On the occasion of Professor William Schabas's 60th year

On 9 July 2011, Iain Scobbie posted on the blog of European Journal of International Law (http://www.ejiltalk.org/page/8/) “Call for Papers: Public International Law, International Criminal Law & International Human Rights Law: A Critical Evaluation of the Scholarship of Professor William Schabas”.

On the occasion of Schabas’s 60th year, the editors Dr. Kathleen Cavanaugh, Senior Lecturer, Irish Centre for Human Rights, National University of Ireland and Prof. Joshua Castellino, Professor of Law & Head of Law Department, Middlesex University, London, United Kingdom sought contributions from scholars, practitioners, judges and others that critically engage with the published contributions of Professor William Schabas.

In praise of his scholarship and activism the two editors wrote: „Over the last half a century the discourse of public international law has been enlivened by a growing emphasis on international human rights law, spawning robust debate and discussion, and also the creation of an imperfect system of accountability for crimes against humanity, war crimes and genocide. In the last two decades in particular, the scholarship and activism of Professor William Schabas has had a significant impact on the growth of the normative frameworks around these subjects... His sterling role on the Sierra Leone Truth Commission is but one manifestation that his contribution has spread well beyond the realms of the classroom: recognition that is also reflected in the bestowal of the Order of Canada upon him for his contribution to human rights...“

Now, in my capacity of “other” I would like to give my small contribution to this initiative merely by quoting some of Prof. Schabas's writings on issues such as the role of the ICTY, ICJ's Judgment in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Srebrenica and a few others.

On the role of the International Criminal Tribunal for the former Yugoslavia: “The ICTY's role is to contribute to peace, accountability and ultimately reconciliation within a context of collective atrocity. Directing its fire at what are really no more than isolated social deviants can only distort the historical record in an unnecessarily provocative fashion.”  

On the ICJ Judgment, Srebrenica and Mladić’s power of improvisation: “Certainly the ICJ endorsed the conclusion that genocide had been perpetrated at Srebrenica. Here too, it followed the analysis of the ICTY, treating the massacre as an isolated and ultimately idiosyncratic event within a broader conflict whose essence was not fundamentally genocidal, a devastating and destructive attack on the Muslims of Srebrenica that was improvised at the last minute by General Mladić.”

On the condition of “Muslim life” (a rather interesting phrase) in Srebrenica in August 2007: “According to recent reports, Muslim life in Srebrenica is more vital and dynamic than ever.”

On those truly bend upon physical destruction of a group and others not so bend upon physical destruction of a group: “Can there not be other plausible explanations for the destruction of 7,000 men and boys in Srebrenica? Could they not have been targeted precisely because they were of military age, and thus actual or potential combatants? Would someone truly bend upon the physical destruction of a group, and cold-blooded enough to murder more than 7,000 defenseless men and boys, go to the trouble of organizing transport so that women, children and the elderly can be evacuated?”

On Milosevic trial and the true nature of relations between Belgrade and the Bosnian Serb leaders: “The unfinished trial of Milosevic never succeeded in joining up the dots to link him to Srebrenica. In fact, much of the evidence in that proceeding pointed to a rift between Belgrade and the Bosnian Serb leaders, rather than to the fabled conspiracy.”

On consistency and coherence: “... if the theoretical construct of the crime of genocide proposed by the ICTY and endorsed by the ICJ is to be sustained, it would have been more consistent and coherent to conclude that Srebrenica, too, was not an act of genocide. Both the ICTY and the ICJ seem to want to have their cake and to eat it too, espousing a rigorous legal analysis of the elements of the crime but nevertheless bowing to the crowd by acknowledging the most outrageous act in the entire war as rising to the level of genocide.”

And finally, on the lost chances: „... the final result [ICJ's Judgment], in February 2007, was really a setback for the Bosnian victims, whose lawyers should have convinced the state to discontinue their case. They probably could have obtained useful political considerations from Belgrade in exchange, but they have now, obviously, lost that chance.”

All the above quotes are from the following two articles by Professor William Schabas:

1. William A. Schabas, Legal Perspectives and Analyses: Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia, Fordham International Law Journal, Volume 25, Issue 1, 2001

2. William A. Schabas, “Genocide and the International Court of Justice: Finally, A Duty to Prevent the Crime of Crimes” Genocide Studies and Prevention 2, 2 (August 2007): 101-122