JERRY FOWLER: Well, thank you very much. That was -- that was very educative -- and it was educative, of course – but educational, perhaps. I think maybe what we should do is pull a couple of these mikes over so we can get questions on our table which will touch upon the website. These don’t amplify; they just go to the tape recorder.
SPEAKER: What’s that? It’s being recorded.
JERRY FOWLER: Well we want your questions to be recorded, none of you will be identified.
SPEAKER: If I could just say, Bill, one of the reasons why I like listening to you is maybe because I agree with you on so many things and particularly your last point. I agree with you on broadening the issue. Instead of broadening the definition, you should hold it back as the ultimate hammer in the crime of crimes. My fear is that in broadening it out, what happens when we really identify the next Rwanda and it puts all these other things that are obviously horrible things and then to be -- as we do in the United States to supersize it -- to create the next extra large genocide and we have this new super genocide term. I really do agree with you very much on that term. I want to thank you very much for your conversation.
WILLIAM SCHABAS: Well, that was an easy question.
SPEAKER: I am just a supporter.
SPEAKER: I didn’t understand, you said in the 1990, that there’s no longer a nexus for crimes against humanity between the context of war. But I didn’t understand -- you say it’s still a part of customary law, so what is the basis of to that? The ICC statute or --
WILLIAM SCHABAS: Yeah, well this is a bit of a complex story, but what happened was that the judges of the Yugoslavia Tribunal, the International Criminal Tribunal for the former Yugoslavia, in a decision they issued in 1995, said it no longer exists.
SPEAKER: Which case was that?
WILLIAM SCHABAS: This is the Tadic case, in October 1995, of the Appeals Chamber. It is a very wonderful example actually for law students of an obiter dictum because the statute of the Yugoslavia Tribunal says crimes against humanity have to be committed in time of armed conflict. So the judges just didn’t want to miss the chance to slap the lawyers of the Yugoslavia Tribunal, the lawyers who drafted the statute at the UN office in New York, on the wrists and say you shouldn’t have put that in because it’s no longer there under customary law.
Of course, there were two ways of thinking when the Yugoslav statute was drafted. The lawyers in New York and the Secretary General said, we are only going to put in the statute things that are unquestionably parts of customary international law. I think that the lawyers believed that this nexus was still part of customary international law. But we had a very reform minded bench on the Yugoslav Tribunal in 1995, and they said, it doesn’t belong there anymore, we are going to knock it out. Although states, when they met at Rome, didn’t like this sort of judicial law making, in the Rome Statute, they’ve tried to really constrain it enormously. They did agree by and large that there was no longer any connection between armed conflict, aggressive war, and crimes against humanity. There is no mention of it in the Rome Statute. There were a few countries when the Rome Statute was being drafted, that said, no it should still be in -- China I think. There were some others who said that they disagreed with this. But I think that you wouldn’t find much argument now that the nexus between war and crimes against humanity has disappeared from customary international law.
But I’ll give you an example of where it would be relevant. If you look at Cambodia in 1975 79 --where we’re now still struggling with trying to get prosecutions underway -- it’s been described as a genocide although it’s never been a clear cut case according to the definition of the convention. If you look at the initial law that Cambodia adopted in 1979, its own law on genocide, it reads more like crimes against humanity.
I went to Cambodia about 4 years ago and I was meeting with NGO people and I said to myself, Bill, you’re not going to argue with them about whether it was genocide in Cambodia or not, it is just not worth it, and I resolved that and was very good about it. But one day, I couldn’t resist, I was chatting informally with someone, I said, you know, is it really clear that what happened in Cambodia from 1975 79 is genocide? The guy, who was a very distinguished human rights lawyer in Cambodia, said, everybody here knows that it doesn’t fit the definition of the genocide conventionally. He said, we just say that, we’ve been saying it for so long that we can’t change. But we know it doesn’t fit with the definition of the convention.
But there is a legal reason for it, of course. From 1975 to 1979 and then in the aftermath of it, when people looked at the international lawyers and said, what can we get the Khmer Rouge on? The answer was, well, it’s really a crime against humanity, except there’s no war. There was no war from 1975 to 1979, it was peacetime. So they said, crimes against humanity won’t work. So they had to turn to genocide. But the problem is, it’s not clear that the Khmer killing other Khmer is the destruction of a national, ethnic, racial, or a religious group, so that didn’t fit. Now, there are a couple of -- I don’t want to call them secondary -- but there are a couple of little pieces of the Cambodian atrocities between 1975 and 1979, the persecution of the Cham Muslims and of the Buddhist priests, that are a little closer to the definition of genocide.
In effect, the Khmer Rouge were not only beating up on their own people that they didn’t like socially, but they were also beating up on ethnic minorities. Whether that crossed the threshold to genocide, is a question that will be discussed when these prosecutions get going. But that’s why it’s a real issue still, for retroactive prosecutions like those of Cambodia. They deal with cases that occurred before the issue was clarified, by the Yugoslav Tribunal in 1995, or in the Rome Statute in 1998. I think that for the future, it’s not likely to be of a big difficulty.
SPEAKER: For the sake of debate, let me try a perhaps provocative question or a dismissive question or a challenging question. I may say this is a little stronger than I think for the sake of prompting a conversation. It seems to me to some extend that the genocide issue and the crimes against humanity are hopelessly confused notions that probably do very little to serve or advance the kinds of problems that they are designed to deal with.
Let me suggest that there are really two sorts of components to them, one of them is some kind of an expression of moral outrage about mass killing or serious killing or atrocities. So there is a statement about moral outrage, which is very understandable but doesn’t necessarily do too much to advance issues of individual culpability for committing crime. I’m not sure that a person who killed a hundred people at random has any different culpability from someone who killed a hundred people because they are all of one ethnic group or if he kills them because they are part of his own group and he has self hatred and wants to kill them. All these things, moral outrage, it seems to me confused notions, particularly when you look at individual culpability.
The second sort of issue where it actually could make some sense is on the question of jurisdiction. Who can bring a case to prosecute -- so if we take Germany when there is no law against state sanctioned killings, something that the State could actually say, this is the law that you may kill Jews at that time – how do you deal with justice in such a case like this? You may want to have something like universal jurisdiction.
When you actually take those two components of it and when you put them into the political world and international negotiations, it gets hopelessly confused and the best example that I can think of is the one that you gave with the Allies after World War II was that, we don’t want to be prosecuted for this, so we’re going to try and craft this law or craft the Nuremberg guidelines or subsequently craft the Genocide Convention so that we’re not going to end up having the problems ourselves, we don’t want universal jurisdiction to be able take it.
So, what we end up doing is having not -- it seems to me -- a coherent process of identifying a crime and then trying to apply it in some kind of a uniform and universal way, but we have this cutting and pasting, so we end up having a debate. This really is quite non sensical in some way, such as Cambodia or Sudan, where we do have cases of mass killing or grotesque indifference to killing which are as reprehensible as they can be on, on a basis of individual law of culpability.
But instead of having there be unanimity on that and a universal type of solution to it, we end up having debates about whether it is under one convention or the other, whether there’s nexus to a war or not, all of which confuses the issue and actually distracts attention from what ought to be the universal condemnation and some kind of a sensible approach to dealing with the issues.
So, my approach which I say only in a provocative way is, why don’t we throw them all out and start over again?
WILLIAM SCHABAS: I mooted the idea back in 1996 and 1997 in discussions in Canada, where I was living at the time, about the Rome Statute being the chance to fix everything and get it all cleaned up, re codify it and do it in a proper intellectually sustainable way, but it just wasn’t going to fly and that’s just the way this law has developed -- these complex negotiated texts.
I think I agree with most of what you said. Really there is this tension in all of these crimes between the crime either being one of moral outrage, the World Trade Center is an example -- trying to get at the World Trade Center -- it’s so horrible, we call it a crime against humanity. But actually, if you look at why the concept existed, it was to be able to prosecute crimes that were otherwise going to go unpunished. The World Trade Center, if you ever capture Osama Bin Laden, I think that if he is ever brought to New York, he will probably be punished. I mean, the U.S. Courts aren’t like the German Courts in 1943, with a lack of will to prosecute Osama Bin Laden. And that was the reason for creating the concept of crimes against humanity; it was because state sovereignty in the past really put a wall up and said, what we do to our own people in our own borders is none of your business.
Because what’s happening since then is that human rights law has influenced this debate as well, and the human rights movement has become more and more influential in promoting the idea that it is appropriate to look within countries’ borders and to address these. I think we shouldn’t lose track of how pioneering all this was in 1940. I can be a harsh critic and I love making my ironic comments about Justice Jackson and his nervousness about what was really here in the United States a form of apartheid in the southern states or something like that. But really, it was very pioneering work, there had never been anything like it. The obligations we were asking the States to accept were the unknown. It was a bit scary for them and they did it with respect to genocide, because it was defined so narrowly. I think, they looked at it and said, this is defined so narrowly, we’re not doing it. It’s something so terrible that they’ll never get us for it. Crimes against humanity is different though. That’s the one they are all afraid of. But, yeah, it would be nice to redefine it all, but it’s one of those things that is not going to happen.
SPEAKER: I think that it is not going to happen either, but are we going to have clarity in crimes against humanity and genocide or is it going to be the endless debate about whether something fits enough? In one way, if we define genocide to fit your definition, we only have only three cases in the 20th century, then, we’re not really covering a whole lot. In ways it seems a little bit peculiar to be waiting for other cases such as these, when we likely would presumably have significant international disagreement even with Rwanda, when that genocide began or Turkey is even still denying that the genocide ever happened. It ended up being a debate about the definition rather than a solution to a problem of massive killing.
WILLIAM SCHABAS: Well, I think the point is that now that crimes against humanity no longer has this troublesome nexus, that it could do all of that. I think that’s the point, that these things don’t escape international prosecution anymore. So, the law, rather than becoming more technical and excluding cases, actually broadened out enormously in the last 10 or 15 years in terms of contemplating the prosecution of crimes against humanity, even in peacetime. It may be that the technical debate, genocide and crimes against humanity, now is largely just about the stigma. It’s whether you are going to stigmatize the crime by saying it’s genocide or not, because anything that falls through the holes of genocide, you’re going to catch as a crime against humanity anyway.
In terms of trying to tease out some of these issues and solve a lot of these things that are the result of this very awkward process of drafting international criminal law norms and international instruments, in, diplomatic conferences and things, that’s where judges help.
That’s why this famous judgment of the Yugoslavia Tribunal in 1995, I mean it’s violated all principles of legal interpretation which say that criminal law should be interpreted narrowly and the benefit of the doubt should be given to the accused. And it violated this idea that these crimes should be only what was covered by customary international law without a doubt, that’s what the Secretary General had said. But it did allow everything to get kind of consolidated and move forward. It was actually very helpful in that respect and I presume that that process is going to continue, and that the judges will help that along.
But you know, in the International Criminal Court statute, shocked at this judicial law making, they put in a provision in the Rome Statute, article 22, paragraph 2 that says, “the crimes in this statute shall be interpreted restrictively and not by analogy.” They sent a big message to the judges saying, don’t ever do that to us again. But, I’ve practiced law for years, I’ve seen judges, they’ll do it anyway, they’ll find a way to do it.
SPEAKER: That, of course, is at the foundation of a lot of US suspicion of the International Criminal Court to begin with, and the international law in general, that the way it’s created is this -- I don’t know what the right word is -- but somewhat okay process -- I mean -- you know the judges -- what were the judges relying on in context for the development of customary international law. Well it’s mostly a procession of papers by professors, who as important reported they are may be or not the source of creating binding law and so certainly in the United States and people get very uncomfortable -- government people get very uncomfortable with the idea that a procession of professors can develop ideas and papers and then judges can say, oh well, that’s the law. Then that law was adopted by, let’s just say a legislative body like the Security Council.
WILLIAM SCHABAS: If you go back and read the decision, the one that I like the best, there were dissenting in minority decisions in that case. Now, the Chinese judge, Judge Li, wrote a fascinating short, succinct little opinion. He said, we can’t do this. He said, and he quotes two of your most prominent American international lawyers here, Theodor Meron, now the President of the International Criminal Tribunal for the former Yugoslavia ,and Cherif Bassiouni, probably Mr. International Criminal Law, who both, a year earlier, had disagreed with this view of about the developing law and confirmed the conservative interpretation. The Chinese judge sort of rubbed their noses in that and said, you didn’t even follow the learned professors. Maybe it was a good thing. Frankly, under a common law system -- you had a revolution here that sort of kept that under control back in the 18th century -- but the English common law does evolve in that way. And it is not always bad actually, it does allow law to move forward in a way that can be more rational and progressive than when it has to be the monopoly of the legislature.
SPEAKER: Because we’re really nervous about common criminal law, we don’t have common law crimes any --
WILLIAM SCHABAS: I know that’s all abolished, but in England, it still exists. They had a famous case about 10 15 years ago that actually went to the European Court of Human Rights on the retroactivity issue. It was about spousal rape and the common law definition of rape, which only covers sexual relations by a man with a woman other than his wife without her consent.
One day the prosecutors in England started prosecuting men for raping their wives. When they showed up in Court their lawyers would say, it’s not a crime. This had never been a crime. And the judge says, well, the law has changed. From when? From today it changed. The judges at Nuremberg said, you know the rule against retroactivity is a rule of justice, and what you did was bad and you should’ve known better and you know you’re going to hang.
Yeah, although, I must say Jerry, I have just finished a study of the US views on the International Criminal Court; I’ve just done an article trying to understand US opposition to the International Criminal Court. There’s a long list of complaints and some of them are real, but some are sort of throw-away arguments that lawyers have when they are going to a negotiation, and they are not really at the core of why the US is opposed to the Court.
WILLIAM SCHABAS: You probably would on that. Yeah, I agree that you’d find a more broader consensus on it but it’s not at the core of the opposition. I think the core of the opposition is about control and the US is very comfortable with the Court at The Hague, where the judges act in this way because it’s confident they can control the Court through the Security Council, which it can’t do with the International Criminal Court.
SPEAKER: Yeah, I guess that’s two things kind of dove tailed.
WILLIAM SCHABAS: They do.
SPEAKER: I just wanted to know if on the study rights -- perhaps if you can say something more about that, in the perspective of international law, are the killings of the Tutsis, at the same level, so that therefore we can compare it from the perspective of the international law?
WILLIAM SCHABAS: I’m not really a historian, I’m more of a lawyer and so I always have this reflex as saying, well the facts before me in the current case and everything. But from what I know about those three examples is that they clearly fit within the definition. People quarrel sometimes about the Armenians saying, well, the acts took place before the definition was adopted. But of course, the Genocide Convention says this crime has been committed in the past, we recognize that, it just hadn’t been defined until then. Then there are other cases that are more debatable.
The earliest case in the 20th century was of the Herero in Namibia. Wasn’t it Goering’s great uncle or something who was the governor in Namibia, the German Governor? There were other examples. Then there were other more marginal cases. If you just go in sheer atrocity, on sheer numbers, then surely Cambodia is in there. Sheer horror, Srebrenica certainly ranks up there. The only case until the 1990s when the general assembly had ever talked about genocide being committed was Sabra and Shatila in 1982. But that was more an effort, by the Soviets and some of the non aligned countries, to twist Israel’s tail a little bit. It’s not good authority for that being a part of a customary law definition. I’m sort of comfortable with those three, and all the rest of them I tend to have problems with.
Whether genocide was committed in Bosnia Herzegovina, it’s interesting that the debate now is about whether it was a micro genocide in Bosnia Herzegovina. The prosecutor had never really tried to make the case very seriously that genocide was committed in Bosnia Herzegovina, the way we think of genocide in Rwanda, genocide in Germany, and in Central Europe, that is, across the entire territory. It’s whether it was committed on a much smaller scale. This has had the perverse consequence that it means that the guy at the top, maybe he wasn’t involved in it because it was just sort of undisciplined people at a lower level and we may be able to link him up by some bit of our legal trickery by saying, well you know he’s at the top, he should’ve known, he should’ve stopped them. But we don’t have a Wannsee conference when we’re talking about Bosnia Herzegovina.
SPEAKER: I thought just while you’re on this subject, it’s not really a question -- but the Krstic case which was the Srebrenica case where the general was held viable for genocide based on Srebrenica, essentially since Srebrenica itself was genocide without reference to --
WILLIAM SCHABAS: That’s right.
SPEAKER: This is micro-genocide and that’s always bothered me because it kind of encapsulates this problem that we referred to that now you’ve got what’s a really horrendous massacre but it’s not on the scale of Rwanda or the Holocaust. So just working out from Srebrenica to the World Trade Center to Oklahoma City. It seems like it is pushing genocide in that direction where a really bad massacre is genocide and then it’s kind of lost to us.
WILLIAM SCHABAS: Yeah. It loses its focus and maybe that would be regrettable.
SPEAKER: Let me just ask in terms of looking at the case low from ICTR, the Akayesu case, the first case is typically very well known, very praised for the idea of including rape as a component of genocide. I was wondering if in some ways you think of that as again this kind of merging or mixing of crimes against humanity with genocide -- to borrow a phrase that was used earlier -- kind of super-sizing rape, which is often a crime against humanity, up into the category of genocide.
WILLIAM SCHABAS: I don’t think there’s any doubt that the crime of rape, if it’s committed with the intent to destroy in whole or in part a national, ethnic, or racial, or religious group, it’s subsumed within the definition of genocide. The second paragraph of the definition of genocide talks about causing bodily or mental harm to a person, and that’s a concept that’s pretty well known in national criminal law systems, and no lawyer would have any trouble realizing that rape would fall within that as an act of genocide. So, it’s not really an issue there.
The fourth act of genocide – preventing births within a group - is a little more difficult and the tribunals have flirted with this, basically based on what some academics have written. Cherif Bassiouni, in the report of the Commission Of Experts on the former Yugoslavia, said that could include - in a traditional patriarchal society like Bosnia -- among Bosnian Moslems -- raping a Bosnian Moslem woman by a Serb would in effect kind of poison her for the other Bosnian Moslems, and therefore they wouldn’t want to have children with her, and therefore this was an act of genocide. I think that’s probably a stretch, I think you’d want evidence that that’s what the rapists were trying to do. A lot of it is informed by this debate about rape being a crime of war and being a tool of war rather than just an opportunistic crime of soldiers. Probably to some extent it’s both actually.
In Sierra Leone, where I’ve been doing a lot of work as a member of the Truth and Reconciliation Commission, we’ve had some very interesting exchanges there, because the amnesty in Sierra Leone was given for people who committed acts in pursuit of their political objectives. So, a man who raped a woman, to the extent that he can demonstrate that it was in pursuit of his political objectives, has the amnesty, whereas if this was just an opportunistic rape, he can be prosecuted. It wasn’t that these crimes weren’t covered by the law, it’s just they weren’t prosecuted by the prosecutors. They weren’t given the attention that they should’ve been given.
SPEAKER: In the specific context of Rwanda, if you were a Tutsi women raped by a Hutu man the child was believed to be Hutu, so it clearly fits within the definition of genocide, because that is the intent, it’s to destroy that particular group and because of the cultural belief that whatever the ethnic group of the man is, the child will be. This is also as you said that the Hutu women were being killed because their husbands were Tutsi and that child would have been Tutsi.
WILLIAM SCHABAS: Well, it is all about the intent, and of course we always talk about the intent. The criminal lawyers know that we actually rarely try and prove the intent. It’s just a logical deduction from the act. So we’re always thinking that is it logical that this act would indicate the intent. That’s where I guess I’ll just put a question mark. But certainly if you have a level of comfort with the existence of the intent, then you can conclude that it’s an act of genocide. I don’t think we should exclude them or anything, I think that there are lots of rapes that fall within the definition of genocide. But I think there’s probably been a bit of extravagant discussion of it, too, that’s probably not very helpful. It doesn’t really do much, except to win arguments, it doesn’t actually advance prosecution or anything of the crime.
SPEAKER: One thing is reflected by this discussion, there is a lot of focus on punishment of the crime of genocide, but the convention, at least officially is the convention on the prevention and punishment of genocide. But as you pointed out in your book, prevention is barely dealt with -- it’s barely dealt with in your book as well -- mainly because of what was the view when they were drafting the convention about what would actually be done to prevent genocide and specifically the relationship of the definition to the concept of prevention.
What we’ve seen, for example, in the 1990’s, all of us dancing around about is it genocide or not, suggests that we really don’t have to undertake to prevent it until we’ve decided it’s genocide. But that’s kind of a conundrum, isn’t it? Prevention means doing it before it’s genocide and our approach as a Museum, on Sudan – you now, there is this debate whether genocide or not and I always have said, well, we don’t have to decide that. We can say that there’s a threat of genocide there, these elements there, and that should be enough at least to kick in the desire to prevent it rather than having it assigned that it is.
WILLIAM SCHABAS: Well, I’m also[talking about] preventing crimes against humanity too. We do have this convention that talks about an obligation to prevent. It is undeveloped as to what it actually means and there wasn’t much discussion when it was being adopted. Article 8 of the Convention says that they’ll even take the case before the organs of the UN, which means taking it to the Security Council or the General Assembly, and they’ll know what to do, they’ll do something. But at the same time, I don’t think anybody would have resisted the idea that if genocide was being committed in a country, then the other states had a duty to act to prevent it.
Of course, the issue debated now, 10 years after the Rwandan genocide, is what should we have done 10 years ago. Was there an obligation to act? It’s well known, Samantha Power talks about it in her book, but it’s in all the other literature as well, that the members of the Security Council, at least most of them -- I think the Czechs and the New Zealanders stood out with a different view -- but most of them were very cautious about using the term genocide and it’s widely felt that the reason why they were cautious is that if they did call it a genocide it will mean they would have to act.
I think that’s probably true but it’s oversimplifying it a bit, because you can’t say what that acting would involve. I remember that summer in July of 1994, talking to quite a senior State Department guy about this and he said, “Yes, we would have to act but we act when genocide is committed within our borders. That’s what it means, if genocide is committed in the United States, we have a duty to prevent it within the United States, but that doesn’t mean we have a duty to prevent it elsewhere.” Well, the tune changed in late 1998 as Kosovo started heating up, but I think this is part of the enigma of the definition of genocide.
There is a lot of talk now about trying to strengthen this -- I think next week the Secretary General is going to announce some new measures on genocide, the appointment of some sort of a focal point --
SPEAKER: Special --
WILLIAM SCHABAS: Special Rapporteur, adviser or something like this on genocide. There has been talk about a committee. All of this I think is very positive because it will enable some development on all of this. It is often mistakenly presented as the right to intervene, that was the way it was spoken about, “we have a right of humanitarian intervention”. I’m sorry, the Genocide Convention doesn’t create rights for States, just creates obligations. How could a treaty create a right anyway, saying, if you ratify this treaty then you have a right to interfere in another State’s internal affairs. What it does say is that you have a duty to do it. It’s an obligation under the convention. But to the extent we want to strengthen that obligation, we have to reassure States that our definition is a precise one and isn’t too broad. If they are afraid that, that the definition has lost its focus, and that it might cover anything -- it might cover the World Trade Center, a terrorist act against the United States. Under the genocide convention, we have a right to intervene because 100 people were killed in a terrorist act and the State is not doing anything about it. They won’t recognize that. They are not prepared to recognize that. They’ll only recognize the duty to intervene when it’s got a precise and relatively narrow definition.
SPEAKER: So, the prevention of genocide is impossible until there is a clear definition that it is genocide? And who says that?
WILLIAM SCHABAS: Well, I guess how it would happen is, the Security Council, presumably, will discuss it, we would say, we have evidence that this is genocide and we’re going to authorize measures to prevent it under Chapter 7 of the UN Charter. Member states of the Security Council would act in a way consistent with their interpretation of the convention, which would be informed by an evolving debate on what is required. And guilt and shame about the reaction in 1994 influences that and hopefully the urgings of the special rapporteur or representative -- what’s it going to be called? special --
SPEAKER: Special advisor.
WILLIAM SCHABAS: Special advisor, yeah.
SPEAKER: Bill, just going back to the duty to intervene. The convention itself -- I’m sure every one here knows that it’s very brief and at the moment sure, it doesn’t say duty to intervene -- I know it talks about prevention, and it’s kind of loose --
WILLIAM SCHABAS: “Undertake to prevent or punish.”
SPEAKER: Right, and there are some real conversations that I’ve had with some folks who say, well, the obligation was not originally there when it was put together. But is the idea that now that it’s evolved in customary international law, that everyone believes there is an obligation there, even though within the four corners of the document, it doesn’t necessarily tell you there’s an absolute obligation you must go and prevent it and stop the genocide – do you think it’s more evolved with customary obligation?
WILLIAM SCHABAS: Yeah, well law evolves in two ways: one is the treaty law; the other is that the interpretation evolves in accordance with the State practice. So it’s trying to untangle custom and convention, they are both sort of moving forward at the same time. If we don’t need to use customary law, and it’s always nicer to use the conventional one because you can say you are a State party, but still it’s part of the uniqueness of that convention that it still only has a 130 States as parties. There’s still more than 60 countries that have never ratified the Genocide Convention. To just put it in perspective, about 170 have ratified the racial discrimination convention, more than 170 have ratified the women’s discrimination convention, the children’s convention, 192 and --
SPEAKER: Geneva Convention.
WILLIAM SCHABAS: The Geneva Convention is 191. You mentioned the Sierra Leone tribunal and the fact that they aren’t prosecuting genocide; they don’t have it in their statute. In the Secretary General’s report that set up the Sierra Leone Court, they say, well since nobody has argued that genocide was committed in Sierra Leone, we don’t have to put it in there. That makes no sense. It is in a package, it’s an acknowledged package, genocide, crimes against humanity and war crimes, put all three in. I think the reason they didn’t put it in is some anal retentive lawyer in New York in the UN said, wait a minute, Sierra Leone hasn’t ratified the Genocide Convention, we can’t put it in. It’s one example; there are many countries in Africa who never ratified the convention. It’s terrible. There is a good campaign if somebody wants work on impunity.
SPEAKER: I want to push a little bit more on Greg’s question, because besides there being a duty to intervene, if it’s not in the language of the convention which I think “undertake to prevent” is pretty broad, it certainly couldn’t be derived from state practice since state practice is uniformly otherwise.
SPEAKER: But I can almost argue the opposite. That first of all, the state had this and then the second part of the opinion, there is the state obligation where they feel as though if they don’t care of the obligation then there is some sanction along with that. The feeling that they are supposed to do it, and so they are all attacking in the negative -- do you understand? They are avoiding the action which, you could almost make an argument --
WILLIAM SCHABAS: Well, no but take Rwanda, actually they resisted calling it genocide, and then they authorized the French Operation Turquoise. But the French were going to do it anyway. You know the French had already made it clear, we are going to do this, but we’d like to go with your blessing. But -- you could certainly develop an argument that actually -- the whole behavior in the Rwandan things was that -- is it really a genocide? We do have to agree.
SPEAKER: I think that would be worth a law review article, because there’s actually the action memo that was written inside the US government that’s supposed to have national security archive website about whether we should call it a genocide -- kind of have the tag line, “go through this analysis,” see how it seems to put the definition…. We might as well say this because this doesn’t increase our obligation. So, although the common wisdom is that they dance around saying that because they didn’t want to be obligated, the obligation I felt was really more a moral-political obligation rather than a legal obligation and at least when they got the opinion from the legal advisors office, they said, you know you can call it this, it’s not going to change what we are required to do.
WILLIAM SCHABAS: See, that’s why I think this initiative of the Secretary General is a very positive one, because in order to develop this kind of law, we know how mysteriously international law advances.
SPEAKER: “Mysterious” – is that -- that -- that’s the adjective?
WILLIAM SCHABAS: It is mysterious. It’s mysterious but it does advance. And the way it advances is by having these mechanisms like committees and special rapporteurs and people -- it’s true -- who make statements, and -- you know -- they supplement the brilliant writings of the university professors and it all sort of moves on.
The Genocide Convention has suffered from not having that. If there had been a committee created for Genocide Convention like we have for the other big treaties, then you’d have sort of some focal point for that, some way of moving that forward. We were discussing the other day, Allison Des Forges and others, about when we first used the term genocide in the Rwanda case. You know, it was the 6th or the 7th of April.
On the 30th of April, the Security Council issued a presidential statement that said that there were acts in Rwanda going on that indicated there’ll be intentional destruction of a racial, national, ethnic, religious group as such in whole or in part -- but they didn’t use the word “genocide” and that was a negotiated thing, of course. I was in London the other day and met Karel Kovanda, who was the Czech permanent representative in New York and on the Security Council at the time of the Rwandan genocide. He told us the first time it had ever been issued publicly had prepared a draft resolution a few days prior to the Presidential Statement that used the word, “genocide,” but then it had to be knocked out of the final version. Romeo Dallaire’s memoires say the first time he saw the term was on about the 24th of April, and he said it was Oxfam that used it in the UK. But Alison and I, we were chatting about this because we were on fax and phone and e mail within days and we were using the term genocide like by about the 10th or the 11th of April.
Anyway we used it the year before, when we were on the International Commission of Inquiry. We said, well, we knew this was coming, we used the term already and this is genocide. But how do you promote that debate? Again if you had a special rapporteur or someone saying this is genocide, this is it, make no mistake about it. But that will be a careful person, they won’t want to cry wolf too often, I hope, because if they do, then they will lose all the punch.
It is the problem with this law that if you take a broad definition, then you have a lot of action. If you take a narrower definition not much happens. Perhaps that is a good thing, because genocide doesn’t happen very often. When it does, you want to be there and say, you know we hope this will never happen again, but look closely, that’s exactly what’s happening and we’ve got to move, and people change gears at that point.