. This was settled when the Committee, at its 77th meeting, by 27 votes to 22, with 2 abstentions, adopted an amendment submitted by the representative of Venezuela (A/C.6/231) whereby the phrase in question was deleted and the words “as such” added after the word “group”, whereafter the first part of article II came to read as follows: In this Convention genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, [p. 3-para. 2-line 3] ethnical, racial or religious group as such:.

During the discussion of the various categories of acts constituting genocide, the representative of China called the attention of the Committee to the desirability of including acts of genocide committed through the use of narcotics. This was made possible when the Committee, at its 81st meeting, decided to insert in sub-paragraph 2 the words “or mental”, where by the text in question came to read: “Causing serious bodily or mental harm to members of the group.” At its 82nd meeting, the Committee adopted, by 20 votes to 13, with 13 abstentions, an amendment submitted by the representative of Greece (A/C.6/242) to include as point 5 in the acts of genocide the act of forcibly transferring children from one group to another. * This decision was later reversed: see paragraph 21, below.

11. Article III of the draft Convention, which dealt with “cultural” genocide, gave rise to a discussion on the question whether this form of genocide should be covered by the Convention. At its 83rd meeting the Committee decided, by 25 votes to 16, with 4 abstentions, not to

A/760

2025

include provisions relating to cultural genocide in the Convention. It was pointed out, however, by several representatives that, in expressing their views on the retention or suppression of article III, no position was taken on the principle of cultural genocide, and that action to protect against this form of genocide might more appropriately be taken within the sphere of human rights. 12. With respect to article IV of the draft Convention, which listed the different acts to be punished, prolonged debates took place, particularly on the question of the retention or suppression of subparagraph (c) providing that “direct incitement in public or in private to commit genocide shall be punishable whether such incitement be successful or not”. At its 85th meeting, the Committee rejected, by 27 votes to 16, with 5 abstentions, an amendment submitted by the representative of the United States of America (A/C.6/214 to delete this sub-paragraph. On the other hand, the Committee decided at the same meeting to delete both the words “in private” and the words “whether such incitement be successful or not” from the original text.* * The representative of Sweden made the following statement with regard to article IV: The discussion at the beginning of this meeting seems to me to have shown that the significance of the terms corresponding to the French and English expressions here in question – incitement, conspiracy, attempt, complicity, etc. – is subject to certain variations in many systems of criminal law represented here. When these expressions have to be translated in order to introduce the text of the Convention into our different criminal codes in other languages, it will no doubt be necessary to resign ourselves to the fact that certain differences in meaning are inevitable. It would therefore be advisable to indicate in the Committee’s report that article IV of the Convention does not bind signatory States to punish the various types of acts to a greater extent than the corresponding acts aimed at the most serious crimes, as, for example, murder and high treason, already recognized under national laws. I will not enter here into the details of Swedish legislation which, moreover, does not present too great difficulties in this respect, but I find it necessary to formulate, somewhere, my reservation on this subject.

13. At its 92nd meeting, the Committee took up article V, dealing with the authors of the crime of genocide. It examined in the first place the amendment submitted by the representative of the Union of Soviet Socialist Republics (A/C.6/215/Rev.1) to add to this article

2026

A/760

a second paragraph to read as follows: “Command of the law or superior orders shall not justify genocide”. This amendment was rejected by 28 votes to 15, with 6 abstentions. The Committee then discussed the terminology to be used in order to describe adequately the authors of the crime of genocide. Whereas the expression used in the original French text, “des gouvernants, des fonctionnaires ou des particuliers”, was found satisfactory and consequently retained by the Committee, it was pointed out by several representatives that the expression “Heads of State” used in the English text went beyond the French expression “gouvernants” as it would appear to include Heads of State of constitutional monarchies who, according to the Constitution of their country, enjoyed immunity and could not, for that reason, be brought to trial before a national court. At its 95th meeting the Committee therefore adopted, by 31 votes to 1, with 11 abstentions, an amendment submitted by the representative of the Netherlands (A/C.6/253) and amended by the representative of Siam, whereby the English text came to read “constitutionally responsible rulers, public officials or private individuals”.* Finally, the Committee rejected, at its 96th meeting, an amendment submitted by the representative of Syria (A/C.6/246) which would have included in the article as authors of genocide also de facto Heads of State and persons having usurped authority. It was felt that such persons already came within the scope of article V. * The following statement was made by the representative of Sweden with regard to the question of responsibility of Members of Parliament: “I must point out that the discussion that has taken place has in no way clarified the position of Members of Parliament under the article we have just adopted. This question raised by the Swedish delegation consequently remains unanswered. For our part, we conclude that no absolute obligation could be imposed by article V in this regard.”

14. Article VII of the draft Convention provoked a lengthy discussion. As drafted by the ad hoc Committee, this article provided that persons charged with genocide should be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal. At its 98th meeting the Committee, by 23 votes to 19, with 3 abstentions, decided to delete the reference in the text to trial before an international tribunal.** On

A/760

2027

the other hand, the Committee, at its 99th meeting, adopted a joint draft resolution submitted by the representatives of the Netherlands and Iran (resolution B), by which resolution the International Law Commission is invited to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction would be conferred upon that organ by international conventions. ** Article VII, which became article VI in the final text, was later revised by the Committee: see paragraph 22 below.

15. In article X of the draft Convention as drafted by the ad hoc Committee, it was laid down that disputes relating to the interpretation or application of the Convention should be submitted to the International Court of Justice, provided that no dispute should be submitted to the Court involving an issue which had been referred to and was pending before, or had been passed upon by, a competent international criminal tribunal. At its 104th meeting the Committee adopted, however, in substitution for this article, a joint amendment submitted by the representatives of the United Kingdom and Belgium (A/C.6/258), and amended by the representative of India, according to which any dispute between the Contracting Parties relating to the interpretation, application or fulfilment of the Convention, including disputes relating to the responsibility of a State for any of the acts enumerated in articles II and IV, should be submitted to the International Court of Justice, at the request of any of the Contracting Parties. At its 105th meeting, the Committee adopted, as the second paragraph of article X,* an amendment submitted by the representative of Australia (A/C.6/265) providing that, with respect to the prevention and suppression of acts of genocide, a party to the Convention may call upon any competent organ of the United Nations to take such action as may be appropriate under the Charter of the United Nations. * By the rearrangement and renumbering of the articles decided upon by the Drafting Committee, the second paragraph of article X became article VIII of the final text.

2028

A/760

16. A new article dealing with the application of the Convention to dependent territories was proposed by the representative of the United Kingdom as well as by the representative of the Ukrainian Soviet Socialist Republic. The amendment of the United Kingdom (A/C.6/236) provided that the application of the Convention might, by a notification to the Secretary-General, be extended to all or any of the territories for the conduct of whose foreign relations the Party in question is responsible. The amendment of the Ukrainian Soviet Socialist Republic (A/C.6/264) provided that the Convention should apply equally to the territory of the Contracting Parties and to all territories in regard to which they perform the functions of the governing and administering authority (including Trust and other Non-Self-Governing Territories). At its 107th meeting, the Committee rejected the Ukrainian amendment by 19 votes to 10, with 14 abstentions, but adopted the United Kingdom amendment by 18 votes to 9, with 14 abstentions. The Committee also adopted, at its 108th meeting, a draft resolution presented by the representative of Iran (resolution C), recommending Members of the United Nations administering dependent territories to take such measures as are necessary and feasible to enable the provisions of the Convention to be extended to those territories as soon as possible. 17. After having disposed of the Final Clauses in the draft Convention of the ad hoc Committee (articles XI–XIX) the Committee, at its 110th meeting, took up the question of the preamble of the Convention and adopted, by 38 votes to 9, with 5 abstentions, a text proposed by the representative of Venezuela (A/C.6/261). 18. At its 104th meeting, hold on 13 November 1948, the Sixth Committee appointed a Drafting Committee consisting of the representatives of Belgium, China, Cuba, Egypt, France, Poland, Union of Soviet Socialist Republics, United Kingdom, and United States of America. The membership of the Committee was later increased from nine to thirteen by the addition of the representatives of Australia, Brazil, Czechoslovakia and Iran. As the representative of Cuba was unable to take part in the work, the Committee appointed the representative of Uruguay to take his place. To the Drafting Committee were referred the text of the articles of the draft Convention, the preamble, and the two resolutions dealing with the study of the question of an international jurisdiction and with the application of the Convention on genocide with respect to dependent territories.

A/760

2029

19. The Drafting Committee submitted, on 23 November 1948, its report to the Sixth Committee (A/C.6/288). In this report the Drafting Committee recommended to the Sixth Committee the adoption of three draft resolutions: (A) a draft resolution recommending the adoption by the General Assembly of the draft Convention on genocide; (B) a draft resolution dealing with the study by the International Law Commission of the question of an international criminal jurisdiction (A/C.6/271); (C) a draft resolution dealing with the application of the Convention on genocide with respect to dependent territories (A/C.6/272). 20. The report of the Drafting Committee and the revised texts submitted by it were considered by the Sixth Committee from its 128th to its 134th meetings. Amendments to the revised text of the draft Convention were submitted by the representatives of the United States of America (articles III and VI, A/C.6/295) and India (articles II, VI, IX and XVII, A/C.6/299). Also, a joint amendment was introduced by the representatives of Belgium, United Kingdom and United States of America (article IX, A/C.6/305). In addition, several verbal amendments were made to the articles to which formal amendments had been presented. 21. At the 128th meeting of the Committee, a proposal was made by the representatives of Egypt, Iran and Uruguay to re-examine the question of excluding “political groups” in article II of the Convention. Having heard a statement by the representative of the United States of America in favour of such exclusion, the Committee decided by a two-thirds majority vote of 26 to 4, with 9 abstentions, to reconsider this question. Following this, the Committee, by a second vote of 22 to 6, with 12 abstentions, decided to exclude political groups from the groups protected by article II. 22. A redrafting of article VI, dealing with the question of jurisdiction, was discussed during the 129th and 130th meetings of the Committee. The Committee decided first by a two-thirds majority of 33 to 9, with 6 abstentions, to reconsider the article. It adopted next, by 29 votes to 9, with 5 abstentions, a revised text of the United States amendment to article VI, submitted by the representative of France and drawn up in consultation with the representatives of Belgium, France and the United States of America. By this text the following words were added at the end of article VI: “or by such international penal tribunal as may have jurisdiction with respect to

2030

A/760

such Contracting Parties as shall have accepted the jurisdiction of such tribunal.” 23. At its 133rd meeting the Committee proceeded to vote on the three draft resolutions contained in document A/C.6/289. By 30 votes to none, with 8 abstentions, the Committee adopted draft resolution A with the annexed draft Convention as amended by the Committee. By 27 votes to 5, with 6 abstentions, the Committee adopted draft resolution B. Finally, the Committee, by 29 votes to none, with 7 abstentions, adopted draft resolution C. 24. At its 131st meeting, the Committee had agreed to insert in its report to the General Assembly the substance of an amendment to article VI submitted by the representative of India, according to which nothing in the article should affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State. Following this, the representative of Sweden had requested that the report should also indicate that article VI did not deprive a State of jurisdiction in the case of crimes committed against its nationals outside national territory. After some discussion of the questions raised in this connexion, the Committee, at its 134th meeting, adopted, by 20 votes to 8, with 6 abstentions, an explanatory text* for insertion in the present report.** * The text reads as follows: The first part of article VI contemplates the obligation of the State in whose territory acts of genocide have been committed. Thus, in particular, it does not affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the State. ** For reservations made by some representatives with respect to the draft Convention, see the summary records of the 132nd and 133rd meetings of the Committee.

25. The Committee therefore recommends for adoption by the General Assembly the following three resolutions:

A/760

2031

PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE A. Resolution relating to the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide, and text of the Convention THE GENERAL ASSEMBLY APPROVES the annexed Convention on the Prevention and Punishment of the Crime of Genocide and proposes it for signature and ratification or accession in accordance with its article XI.

2032

A/760

ANNEX CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE THE CONTRACTING PARTIES, HAVING CONSIDERED the declaration made by the General Assembly of the United Nations in its resolution 96(I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world; RECOGNIZING that at all periods of history genocide has inflicted great losses on humanity; and BEING CONVINCED that, in order to liberate mankind from such an odious scourge, international co-operation is required; HEREBY AGREE AS HEREINAFTER PROVIDED: ARTICLE I The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. ARTICLE II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (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; (e) Forcibly transferring children of the group to another group.

A/760

2033

ARTICLE III The following acts shall be punishable: (a) (b) (c) (d) (e)

Genocide; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide. ARTICLE IV

Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. ARTICLE V The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III. ARTICLE VI Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. ARTICLE VII Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

2034

A/760

ARTICLE VIII Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III. ARTICLE IX Disputes between the Contracting Parties relating to the interpretation, application or fulfilment 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 at the request of any of the parties to the dispute. ARTICLE X The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of . . . . . . . ARTICLE XI The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. After 1 January 1950 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. ARTICLE XII Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

A/760

2035

ARTICLE XIII On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a procès-verbal and transmit a copy of it to each Member of the United Nations and to each of the non-member States contemplated in article XI. The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession. Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession. ARTICLE XIV The present Convention shall remain in effect for a period of ten years as from the date of its coming into force. It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. ARTICLE XV If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective. ARTICLE XVI A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.

2036

A/760

ARTICLE XVII The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following: (a) Signatures, ratifications and accessions received in accordance with article XI; (b) Notifications received in accordance with article XII; (c) The date upon which the present Convention comes into force in accordance with article XIII; (d) Denunciations received in accordance with article XIV; (e) The abrogation of the Convention in accordance with article XV; (f ) Notifications received in accordance with article XVI. ARTICLE XVIII The original of the present Convention shall be deposited in the archives of the United Nations. A certified copy of the Convention shall be transmitted to all Members of the United Nations and to the non-member States contemplated in article XI. ARTICLE XIX The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force. B. Resolution relating to the study by the International Law Commission of the question of an international criminal jurisdiction THE GENERAL ASSEMBLY, CONSIDERING that the discussion of the Convention on the Prevention and Punishment of the Crime of Genocide has raised the question of the desirability and possibility of having persons charged with genocide tried by a competent international tribunal,

A/760

2037

CONSIDERING that, in the course of development of the international community, there will be an increasing need of an international judicial organ for the trial of certain crimes under international law, INVITES the International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions; REQUESTS the International Law Commission in carrying out this task to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice. C. Resolution relating to the application of the Convention on the Prevention and Punishment of the Crime of Genocide with respect to dependent territories THE GENERAL ASSEMBLY recommends that Parties to the Convention on the Prevention and Punishment of the Crime of Genocide which administer dependent territories, should take such measures as are necessary and feasible to enable the provisions of the Convention to be extended to those territories as soon as possible.

2038

A/760/Corr.2

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

UNRESTRICTED A/760/Corr.2 6 December 1948 ENGLISH ONLY Dual Distribution

Third session GENOCIDE: DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Report of the Sixth Committee CORRIGENDUM Page 3: At the third line of the second paragraph, insert the word: “political” between the words: “racial or religious group” and insert a comma after the word; “racial”. -----

A/766

2039

DOCUMENT A/766 Agenda item 32 Union of Soviet Socialist Republics: amendments to the draft convention on the prevention and punishment of genocide proposed by the Sixth Committee (A/760) [Original text: Russian] [5 December 1948] 1. The following addition to be made to the preamble: after the words “had inflicted great losses on humanity” put a comma and add the following “and recent events have shown that the crime of genocide is organically bound up with fascism-nazism and other similar race ‘theories’ which propagate racial and national hatred, the domination of the so-called ‘higher’ races and the extermination of the so-called ‘lower’ races.” 2. Add the following new article III to the draft convention: “In this Convention genocide also means any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin, or religious beliefs such as: (a) Prohibiting the use of the language of the group in daily intercourse or in schools or the printing and circulation of publications in the language of the group; (b) Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.

3. Delete from article VI the words: “or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” 4. Add the following new article X to the convention: “The High Contracting Parties undertake to disband and to prohibit in future the existence of organizations aimed at the incitement of racial, national and religious hatred and at provoking the commission of crimes of genocide.” 5. Amend article XII to read as follows:

2040

A/766

The application of the present Convention shall extend equally to the territory of any Contracting Party and to all territories in regard to which such a State performs the functions of the governing and administering authority (including Trust and other Non-Self-Governing Territories).

6. The numbering of the articles of the convention should be amended in view of the addition of the two new articles III and X.

A/770

United Nations GENERAL ASSEMBLY

Nations Unies ASSEMBLEE GENERALE

2041

UNRESTRICTED A/770 6 December 1948 ENGLISH ORIGINAL: SPANISH Dual Distribution

Third session GENOCIDE – DRAFT CONVENTION AND REPORT OF THE ECONOMIC AND SOCIAL COUNCIL Venezuela: Amendment to the draft Convention on the Prevention and Punishment of Genocide proposed by the Sixth Committee (A/760) Add to article II the following paragraph; (f ) Systematic destruction of religious edifices schools or libraries of the group.

-----

2042

A/PV.178

HUNDRED AND SEVENTY-EIGHTH PLENARY MEETING Held at the Palais de Chaillot, Paris, on Thursday, 9 December, 1948, at 10.55 a.m. President: Mr. H.V. Evatt (Australia). 114. Draft convention on genocide: reports of the Economic and Social Council and of the Sixth Committee (A/760 and A/760/Corr.2) Amendments proposed by the Union of Soviet Socialist Republics to the draft convention proposed by the Sixth Committee (A/766) and amendment proposed by Venezuela (A/770) Mr. Spiropoulos (Greece), Rapporteur, presented the report of the Sixth Committee and the accompanying draft resolutions. Surveying the history of genocide, he recalled that it had during the past two years been debated by the General Assembly, the Economic and Social Council, the ad hoc Committee set up by the latter, and finally by the Sixth Committee. In its resolution 96(I) of 11 December 1946, the General Assembly had solemnly affirmed that genocide was a crime against human rights. The Sixth Committee had shown itself fully aware of the gravity of the matter, since it had devoted most of its work to that item during the present session. Mr. Spiropoulos expressed the hope that once the convention had come into force it would do good service to humanity, for it appealed for international co-operation in the elimination of a scourge which had existed not only in present times, but also throughout the history of mankind. Mr. Spiropoulos read the three draft resolutions A, B and C relating to genocide, which had been adopted by the Sixth Committee. The first concerned the adoption of the Convention on genocide; it defined the crime of genocide and set forth measures for its prevention and punishment, designated tribunals competent to judge the crime and finally dealt with the means of enforcing the convention on genocide. The second resolution concerned the study by the International Law Commission of the question of an international penal court for the trial of persons charged with genocide. Finally, the third resolution concerned the application of the convention for the prevention and punishment of the crime of genocide in Non-Self-Governing Territories.

A/PV.178

2043

Mr. Morozov (Union of Soviet Socialist Republics) stressed that one of the worst crimes committed during the late war had been the organized mass destruction of racial and national groups, directed towards the complete elimination of certain races which had sprung up in the course of history. More than 12 million people had fallen victims to that abominable crime, not counting the victims of Japanese imperialism. It had aroused the indignation of all the civilized peoples of the world, and the United Nations had set itself the task of preventing it, and of ensuring that in future anyone guilty of such a crime should be punished. The draft convention on genocide now before the Assembly was the outcome of work undertaken from the beginning of the first session of the General Assembly in 1946. From then onwards, the USSR delegation, aware of the special importance of the campaign against genocide, had submitted to the ad hoc Committee on genocide a series of proposals1, some of which had been singled out for consideration and were now incorporated in the draft convention at present before the General Assembly. Thus the definition of genocide, the decision to punish acts of genocide, conspiracy to commit genocide, incitement to genocide and complicity in the crime were mentioned in the USSR proposal, as well as the punishment of the guilty parties, irrespective of status, an invitation to the States to provide the necessary measures to punish the crime of genocide in their national legislation, and the arrangements whereby the culprits could be brought before the courts of law of the countries in which the crimes of genocide were committed. Finally, it was thanks to a USSR proposal that the convention provided that the signatory States might appeal to the competent organs of the United Nations so that the necessary steps might be taken to ensure the prevention and punishment of acts of genocide. 1

See Official Records of the Economic and Social Council. Third Year, Seventh Session, Supplement No. 6.

Nevertheless, the convention was not perfect, and the USSR delegation, aware that its country had had to bear the brunt of the struggle against the forces of fascism, considered itself entitled to point out the shortcomings of the convention, which detracted from its significance. To remedy those shortcomings, the USSR delegation had submitted various amendments

2044

A/PV.178

(A/C.6/215/Rev. 1) which unfortunately had not met with the approval of the members of the Sixth Committee. The USSR delegation had therefore found it necessary to place them before the General Assembly. The USSR amendment to the preamble to the convention was intended to widen the definition of genocide. It was not sufficient to state that genocide had inflicted enormous losses upon humanity. It should also be pointed out that there was a connexion between genocide and the racial theories intended to develop racial and national hatreds, the domination of the so-called “higher races” and the extermination of the so-called “lower races”. The crime of genocide formed an integral part of the plan for world domination of the supporters of racial ideologies. Mr. Morozov quoted some examples of the crime, based on the records of the Nurnberg Tribunal. All those quotations showed that the mass extermination of Slav or Jewish populations formed part of a plan the implementation of which was made possible by an intensive propaganda campaign for the enslavement or destruction of races regarded as inferior. That propaganda was responsible for millions of deaths in Eastern Europe as well as in other countries, particularly France. Mr. Morozov expressed his astonishment that, while the General Assembly was being held in the very heart of France, some delegations, especially that of the United States, should nevertheless have raised objections to the organic connexion between fascism and racial theories and genocide being emphasized in the convention on genocide. Should the General Assembly accept that view, it would by that very fact demonstrate its refusal to condemn racial theories, or to admit that those theories inevitably led to genocide. It was clear that such theories were incompatible with the principles of the Charter. To say that the crime of genocide had no connexion with racial theories amounted, in fact, to a re-instatement of such theories. The USSR delegation strongly objected to such an attempt. The Sixth Committee had also rejected, at its 107th meeting, the USSR’s amendment requesting the signatory States to disband organizations whose aim was to incite racial or national hatred, and in future not to tolerate the existence of such organizations. Unless some such provision were adopted, it was clear that genocide might recur. Several delegations had opposed the amendment on the ground that it was in contradiction with the freedoms guaranteed by the Constitutions of a number of countries. Mr. Morozov wished to point out the dangers inherent in that attitude,

A/PV.178

2045

and observed that it would give rise to a situation permitting criminals full freedom of action, which was the more inadmissible when the crime under consideration was genocide. Mr. Morozov next recalled the tenor of another USSR amendment dealing with the crime of cultural genocide, which was defined as the sum total of premeditated action to destroy the religion, culture, or language of a national, racial or religious group. It included, for example, such acts as prohibiting the use of a national language and the publication of books or newspapers in that language, the destruction of libraries, museums, schools, places of worship, and, generally speaking, the destruction of every building serving a cultural purpose. Even the delegations which had opposed that amendment had agreed that such acts should be suppressed, but they had claimed that they had no connexion with genocide and that they should be considered in connexion with the discussion of the rights of minorities. The delegation of the USSR could not agree with that view, for it regarded cultural genocide as an aspect of genocide, i. e. a premeditated act aimed at the destruction of a group of human beings. Mr. Morozov feared that unless some provision regarding cultural genocide were included in the convention, some rulers who oppressed minorities might take advantage of its absence to justify crimes of genocide. The Venezuelan delegation had considered that aspect of the question and had proposed an amendment, which was, however, more limited in scope than that of the USSR and did not deal fully with the question. In addition, the term “systematic” was ambiguous. Mr. Morozov feared that it might enable certain criminals to evade their just punishment by giving them the opportunity to maintain that the destruction they had carried out was not systematic. For those reasons, the USSR delegation abided by the wording of its own amendment. Mr. Morozov then drew attention to another shortcoming in the Convention: its application in Non-Self-Governing Territories was left to the discretion of the administering Powers. True, there was a resolution inviting those Powers to extend the application of the convention to the territories at the earliest opportunity; but the resolution was inadequate and for that reason the USSR delegation proposed that is should be replaced by a definite clause stipulating that the convention should apply not only to the signatory States, but also to territories under their administration including all Trust Territories and Non-Self-Governing Territories.

2046

A/PV.178

During the discussion in the Sixth Committee1 the representative of the United Kingdom had objected to such a provision on the plea that it would represent interference on the part of the metropolitan Powers in local government activities. In the opinion of the USSR delegation, the reason why the colonial Powers had pressed so strongly for the omission of such a clause, which incidentally appeared in many other conventions, was because they intended to have a free hand to ensure that colonial territories were maintained in a position of inferiority. That was contrary to the principles of the Charter and therefore the USSR delegation pressed for the adoption of its amendment. 1

See Official records of the third session of the General Assembly, Sixth Committee, 107th meeting.

The last amendment proposed by the USSR delegation dealt with article VI of the convention. The delegation agreed with the first part of the article, in which it was stated that those guilty of crimes of genocide should be arraigned before the relevant court of justice of the State in whose territory the crimes had been committed. It was unable, however, to accept the second part of the article, by the terms of which such criminals could be tried by an international criminal court. That second provision limited the action Governments might take for the punishment of genocide. Moreover, the establishment of such an international court would be equivalent to interference in the domestic affairs of States, thus infringing upon their sovereignty, which was contrary to paragraph 7 of Article 2 of the Charter. For those reasons, the USSR delegation requested that the second part of article VI of the convention should be deleted. For the same reasons it objected to the draft resolution of the Sixth Committee requesting the International Law Commission to consider the question of an international criminal jurisdiction and the establishment of an international criminal court with powers to judge questions connected with genocide. In conclusion, Mr. Morozov emphasized that consideration of the amendments submitted by the USSR showed that they were directed towards ensuring the most effective results in the work undertaken by the United Nations for the prevention and punishment of the crime of genocide. He asked the General Assembly to adopt the amendments, which would

A/PV.178

2047

make possible a more efficient campaign against genocide, the most horrible of all crimes. Mr. Peréz Perozo (Venezuela) recalled that the former article III of the draft convention which had now become article II had been studied with particular attention by the Sixth Committee. The question had been whether the Convention would cover cultural genocide. The Sixth Committee had not succeeded in finding a very satisfactory phrasing for article III. The article had been made up of very varied elements and had, moreover, been couched in terms likely to cause confusion. In such circumstances, some of the signatory States might subsequently have had to face serious difficulties. The Venezuelan delegation, for one, had had great hesitation in accepting that part of article III which had prohibited any ban on a group using its own language. Countries whose population was composed of immigrants, and for which the defence of their national language was a vital necessity, had felt similar doubts. Moreover, some of the provisions of that article belonged rather to the field of freedom of information or protection of minorities. The Venezuelan delegation shared the reservations of other delegations concerning those provisions and believed, furthermore, that such a vital problem should not be treated hastily if the groups enumerated in the convention were to be protected against all forms of genocide. The General Assembly resolution 96(I) had stressed the fact that genocide resulted in great loss to the cultural and spiritual life of humanity. There had been a desire to punish all forms of the crime of genocide, not merely its physical aspect. A human group might, however, be destroyed not only by the physical extermination of its members, but also by acts which prevented it from maintaining its communal existence even if its members continued to exist physically. Thus the destruction of the place of worship of a religious group deprived that group of its reason for existence and led to its disappearance. Mr. Pérez Perozo asked the Assembly to give full consideration to his delegation’s amendment and to adopt it. The Venezuelan amendment was very simple: it retained three of the factors in the original article III and deleted all those which might lead to confusion. Those three factors were: religious edifices, schools and libraries of the group. The word “systematic”, which had been criticized by the representative of the USSR, had been

2048

A/PV.178

purposely chosen in order to emphasize that not only isolated cases were envisaged, but cases of collective violence carried out on a deliberate plan aimed at destruction. The amendment was the result of detailed study which had led to the conclusion that racial or religious hatred had always begun to show itself in the form of cultural genocide before it assumed the bloody aspect of mass murder. Such conclusions were of vital importance if the preventive nature of the convention were to be stressed. The problem of cultural genocide was different from that of the protection of minorities. No legislation could refuse to take steps to condemn such atrocious crimes, which outraged the conscience of humanity. It was wrong to say that acts directed towards destruction of that kind were covered by existing legislation; that was true only of the criminal acts mentioned in articles II and III of the convention. Moreover, by recommending that a convention on genocide should be drawn up, the General Assembly had wished to draw attention to a new category of crimes, and had laid particular stress on the infamy of such crimes in order the better to ensure their prevention. If the General Assembly refused to include in article III the factors mentioned in the Venezuelan amendment, it would disappoint the hopes of some delegations who wished to condemn all forms of genocide and, in particular, cultural genocide. Mr. Pérez Perozo recalled that at the beginning of the Committee’s work, the Venezuelan delegation had received a message from Buenos Aires requesting it to insist that the convention should include a provision for the protection of religious edifices without distinction with regard to sect. That appeal reflected the true feelings of religious believers, and the Venezuelan delegation had been unable to ignore it. Mr. Pérez Perozo pointed out that logically the Venezuelan amendment should go after the sub-paragraph on “forcibly transferring children of the group to another group”. The forcible transfer of children was not physical genocide because the children were not destroyed but were torn from one group and incorporated in another. The amendment submitted by the Venezuelan delegation should, then, be inserted after sub-paragraph (e) in the form of a sub-paragraph ( f ).

A/PV.178

2049

Finally, Mr. Perez Perozo appealed to the General Assembly to accept his delegation’s amendment, thus filling a gap which the Committee had left in the convention on genocide showing the world that it had not been unmindful of the highest interests of culture and had, been anxious to censure the protection of the religious sentiments of the whole of humanity. Mrs. Ikramullah (Pakistan), after expressing her great satisfaction at the completion of the draft convention on the prevention and punishment of genocide, emphasized the contribution that had been made to the work by a number of countries, including the Latin-American countries and Egypt. She expressed her regret however, that no mention had been made of crimes committed against the culture of a people or of a human group. It must be realized that very often a people did not differ from its neighbours by its racial characteristics but by its spiritual heritage. To deprive a human group of its separate culture could thus destroy its individuality as completely as physical annihilation. Moreover, those guilty of the crime of mass extermination committed that crime because the existence of a community endowed with a separate cultural life was intolerable to them. In other words, physical genocide was only the means; the end was the destruction of a people’s spiritual individuality. To safeguard the physical existence of a group human beings was a considerable achievement from a humanitarian point of view. But the mere physical existence of a group was of little value from the point of view of humanity, for a group deprived of the living springs of the spirit was only a body without a soul, unable to make any contribution to the world’s heritage of art and science. It was an accepted principle that diversity of spiritual endowments was of great value to the human race and that every effort should be made to safeguard it. It was obvious that the convention on genocide could not be restricted to safeguarding the physical existence of human groups, because Resolution 96(I) had declared that “denial of the right of existence of entire human groups . . . results in great losses to humanity in the form of cultural and other contributions represented by these human groups and is contrary to moral law and to the spirit and aims of the United Nations”. It was clear that the resolution definitely envisaged the prevention of genocide in the cultural world, as in other fields.

2050

A/PV.178

The Pakistan delegation recognized that the final text of article III1 had provided too wide a definition of cultural genocide and that it could therefore have been difficult to bring the offences enumerated in it before the courts. The delegation had, therefore, submitted2 an amendment (A/C.6/229) which narrowed cultural genocide to two specific crimes – forcible mass conversion of persons and the destruction of religious edifices. 1

2

See Official Records of the Economic and Social Council, Third Year, Seventh Session, Supplement No. 6, page 6. See Official Records of the third session of the General Assembly, Sixth Committee, 83rd meeting.

It had been argued that such acts, heinous though they might be, were not so outrageous as physical genocide. It might be that some people regarded the destruction of religious edifices as a thing of little importance, but, for the majority of Eastern peoples, such an act was a matter of grave concern. In that part of the world, a far greater value was placed upon things of the spirit than upon mere material existence. Religious monuments were a source of inspiration to those peoples and a symbol of their spiritual personality. It was regrettable that the peoples who had most enriched world culture belonged, in general, to small groups, and were in most cases, of no political importance. As they could not defend their spiritual heritage by force of arms, they were obliged to appeal to the community of nations to preserve that precious heritage. Of the two amendments submitted to the Assembly, the Pakistan delegation preferred that of the USSR. It hoped, however, that if the Assembly did not accept that amendment on account of its very broad scope, it would adopt the Venezuelan amendment. The criminal nature of cultural genocide having thus been recognized, there would be an opportunity to improve the convention in respect to that point, later on. The Pakistan representative wished to reassure all those who feared that such a provision would prove to be an obstacle to the normal process of assimilation into the national community. There was no question of that, but rather of the forcible and systematic suppression of a national culture, which could not be covered by the euphemistic term of assimilation.

A/PV.178

2051

It had also been suggested that the problem should be dealt with either in the declaration of human rights or in a possible charter on the protection of minorities. Such a view showed a complete failure to understand the real aim of the convention on genocide. The convention was not designed to proclaim rights but to punish certain crimes. The purpose of the original text of article III was, in fact, to define a category of acts of violence and destruction which were undeniably criminal. It seemed that at a certain stage of the discussion, the moral aspect of the problem had been overlooked in a welter of legal considerations. It was undoubtedly true that great legal difficulties were involved in the question of genocide. Once the gravity and heinousness of the crime of genocide had been recognized, however, efforts must be made to find a legal means of preventing it, and the difficulties which existed under the present legal systems must not be allowed to impede progress. The Pakistan representative was gratified to note that the Sixth Committee had recommended the establishment of an international criminal court and a preliminary study of that matter by the International Law Commission. The crime of genocide was no novelty. While it had always shocked the conscience of mankind nothing had ever been done to punish it. Scientific discoveries had made it possible for man to perpetrate the crime on a vast scale. It was therefore all the more urgent that the convention on the prevention and punishment of genocide should be adopted. The Pakistan representative hoped that all Member States would sign the convention and would see that it was applied. Mr. Gross (United States of America) said that the unanimous vote of the General Assembly on Resolution 96(I) of 11 December 1946 reflected determination to ensure that the barbarous acts which had shocked the conscience of mankind in the preceding years would never again be repeated. In a brief survey of the history of the preparation of the draft convention on the prevention and punishment of genocide, Mr. Gross drew attention to the important contribution that the current President of the General Assembly had made to the arduous and patient work involved. The draft convention was not perfect. Each delegation undoubtedly had the right

2052

A/PV.178

to present amendments during the plenary meeting and, as the President had said, it was the obligation of other Members to give such proposals their earnest consideration. He could not, however, help regretting that the USSR delegation had deemed it wise to propose a series of amendments to the Assembly, while it had objected to the motions to re-open discussions in the Sixth Committee. At the request of other delegations, among them the United States delegation, the Committee had reopened the debate in regard to certain clauses of the draft convention and had adopted some amendments during the last stages of its work. The USSR delegation, however, had not given the members of the Committee the opportunity to re-open the discussion on the amendments which it intended to propose again to the plenary meeting. When the matter had been discussed at the 110th meeting of the Committee, only seven countries had supported the USSR amendment to the preamble, while 36 delegations, including that of the United States, had opposed it. The reason for that opposition was that the amendment in question would have a limiting effect on Convention, in that it declared genocide to be organically linked to certain doctrines. The Nürnberg tribunal had certainly recognized the organic link, but it had been concerned only with crimes committed during the last world war or during the period of preparation for the war. The Convention on genocide, however, should be applicable to all situations, in time of peace as in times of war. Gross agreed that it was difficult to reply to the eloquent arguments of the representatives of the USSR, Venezuela and Pakistan on the subject of cultural genocide. Nevertheless, he did not think the character of the convention could be broadened in that way. Resolution 96(I) of the General Assembly defined the crime of genocide as the destruction of entire human groups, in contrast with homicide, which was the physical destruction of an individual. However barbarous and unpardonable it might be, the destruction of a church, a library or a school was in an entirely different category. That was a problem that concerned the fundamental human rights of the individual. The USSR amendment was to add an article which would place among crimes punishable by international law such acts as the prohibition of the use of a certain language in schools or in daily intercourse, as also in publications. The amendment was not, however, designed to guarantee the free expression of thought, irrespective of the language employed. That

A/PV.178

2053

demonstrated how difficult it was to enter upon the field of fundamental human freedoms within the framework of the convention. With regard to article VI, the USSR was opposed to the idea of the establishment of an international criminal court. In that connexion, it was sufficient to point out that the crimes with which the draft convention dealt could be perpetrated by a State, or by individuals who might be the representatives or agents of a State. If the punishment of such crimes was left to the State in question, the convention on genocide would be in the nature of a fraud. The United States representative paid a tribute to the countries which had originally sponsored the convention, namely: Cuba, Panama and India,1 as also to Mr. Alfaro, the Chairman of the Sixth Committee, Prince Wan Waithayakon, the Vice-Chairman, and Mr. Spiropoulos, the Rapporteur. The efforts of all those who had taken part in the work had resulted in the production of a draft convention which, once adopted, would constitute a milestone in the progress of international law. 1

See Official Records of the second part of the first session of the General Assembly. Sixth Committee, annex 15, page 242.

Mr. Dignam (Australia) urgently requested the delegations to vote unanimously for the Sixth Committee’s report, and thus give proof of the collective will of the Assembly to prevent and abolish the abominable crime of genocide. Recalling the various phases through which the preparation of the draft Convention had passed, Mr. Dignam quoted the appeal made by Mr. Evatt at the 218th meeting of the Economic and Social Council in August 1948 that the draft should be submitted to the third session of the General Assembly. The representative of Australia paid tribute to all those who had contributed to the preparation of the draft convention, which represented the widest basis for understanding which was now to be found on the subject. While full of sympathy for the peoples who had suffered directly from aggression and who wished the convention to cover as much ground as possible, Mr. Dignam considered that it was above all important to have a unanimous vote for a draft, the contents of which were acceptable to

2054

A/PV.178

all. By re-examining the draft convention later, it might be possible to amend it usefully, but at all costs the crime of genocide must be fought without delay. If the Assembly waited, in an endeavour to give entire satisfaction to the arguments of each one of the 58 Member States, that would be tantamount to postponing the completion of the instrument indefinitely. The representative of Australia begged the delegations which had raised objections to certain points in the draft not to abstain from voting on the whole. Unanimous agreement could thus be reached on that very important instrument. He did not think that any Member State should be prevented by legal considerations from signing and ratifying the convention and putting it into operation. Genocide was such a vile act that even savages and wild beasts were incapable of committing it. War-toughened soldiers had been struck with horror at the sight of the victims of genocide who were still alive. It was neither a crime of passion nor a vicious crime. In view of its indescribable character and the impossibility of justifying it in any way, it would be of value to re-affirm solemnly the two resolutions 96(I) and 180(II) that the General Assembly had adopted on the subject. For the benefit of future generations, the Assembly should place on record the horror it felt at the inhuman and diabolical crimes which had been committed in recent times. It was to be hoped that it would never be necessary to invoke the provisions of the convention. The fact that the present generation had resolved to prevent such abominable practices must, however, be recorded in history. Although the decisions of the international military tribunals of Nürneberg and Tokyo had served as a basis for the draft convention, Mr. Dignam felt that the convention should not be limited to a denunciation of the terrible crimes committed in the name of fascism and nazism. It was right that article I should state that the convention was applicable in peace-time as well as in war-time. The Australian representative approved the wording of article VI, as also draft resolution B in the Sixth Committee’s report which referred to the setting up of an international criminal Court. His country had always maintained that guarantees of human rights or fundamental freedoms were meaningless, whether written into a peace treaty or an international

A/PV.178

2055

convention, unless machinery was provided for their implementation. That was all the more true in the case of genocide, for history showed that the author of that crime was often the government of a State. Article VIII gave every contracting party the right to invoke the competent organs of the United Nations. Just as the most humble citizen of a national community had the right to appeal to the supreme legislative and judicial organs of his country, so the smallest States that were victims of injustice should be given the right to have their grievances examined by the competent organs of the United Nations. The signing of that convention would be an act of reparation to the innumerable victims of genocide, and at the same time a solemn guarantee that such bloodthirsty deeds would never again be repeated. Mr. Abdoh (Iran) recalled that since the beginning of the Committee’s work the Iranian delegation had warmly supported the initiative taken by certain delegations in preparing an international draft convention for the suppression and punishment of the crime of genocide. It had collaborated in the preparation of that convention and had submitted, among others, the compromise proposals (A/C.6/218) appearing in draft resolutions B and C submitted to the Assembly. Genocide was not only the most odious crime which could be committed against the human race; it might also give rise to future wars. It was for that reason that the Iranian delegation expressed satisfaction not only at the fact that the Sixth Committee had succeeded, after two and a half month’s difficult work, in submitting a draft convention which should receive the unanimous approval of the General Assembly but also at the fact that even in that Committee no delegation had opposed the principle of the convention. There was a difference of opinion only on the method of application of the principles unanimously agreed upon by the Members of the United Nations in the resolutions adopted in 1946 and 1947. There had, however, been some abstentions in the final vote in the Sixth Committee1. Some delegations had given as a reason for their abstention the fact that the convention did not contain certain provisions which might have been more effective from the point of view of the suppression of genocide. Mr. Abdoh drew attention to the fact that the draft submitted to the General Assembly was a compromise text prepared in the hope that it would meet with unanimous approval without compromising the

2056

A/PV.178

principle that the existence of racial, religious or national groups was as sacred as the life of an individual. 1

See Official Records of the third session of the General Assembly, Sixth Committee, 132nd meeting.

The draft convention was certainly far from perfect. For its part, the delegation of Iran regretted that the Committee had not adopted the principle of universal subsidiary punishment in the case of genocide. It understood, however, the reasons why some delegations had opposed its proposals and it would not press the point, as it did not wish to delay the work of the General Assembly, particularly at the final stage. The Iranian delegation likewise regretted that amendments, rejected by the Sixth Committee after lengthy discussion, had been submitted to the General Assembly. Mr. Abdoh emphasized that the measures provided for in the draft convention for the prevention and punishment of genocide should not be under-estimated. Under the terms of the convention, States were obliged to have guilty parties punished by their own courts to deny them the right of asylum and to permit extradition. It also provided that the assistance of the United Nations organs might be invoked, that the International Court of Justice might pronounce an opinion on the violations of the convention, and that the International Law Commission should study the question of setting up an international criminal court. Recalling the words of wisdom spoken by Mr. Evatt in the Economic and Social Council, Mr. Abdoh stressed that it would be better to proceed slowly and to include in the convention at the present time only those points on which agreement could be reached, reserving its completion for a future date. In preparing the convention, the United Nations had filled an international moral and humanitarian need and had hastened humanity’s progress towards a better civilization. The Iranian representative wished to pay a tribute to the delegations of India, Cuba and Panama, which had taken the initiative of proposing the first draft resolution on genocide in 1946. He also praised Professor Lemkin of Yale University, who had enriched legal science by establishing the character of genocide as a crime against human rights and by awakening public opinion to the necessity of combatting that world-wide scourge. In

A/PV.178

2057

conclusion, Mr. Abdoh hoped that Member States would sign and ratify the convention in the near future. Mr. Parodi (France) recalled that his delegation had for two years taken part in all debates on the subject of genocide and in 1946 had submitted a draft resolution based on the idea that the crime could only be punished at an international level, since it was most often committed, if not with the complicity of a Government, at least with its tolerance. The French delegation’s draft resolution had contained not only the principle of the setting up of an international criminal court but also detailed provisions regarding the functioning of that court. That idea, which had appeared essential to the French delegation, had only been partly retained in the draft convention before the Committee. The French delegation saw, however, in that draft the result of many conciliatory efforts and it was for that reason that it had not again submitted to the General Assembly those of its amendments which had been rejected by the Sixth Committee. France had been able to adopt that conciliatory position because article VI of the convention provided for the setting up of an international criminal court. It was true that the competence of that court would only be optional at first, but owing to the fact that the convention mentioned it, it would pass into the sphere of positive law, which would be an important result. The convention provided that the International Law Commission should draw the necessary conclusions from the principle thus inscribed in the first draft convention, namely to prepare the statutes and rules of procedure of the international criminal court. The draft had thus considerable legal significance. Its mor