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

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.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. 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.’’2 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. ß 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.3 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.’’4 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...