A Problem from Hell: America and the Age of Genocide. Samantha Power
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.”18
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.”19 The American Legion, which represented 2.5 million U.S. war veterans, said it was “terribly disappointed.”20 Some eighty senators in the Republican-controlled Senate called on Reagan to “reassess his itinerary.”21 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.”22 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.23
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.”24 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,”25 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.26 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.
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