A Commentary on David Scheffer's Concepts of Genocide and Atrocity Crimes

A Commentary on David Scheffer’s Concepts of Genocide and Atrocity Crimes Sévane Garibian PhD candidate, University of Paris X (France), University of Geneva David Scheffer’s article is extremely rich and provides cause for thought concerning the concepts of genocide and atrocity crimes. His two proposals—liberating the use of the term ‘‘genocide’’ from manipulation by governments and international organizations and, more generally, substituting the new concepts of ‘‘atrocity crimes’’ and ‘‘atrocity law’’ for the actual legal, political, and public terminology used regarding the crime of genocide, crimes against humanity, and war crimes—call for some observations. In his first proposal, Scheffer means to distinguish between the legal and the political application of the concept of genocide in order to enable a better prevention of the crime through faster action. If the legal application of the concept of genocide is indeed constrained by specific and rigorous requirements,1 the political application should be, according to Scheffer, larger and more flexible, thus permitting intervention as soon as precursors of genocide are identified. This idea of separating the criminal character of genocide from its political reality is appealing, and the focus on the need for a more effective international action to intervene is definitely important. It is, nevertheless, possible to look at this issue from a different angle, thus reversing Scheffer’s proposal: focusing on the legal application of intervention—as a tool for prevention, since this is the ultimate goal here—rather than on a political application of genocide. As a matter of fact, I feel uneasy with the distinction made between a legal and a political application of the concept of genocide. According to Scheffer, the former is meant for the purpose of repression by prosecutors and courts, as opposed to the latter, which is meant for the purpose of intervention by governments and international organizations (particularly the United Nations). In my view, the legal definition of genocide is, and should remain, applicable in all cases. Of course, criminal repression, on the one hand, and diplomatic, economic, or (in the worst case) military intervention, on the other, are two different type of actions that do not involve identical stakes, nor do they have identical consequences. But both are based on legal definitions and provided for in legal frameworks. Therefore, my suggestion is that an effective and rapid action to intervene in an ‘‘atrocity zone’’ should be determined not necessarily by a liberal understanding of genocide but, rather, by a sharper legal understanding of intervention. This approach would have three main advantages. First, it would permit the avoidance of a simplified use of ‘‘genocide’’ that might lead to more confusion between this concept and those of ‘‘crimes against humanity’’ and ‘‘war crimes,’’ or end up trivializing what is meant to be the ‘‘crime of crimes.’’2 Second, it would provide an occasion to clear up the fuzziness surrounding the terms ‘‘prevention’’ and ‘‘intervention’’ from a legal point of view. Third, it would actually liberate the international community from the need for any legal qualification attesting to or Sévane Garibian, ‘‘A Commentary on David Scheffer’s Concepts of Genocide and Atrocity Crimes.’’ Genocide Studies and Prevention 2, 1 (April 2007): 43–50. ß 2007 Genocide Studies and Prevention. certifying the existence of genocide as an exclusive precondition of intervention3 and would give even more strength—as we will see—to Scheffer’s second proposal. In this second proposal, Scheffer sets out to render the description of genocide and other atrocities meriting effective governmental and organizational responses (crimes against humanity, including ethnic cleansing, war crimes, and aggression) more accurate. He therefore suggests the use of a new concept of ‘‘atrocity crimes’’ as violations of ‘‘atrocity law’’ (a mix of international criminal law, international human-rights law, international humanitarian law, and the law of war). There are two main reasons to support this proposal. From a practical point of view, the terms ‘‘atrocity crimes’’ and ‘‘atrocity law’’ have the great merit of addressing a complex corpus of different criminal acts described in multiple norms of international law, thus providing a unified and simplified (rather than accurate) description or denomination—in other words, a useful ‘‘conceptual short cut.’’ Just as the word ‘‘feline...