“Definitional Traps” and Misleading Titles

Many people don’t pay much attention to the preface of a book. I think they presume that if the authors have something important to say, it will feature in the body of the text. Often the preface addresses rather perfunctory matters, such as acknowledging research assistants and copy editors. But a reader who skips the preface to the recent report titled Preventing Genocide: A Blueprint for U.S. Policymakers (the AlbrightCohen Report), the work of the Genocide Prevention Task Force, will miss something important, indeed primordial. Tucked away toward the end of the front matter, under the general heading ‘‘Defining the Challenge,’’ is a three-paragraph section titled ‘‘Avoiding Definitional Traps.’’ It refers to the definitional challenge of invoking the word genocide, which has unmatched rhetorical power. The dilemma is how to harness the power of the word to motivate and mobilize while not allowing debates about its definition or application to constrain or distract policymakers from addressing the core problems it describes.1 Follow this and additional works at: http://scholarcommons.usf.edu/gsp This Article is brought to you for free and open access by the Tampa Library at Scholar Commons. It has been accepted for inclusion in Genocide Studies and Prevention: An International Journal by an authorized administrator of Scholar Commons. For more information, please contact scholarcommons@usf.edu. Recommended Citation Schabas, William A. (2009) "“Definitional Traps” and Misleading Titles," Genocide Studies and Prevention: An International Journal: Vol. 4: Iss. 2: Article 8. Available at: http://scholarcommons.usf.edu/gsp/vol4/iss2/8 ‘‘Definitional Traps’’ and Misleading Titles William A. Schabas National University of Ireland, Galway; Director, Irish Centre for Human Rights; Global Legal Scholar, University of Warwick; Visiting Fellow, Kellogg College, Oxford Many people don’t pay much attention to the preface of a book. I think they presume that if the authors have something important to say, it will feature in the body of the text. Often the preface addresses rather perfunctory matters, such as acknowledging research assistants and copy editors. But a reader who skips the preface to the recent report titled Preventing Genocide: A Blueprint for U.S. Policymakers (the AlbrightCohen Report), the work of the Genocide Prevention Task Force, will miss something important, indeed primordial. Tucked away toward the end of the front matter, under the general heading ‘‘Defining the Challenge,’’ is a three-paragraph section titled ‘‘Avoiding Definitional Traps.’’ It refers to the definitional challenge of invoking the word genocide, which has unmatched rhetorical power. The dilemma is how to harness the power of the word to motivate and mobilize while not allowing debates about its definition or application to constrain or distract policymakers from addressing the core problems it describes. The task force indicates its intention to ‘‘avoid the legalistic arguments that have repeatedly impeded timely and effective action’’ (xxi). As a consequence, it defines the scope of the report as the prevention of ‘‘genocide and mass atrocities’’ (xxii). It says this means ‘‘large-scale and deliberate attacks on civilians’’ (xxii), pointing to the definitions of genocide, crimes against humanity, and grave breaches of the war crimes that are recognized in international treaties: ‘‘We use the term genocide in this report as a shorthand expression for this wider category of crimes’’ (xxii). It’s an old debate, really. The pages of this journal have often contained articles by academics questioning the scope of the definition of genocide. The scholarly literature is replete with proposals to redefine, and generally to expand, the concept. Others, such as David Scheffer, have advocated that the term ‘‘genocide’’ be replaced by the broader concept of ‘‘atrocity crimes.’’ The task force goes further, simply confusing the concept of genocide with the much broader notion of mass atrocity. To start with, the packaging of this report is misleading: if the subject is preventing ‘‘genocide and mass atrocity,’’ then the authors should say so in the title. The members of the Genocide Prevention Task Force will no doubt consider the views expressed here to be precisely the kind of legalistic pedantry that they are trying to avoid. But let me explain why there is more to this issue than a mere ‘‘definitional trap.’’ As everyone now knows, the word ‘‘genocide’’ was invented in 1944 by Raphael Lemkin. Lemkin proposed his own definition, but as work advanced on incorporating the concept in international treaty law, the drafters had to take the views of states into account in an effort to build sufficient consensus to ensure adoption of the Convention on the Prevention and Punishment of the Crime of Genocide (UNCG) and its prompt ratification. Meanwhile, a cognate concept, ‘‘crimes against humanity,’’ was William A. Schabas, ‘‘ ‘Definitional Traps’ and Misleading Titles’’ Genocide Studies and Prevention 4, 2 (August 2009): 177–183. ! 2009 Genocide Studies and Prevention. doi:10.3138/gsp.4.2.177 also developed to address much the same phenomenon that Lemkin was concerned with. To a large extent, the terms ‘‘genocide’’ and ‘‘crimes against humanity’’ were used almost synonymously during the preparations for and the actual conduct of the Nuremberg trials. However, for reasons that remain obscure, those who established the International Military Tribunal chose to include ‘‘crimes against humanity’’ and not ‘‘genocide’’ in the statute, and it was on that basis that the Nazi leaders were tried and, for the most part, convicted. One of the prosecutors at Nuremberg, Henry T. King, told the story of meeting Lemkin in the lobby of Nuremberg’s Grand Hotel a day or two after the judgment was pronounced, on 30 September–1 October 1946. ‘At the time, Lemkin was unshaven, his clothing was in tatters, and he looked disheveled.’ According to King, When I saw him at Nuremberg, Lemkin was very upset. He was concerned that the decision of the International Military Tribunal (IMT)—the Nuremberg Court—did not go far enough in dealing with genocidal actions. This was because the IMT limited its judgment to wartime genocide and did not include peacetime genocide. At that time, Lemkin was very focused on pushing his points. After he had buttonholed me several times, I had to tell him that I was powerless to do anything about the limitation in the Court’s judgment. Lemkin’s complaint was actually with the definition of crimes against humanity in the Charter of the International Military Tribunal, but, like many, he had hoped the shortcomings would be corrected by judicial interpretation. To his disappointment, the Nuremberg judges had done no more than confirm it. The problem lay in a limitation on crimes against humanity. Crimes against humanity consisted of a wide range of ‘‘atrocity crimes,’’ to borrow Scheffer’s expression, but their scope was restricted to acts perpetrated in association with an illegal war. International lawyers call this ‘‘the nexus.’’ The drafting history of the Nuremberg Charter clearly indicates that the nexus with armed conflict was imposed in order to avoid any precedent by which those who established the tribunal (namely the United States, the United Kingdom, France, and the Soviet Union) could be held accountable for the persecution of minorities within their own borders or those of their colonies. ‘‘The blackest day of my life’’ is how Lemkin later described the delivery of the verdict in the Nuremberg trial. Lemkin had recently learned that essentially his entire family had perished, victims of the crime to which he had given its name. He had been hospitalized in Paris and was evidently going through a period of great physical and emotional turmoil. According to biographer John Cooper, from his hospital bed ‘‘he happened to hear on the radio about the forthcoming meeting of the General Assembly of the United Nations in New York’’ and was ‘‘electrified by the news, believing that here at last was a forum which would listen to him.’’ Lemkin immediately returned to New York, where he launched a campaign at the first session of the UN General Assembly that led to the adoption of a resolution to condemn genocide as an international crime. At the General Assembly, Lemkin quickly obtained the support of three delegations—India, Cuba, and Panama—for a proposed resolution on genocide that he had drafted. The Cuban delegate, Ernesto Dihigo, explained to the General Assembly that the resolution was necessary to address a shortcoming in the Nuremberg trials by which acts committed prior to the war were left unpunished. All of this resulted in the 1948 UNCG which proclaims, in article 1, that the crime can be ‘‘committed in time of peace or in time of war.’’ Thus, Lemkin’s campaign did indeed fix the flaw in the Nuremberg judgment. But there was a big price to pay. Genocide Studies and Prevention 4:2 August 2009