[Access article in PDF]
Genocide in International Law: The Crimes of Crimes
Genocide in International Law: The Crimes of Crimes, by William A. Schabas (Cambridge University Press: Cambridge, 2000), 624 pp.
William Schabas, Director of the Irish Center for Human Rights and Chair in Human Rights Law at the National University of Ireland-Galway, has enormously enriched the literature on genocide and international human rights with the publication of Genocide in International Law The Crimes of Crimes. This necessarily abbreviated and, at times, critical commentary should not detract from my unalloyed admiration for this significant scholarly statement.
The volume has four distinct divisions. The initial section traces the development and drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The second provides a detailed discussion of [End Page 1105] the treaty text. A third utilizes the remedial clauses of the convention to describe and to analyze the responses of the United Nations and international tribunals to contemporary genocides. A concluding chapter considers treaty revisions and reforms. Interwoven in the largely technical text are observations on topics ranging from norms of treaty interpretation to the relationship between international law and foreign policy. The volume also contains a comprehensive bibliography on the legal literature of genocide.
Schabas' book is of obvious relevance given the on-going trials arising out of the Yugoslav and Rwandan conflicts and the potential prosecutions in countries such as Indonesia and Sierra Leone. In fact, the jurisprudence of genocide is so dynamic and diffuse that events will soon likely dictate a second edition.
The reader must be cautioned that this is neither a work of philosophy, history nor empirical or theoretical social science. The volume, instead, is dedicated to the intellectual and practical demands of legal scholars and practitioners and provides a primer on the Genocide Convention which draws upon the full-range of contemporary legal scholarship. The text nevertheless might have been energized by a politically nuanced analysis of the convention and by philosophical perspectives on questions such as whether groups possess collective rights. The non-legal specialist, at any rate, may find this a useful compendium, particularly given the wide-spread misunderstanding and disregard of jurisprudential doctrine which characterizes much of the work on genocide. Scholars in the humanities and social sciences also might profit from a legal perspective in pondering the rationale for requiring a specific genocidal intent or limiting the groups protected under the convention.
There is no disputing the importance of the Genocide Convention. The treaty and the companion Universal Declaration of Human Rights were the first human rights instruments adopted by the fledgling United Nations. The Genocide Convention stands as a clear and concrete legacy of Nuremberg and the anti-totalitarian struggle and sacrifice of World War II and constitutes the cornerstone of the edifice of international criminal law. The treaty's rich and rambunctious history, as outlined in the Schabas' volume, provides a prism thorough which to view the development and debate over international human rights in the twentieth century.
Schabas fails to fully communicate the remarkably revolutionary and revisionist character of the Genocide Convention which proclaimed that international cooperation was required to liberate humankind from this "odious scourge." The treaty also extended international law into the traditional terrain of domestic jurisdiction by providing that genocide was punishable in periods of peace as well as war. Equally unprecedented was the provision that individuals were to be held criminally culpable, regardless of rank or status, thus abrogating the traditional immunity accorded to Heads of State. In addition, signatory states pledged to prevent and to punish genocide and recognized the jurisdiction of the International Court of Justice. There was a sense that the treaty marked the dawn of a new day. The President of the General Assembly, Mr. H.V. Evatt of Australia, expressed the hope that the humanitarian instinct that animated the drafting of this instrument would inform the United Nations future discussions and deliberations. [End Page 1106]
Despite the convention's prominence and promise, the treaty was rapidly...