MuseumDESCRIPTION:
Legal scholar William Schabas, director of the Irish Human Rights Centre and author of Genocide in International Law: The Crime of Crimes, discusses the history of genocide in international law and its relationship to the overlapping concept of crime against humanity.
TRANSCRIPT:
JERRY FOWLER: My guest today is Professor William Schabas. He’s Director of the Irish Center for Human Rights at the National University of Ireland in Galway. He’s a leading authority on international human rights law, and among his many books is Genocide and International Law: The Crime of Crimes. Bill, welcome to the program.
WILLIAM SCHABAS: Thank you, I’m glad to be here.
JERRY FOWLER: I wanted to start, Bill, with the very basics. The term genocide is used a lot. It’s one that’s very popularly known and probably subject to a lot of different ideas of what it means, but the term at least in international law is very specifically defined by a United Nations Convention. What is that definition?
WILLIAM SCHABAS: The United Nations Convention for the Prevention and Punishment of the Crime of Genocide dates to 1948. It was adopted by the General Assembly of the United Nations, and it’s now been ratified by, I think, about 140 countries. There’s still a significant number that haven’t accepted it, although it’s pretty widely agreed now that the definition is what we would call customary law. So that even countries that haven’t formally accepted the convention would acknowledge the validity of what’s in it.
JERRY FOWLER: Can I just interrupt you for a minute? When you say customary international law, how does something become part of custom as opposed to being agreed to in an explicit treaty?
WILLIAM SCHABAS: Well, it becomes widely accepted. It’s a bit mysterious really and, you know, the best example I could give is historically, things like the treatment of ambassadors was customary law. Countries didn’t have treaties defining how ambassadors had immunities, and how they couldn’t be arrested and so on. But Country A would treat Country B’s ambassador with respect, and vice versa, and over the years people said, “Well, that’s a customary law.” It’s a rule that they accept, and that they don’t challenge, and that they generally abide by. Not always, because what’s the point of having a legal rule if it’s never broken, you know, and the only way you test the rule in a sense is to say, “Well, wait a minute. You’ve just violated it.” So, with genocide, of course, it’s different because we’re not talking about something reciprocal, like how you treat another ambassador, but we’re talking about something you’re not supposed to do at all. But let’s put it this way, there would be – if we called a meeting of all the countries in the world, does everybody agree that genocide is prohibited by international law, and they’d all say “yes.” And if we said, “And does everybody agree with the definition?” and they would all say “yes,” too. And so let me tell you what the definition is. It says -- it has a list of five punishable acts, of which the most important is killing and that’s the one that we always think of with genocide. But really the core of the definition is what we would call the preambular paragraph, or we use a French term, we call it the chapeau of the definition. And that says, any of the following acts such as killing, committed with the intent to destroy in whole or in part, a national, ethnic, racial, or religious group as such. So the key components there are that there has to be the intent to destroy something, and the destruction, I think generally has to be physical. It has to be physical extermination according to the definition. We say in whole or in part and that’s because most genocides aren’t actually completed. In a sense they’re all attempted crimes. They’re not successful crimes, at least in modern times. Another key part of the definition is the list of groups, and it’s a very controversial part because people have often argued that there are groups that were excluded that belong in there, and that they were improperly excluded. But I don’t really agree with that. I think that actually it’s a logical list: national, ethnic, racial, or religious. It’s what we might call colloquially racial groups. It’s people defined by their race, or ethnicity, or something, as opposed to defining a group by gender, sexual orientation, disability, political belief. Those are clearly not part of the definition.
JERRY FOWLER: And the categories that were left out, that often are pointed to as being egregious omissions, are political groups or socioeconomic groups. And there was discussion about including those groups. Why were they left out?
WILLIAM SCHABAS: Well, when it was being defined in the 1940s by the UN General Assembly, they just couldn’t get enough agreement on including them. We have to bear in mind that in the 1940s, this was a very radical development to make an international treaty by which countries agreed that there were certain things they couldn’t do to people within their own country. Up until that point, they had basically taken the position that they could do anything they wanted to people within their own country. And the turning point for that was the development of the U.N. Charter in 1945, and about the same time, the Nuremberg trials which took place, you know, contemporaneously. And the Nuremberg trials said to the Nazis, look, there are some things you can’t do to your own people, and we’re going to punish you for doing them. And the U.N. Charter said, you know, countries are bound to respect human rights, and that implied that an international organization could meddle in their own internal affairs. But it was a matter about which they were greatly sensitive. And so they weren’t prepared. Many of them are still uncomfortable with the idea that the international community can deal with what they do to political groups, or to social groups, but they all agreed that when it came to groups defined by race or ethnicity, you can’t wipe them out. And that was a beginning. They just weren’t prepared to agree to do it with other groups.
JERRY FOWLER: You mentioned the Nuremberg trials, and one thing that a lot of people don’t realize is that genocide was not actually a charge at Nuremberg. The closest charge was crimes against humanity, which raises the question, why is there a genocide convention rather than a crimes against humanity convention?
WILLIAM SCHABAS: You know, the two terms were both developed at about the same time, genocide and crimes against humanity, and I think that when they were, they were viewed as cognates. They were almost, they overlapped. I think some people even thought they were synonymous, and the prosecutors at Nuremberg, although they didn’t charge people with genocide, because it wasn’t in the rules of the tribunal, they could only charge people with crimes against humanity, but the prosecutors used the term. You know, the same way a prosecutor might say, “Well, the victim was raped,” and then the prosecutor would say, “The victim was violated.” And it would kind of mean the same thing, really. One was just a non-legal or a colloquial expression, whereas the other might be in the criminal law. And so they used the two terms, as I say, more or less, they certainly used them to describe the same reality, which was the extermination of the Jews and other vulnerable groups during the Second World War by the Nazis. The problem was, when the Nuremberg judgment was issued, the Nazis were convicted of crimes against humanity, but they were only convicted of crimes against humanity committed during the war. And the law of the Nuremberg Tribunal rejected the idea that the Nazis could be prosecuted for the crimes before the war, and that’s because of the sensitivity that all states had about crimes committed against their own populations, and their own territories. So they insisted on this link with the war, and it was in reaction to that, that countries came to the United Nations and said, “Look, this crimes against humanity concept they’ve used at Nuremberg is too restricted, because it only covers wartime genocide. It only covers wartime extermination. What about peacetime?” And they said, “Let’s park that term, crimes against humanity, and instead let’s try and develop the idea of genocide.” And that led to the convention in 1948. There was, you could say, in a sense, a convention dealing with crimes against humanity. It was the convention that underpinned the Nuremberg Tribunal, but that convention was only used once. It kind of expired when the Nuremberg judgment was over, and we didn’t get another convention on crimes against humanity until modern times, until recent years. You know, in 1998 the Rome Statute of the International Criminal Court was adopted and it recognizes both genocide and crimes against humanity. So you could say that we brought them back together again under the same umbrella, and now very clearly those two concepts exist in a harmonious and a complimentary relationship. But for a long time, there was a tension between them.
JERRY FOWLER: I wanted to go back to some of the specifics of the definition of genocide that sometimes cause problems or lead to disputes about whether something is genocide or not, and the first one I wanted to focus in on is just this idea of an intent to destroy a targeted group. What does it mean to intend to destroy?
WILLIAM SCHABAS: You know, the convention doesn’t tell us. You can read the definition in the convention and it doesn’t really give the answer. If you go and look at the records when the convention was being adopted, you go and read the U.N. debates, you can see that there was a great deal of dispute about whether it should include cultural genocide, and they finally rejected including cultural genocide. It’s very obvious that you can destroy a group by physical extermination, but you can also destroy a group by prohibiting its language, closing its libraries, not allowing schools, outlawing its religion, and so on, and they wanted to exclude all that. So if you read the debates, you know that they’re excluded, but if you just read the text of the convention it’s not obvious. And that has left open a debate about whether the definition of genocide should be expanded to cover the non-physical extermination, or whether it should be kept in a way that is more respectful of what we know they meant in 1948. And there are good arguments for going either way, and it’s certainly not a good policy to limit a human rights convention, which is what the genocide convention is, to what it’s meaning was 60 years ago, because human rights has moved on and we don’t do that. So there’s been this debate about it for many, many years. I think it’s largely -- it’s been resolved. Where recently that debate sort of focused was on whether or not to include what we call “ethnic cleansing,” because ethnic cleansing has elements of physical extermination, but it’s actually more about cultural genocide. It’s about driving people away from their traditional lands and then they disappear. And in recent years, I think we’d have to say that the courts, because now we have the Yugoslavia Tribunal, the Rwanda Tribunal, the International Court of Justice, and other U.N. bodies that look to Darfur, for example. I think they’ve tipped towards the narrower definition of genocide. I think they’ve basically gone to the idea that, “actually, let’s confine it to physical extermination.” That’s disappointed a lot of people who, over the years, felt that it was important to broaden the definition of genocide. I think that maybe they shouldn’t be so disappointed because in effect what’s happened is crimes against humanity in recent years has become a lot more robust. So it’s not as if there’s a gap, actually. If it’s not genocide, it’s crimes against humanity. We’re still left with the problem that there’s an emotional attachment to the word genocide and if you tell the Armenians, say, “Let’s not quarrel with the Turks about whether this is genocide or not. Let’s just call it crimes against humanity,” that doesn’t do it. I’ve seen it in recent times. Jimmy Carter recently made a statement saying, “Darfur is not genocide. It’s crimes against humanity. It’s ethnic cleansing,” and he was trashed on the Internet by people saying that was trivializing the events. I don’t really agree with that. I think that both crimes against humanity and genocide are serious, major, terrible atrocities and that we don’t have that gap. But there is that sense that people still have, you can’t explain it legally. It’s not about law. It’s about emotional use of words and that’s all I can say on it.
JERRY FOWLER: I guess I kind of skipped over this question because we talked about one distinction between crimes against humanity and genocide in the forties was that crimes against humanity was limited to, at least defined in the Nuremberg Charter, to atrocities committed during the war. But in the modern definition, what’s the modern definition of crimes against humanity and how does it differ from the definition of genocide?
WILLIAM SCHABAS: Basically, the modern definition of crimes against humanity – certainly the definition over the last 10 or 15 years that is universally accepted – is that they can be committed in peacetime. So the issue that provoked the codification of genocide and the genocide convention – that is the failure of the Nuremberg court to condemn peacetime genocide -- has disappeared.
JERRY FOWLER: But what are the other differences? Because the definition of crimes against humanity still is not the same as the definition of genocide, setting aside the--
WILLIAM SCHABAS: Well, first of all crimes against humanity covers peacetime atrocities. So that issue is resolved. But it also covers a much broader range of groups. So it would certainly cover gender, groups based on gender, groups based on political belief, social origin, and so on. So those gaps, you could say, or just the narrowness in the genocide convention is cured by that. So you’ve got something. I mean, to give an analogy and in ordinary criminal law, it’s like the difference between pre-meditated murder and manslaughter. You’ve got manslaughter, which covers all killing that’s more than just accidental killing, and it’s a crime, and it’s a crime everywhere, and people get punished, a range of punishments from a suspended sentence to life imprisonment. Or, I don’t know if in the United States you can get the death penalty for manslaughter. I don’t think so.
JERRY FOWLER: Not even in the United States.
WILLIAM SCHABAS: Not even in the United States. Good, well that’s a relief, but with first degree murder, first degree murder equals manslaughter. There’s no problem with that. You can be convicted, if you’re convicted of first degree murder you can also be convicted of manslaughter, but the opposite isn’t the case, because it’s a much narrower and more aggravated form of it. So maybe that’s the way to look at the two categories, but one thing we know is it’s not as if there’s a gap between first degree murder and manslaughter. It’s not as if somebody’s going to walk because something fell between the cracks, and that was the case years ago with genocide and crimes against humanity. There were big cracks between them and we don’t have that anymore. So that is, I think, that left open different ways to resolve that, and one of the ways in recent times, legally, was to broaden out genocide. And another was simply to say, look, we don’t need to broaden it out anymore, and I think that the fact that we didn’t need to broaden it out anymore has probably contributed to the legal development where we’ve left it more or less the way it is. So you’ve got a definition of genocide that really hasn’t evolved very much since 1948 and you’ve got a definition of crimes against humanity that’s evolved greatly.
JERRY FOWLER: Another point I wanted to go into on the definition of genocide is this idea of not just having an intent to destroy, but it’s an intent to destroy in whole or in part, and that little phrase “in part” is pretty vague. How big a part does it have to be? Or does it have to be any part?
WILLIAM SCHABAS: Yeah, that’s been also a source of some difficulty, although in practice we’ve looked at big genocides where there’ve been a lot of people killed. And I don’t think that it’s been such a difficult issue. When the convention was adopted, it was one of the issues that troubled the United States, because in the United States in the forties and fifties, and until recent times, you had ethnically based killings, certainly. You had cases, you had lynchings going on in the southern United States at the time, and there was concern that that might be called genocide in part. And so when the United States ratified the genocide convention, it added some language saying, “Well, as far as we’re concerned, it has to be a substantial part.” You can say that’s still vague, the definition, the idea of a substantial part. I think that maybe a helpful way to look at it is to say the Nazis didn’t intend to kill all the Jews in the world because they couldn’t get their hands on them. They intended to kill all the Jews in Europe. You know, that’s a useful way to think of it. It’s probably not going to be very helpful to think that if you kill more than two people, you’ve killed a group in part. What you wanted to have is some useful way of distinguishing between real genocide and what would be racially motivated killings of members of a group. And it’s probably helpful to be able to separate those two things, so that’s where it is. But each case is a case by case. One other thing that’s happened, that’s of interest, is some of the case law has said, instead of looking at a substantial part which is quantitative, they say we should look at a significant part which is qualitative. And that’s led to all kinds of speculation about, is the existence of a group threatened because you kill of certain parts of the group? Some people have said you kill off the intellectuals, or you kill off the political leaders, or you kill off the religious leaders, and there’s some traction for that idea as well. I’ve always been a bit uncomfortable with that, because I think it makes value judgments about a group. I mean, I guess being an intellectual I would like to protect intellectuals and say that if you kill them then you threaten the group. But I’d like to think that if you kill all the plumbers you threaten the group as well, or if you kill all the taxi drivers, or whatever, that, you know, societies are complex entities. And I think it’s hard to narrow it down to one part of the group and say that that threatens the existence.
JERRY FOWLER: But I want to clarify something about this “in part,” because the example you used was the Nazis who presumably didn’t intend to kill all the Jews because they didn’t have control of all Jews. But they did intend to kill all the Jews they had in their control, but in part is not quite as strict as that, is it? That a perpetrator would have to intend to kill all the members of the group that they can get their hands on?
WILLIAM SCHABAS: Well, I guess people can even look at the Nazi policy and say, “Well, they left some Jews to work. You know, they distinguished between them.” There was the famous triage at Auschwitz, where some people went immediately into the gas chambers and others went to, although we know that they were eventually going to be worked to death. Yeah, I don’t know. I don’t know of practical cases. Probably the closest we come to that being applied would be Srebrenica and the massacre in Srebrenica in July of 1995 – Srebrenica being the Bosnian Muslim enclave in Bosnia-Herzegovina that the Serb forces hoped to conquer and to cleanse of Muslims, so that they could link up strategically different parts of Serb Bosnia. And there, the massacre involved the expulsion of the women and children, and the killing of the men, and the Tribunal has said that that was genocide, and the International Court of Justice has confirmed that recently. And so there you’ve got a case where they’re not killing everybody under their control, but they’re expelling the women and children and killing the men. There’s an ambiguity about it that has always troubled me. It’s a terrible massacre of the men of Srebrenica and it has been declared a genocide. But I think it is – intellectually, it’s still not as clear as it might be. I think what’s really ambiguous is if you expel the women and the children, what does that say about your intent to destroy the group? Because maybe it suggests that you’re not trying to wipe them out. You’re just trying to ethnically cleanse them and at the same time, get rid of the combatants at the same time. So, you know, we’re going to keep quarrelling and debating these things for a long time to come.
JERRY FOWLER: We’re running short of time, but one thing I didn’t want to end our conversation without talking about is the idea of prevention of genocide. The convention, as you pointed out, is titled the Convention for the Prevention and Punishment of the Crime of Genocide, but the convention actually says very little about prevention. Just recently, though, the International Court of Justice has reached the conclusion that there is a duty to prevent. And I guess with the little time we have remaining what I would ask is, how did the ICJ come to this conclusion given the fact that there’s so little attention paid to prevention in the text of the convention, and apparently there was little attention paid in the discussions that attended the adoption of the convention.
WILLIAM SCHABAS: In the convention, we just have the word prevention and you can make an argument, and I think maybe this is what they thought back when they were adopting it, that the way they prevented it was by punishing it. And of course there’s a good argument to be made that criminal justice has a deterrent effect, and so you prevent future crimes by punishing the crimes of the past. And for a long time that may have been the prevailing interpretation of the convention. What’s happened in recent years is actually, perhaps, less from the convention itself as something that has grown within the international community is the idea that there is a broad duty to prevent atrocities taken, going beyond just genocide, but including war crimes and crimes against humanity, and ethnic cleansing. That has led to the development of – it’s a slogan really in the U.N, we call the responsibility to protect. People go by, there’s kind of a cute little acronym, R2P that we use, and that idea has grown in recent years, and it was actually agreed to by consensus in 2005 when all of the world leaders got together to commemorate the 60th Anniversary of the United Nations. I think that the judges of the International Court of Justice in February of this year, of 2007, were actually stimulated by that development in law, and so they definitely went beyond the idea that it’s just a duty to prevent genocide by punishing it. They also went beyond something, and this is, I think, also inspired by the responsibility to protect idea, that you don’t have to prevent it just within your own territory. I can remember in 1994 discussing this question with U.S. diplomats in the Department of State and saying, you know, we should have done more about Rwanda. And they said, “Look, we don’t have a duty to prevent genocide outside our territory.” They said, “We’ve agreed to the convention and we agree we have a duty to prevent genocide within our territory.” Well, the responsibility to protect document from 2005 definitely says states have a duty to prevent or to protect going beyond their territory, working through the United Nations, but nevertheless that duty exists. And the International Court of Justice said the same thing. So it said that Serbia was in a position to influence the Bosnian Serbs when the Srebrenica massacre took place, and that they should have done things. Now, it’s unspecified exactly what they should have done, but it’s an idea, you know, it’s like we’re watching the germination of a flower or something like that. I think we’re not there yet. It’s not yet a robust doctrine, but it’s the beginning of something and the court launched this in February of 2007 in this judgment, building on the idea that arose in the United Nations, and it’s great. I think it’s one of the most exciting things that’s happened in recent years, the idea that we’re all responsible as countries, in a sense collectively, but also individually for preventing mass atrocity. And I’m sure that was the dream of people like Eleanor Roosevelt back in 1945, and ’46, and ’47, that that’s what the United Nations would do. And we’re getting closer to it.
JERRY FOWLER: William Schabas is Director of the Irish Center for Human Rights at the National University of Ireland, and the author of Genocide and International Law, The Crime of Crimes. Bill, thanks for taking the time to be with us.
WILLIAM SCHABAS: My pleasure, Jerry.
NARRATOR: You have been listening to Voices on Genocide Prevention, from United States Holocaust Memorial Museum. To learn more about preventing genocide, join us online at www.ushmm.org/conscience. There you’ll also find the Voices on Genocide Prevention weblog.
