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The Concept of Cultural GenocideAn International Law Perspective$

Elisa Novic

Print publication date: 2016

Print ISBN-13: 9780198787167

Published to Oxford Scholarship Online: December 2016

DOI: 10.1093/acprof:oso/9780198787167.001.0001

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Introduction

Introduction

Chapter:
(p.1) 1 Introduction
Source:
The Concept of Cultural Genocide
Author(s):

Elisa Novic

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198787167.003.0001

Abstract and Keywords

The introduction sets out the premise for the research, starting with the difficulty of coining a unique definition of cultural genocide. This is due to the fact that the concept relies both on the concept of culture, understood broadly as a way of life, and the concept of genocide, which is very narrowly defined in international law. Against this background, it proposes to address the question of the status of cultural genocide in international law by acknowledging the evolution of both international law and the concept of cultural genocide since the debate originally emerged in the 1940s, and looks at which gaps remain to be filled instead of advocating for the codification of the concept.

Keywords:   culture, cultural genocide, ethnocide, genocide, international law

Cultural genocide has emerged as a powerful rhetorical and political tool, which has been engaged in order to call forth the international community’s attention and elicit a reaction to serious violations of cultural rights. The most famous example might be that of Tibet, with the Dalai Lama’s repeated uses of the term ‘cultural genocide’ to describe the series of policies imposed on the Tibetans from 1950,1 including the destruction of monasteries during the cultural revolution, restrictions to religious freedom, the imposition of the Chinese model of development and the massive colonization of Han Chinese people, which all threaten the future of the Tibetan language and culture.2 The Taliban regime, which prohibited the practice of any culture outside their strict interpretation of Islam, also provoked strong reaction from the international community, in particular following the destruction of major pieces of cultural heritage such as the Buddhas of Bamiyan and the pre-Islamic collection of the Kabul Museum in March 2001. Observers and the official delegation of the Afghan State to the United Nations used the ‘cultural genocide’ rhetoric to denounce the attack against these aspects of Afghan cultural heritage.3 The debate on ‘cultural genocide’ was also revived in the context of the truth and reconciliation processes in Canada and Australia, in relation to the forced transfers of Aboriginal children from their families and communities to foster families and residential schools throughout the nineteenth and twentieth centuries.4

(p.2) From this short account, cultural genocide emerges as potentially applicable to a wide range of experiences; it also already provides a sense of the semantic tension inherent to the concept. On the one hand, it relies on a broad definition of culture and, on the other, it sticks to the concept of genocide, which is defined very narrowly in international law. This introduction will thus seek to draw the contours of the concept of cultural genocide, before addressing the possibilities for international law to address this concept.

1.1 The Concept of Cultural Genocide

The difficulty to define cultural genocide flows from its main core element—culture—which has itself greatly evolved throughout the centuries. For a long time, culture meant ‘being cultured’ and hence rather focused on cultural products, such as ‘the visual arts, music and literature’.5 This ‘humanistic’ conception was progressively substituted with an ‘anthropological’ one, which is ‘plural and relativistic’:

The world is divided into different cultures, each worthwhile in its way. Any particular person is a product of the particular culture in which he or she has lived, and differences between human beings are to be explained (but not judged) by differences in their culture (rather than their race).6

As such, culture shapes individual and collective identities and existences, which are quintessential to humanity.7 This anthropological meaning is often assimilated with the description of a ‘way of life’, so that a wide range of collective and individual features are therefore likely to be qualified as ‘cultural’. As such, if any aspect of life can be considered to be cultural, it follows that any attack against one such feature could potentially trigger the use of the ‘cultural genocide’ rhetoric. This idea ends up essentializing the importance of one given culture for the viability of one group, and the importance of a specific group for the identity of its individual members. In contrast, the prevailing anthropological discourse rather tends to underline the multiplicity of individual identities and the fluid and dynamic character of culture.8 In other words, if one group reflects one culture, members of this group will necessarily identify themselves with more than one cultural group. Rogers Brubaker (p.3) has criticized this formulation by using the concept of ‘groupism’, which he defines as ‘the tendency to take bounded groups as fundamental units of analysis’9 and ‘to reify [ethnic] groups (…) as if they were internally homogeneous, externally bounded groups, even unitary collective actors with common purposes’.10 Cultural genocide is therefore likely to be subjected to potential abuse and misuse, the scope for which contributes to the scepticism surrounding the legitimacy of the concept.

Cultural genocide thus raises the question of where to draw the line in order to avoid the stubborn defence of any cultural practice for the mere sake that it is deemed cultural. This question intuitively rings the bell of the ‘cultural relativist’ criticism, which can itself be criticized. Cultural relativism actually constitutes a ‘methodological principle’ of anthropology, which consists in looking at cultures in and for themselves, without prejudice.11 If there is indeed a risk to defend ‘every practice and every belief at all costs’12 through the cultural genocide claim, the concept also calls upon a cultural relativist approach according to its anthropological meaning, that is thinking of what a culture is and its meaning for both given communities and their individual members.

While these criticisms should be acknowledged, they cannot constitute in and of themselves an argument advocating the rejection of the concept as a whole, especially in light of a growing consensus as to the idea that ‘the disappearance of peoples and cultures is a reality, not a theoretical construct of paradigm’.13 A large number of experts consider cultural genocide to be the adequate term to reflect the experiences of some indigenous communities.14 The issue rather consists in the establishment of criteria in order to distinguish between ‘legitimate’ and ‘illegitimate’ claims. Clearly, this is not an easy task, especially in the absence of any legal definition; the draft provision on cultural genocide was rejected from the final 1948 (p.4) Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the Genocide Convention).

The discourse surrounding cultural genocide has nonetheless persisted, especially in academic debate, with some scholars attempting to formulate definitions of cultural genocide. Raphael Lemkin, a Polish lawyer, initially coined the term ‘cultural genocide’ at the same time as he conceptualized genocide, conceiving the former as a technique of implementation of the latter, which would consist of the destruction of either tangible or intangible manifestations of a group culture.15 The term is used particularly to refer to the intentional destruction of assets of cultural heritage, such as cultural or religious monuments, in contrast to the idea of ‘collateral damage’.16

Contemporary definitions of the concept have rather used cultural genocide to describe a process of its own, which would result in the extinction of some ethnic groups’ culture, either through its targeted destruction or its forced assimilation into the dominant culture.17 Cultural genocide has thus been defined as the idea ‘that a group could be suppressed by extinguishing their specific traits’18 or as ‘the total destruction of a culture, so that the identity of a people ceases to exist’.19 Yvonne Donders provides a more thorough definition of cultural genocide:

the destruction by the State or State organs of the culture of a community in its broad sense of the term, including the ‘distinctive spiritual material, intellectual and emotional features of society or a social group’, encompassing ‘in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs’.20

Both the narrow and broad meanings of cultural genocide overlap to the extent that cultural genocide, understood as a technique of genocide, might itself constitute a technique of ethnocide. Hence, the understanding that ‘[d]‌enying that a group can speak its native language or practice its traditional religion will destroy the group just as readily as killing some of the members’.21 The difference rather (p.5) exists at the level of the analysis, as the first definition focuses on the means of genocide and the latter on its results.

A few common characteristics emerge from the various scholarly definitions. Cultural genocide is often described as a ‘subtle’ genocide,22 referring to a rather long-term process which, in spite of not being bloody, engenders the same result as genocide: the destruction of a human group, mainly through assimilationist and dispersionist policies. The effects of this ‘destruction’ are also described as intergenerational,23 precluding the transmission of the group culture to the next generations, so that its effects can be considered as ongoing even long after the process took place.24 The harm is therefore multiple: to the individual, their communities, and humanity as a whole. Finally, cultural genocide is also referred to as a ‘state practice’ or policy,25 although the criminal rhetoric that accompanies the term ‘genocide’ implies some form of individual criminality.

In the course of this study, we refer to cultural genocide as a generic term that describes both the narrow and the broad meaning. Nevertheless, where it becomes necessary to draw a distinction, we will refer to the narrow meaning as a ‘technique of cultural genocide’, to use Lemkin’s terminology, and the broad meaning as a ‘process of genocide of its own’ or ‘ethnocide’.

1.2 Cultural Genocide and Genocide

Both genocide and cultural genocide have been developed as legal concepts, in the sense that they have been firstly defined and tentatively tackled in the international legal sphere. While cultural genocide has evolved on the contingency of claims, genocide has remained a fixed legal concept since its 1948 definition as articulated, enshrined in Article II of the Genocide Convention:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. (a) Killing members of the group;

  2. (b) Causing serious bodily or mental harm to members of the group;

  3. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

  4. (p.6) (d) Imposing measures intended to prevent births within the group;

  5. (e) Forcibly transferring children of the group to another group.26

Since its codification, the legal definition of genocide has attracted a considerable amount of attention and criticism, both from inside and outside the legal sphere, so as to be qualified as an ‘essentially contested concept’.27 It has been much criticized for its alleged overly restrictive scope. These criticisms have focused on the two main elements of the definition: the mens rea, which contains a restrictive list of potential victim groups, on the one hand and the actus reus, which provides a restrictive list of potential genocidal acts, mainly focused on acts of physical and biological destruction, on the other.28 This has given rise to a proliferation of proposals for new definitions of genocide29 as well as the creation of alternative concepts, modelled on the ‘-cide’ root of genocide, in order to identify and highlight some missing element of the definition,30 some of which intersect with the concept of cultural genocide. ‘Indigenocide’ thus describes the specific experience of indigenous peoples, although they might legally fall into the ‘ethnic group’ category31 while ‘eliticide’ has been used to emphasize one particular aspect of the partial destruction of a group, namely ‘the killing of the leadership, the educated, and the clergy of a group’, a recurring pattern of mass atrocities.32 Other terms focus (p.7) on specific cultural features rather than the victim groups, such as ‘libricide’ for the destruction of books and libraries,33 ‘linguicide’ or ‘linguistic genocide’ for the ‘concerted elimination of one or several languages through explicit policies’,34 especially in contexts of ‘submersion education’.35 While coining new terms may seem counterproductive, as a means of (over) emphasizing the specific features of broader processes and therefore dissociating them from the very concept of genocide,36 they all contribute to challenge the definition of genocide. In this regard, cultural genocide is more than another ‘–cide’ word, not only for historical reasons—as it shares its common origins with genocide—but also because it has increasingly been accepted as part of the ‘genocidal process’.

The idea of ‘process’ has itself recently been conceptualized, placed in contrast with the long-prevailing idea of a series of episodic events.37 This conceptual move has very much been linked to new trends in Holocaust studies, due to increasing efforts to understand the long-term origins and consequences of the Holocaust, which is often considered as a ‘prototypical’ genocide.38 A renewal has thus been observed within the scholarship of genocide, to conceptualize, in the wake of Hannah Arendt, the imperialistic roots of modern genocide.39 In this context, Patrick Wolfe has identified a ‘logic of elimination’40 underlying every process of settlers’ colonialism, which could, above a certain line, be deemed to become genocidal. This has in turn shed new light on the types of societies likely to be involved in such processes. Genocide was originally commonly thought of as the product of ‘monsters’ or ‘dictators’, that is, of an extreme and obvious form of social deviance.41 The focus on settler colonialism has illustrated that genocide might also be the fruit (p.8) of so-called ‘Western liberal democracies’,42 that is, of those very states which took part in the negotiations of the Genocide Convention.43

From this perspective of process, the relationship between cultural destruction and genocide has become tighter. Cultural genocide is thus presented as an intrinsic characteristic of every process of genocide, which can be empirically observed.44 As a technique, it may occur concomitantly to other genocidal acts45 or constitute a step towards genocide.46 The latter idea tends to attribute a function to the concept in relation to genocide prevention, one of the two stated goals of the Genocide Convention. However, international law has been challenged more than once for its inability to efficiently prevent genocides.47 In this respect, genocide prevention emerges as a field of study in which cultural genocide might find some ground for its legal revival.

The debate is much more intense in respect of the concept of ethnocide, as it opens the ‘genocide without murder’ debate, that is whether genocide could be said to exist without the perpetration of any physical or biological attacks against the group members, roughly summed up as ‘murders’. The issue is reflected in Larry May’s statement that ‘[t]‌he destruction of a group, in which individuals are not killed, is more difficult to see as a great crime’.48 Doctrinal opinions can be split into two categories: those who advocate for a broader understanding of the crime, as Larry May does, and those who consider, on the basis of the 1948 Genocide Convention, that genocide should be thought of exclusively in physical and biological terms while cultural genocide should rather be addressed as a human rights issue, per William A. Schabas.49

The debate has been especially acute in relation to acts of ‘forcibly transferring children from one group to another’, acts that are listed as potential acts of genocide in Article II of the Genocide Convention.50 While the insertion of (p.9) this provision was not subject to major debate during the negotiations of the Genocide Convention, it seems that the delegates did not anticipate the claims that would later be brought by Aboriginal Australians, Native Americans and Canadian First Nations, Métis, and Inuit group members, namely their forced removal from their families and transfer to the above-mentioned residential schools where they endured harsh living conditions and complete isolation from their families, communities, and overall culture.

Finally, the cultural dimension is also apparent at the level of the consequences of genocide, in respect of the idea that the destruction of a group implies the destruction of a related culture. As such, the destruction of the socio-cultural fabric has been often quoted as one of the harms of genocide, beyond the death of the group members.51

The conceptual intertwinement of culture and genocide is evident but the question of the relevance of its legal intertwinement remains. As Robert Bevan notes, ‘the fatally intertwined experience of genocide and cultural genocide has yet to find its proper place in international law’.52 As has been outlined in this section, the persistence of the ‘cultural genocide–genocide’ debate is very much due to their temporary cohabitation in the draft Genocide Convention. The negotiations of this Convention occurred in the general context of the construction of the international legal order and a fortiori in a context of ‘legal vacuum’ in the sense that, at the time, the whole order was yet to be constructed. Thus, if the rejection of cultural genocide in the Genocide Convention of 1948 meant its rejection from international law as a whole, the development of international law since that time needs to be re-introduced into the framework of the analysis.

1.3 Cultural Genocide as a Persistent International Legal Issue

Twice in the story of contemporary international law has cultural genocide almost walked through its door. The first time was in 1948, when the draft provision on cultural genocide was finally rejected from the final definition of genocide, enshrined in Article II of the Genocide Convention. The second was in 2007, when a draft provision on cultural genocide and genocide was eventually substituted (p.10) with another related to the ‘elimination of cultures’, during the negotiations of the United Nations Declaration on the Right of Indigenous Peoples (UNDRIP).53 These two draft provisions are noteworthy for their completely different definitions of the same notion. While the 1948 definition was intended to criminalize attacks against cultural monuments and religious institutions, as well as the prohibition imposed on a group to practise the group language,54 the 2007 text adopted a much broader language, that of the elimination of a group culture as a whole, as a ‘collective and individual right not to be subjected to ethnocide and cultural genocide’.55 Furthermore, while the draft cultural genocide provision of the Genocide Convention aimed predominantly at protecting national minorities, in the wake of the inter-war minority treaties,56 the UNDRIP draft provision clearly came to embody the indigenization of the issue. Beyond the seemingly imperviousness of international law in dealing with the concept of cultural genocide, the two episodes display two shifts: a conceptual shift from cultural genocide to ethnocide, and a legal shift from criminal law to human rights law.

The context of the evolution of the two specific fields of genocide and cultural studies has constituted a favourable ground for renewing the debate on the place of ‘cultural genocide’ in international law. From the perspective of cultural genocide, the conceptual evolutions and common characteristics underlined in the previous sections reflect many facets of the discourse to be addressed in international law. A first element deals with the focus of the attack, namely culture, which covers both tangible and intangible features. A second element relates to the victims of the attack, the individuals and communities that might be harmed by attacks against the first element. The harm is manifold and concerns the viability of the community, the intergenerational transmission of the culture, the individual members’ identities, and human diversity as a whole. A third element concerns the authors of these attacks, which might be committed either by individuals and/or states, especially in the case of ethnocide. The fourth and final element relates to the context of the attack, in respect of which it might happen concomitantly or preventively in a wider process of genocide, either in times of armed conflict or in peacetime.

From the perspective of international law, the terms of the debate—culture, genocide, and group—have radically evolved since its emergence in the 1940s such that both the question and answers must now be rethought in a contemporary context. Thus, when trying to derive a legal taxonomy of the material elements of (p.11) ‘cultural genocide’, one has to look into at least five different branches of international law: public international law itself,57 international criminal law,58 international humanitarian law, international human rights law, and international cultural heritage law.

Since most of these categories overlap with each other, these branches should be addressed in a complementary rather than dissociated perspective, while keeping in mind their respective rationales. Indeed, each category encompasses different scopes, protects different interests and contemplates different mechanisms of responsibility. Among the five categories, only international criminal law entails individual criminal responsibility. Hence, if the ‘cultural genocide-genocide’ debate has tended to be enclosed in criminal terms, following the appropriation of genocide by the field of international criminal law, the focus on groups and culture induces a broader approach to international law. While the criminalization of cultural genocide clearly constitutes an important objective in the international legal debate, it only partially reflects the contemporary state of international law, which now views culture almost exclusively as a matter of state responsibility. As emphasized by the various scholars’ definitions, state involvement seems to be crucial in the contemporary understanding of cultural genocide. In this regard, the recent recognition of the principle of state responsibility for genocide is worth underlining as a potential point of convergence between the two international legal frameworks related to culture and genocide.59

1.4 Approach and Methodology

The supporters of the introduction of cultural genocide in international law have predominantly adopted two distinct approaches to the matter. The first approach consists of amending international law by virtue of the codification of (p.12) ‘cultural genocide’. The most developed idea is that of a Protocol to the Genocide Convention, which would tackle the crime of cultural genocide.60 Some authors otherwise argue for a new treaty that would specifically be dedicated to cultural genocide.61 Suggestions have also been advanced as to the scope for the inclusion of cultural genocide within the category of crimes against humanity, although it remains unclear whether cultural genocide would then constitute a crime of its own or rather part of a sub-crime against humanity.62 The second approach consists of relying on existing mechanisms of international law and, if possible, in proceeding to a progressive interpretation of these norms in such a way as to address all of the facets listed above while remaining within the limits of the rules of interpretation established in international law. This second approach nevertheless has a cost: the potential loss of the cultural genocide label within the international legal sphere.

It should be noted at the outset that it seems very unlikely, although theoretically possible, to either revise the Genocide Convention or complete it with a Protocol.63 Hence, William A. Schabas considers that ‘among international law-makers [cultural genocide] is a dead issue’.64 The idea of a new treaty is also utopian; particularly if one takes into consideration the rejection of the cultural genocide rhetoric from the final UNDRIP. The second approach, which looks at the matter in the wider context of international law, is thus adopted as a hypothesis to frame the research, although it shall not preclude the possibility of concluding in favour of the first approach.

This research therefore seeks to rethink the terms of the debate. Rather than just acknowledging that ‘cultural genocide’ is not currently addressed as such by international law, it proposes to reverse the approach in order to determine whether contemporary international law possesses the tools to address the so-called concept of ‘cultural genocide’. In other words, it will address the question of whether the ‘cultural genocide’ gap, resulting from the rejection of the draft ‘cultural genocide’ provision in 1948, has been filled.

This book is thus based on both a pragmatic and progressive approach to international law. On the one hand, it argues that the codification of cultural genocide, not to mention its criminalization, is unlikely to happen in light of the evolution, (p.13) since 1948, of international law. On the other hand, it also acknowledges the gravity of the acts and processes associated with the idea of cultural genocide. As such, it relies on a progressive interpretation of existing international legal norms in order to optimize their capacity to respond to intentional attacks against culture. Its ultimate goal is to contribute to the debate of cultural genocide by providing a tailored and multifaceted answer to the various dimensions and implications of a matter that is as complex as it is serious. As an inherently international legal issue, which is located at the crossroads of several disciplines of international law, the research not only aims to reconstruct the various elements of cultural genocide within international law, but also to provide an integrated international legal approach in respect of cultural genocide, which therefore covers the various relevant topics, including the protection of groups, communities, and individuals, the criminalization of attacks against group cultures, state responsibility for failing to protect human rights, the prevention of cultural crimes, and reparation.

To fulfil these objectives, the analysis therefore relies on both a traditional examination of international legal sources65 in the above-described international legal categories and a confrontation between these sources and scholarly developments in non-legal disciplines. The reference to the sources will be modulated according to the branch of law at stake, since judicial practice may be especially relevant in the case of international criminal justice. In this respect, domestic practice will also be addressed, where relevant either in respect of the implementation of international legal norms, such as the definition of genocide, or for the purposes of clarifying the concept of cultural genocide. When reviewing international legal sources, particular attention will be dedicated to legal cases that refer in one way or another to the concept of cultural genocide or to the idea of group cultural destruction. A few case studies then emerge: the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY); cases related to claims of forcibly transferred children in Canada and Australia, as well as to truth and reconciliation processes in these countries; the case law of the Inter-American Court of Human Rights (IACHR) in relation to either cases involving genocide or group cultural destruction arising from the forcible removal of the group from its ancestral land. Domestic judicial practice will also be analysed as state practice for the purposes of identifying customary international law.

When analysing these documents, reference will be made to relevant findings of other disciplines, especially in order to shed light on conflicting understandings of some core concepts, such as the notions of group, culture, and genocide. The methodologies and objectives associated with other disciplines, such as anthropology, sociology, political science, global history, and more broadly genocide studies, can contribute to better understanding and shaping the empirical and theoretical underpinnings of such core concepts. This book thus intends to contribute to the dialogue between international law, which possesses the monopoly of the definition (p.14) of genocide and other disciplines, the perspectives of which render them equally legitimate for the purposes of refining the analysis on cultural genocide. However, it should be made clear at the outset that the findings made in these fields may not be transposable into international law, which functions according to a logic of ‘legal fiction’.66 This means that it may distort these concepts and render them legal, so as to answer its own ‘special needs’.67 As such, these ‘non-legal sources’ are mostly used in a heuristic way, as a tool to guide and better inform potential legal interpretations, in relation to their degree of internal and external coherence.

1.5 Structure

This introduction has underlined the lack of a uniform understanding of the concept of cultural genocide and, consequently, of the role that international law is expected to fulfil in this regard. This book therefore intends to present an exhaustive analytical review of how international law approaches the core idea underlying the concept of cultural genocide, that is the intentional destruction of group cultures, and how this framework can be strengthened and fostered.

The next three chapters undertake the mapping of international law in order to identify how the underlying elements of cultural genocide are addressed and to assess the state of the international legal prohibition of cultural genocide. The approach is both historical and legal, as one of the objectives of this part is to put the current norms in the context of their formation. Thus, Chapter 2 focuses on the legal origins of the concept of cultural genocide, as coined by Raphael Lemkin and as drafted during the negotiations of the Genocide Convention, as well as the later conceptual evolutions it has endured and its persistence in the legal sphere.

The two chapters that follow focus respectively on the two main elements of the concept of cultural genocide, namely the international legal evolution of its genocidal dimension on the one hand and of its cultural dimension on the other. Chapter 3 analyses the way in which the legal definition of genocide has been interpreted in relation to cultural considerations, especially the meaning of ‘group destruction’, which is pivotal in the conceptualization of both genocide and cultural genocide. This chapter also sheds light on the methodological foundations of the various possible interpretations: either a process of physical-biological group destruction or a process of socio-cultural group destruction. It critically assesses the possibilities for the definition to meet an evolutionary interpretation depending on the legal framework in which it is implemented—international criminal law or general international law—and the potential modulation of existing principles of interpretation.

(p.15) Chapter 4 is dedicated to the broader evolution of international law in relation to the protection of group cultures, with the aim of providing a complete picture of current positive law. More specifically, it focuses on the two branches of international human rights law and international cultural heritage law and weighs these two international legal approaches to culture, in order to assess their ability to cover the material element of cultural genocide, predominantly the international prohibition of group cultural destruction. It also searches for synergies between these frameworks and those of genocide and international criminal law.68 Once this mapping exercise is undertaken, it is then possible to draw some preliminary conclusions in relation to the state of the issue, and in particular the relevance of maintaining the focus of the analysis on the legal concept of genocide.

Considering the limited possibilities to address all facets of cultural genocide through the lens of genocide, the analysis thus opens the perspective on the basis of developments that have been identified in Chapter 4 on the international protection of group cultures.

The following chapters thus adopt a more prospective stance and strive to address the various facets that have been identified in the present introduction in a more systematic way, by relying on both emerging and well-established principles of international law. Chapter 5 therefore assesses the possibility of consolidating a crime against humanity of cultural persecution, drawing from the process of the criminalization of attacks against groups’ tangible cultural heritage in front of the ICTY under the crime of persecution. The different facets of the concept of cultural genocide are tested in order to determine whether they can all be covered under the material scope of this crime against humanity.

Once the international criminal dimension induced by the concept of cultural genocide has been consolidated, Chapter 6 goes on to reflect on the ways to enhance state responsibility, beyond responsibility for breaches of either international human rights law or international cultural heritage law. More specifically, it reflects on the impact of the potential criminalization of acts of cultural genocide on the framework of state responsibility, as well as the legal and conceptual establishment of a link between cultural destruction and genocide prevention.

Chapter 7 finally addresses the question of redressing the intended cultural harm that has been discussed throughout the previous chapters. It looks at the inclusion of the cultural dimension into processes of redress that have been implemented in relevant cases, often in contexts of transitional justice. This dimension has been relatively overlooked in the context of academic discussions on cultural genocide. This chapter is therefore deemed necessary to complete the current portrait of cultural genocide in international law, and the way in which the latter addresses the harm induced by the former. It also reflects upon an approach which strives to push as far as possible the boundaries of international law in order to get as close as possible (p.16) to the original justification for addressing the matter in international law: namely, victims’ claims for justice.

Chapter 8 completes this book with some conclusions which critically assess the possibility for international law to effectively address cultural genocide, and reflect on the potential relevance of the concept of cultural genocide in an international legal context.

Notes:

(1) See e.g. Reuters, ‘Dalai Lama blames Tibetan burning protests on “cultural genocide” ’, The Telegraph, 7 November 2011, available at: http://www.telegraph.co.uk/news/worldnews/asia/china/8874374/Dalai-Lama-blames-suicide-protests-on-Chinese-cultural-genocide.html (last accessed 1 February 2015).

(2) Jean-Christophe Victor, Virginie Raisson, and Franck Tétart, Le Dessous des Cartes: Atlas Géopolitique (Paris: Arte Editions; Taillandier, 2005) pp. 132–3; Barry Sautman, ‘ “Cultural Genocide” and Tibet’ (2003) 38 Tex. Int’l L.J. 173, p. 174: this piece is however biased at the outset by the author’s qualification of the Tibetan leadership’s claims over Tibet as ‘ideology’.

(3) Christina Lamb, The Sewing Circles of Herat (New York: Perennial, 2004) p. 233; UNGA ‘Agenda Item 46: The Situation in Afghanistan and its Implications for International Peace and Security’ (9 March 2001), UNGAOR 55th Session, 94th Plenary Meeting, UN Doc. A/55/PV.94 (Intervention of the Afghan Delegation). The international community did not recognize the Taliban regime as the official government of Afghanistan, so that the state was represented at the UN by the opposition to the Taliban.

(4) Australian Human Rights Commission, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997); Truth and Reconciliation Commission of Canada (TRC), Honouring the Truth, Reconciling for the Future—Summary of the Final Report of the Truth and Reconciliation of Canada (2015).

(5) Alan Barnard and Jonathan Spencer, ‘Culture’ in Alan Barnard and Jonathan Spencer (eds.), The Routledge Encyclopedia of Social and Cultural Anthropology (2nd edn., London, New York: Routledge, 2010) pp. 168–9.

(6) Ibid.

(7) Clifford Geertz, The Interpretation of Cultures, Selected Essays (New York: Basic Books, 1973) p. 46.

(8) See e.g. Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (Leiden; Boston: Martinus Nijhoff Publishers, 2007) p. 5; Francesco Francioni, ‘Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity’ (2004) 25 Mich. J. Int’l L. 1209, p. 1221; Lucas Lixinski, Intangible Cultural Heritage in International Law (Oxford: Oxford University Press, 2013) p. 184; Larry May, Genocide: A Normative Account (Cambridge; New York: Cambridge University Press, 2010) pp. 64; 85–6; Marco Odello, ‘Indigenous Peoples’ Rights and Cultural Identity in the Inter-American Context’ (2012) 16 I.J.H.R. 25, p. 27.

(9) Rogers Brubaker, Ethnicity without Groups (Cambridge, Mass.: Harvard University Press, 2004) pp. 2–3.

(10) Ibid., p. 8.

(11) Denys Cuche, La Notion de Culture dans les Sciences Sociales (4ème éd., Paris: La Découverte, 2010) pp. 145–7.

(12) Sally Engle Merry, ‘Human Rights Law and the Demonization of Culture (and Anthropology along the Way)’ (2003) 26 A.A.A 55, p. 58. For similar criticisms, see also Marie-Bénédicte Dembour, ‘Following the Movement of a Pendulum: Between Universalism and Relativism’ in Jane K. Cowan, Marie-Bénédicte Dembour, and Richard A. Wilson (eds.), Culture and Rights: Anthropological Perspectives (Cambridge, UK; New York, NY, USA: Cambridge University Press, 2001) p. 59; Cuche (n 11) pp. 144–5.

(13) Elazar Barkan, ‘Genocide of Indigenous Peoples’ in Robert Gellately and Ben Kiernan (eds.), The Specter of Genocide: Mass Murder in Historical Perspective (Cambridge: Cambridge University Press, 2003) p. 121. This opinion is shared with, inter alia, Israel W. Charny (ed.), Encyclopedia of Genocide, vol. 1 (Toulouse; Santa Barbara: ABC-Clio, 1999) p. 7; Daphne Anayiotos, ‘The Cultural Genocide Debate: Should the UN Genocide Convention Include a Provision on Cultural Genocide, or Should the Phenomenon be Encompassed in a Separate International Treaty?’ (2009) 22 N.Y. Int’l L. Rev. 99, p. 129; Damien Short, ‘Cultural Genocide and Indigenous Peoples: A Sociological Approach’ (2010) 14 I.J.H.R. 833.

(14) Shamiran Mako, ‘Cultural Genocide and Key International Instruments: Framing the Indigenous Experience’ (2012) 19 I.J.M.G.R. 175; David B. MacDonald and Gordon Hudson, ‘The Genocide Question and Indian Residential Schools in Canada’ (2012) 45 Can.J.Pol.Sc. 427, pp. 430–1.

(15) Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation—Analysis of Government—Proposals for Redress (2nd edn., first published 1944, Clark, N.J.: Lawbook Exchange, Ltd., 2008) pp. 79, 83–5. Lemkin’s legacy is discussed in further detail in Section 2.1.

(16) Robert Bevan, The Destruction of Memory: Architecture at War (London: Reaktion Books, 2006) p. 7; Federico Lenzerini, ‘The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage’ in Francesco Francioni and James Gordley (eds.), Enforcing International Cultural Heritage Law (Oxford: Oxford University Press, 2013) p. 45.

(17) Stefania Negri, ‘Cultural Genocide in International Law: Is the Time Ripe for a Change?’ (2013) 10 T.D.M., p. 2.

(18) Sub-Commission on Prevention of Discrimination and Protection of Minorities (38th Session), ‘Revised and updated report on the question of the prevention and punishment of the crime of genocide prepared by Mr. Benjamin Whitaker’ (2 July 1985), UN Doc. E/CN.4/Sub.2/1985/6 (Whitaker Report) para. 32.

(19) Anayiotos (n 13) p. 100.

(20) Yvonne Donders, ‘Old Cultures Never Die? Cultural Genocide in International Law’ in Ineke Boerefijn et al. (eds.), Human Rights and Conflict, Essays in Honour of Bas de Gaay Fortman (Cambridge: Intersentia Publishing, 2012) pp. 290–1. The author refers to the definition of culture that is contained in the Preamble of the UNESCO Universal Declaration on Cultural Diversity (2 November 2001).

(21) May, Genocide: A Normative Account (n 8) p. 104.

(22) Barbara Perry, ‘From Ethnocide to Ethnoviolence: Layers of Native American Victimization’ (2002) 5 Contemp. Just. Rev. 231, p. 234; Robert van Krieken, ‘Rethinking Cultural Genocide: Aboriginal Child Removal and Settler-Colonial State Formation’ (2004) 75 Oceania 125, p. 138.

(23) Ana F. Vrdoljak, ‘Reparations for Cultural Loss’ in Federico Lenzerini (ed.), Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford: Oxford University Press, 2008) p. 197.

(24) Lorie M. Graham, ‘Reparations, Self-Determination, and the Seventh Generation’ (2008) 21 Harv.Hum.Rts.J. 47, pp. 68–70.

(25) Donders, ‘Old Cultures Never Die?’ (n 20) p. 290; Lyndel V. Prott, ‘Ethnocide’ in Dinah L. Shelton (ed.), Encyclopedia of Genocide and Crimes Against Humanity, vol. 1 (New York: Macmillan Reference USA; Thomson Gale, 2004) p. 310.

(26) Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention).

(27) Term coined by W.B. Gallie, ‘Essentially Contest Concepts’ (1955–1956) 56 Proceedings of the Aristotelian Society 167, p. 169: ‘concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users’. Applied to ‘genocide’ by Christopher Powell, Barbaric Civilization: A Critical Sociology of Genocide (Montreal: McGill-Queen’s University Press, 2011) pp. 67–70.

(28) See e.g. Alexander L. Hinton, ‘Towards an Anthropology of Genocide’ in Alexander L. Hinton (ed.), Annihilating Difference: The Anthropology of Genocide (Berkeley, CT; London: University of California Press, 2002) p. 4.

(29) See e.g. Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies (3rd edn., New Haven, CT; London: Yale University Press, 1990) p. 23; Israel W. Charny, ‘A Proposed Definitional Matrix for Crimes of Genocide’ in Charny (n 13) pp. 7–9. For a list of these definitions, see Wardatul Akman, ‘Atrocities Against Humanity during the Liberation War in Bangladesh: A Case of Genocide’ (2002) 4 J.G.R. 543, pp. 551–7.

(30) For instance, the word ‘politicide’ has gained particular resonance and emphasizes the absence of focus on political groups, while the word ‘gendercide’ has been developed to draw the focus on ‘the gender-selective mass killing and “disappearance” of males, especially “battle-age” males, (…) a pervasive feature of contemporary conflict’ in Adam Jones, ‘Gendercide and Genocide’ (2000) 2 J.G.R.185, p. 189. For a list of these ‘-cide terms’, see Bartolomé Clavero, Genocide or Ethnocide, 1933–2007 (Milano: Giuffré Editore, 2008) p. 8; William A. Schabas, Genocide in International Law: The Crime of Crimes (2nd edn., Cambridge: Cambridge University Press, 2009) p. 236.

(31) Raymond Evans, ‘ “Crime without a Name”: Colonialism and the Case for “Indigenocide” ’ in A. Dirk Moses (ed.), Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History (1st pbk. edn., New York: Berghahn Books, 2010) pp. 133–47.

(32) Samuel Totten and Paul R. Bartrop, Dictionary of Genocide, vol. 1. (Westport, Conn.: Greenwood Press, 2008) p. 128. Raphael Lemkin had already described similar situations under its technique of ‘social genocide’ in Lemkin, Axis Rule in Occupied Europe (n 15) p. 83. This feature has for instance been underlined in the contexts of Cambodia and of the 1971 Liberation War. See respectively Jean-Louis Margolin, ‘Le “Génocide” Cambodgien: Des Particularités Irréductibles?’ in Katia Boustany and Daniel Dormoy (eds.), Génocide(s) (Bruxelles: Bruylant; Editions de l’Université de Bruxelles, 1999) p. 200; International Commission of Jurists, ‘The Events in Pakistan’, Part II: Outline of Events in East Pakistan 25 March–18 December 1971.

(33) Rebecca Knuth, Libricide: The Regime-Sponsored Destruction of Books and Libraries in the Twentieth Century (Westport, Conn.; Praeger, 2003) pp. 49–73. This feature has become an emblem of the Nazi Kristallnacht and can also be found in the Cambodian process.

(34) Claude Hagège, Halte à la Mort des Langues (Paris: Odile Jacob, 2000) pp. 141–7.

(35) Tove Skutnabb-Kangas and Robert Dunbar, ‘Indigenous Children’s Education as Linguistic Genocide and a Crime Against Humanity? A Global View’ (2010) 1 Gáldu Čála: Journal of Indigenous Peoples Rights.

(36) Permanent Forum on Indigenous Issues, ‘Study on International Criminal Law and the Judicial Defence of Indigenous Peoples’ Rights (submitted by the Special Rapporteur Bartlomé Clavero)’ (8 February 2011) UN Doc. E/C.19/2011/4, para. 11.

(37) A. Dirk Moses, ‘Conceptual Blockages and Definitional Dilemmas in the “Racial Century”: Genocides of Indigenous Peoples and the Holocaust’ (2002) 36 Patterns of Prejudice 7, p. 34; Sheri P. Rosenberg, ‘Genocide is a Process, not an Event’ (2012) 7 G.S.P. 16, pp. 16–23.

(38) Moses, ‘Conceptual Blockages’ (n 37) p. 17.

(39) Hannah Arendt, Origins of Totalitarianism (New York: Schoken Books, 2004) p. 174.

(40) Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native’ (2006) 8 J.G.R. 387, pp. 387–409.

(41) It is sufficient to make note of the polemic created by Arendt’s ‘banality of evil’ to describe the Nazi genocide, as the product of an ordinary administration typically embodied in Eichmann. See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (first published 1951, New York: Penguin Books, 1994); for a commentary on the controversy, see David Luban, ‘Hannah Arendt as a Theorist of International Criminal Law’ (2011) 11 I.C.L.R. 621.

(42) See also van Krieken (n 22) pp. 125–51; A. Dirk Moses, ‘Empire, Colony, Genocide: Keywords and the Philosophy of History’ in Moses (ed.), Empire, Colony, Genocide (n 31) pp. 3–54; Powell, Barbaric Civilization (n 27).

(43) Johannes Morsink, ‘Cultural Genocide, the Universal Declaration and Minority Rights’ (1999) 21 H.R.Q. 1009.

(44) Ana F. Vrdoljak, International Law, Museums and the Return of Cultural Objects (Cambridge, UK; New York: Cambridge University Press, 2006) p. 162.

(45) Schabas, Genocide in International Law (n 30) p. 216.

(46) Jean-Michel Chaumont, ‘Génocide et Ethnocide’ in Katia Boustany and Daniel Dormoy (eds.), Génocide(s) (Bruxelles: Bruylant; Editions de l’Université de Bruxelles, 1999) p. 252.

(47) Leo Kuper, The Prevention of Genocide (New Haven, CT: Yale University Press, 1985) pp. 8–12; Vrdoljak, International Law, Museums and the Return of Cultural Objects (n 44) p. 168; Rosenberg (n 37) p. 17; Payam Akhavan, ‘Preventing Genocide: Measuring Success by What Does Not Happen’ (2011) 22 Crim.L.F. 1.: While the results of prevention are quite difficult to assess, the mere perpetration of genocide in Rwanda and Srebrenica, to refer to those that have been legally qualified as genocide, has fuelled this criticism.

(48) Larry May, ‘How is Humanity Harmed by Genocide?’ (2004) 10 Int’L. Legal Theory 1, p. 24.

(49) Schabas, Genocide in International Law (n 30) p. 10. See also Issiaka P. Lalèyê, ‘Comment Meurent les Cultures? Interrogations Philosophico–Anthropologiques sur le Concept de Génocide Culturel’ in Katia Boustany and Daniel Dormoy (eds.), Génocide(s) (Bruxelles: Bruylant; Editions de l’Université de Bruxelles, 1999) p. 292. The author coins the concept of ‘culturicide’ so as to replace the concept of cultural genocide outside of the genocide framework, by removing its explicit reference to ‘genocide’.

(50) For two different opinions, see e.g. Raimond Gaita, ‘Refocusing Genocide: A Philosophical Responsibility’ in John K. Roth (ed.), Genocide and Human Rights: A Philosophical Guide (Houndmills, Basingstoke, Hampshire; New York: Palgrave Macmillan, 2005) p. 155; and Ward Churchill, ‘Defining the Unthinkable: Towards a Viable Understanding of Genocide’ (2000) 2 O.R.I.L. 3, pp. 3–36. The former argues for a narrow understanding of genocide as a process of physical group destruction, unlike the latter, who argues for a broader understanding of genocide, one which would take into account various degrees of intent, so as to encompass the acts of forcible transfers of children in North America and Australia.

(51) See inter alia Lemkin, Axis Rule in Occupied Europe (n 15) p. 79; Claudia Card, ‘Genocide and Social Death’ in John K. Roth (ed.), Genocide and Human Rights: A Philosophical Guide (Houndmills, Basingstoke, Hampshire; New York: Palgrave Macmillan, 2005) pp. 238–54; Mohammed Abed, ‘Clarifying the Concept of Genocide’ (2006) 37 Metaphilosophy 308, p. 313; May, Genocide: A Normative Account (n 21) pp. 61–91; Short ‘Cultural Genocide and Indigenous Peoples’ (n 13) p. 836.

(52) Bevan (n 16) p. 22.

(53) Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UNGA Res. 61/295 (UNDRIP). Discussed in Section 4.1.2.2.

(54) ECOSOC ‘Ad Hoc Committee on Genocide: Summary Record of the Fourteenth Meeting’ UN Doc. E/AC.25/SR.14 (27 April 1948) in Hirad Abtahi and Philippa Webb, The Genocide Convention—The Travaux Préparatoires, 2 vols. (Leiden; Boston: Martinus Nijhoff Publishers, 2008) p. 892.

(55) UNCHR, ‘Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on the Work of its Forty-Sixth Session’ E/CN.4/Sub.2/1994/56 (26 August 1994) p. 107 (emphasis added).

(56) Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University Press, 2009) p. 130. The system of inter-war minority treaties is described in Section 2.2.2.

(57) The nature of the Genocide Convention as an international treaty implies a focus on its interpretation and its ability to entail state responsibility for directly perpetrating or failing to prevent and punish genocide. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep. 43.

(58) The legal definition of genocide has been transposed as such from the Genocide Convention to the various Statutes of International Criminal Tribunals, including the Rome Statute of the International Criminal Court (ICC). See Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (ICC Rome Statute) art. 6. See also Statute of the International Tribunal for the Former Yugoslavia (adopted 25 May 1993) UNSC Res. 827 (ICTY Statute) art. 4; Statute of the International Criminal Tribunal for Rwanda (adopted 8 November 1994) UNSC Res. 955 (1994) (ICTR Statute) art. 2. In addition to genocide, other international crimes have also developed, including crimes against humanity and war crimes, mostly inspired by international humanitarian law and international human rights law. See Steven R. Ratner, Jason S. Abrams, and James L. Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3rd edn., Oxford; New York: Oxford University Press, 2009) p. 13; Thomas Margueritte, ‘International Criminal Law and Human Rights’ in William A. Schabas and Nadia B. Bernaz (eds.), Routledge Handbook of International Criminal Law (Abingdon: Routledge, 2011) p. 436.

(59) Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) (n 57).

(60) Whitaker Report (n 18) para. 33; Anayiotos (n 13); Samuel Totten, William S. Parsons, and Robert K. Hitchcock, ‘Genocide against Indigenous Peoples’ in Alexander L. Hinton (ed.), Annihilating Difference: The Anthropology of Genocide (Berkeley, CT; London: University of California Press, 2002) p. 80.

(61) Sub-Commission on Prevention of Discrimination and Protection of Minorities (31st Session), ‘Study on the Question of the Prevention and Punishment of the Crime of Genocide Submitted by the Special Rapporteur Nicodème Rushashyankiko’ (4 July 1978) E/CN.4/Sub.2/416, para. 461; David Nersessian, ‘Rethinking Cultural Genocide Under International Law’, Human Rights Dialogue: “Cultural Rights” (Spring 2005), available at: http://www.carnegiecouncil.org/publications/archive/dialogue/2_12/section_1/5139.html (last accessed 1 February 2015).

(62) ‘Study on the Question of the Prevention and Punishment of the Crime of Genocide Submitted by the Special Rapporteur Nicodème Rushashyankiko’ (n 61) para. 461.

(63) William A. Schabas, ‘Judicial Activism and the Crime of Genocide’ in Shane Darcy and Joseph Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (Oxford: Oxford University Press, 2010) p. 78; Skutnabb-Kangas and Dunbar (n 35) p. 85.

(64) Schabas, Genocide in International Law (n 30) p. 220.

(65) Statute of the International Court of Justice (adopted 26 June 1945) 993 UNTS 25 (ICJ Statute) art. 38.

(66) Guillaume Wicker, ‘Fiction’ in Denis Alland and Stéphane Rials (eds.), Dictionnaire de la Culture Juridique (Paris: Presses Universitaires de France, 2003) pp. 716–20.

(67) Ralph Poscher, ‘The Hand of Midas: When Concepts Turn Legal or Deflating the Hart-Dworkin Debate’ in Jaap C. Hage and Dietmar von der Pfordten (eds.), Concepts in Law (Oxford: Hart Publishing, 2009) p. 101.

(68) These two frameworks partly overlap since genocide is an international crime, but the framework of genocide also involves state obligations, such as the obligation to prevent genocide.