The Genocide Convention and the Constitution (with Richard Arens), 3 Vanderbilt Law Review 683 (1950)
Shocked by the Nazis' barbaric mass-murder of millions of Jews, Poles and Gypsies just because they were Jews, Poles and Gypsies, a tense world threatened by new violence seeks in the Genocide Convention to mobilize the conscience of mankind, to create a new crime, and to outlaw under the laws of all mankind, the intentional destruction of racial, ethnical, national and religious groups. By this Convention, after recognizing "that at all periods of history genocide has inflicted great losses on humanity" and "that international cooperation is required" to "liberate mankind from such an odious scourge," the contracting states "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." Genocide is defined as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such": "killing members of the group," "causing serious bodily or mental harm to members of the group," "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part," "imposing measures intended to prevent births within the group," "forcibly transferring children of the group to another group." In addition to "genocide," so defined, other acts are made punishable: "conspiracy to commit genocide," "direct and public incitement to commit genocide," "attempt to commit genocide," and "complicity in genocide." All persons "whether they are constitutionally responsible rulers, public officials or private individuals" who commit "genocide or any of the other [enumerated] acts" are to be punished and the "Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect" to the Convention and to provide "effective penalties." Trial is to be "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." Disputes as to "interpretation, application or fulfillment" are to be "submitted to the International Court of Justice at the request of any of the parties to the dispute" and "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 prevention or suppression of the crime.
Date of Authorship for this Version
McDougal, Myres S. and Arens, Richard, "The Genocide Convention and the Constitution" (1950). Faculty Scholarship Series. Paper 2480.