Semantics or Substance?: David Scheffer's Welcome Proposal to Strengthen Criminal Accountability for Atrocities

Abstract

David Scheffer’s fascinating proposal, if I understand it properly, calls for an amalgamation of various categories of internationally condemned behavior—mainly genocide, crimes against humanity, and war crimes—into a new concept known as ‘‘atrocity law.’’ This will facilitate implementation of the responsibility to protect vulnerable populations. Pedantic debates about matters of essentially technical relevance to criminal prosecution will not be allowed to impede sincere efforts at intervention or to provide a pretext for those who shirk their obligations. Leslie Green mooted a similar idea in the mid-1990s, but it didn’t gain any traction at the time.1 In informal discussions as part of the drafting of the Rome Statute of the International Criminal Court (ICC), I argued for Green’s proposal to conflate crimes against humanity and war crimes but was regularly told that this simply wasn’t going to fly. Follow this and additional works at: http://scholarcommons.usf.edu/gsp This Article is brought to you for free and open access by the Tampa Library at Scholar Commons. It has been accepted for inclusion in Genocide Studies and Prevention: An International Journal by an authorized administrator of Scholar Commons. For more information, please contact scholarcommons@usf.edu. Recommended Citation Schabas, William A. (2007) or Substance? David Scheffer’s Welcome Proposal to Strengthen Criminal Accountability for Atrocities, Genocide Studies and Prevention: An International Journal: Vol. 2: Iss. 1: Article 4. Available at: http://scholarcommons.usf.edu/gsp/vol2/iss1/4 Semantics or Substance? David Scheffer’s Welcome Proposal to Strengthen Criminal Accountability for Atrocities William A. Schabas Professor of Human Rights Law, National University of Ireland, Galway; Director, Irish Centre for Human Rights David Scheffer’s fascinating proposal, if I understand it properly, calls for an amalgamation of various categories of internationally condemned behavior—mainly genocide, crimes against humanity, and war crimes—into a new concept known as ‘‘atrocity law.’’ This will facilitate implementation of the responsibility to protect vulnerable populations. Pedantic debates about matters of essentially technical relevance to criminal prosecution will not be allowed to impede sincere efforts at intervention or to provide a pretext for those who shirk their obligations. Leslie Green mooted a similar idea in the mid-1990s, but it didn’t gain any traction at the time. In informal discussions as part of the drafting of the Rome Statute of the International Criminal Court (ICC), I argued for Green’s proposal to conflate crimes against humanity and war crimes but was regularly told that this simply wasn’t going to fly. And yet there are many recent developments favoring this drive for greater coherence and more simplicity. The international tribunals themselves have promoted the idea of general principles and concepts with respect to war crimes that are drawn from such formulations as common article 3 of the 1949 Geneva Conventions. In effect, common article 3 serves as a catchall category that obviates the need for more precise provisions. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) took two texts drawn from provisions drafted in the 1940s and ‘‘interpreted’’ them to mean all ‘‘serious violations of international humanitarian law.’’ We can see the same kind of consolidation in the tendency of the tribunals to convict offenders of both crimes against humanity and war crimes. With rare exceptions, every ‘‘atrocity’’ committed in Bosnia and Herzegovina was characterized as both a war crime and a crime against humanity. Without suggesting that the distinction is devoid of any significance, in terms of putting evildoers behind bars it has not proven to be a terribly productive nuance. Much the same can be said of the distinction between genocide and crimes against humanity. The commission of inquiry into Darfur concluded against a finding of genocide but said that crimes against humanity appeared to have been committed and that there was no reason to suggest that this made the matter any less serious: The above conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or though the militias under their control, should not be taken as in any way detracting from, or belittling, the gravity of the crimes perpetrated in that region. As stated above genocide is not necessarily the most serious international crime. Depending upon the circumstances, such international offences as crimes against humanity or large scale war crimes may be no less William A. Schabas, ‘‘Semantics or Substance? David Scheffer’s Welcome Proposal to Strengthen Criminal Accountability for Atrocities.’’ Genocide Studies and Prevention 2, 1 (April 2007): 31–36. 2007 Genocide Studies and Prevention. serious and heinous than genocide. This is exactly what happened in Darfur, where massive atrocities were perpetrated on a very large scale, and have so far gone unpunished. On the political level, there is also a marked tendency toward consolidation of the categories of international crime. The ‘‘Outcome Document’’ adopted in September 2005 by the United Nations Summit of Heads of State and Government affirmed a radical new international obligation when it declared that there was a ‘‘responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’’ In other words, in this most contemporary and authoritative statement of the parameters of intervention to protect human rights, the member states of the United Nations have agreed that the responsibility to protect applies to a broad category of ‘‘atrocity,’’ without distinction. Is Scheffer proposing that we simply abandon the term ‘‘genocide’’ in favor of ‘‘atrocity’’ (something that would require a change to the name of this journal!)? Not quite, it appears, because he also argues for the term ‘‘precursors of genocide,’’ which seems to be a kind of halfway house. The rationale for diluting the requirements of full-blown genocide into a list of ‘‘precursors’’ is to justify intervention, that is, implementation of the responsibility to protect. Instead of dawdling about definitional aspects of genocide, explains Scheffer, we should rapidly reach the less difficult conclusion that ‘‘precursors of genocide’’ are present and get on with the business of saving lives and protecting the innocent. But given the far-reaching principle confirmed in the Outcome Document, is this really necessary anymore? The so-called precursors will invariably fall into the other three categories recognized by the Summit of Heads of State and Government, namely crimes against humanity, war crimes, and ethnic cleansing. And, since there is a responsibility to protect when these are evident, does ‘‘precursors of genocide’’ really add anything? The Outcome Document might well have used the term ‘‘atrocity’’ as a synonym for ‘‘genocide, war crimes, ethnic cleansing, and crimes against humanity.’’ By my reading of Scheffer’s proposal, he would be happy enough if we conceded that the two expressions describe the same reality. Certainly they appear to have much the same legal significance. A historical approach is helpful in understanding why Scheffer’s proposal may well be an idea whose time has come. Although a continuing distinction between genocide, crimes against humanity, and war crimes may have little or no legal significance today, an examination of the development of these concepts explains why the classifications exist (and also why the classifications are less and less important). In 1943, the UN War Crimes Commission was established by the Allies, for whom the end of the war was already in sight. They were determined to hold the Nazis personally accountable for the crimes they had committed. The name of the commission says it all: it was to prosecute ‘‘war crimes,’’ a category whose parameters were well understood in international law. In effect, ‘‘war crimes’’ amounted to battlefield offences, committed amongst combatants, such as the use of prohibited weapons, or treachery, or the abuse of prisoners of war. ‘‘War crimes’’ also covered violations perpetrated against civilian nationals of an occupied territory. Full stop. When non-governmental organization activists asked the War Crimes Commission what would be done with respect to Nazi atrocities committed within Germany against German nationals, they were told this was simply beyond the scope of international law. Rather quickly, the debate evolved, and there was growing willingness to contemplate prosecution of what were initially called ‘‘persecutions, exterminations Genocide Studies and Prevention 2:1 April 2007