Human Rights Dialogue (1994–2005): Series 2 No. 12 (Spring 2005): Cultural Rights: Section 1: Rethinking Cultural Genocide Under International Law

Apr 22, 2005

“Genocide” is an amalgam of the Greek genos (race or tribe) and the Latin cide (killing), speaking literally to the destruction of a group. The term was conceived in 1944 by Raphael Lemkin, a Polish law professor who narrowly escaped the Nazi occupation of his homeland. In Axis Rule in Occupied Europe, a seminal text on Nazi race policy, Lemkin noted that genocide signifies:

a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.

Lemkin described eight dimensions of genocide—political, social, cultural, economic, biological, physical, religious, and moral—each targeting a different aspect of a group’s existence. Of these, the most commonly recognized are physical, biological, and cultural. Physical genocide is the tangible annihilation of the group by killing and maiming its members, either directly or through what the International Criminal Tribunal for Rwanda recognized as “slow death” techniques such as concentration camps. Biological genocide consists of imposing measures calculated to decrease the reproductive capacity of the group, such as involuntary sterilization or forced segregation of the sexes.

Cultural genocide extends beyond attacks upon the physical and/or biological elements of a group and seeks to eliminate its wider institutions. This is done in a variety of ways, and often includes the abolition of a group’s language, restrictions upon its traditional practices and ways, the destruction of religious institutions and objects, the persecution of clergy members, and attacks on academics and intellectuals. Elements of cultural genocide are manifested when artistic, literary, and cultural activities are restricted or outlawed and when national treasures, libraries, archives, museums, artifacts, and art galleries are destroyed or confiscated.

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide prohibits physical and biological genocide but makes no mention of cultural genocide. This omission was deliberate. Early drafts of the Genocide Convention directly prohibited cultural genocide. As the treaty was finalized, however, a debate emerged over its proper scope. Many state representatives drafting the treaty understood cultural genocide to be analytically distinct, with one arguing forcefully that it defied both logic and proportion “to include in the same convention both mass murders in gas chambers and the closing of libraries.” Others agreed with Lemkin’s broader initial conception that a group could be effectively destroyed by an attack on its cultural institutions, even without the physical/biological obliteration of its members.

Cultural genocide ultimately was excluded from the final Convention, except for a limited prohibition on the forcible transfer of a group’s children. The drafters acknowledged that the removal of children was physically and biologically destructive but further recognized that indoctrinating children into the customs,language, and values of a foreign group was “tantamount to the destruction of the [child’s] group, whose future depended on that next generation.”

Despite the limited definition of the offense itself, broader cultural considerations do still play two important roles in prosecuting genocide under the Convention. First, acts of cultural genocide—conduct violating what the International Criminal Tribunal for the Former Yugoslavia (ICTY) referred to as the “very foundation of the group”—tend to establish the genocidist’s specific intent to destroy the protected group. The ICTY, for example, held that Serbian destruction of Muslim libraries and mosques and attacks on cultural leaders established genocidal intent against Muslims in the former Yugoslavia.

Second, cultural characteristics are used to help define the contours of the protected groups enumerated in the Convention. Since there are no universally accepted definitions of racial, ethnic, religious, or national groups, each must be assessed on a case-by-case basis in light of unique historical and contextual considerations. Cultural concerns, such as a group’s social, historical, and linguistic characteristics, help to determine whether a given group of people is protected under the Convention.

Cultural genocide thus plays a subsidiary role in our present understanding of genocide and group destruction. But this is a product of the political realities of treaty negotiation between states rather than any limitation inherent in the concept. The Convention’s drafters acknowledged the legitimacy of cultural genocide, and indicated that it might be addressed through other international instruments. Indeed, an individual right to cultural existence was recognized in the 1948 Universal Declaration of Human Rights and subsequently affirmed in the International Covenant on Economic, Social and Cultural Rights. And to accommodate the erosion of traditional geographic and economic boundaries, more recent treaties such as the Charter of the European Union and the Council of Europe’s Framework Convention for the Protection of National Minorities contain anti-assimilation language and create express obligations to respect cultural diversity. Culture also is protected through such specific-purpose instruments as the European Cultural Convention and the Convention for the Protection of Cultural Property in the Event of Armed Conflict.

Without denigrating the importance of such developments, it nevertheless is important to recognize their limitations. Human rights treaties (and their concomitant compliance and adjudicatory mechanisms) depend upon the voluntary and good faith participation of states party to the instruments themselves. Adjudicated violations (including those amounting to cultural genocide) create at most an obligation to desist from the offending practice and to pay compensation. The responsible parties are states, and there is no recognition of individual civil or criminal responsibility for the conduct at issue. Those most likely to commit cultural genocide are least likely to participate in any voluntary human rights scheme.

Human rights jurisprudence lacks sufficient flexibility to properly redress cultural genocide, which differs from other infringements upon cultural rights in both scope and substance. The existing human rights scheme redresses the intentional and systematic eradication of a group’s cultural existence (for example, destroying original historical texts or prohibiting all use of a language) with the same mechanisms as it would consider the redaction of an art textbook. But cultural genocide is far more sinister. In such cases, fundamental aspects of a group’s unique cultural existence are attacked with the aim of destroying the group, thereby rendering the group itself (apart from its members) an equal object and victim of the attack. The existing rubric of human rights law fails to recognize and account for these important differences.

Collective identity is not self-evident but derives from the numerous, inter-dependent aspects of a group’s existence. Lemkin’s original conception of genocide expressly recognized that a group could be destroyed by attacking any of these unique aspects. By limiting genocide to its physical and biological manifestations, a group can be kept physically and biologically intact even as its collective identity suffers in a fundamental and irremediable manner. Put another way, the present understanding of genocide preserves the body of the group but allows its very soul to be destroyed.

This is hardly a satisfactory situation, and it is time to revisit the issue put aside by the Convention’s drafters through a new treaty dealing specifically with cultural genocide. These efforts should be preceded by a comprehensive analysis of state practice and opinio juris to ascertain the current status of cultural genocide under customary international law. The need is patent. Cultural genocide is a unique wrong that should be recognized independently and that rises to the level of meriting individual criminal responsibility. After all, if indeed the highest values of a society are expressed through its criminal laws, what message is being conveyed by not labeling acts of cultural genocide as criminal? Perhaps a message better left unsent.

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