A Problem from Hell: America and the Age of Genocide

With the Holocaust now a topic for public discussion and debate, convention advocates began doing what Cambodia advocates had done: They linked their efforts to the Holocaust. Proxmire did so frequently. He trumpeted the tales of ordinary Poles who had refused to “stand idly by” during the Holocaust. “Mr. President, can we do any less than the Chrosteks and the Walter Ukalos? They did what they could to stop the monstrous actions of the Nazis. Will we do what we can to prevent a future Holocaust? Are we willing, at long last, to join the other 96 nations which have ratified the Genocide Convention?”

(#litres_trial_promo) He invoked the death of Anne Frank. On her birthday he declared,

Mr. President, no treaty signed by this country could ever make up for the loss of Anne Frank and 6 million others who perished in the Holocaust. But we have an obligation to join with the other nations that have already ratified the Genocide Treaty to make clear to them that we share their sorrow at the tragedy that claimed Anne Frank’s life. We need to make clear, Mr. President, our intention to prevent such a tragedy from ever happening again. We need to make clear that we will bring those who would commit genocide to justice.

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Around the fortieth anniversary of the Allied liberation of the Nazi concentration camps, Proxmire specifically highlighted America’s wartime indifference. During Hitler’s Third Reich, he noted, seventy-eight speeches had been made in the U.S. House of Representatives about the persecution of the Jews in Europe. “Yet despite the speeches and the resolutions,” he said, “the killings went on, the cries of the dying went unheeded, and our immigration policies remained unchanged. Is it any wonder that Hitler dismissed foreign outrage with the quip, ‘Who remembers the Armenians?’”

(#litres_trial_promo) When Holocaust survivor and author Elie Wiesel made his first trip to Germany, Proxmire linked it, too, to ratification. “How can we sympathize with Mr. Wiesel’s cause without taking action? The Genocide Convention establishes the mechanisms for action…”

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Although Proxmire cultivated the image of himself as apolitical, he made an acutely political case for passage. Neither he nor the other supporters of the convention relied primarily upon moral argumentation, which was slowly drifting out of fashion. Like Lemkin, they went out of their way to demonstrate that nonratification was damaging America’s interests. If Lemkin had instinctively wooed government representatives by describing the cultural losses they would endure, Proxmire and other advocates argued that American nonratification was undermining U.S. Cold War diplomacy. “It’s clear that our failure to ratify…has been one of the most useful propaganda clubs the Soviet Union has ever had,” Proxmire said in a 1986 speech, “and we’ve handed it to them on a silver platter.” UN ambassador Jeane Kirkpatrick had testified before the Senate Foreign Relations Committee the previous fall. “It is contrary to our national interest,” Kirkpatrick said, to fuel anti-American propaganda by refusing “to reaffirm clearly and unequivocally U.S. support for the objectives of the Convention.” Proxmire quoted Kirkpatrick and asked, “Is Ambassador Kirkpatrick some type of one-worlder internationalist? Is she easily duped by Soviet or Communist trickery?”

(#litres_trial_promo) The Soviet Union had ratified the genocide convention in 1954, an act the New York Times described as analogous to Al Capone’s joining the “anti-saloon league.”

(#litres_trial_promo) Proxmire agreed that the Soviets were hypocrites who had no intention of heeding international law simply because they had agreed to it. Still, he believed the United States should not remain aloof from the international framework. It was the only major power that had not ratified the convention.

The Soviet representative at the UN Human Rights Commission and at the review conferences for the Helsinki accords frequently undercut U.S. criticisms by saying a country that had not even contracted to the genocide convention had no right to lecture the Soviet Union on human rights. “Why permit Communist nations, which all too often only give lip service to these obligations, to take the moral high ground in these debates?” Proxmire asked. The United States could use the convention in its diplomatic arsenal. “It is unlikely that genocide will be committed in any Western democratic nation. It is more likely that genocide will occur in non-democratic, totalitarian or Communist states,” he said. “We cannot do moral battle against genocide with one hand tied behind our backs.”

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Proxmire’s staff collected a running tally of embarrassing clashes between U.S. and Soviet representatives in international settings, which they showered upon senators. At one meeting of the UN Subcommission on the Prevention of Discrimination, Proxmire recalled that Morris Abrams, the U.S. member of the commission, had urged the need for “forceful measures of implementation” to confront racial discrimination. The Soviet delegate promptly turned to Abrams to inquire whether the United States had ratified the genocide convention, the most basic of all human rights treaties. Chastened, Abrams quietly stated his “regret, of course, that my country has not ratified the convention on genocide.”

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Rita Hauser, President Nixon’s delegate to the UN Human Rights Commission, had testified before the 1970 Senate Committee:

We have frequently invoked the terms of this Convention…in our continued aggressive attack against the Soviet Union for its practices, particularly as to its Jewish communities, but also as to the Ukrainians, Tartars, Baptists and others. It is this anomaly…[that] often leads to the retort in debates plainly put, “Who are you to invoke a treaty that you are not a party to?”

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Although Proxmire had relayed many of these tales on the Senate floor and the Soviet tactic had long been publicized, he believed President Reagan, the renowned Cold Warrior, would be more annoyed by the Soviet debater’s move than his predecessors had been. Reagan would not wish allow the "Evil Empire" to claim any patch of moral high ground.

Proxmire was backed by the grassroots ad hoc committee, which tried to generate bottom-up pressure. With the November 1984 presidential election approaching, Korey worked behind the scenes to lobby the foreign policy advisers of the incumbent Reagan and challenger Walter Mondale. He struck out with the Mondale campaign, but in early September one of Reagan’s foreign policy advisers casually called to say that the president was prepared to change his position on the genocide convention and support ratification. Korey was floored.

In each presidential election cycle, it had become a tradition that the candidates would use the B’nai B’rith annual convention as an opportunity to address the Jewish community. On the eve of the 1984 convention, State Department spokesman John Hughes publicly announced that President Reagan would endorse the genocide convention. “The commitment of our country to prevent and punish acts of genocide is indisputable,” Hughes said. “Yet our failure to ratify this treaty…has opened the United States to unnecessary criticism in various international fora.”

(#litres_trial_promo) In his first term Reagan had not supported the convention. In fact, when Republican Senator Charles Percy, chairman of the Senate Foreign Relations Committee, held hearings on the treaty in 1981, not a single representative of the Reagan administration had turned up to testify. But in his B’nai B’rith speech, thanks partly to the lobbying of nongovernmental advocates and the proven unwillingness of Proxmire to let the issue drop on Capitol Hill, the president (and candidate) changed course. The Soviet rebuttals irritated him. Reagan’s advisers also believed that the president could gain at least a few Jewish votes by supporting the measure. But perhaps most crucial, with only three weeks remaining in the Senate session, the Reagan team knew that the treaty would not come up for passage until after his reelection. “This was a shrewd move by the Administration,” a Senate aide said at the time. “There is no time for floor debate in which the President would have to take on the conservatives, but there is time for political benefits for the President.”

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Reagan’s belated shift was a small victory for convention advocates. But it actually only brought him into line with all previous American presidents except Eisenhower. The administration gave no signs that President Reagan was prepared to invest the political capital needed to bring about full Senate ratification. But that was before Reagan blundered at Bitburg.

Bitburg

In April 1985 the White House announced that President Reagan planned to lay a wreath at West Germany’s Bitburg Cemetery the following month. Reagan’s trip was meant to commemorate the fortieth anniversary of the end of World War II. But when the press reported that forty-nine Nazi Waffen SS officials were buried at the site and that Reagan had declined requests to visit Holocaust memorials, the president was lambasted for his insensitivity. The Washington Post and New York Times demanded he drop the visit, calling it “one of the most embarrassing and politically damaging episodes of his Administration.”

(#litres_trial_promo) The American Legion, which represented 2.5 million U.S. war veterans, said it was “terribly disappointed.”

(#litres_trial_promo) Some eighty senators in the Republican-controlled Senate called on Reagan to “reassess his itinerary.”

(#litres_trial_promo) Senate Republican leader Bob Dole issued his own public appeals for cancellation. More than 250 House representatives wrote German chancellor Helmut Kohl directly, asking him to spare the U.S. president humiliation by changing the venue. And Jewish organizations protested fiercely. The main pro-Israel lobbying group, the American Israel Public Affairs Committee (AIPAC), the U.S. Holocaust Memorial Council, Jewish survivor organizations, and most prominent Jewish American leaders expressed anger and alarm. Holocaust survivor Wiesel said he had “rarely seen such outrage” among Jewish groups and condemned what he termed the “beginning…of the rehabilitation of the SS.”

(#litres_trial_promo) At a White House ceremony coincidentally honoring Wiesel, Reagan tried to appease him by citing the “political and strategic reasons” for visiting Bitburg. But in his public remarks Wiesel rejected Reagan’s defense. “The issue here is not politics, but good and evil. And we must never confuse them. For I have seen the SS at work. And I have seen their victims. They were my friends. They were my parents,” Wiesel said.

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Reagan defended the planned trip on a variety of grounds. He hoped to “cement” the German-U.S. friendship. He had to stand by his commitment to Chancellor Kohl. It was important to move beyond German guilt. In one interview Reagan claimed that the German soldiers were “victims” of the Nazis “just as surely as the victims in the concentration camps.”

(#litres_trial_promo) In response to the outrage, Reagan tacked on a visit to the Bergen-Belsen concentration camp, but he refused to do the one thing that might have curbed the criticisms: cancel the visit. He preferred plunging poll ratings to the appearance of bowing to public pressure. “All it would do is leave me looking as if I caved in the face of some unfavorable attention,”

(#litres_trial_promo) Reagan said, blaming the reporters for stirring the controversy. “They’ve gotten hold of something, and like a dog…they’re going to keep on chewing on it.” The president plowed ahead, ignoring the predictions by his Republican strategists that the Bitburg visit would cost him Jewish support. On the day of Reagan’s Bitburg stopover, May 5, 1985, protests were held in Boston, Miami, Atlanta, Milwaukee, Philadelphia, Newark, West Hartford, and New Haven.

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

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

Reservations

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

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

The legal consequence of the U.S. reservation was that if the United States henceforth suspected that another state was committing genocide and attempted to bring the matter before the ICJ, the accused country could assert the American reservation against the United States under something called the doctrine of reciprocity. The United States was effectively blocked from ever filing genocide charges at the court against perpetrator states.

(#litres_trial_promo) Proxmire battled against the reservations in the same way he had fought on behalf of the convention. He took to the familiar floor, spelling out the consequences of the American position:

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

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

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

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