The Merits of Unifying Terms: "Atrocity Crimes" and "Atrocity Law"

The Merits of Unifying Terms: ‘‘Atrocity Crimes’’ and ‘‘Atrocity Law’’ David Scheffer Mayer, Brown, Rowe & Maw/Robert A. Helman Professor of Law and Director, Center for International Human Rights, Northwestern University School of Law I am extremely grateful for the serious attention that so many distinguished scholars have afforded my article, ‘‘Genocide and Atrocity Crimes.’’1 I found their commentaries informative, insightful, and constructive. In the spirit of collegial discourse, and with deep respect for my colleagues in this grim but essential profession, I believe it is important to point out the following: Unifying Terms I seek terminology that remains faithful to the requirements of international criminal law (particularly in the work of international and hybrid criminal tribunals and of national criminal courts) and at the same time enables timely public discourse (by governments, activists, the media, scholars, and the common man and woman) and that actually stands some chance of leading to greater understanding of what is occurring and how effective responses might be facilitated. The status quo of terminological usage is confusing, misleading, and often inaccurate, and it clearly has great difficulty in contributing to the primary objective of preventing or stopping atrocity crimes. That does not mean, as some commentators erroneously read into my article, that this is a quest for a ‘‘magic bullet’’ in terminology that will overcome all the challenges in preventing or ending the commission of atrocity crimes. Political will is the dominant factor in any governmental action, but it is shaped by many forces, some of which, indeed, are influenced by the force of words. At the end of the day, we continue to need all of the terms that have become so well known, because each can serve a vital purpose in a criminal trial or in describing particular actions that require precision when being examined in the public arena, particularly in the aftermath. There will continue to be a need, in various circumstances, to describe particular crimes as ‘‘genocide’’ or ‘‘crimes against humanity’’ or ‘‘war crimes.’’ There will be times when lawyers and political scientists need to study and apply particular fields of law, such as international humanitarian law or human-rights law or the law of war or international criminal law. But my objective is to address an important question that arises after fifteen years of exponential growth in how various categories of crimes are prosecuted and their importance advanced by criminal tribunals, by international organizations (particularly the United Nations), and by governments: What is the unifying term? Are we to wade forever through the thicket of terms that Payam Akhavan would invite us to endure while elite discussions take place about the true meaning of the status quo?2 Is every discussion, every resolution, every headline, every rhetorical reference to be truncated (often inaccurately) to the use of ‘‘genocide’’ or burdened with wordy usage of ‘‘large-scale human rights violations’’ and ‘‘genocide, crimes against David Scheffer, ‘‘The Merits of Unifying Terms: ‘Atrocity Crimes’ and ‘Atrocity Law.’’’ Genocide Studies and Prevention 2, 1 (April 2007): 91–96. ß 2007 Genocide Studies and Prevention. humanity, and war crimes’’ and ‘‘international humanitarian law and human-rights law?’’ The articulation of ‘‘atrocity crimes’’ and ‘‘atrocity law’’ cuts through the complexities that may justifiably concern scholars but which help cripple effective action. There is obviously no guarantee that these terms will lead to the end of such crimes in our time. But their use can help shift the debate (in both legal and public discourse) during the early phases of such crimes, away from a terminological joust among policy makers, lawyers, and scholars and can overcome the frustrated mangling of newsroom editors, thereby standing a better chance of influencing the development of effective responses to massive death, injury, and destruction. Precursors of Genocide As I acknowledge in my article, I struggle with the tension between popular usage of the term ‘‘genocide’’ and the more adaptable and accurate usage of the term I am introducing, ‘‘atrocity crimes.’’ I could easily have abandoned ‘‘genocide’’ and ‘‘precursors of genocide,’’ as Martin Mennecke would prefer, and simplify the exercise by the application of ‘‘atrocity crimes.’’3 While I appreciate Mennecke’s confidence in the latter term, I believe he is...