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  • "Definitional Traps" and Misleading Titles
  • William A. Schabas, Director, Global Legal Scholar, Visiting Fellow (bio)

Many people don't pay much attention to the preface of a book. I think they presume that if the authors have something important to say, it will feature in the body of the text. Often the preface addresses rather perfunctory matters, such as acknowledging research assistants and copy editors. But a reader who skips the preface to the recent report titled Preventing Genocide: A Blueprint for U.S. Policymakers (the Albright Cohen Report), the work of the Genocide Prevention Task Force, will miss something important, indeed primordial. Tucked away toward the end of the front matter, under the general heading "Defining the Challenge," is a three-paragraph section titled "Avoiding Definitional Traps." It refers to

the definitional challenge of invoking the word genocide, which has unmatched rhetorical power. The dilemma is how to harness the power of the word to motivate and mobilize while not allowing debates about its definition or application to constrain or distract policymakers from addressing the core problems it describes.1

The task force indicates its intention to "avoid the legalistic arguments that have repeatedly impeded timely and effective action" (xxi). As a consequence, it defines the scope of the report as the prevention of "genocide and mass atrocities" (xxii). It says this means "large-scale and deliberate attacks on civilians" (xxii), pointing to the definitions of genocide, crimes against humanity, and grave breaches of the war crimes that are recognized in international treaties: "We use the term genocide in this report as a shorthand expression for this wider category of crimes" (xxii).

It's an old debate, really. The pages of this journal have often contained articles by academics questioning the scope of the definition of genocide. The scholarly literature is replete with proposals to redefine, and generally to expand, the concept. Others, such as David Scheffer, have advocated that the term "genocide" be replaced by the broader concept of "atrocity crimes."2 The task force goes further, simply confusing the concept of genocide with the much broader notion of mass atrocity. To start with, the packaging of this report is misleading: if the subject is preventing "genocide and mass atrocity," then the authors should say so in the title.

The members of the Genocide Prevention Task Force will no doubt consider the views expressed here to be precisely the kind of legalistic pedantry that they are trying to avoid. But let me explain why there is more to this issue than a mere "definitional trap."

As everyone now knows, the word "genocide" was invented in 1944 by Raphael Lemkin.3 Lemkin proposed his own definition, but as work advanced on incorporating the concept in international treaty law, the drafters had to take the views of states into account in an effort to build sufficient consensus to ensure adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (UNCG) and its prompt ratification. Meanwhile, a cognate concept, "crimes against humanity," was [End Page 177] also developed to address much the same phenomenon that Lemkin was concerned with. To a large extent, the terms "genocide" and "crimes against humanity" were used almost synonymously during the preparations for and the actual conduct of the Nuremberg trials. However, for reasons that remain obscure, those who established the International Military Tribunal chose to include "crimes against humanity" and not "genocide" in the statute, and it was on that basis that the Nazi leaders were tried and, for the most part, convicted.

One of the prosecutors at Nuremberg, Henry T. King, told the story of meeting Lemkin in the lobby of Nuremberg's Grand Hotel a day or two after the judgment was pronounced, on 30 September–1 October 1946. 'At the time, Lemkin was unshaven, his clothing was in tatters, and he looked disheveled.'4 According to King,

When I saw him at Nuremberg, Lemkin was very upset. He was concerned that the decision of the International Military Tribunal (IMT)—the Nuremberg Court—did not go far enough in dealing with genocidal actions. This was because the IMT limited its judgment to wartime genocide and did not include peacetime...


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