2. Cultural Genocide
Origins and Scope of Cultural Genocide
There is no dispute that the credit for the conception of genocide, including its cultural component, belongs to one man, Raphael Lemkin.Citation: There has been a marked expansion of the literature on Lemkin and his theory of genocide. See, for instance, Douglas Irvin-Erickson, Raphaёl Lemkin and the Concept of Genocide (Philadelphia: University of Pennsylvania Press, 2017); John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York: Palgrave Macmillan, 2008); and William Korey, An Epitaph for Raphael Lemkin (New York: Jacob Blaustein Institute for the Advancement of Human Rights, 2001). A Pole, a Jew, and a lawyer, Lemkin began to recognize the need for an international legal regime for holding individuals and governments accountable for crimes against persecuted groups in the late 1920s and early 1930s. In his words, “the advent of Hitler” led him in 1933 to submit a set of proposals to that end to the Fifth International Conference for the Unification of Criminal Law, convened in Madrid under the auspices of the League of Nations. Citation: Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, and Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace, 1944), xiii. For a discussion of his Madrid proposals, see James Waller, Confronting Evil: Engaging Our Responsibility to Prevent Genocide (Oxford: Oxford University Press, 2016), 7–8. By 1933, Lemkin later commented, “Hitler had already promulgated his blueprint for destruction. Many people thought he was bragging, but I believed that he would carry out his program if permitted.” Raphael Lemkin, Totally Unofficial: The Autobiography of Raphael Lemkin, ed. Donna-Lee Frieze (New Haven, CT: Yale University Press, 2013), 22. His submission included a report and draft articles on “barbarity, conceived as oppressive and destructive acts directed against individuals as members of a national, religious, or racial group, and the crime of vandalism, conceived as malicious destruction of works of art and culture because they represent the specific creations of the genius of such groups.” Citation: Lemkin, Axis Rule, 91; emphasis in original. As controversial as they were prescient, Lemkin’s proposals on barbarity and vandalism were not accepted by the participating states in Madrid in 1933. Tellingly, he could not be there in person to defend his initiatives—though others did—as the Polish government had refused him a visa to attend the conference, lest he spread “anti-German propaganda.” Citation: Waller, Confronting Evil, 6–7.
Though never accepted politically or codified legally, Lemkin’s eighty-five-year-old definition of vandalism sounds eerily relevant to the current assaults on world cultural heritage. As he put it when explaining his conception of vandalism in 1933, an “attack targeting a collectivity can also take the form of systematic and organized destruction of the art and cultural heritage in which the unique genius and achievement of a collectivity are revealed in fields of science, arts, and literature. The contribution of any particular collectivity to world culture as a whole forms the wealth of all humanity, even while exhibiting unique characteristics.”Citation: Lemkin, Totally Unofficial, 241n1. This was a theme—sounding much like an early version of multiculturalism—to which he would often return in the ensuing years.
At this early stage of his thinking, Lemkin was already drawing attention to the prominence of assaults on a group’s culture as an essential element of what he would later call genocide. With the subsequent German occupation of his native Poland, he saw his theories turn into brutal practice. In particular, he came to witness how horribly symbiotic the combination of barbarity and vandalism—physical and cultural destruction—could become, especially in the hands of a ruthless occupying power. Early on, Lemkin was forced to join the ranks of the internally displaced. Like many urban dwellers, in 1939 he fled to the forests and a life of extreme deprivation before he found a way to flee the country.Citation: Lemkin, Totally Unofficial, chap. 2, 25–40. He found an academic position in Sweden before gaining a post at Duke University in 1941 and then one at Yale Law School. Meanwhile, almost all of the members of his extended family were exterminated over the course of the occupation. Citation: Irvin-Erickson, Raphaёl Lemkin, 73–74. His personal experience deepened his understanding of the intimate connections between cultural and physical destruction, for the aggressors recognized that the annihilation of a culture or way of life was a more daunting task than mass murder. He also came to recognize that there were many interdependent elements or techniques of genocide.
Lemkin introduced the notion of genocide in his opus Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, and Proposals for Redress, published in Washington, DC, by the Carnegie Endowment for International Peace in 1944. The ninth chapter, comprising a scant 17 pages of a 640-page volume, is the only one devoted to an explication of this new concept. The core purpose of the volume was, instead, to document in considerable detail how the Nazi regime had carried out its occupation of much of Europe. It contained evidence and documentation of substantial value to postwar prosecutors as well as administrators. At that point, Lemkin was more interested in accountability than legal theory building, though it was his novel notion of genocide—“the destruction of a nation or of an ethnic group”—that would be his most profound legacy.Citation: Lemkin, Axis Rule, 79. This collective approach was a substantial departure from the long tradition in international law of focusing on crimes committed against individuals, not groups. Citation: See, for instance, Philippe Sands, East West Street: On the Origins of Genocide and Crimes against Humanity (New York: Alfred A. Knopf, 2016); and William A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd ed. (Cambridge: Cambridge University Press, 2016). According to Lemkin, “The actions involved are directed against individuals, not in their individual capacity, but as members of the national group.” Citation: Lemkin, Axis Rule, 79. “New conceptions,” he asserted, “require new terms.” Citation: Lemkin, Axis Rule, 79. He coined the term “genocide” as a derivation “from the Greek word genos (tribe, race) and the Latin cide (by way of analogy, see homicide, fratricide).” Citation: Lemkin, Axis Rule, xi; emphasis in original.
Genocide was distinguished not only because of its collective target but also because of its multifaceted character. It was a comprehensive and systematic undertaking. As Lemkin put it, “Genocide is effected through a synchronized attack on different aspects of life of the captive peoples.”Citation: Lemkin, Axis Rule, xi; emphasis in original. He enumerated the “techniques of genocide” in eight “fields”: political, social, cultural, economic, biological, physical, religious, and moral. Citation: Lemkin, Axis Rule, 82–90. In the cultural field, he mentioned, among other steps, “prohibiting or destroying cultural institutions and cultural activities; by substituting vocational education for education in the liberal arts, in order to prevent humanistic thinking, which the occupant considers dangerous because it promotes national thinking.” Citation: Lemkin, Axis Rule, xii. Under cultural techniques, he also mentioned forbidding use of a group’s language; substituting German education; banning or discouraging liberal arts education in preference for trade schools; rigid control of all cultural activities, including arts of all kinds; and destruction of national monuments, libraries, archives, museums, and galleries. Citation: Lemkin, Axis Rule, 84–85. These eight techniques of genocide, he concluded, “represent an elaborate, almost scientific, system developed to an extent never before achieved by any nation” (though he had cited a long list of “wars of extermination” since the destruction of Carthage in 146 BC). Citation: Lemkin, Axis Rule, quote from 90, list of past wars of extermination from 80n. In Lemkin’s view, “genocide is . . . a composite of different acts of persecution or destruction.” Citation: Lemkin, Axis Rule, 92.
In part due to its comprehensive nature, genocide tended to unfold over time, according to Lemkin’s thesis. He posited that “genocide has two phases: one, the destruction of the national pattern of the oppressed group, the other, the imposition of the national pattern of the oppressor.”Citation: Lemkin, Axis Rule, 79. He suggested:
Generally speaking, genocide does not necessarily mean the immediate destruction of a nation. It is intended rather to signify 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.Citation: Lemkin, Axis Rule, 79.
For Lemkin, therefore, genocide could show a number of faces over time. The totality of the German occupation, as he documented, permitted the manifestation of genocide in its most comprehensive, extreme, and layered form. Under other circumstances, genocide’s components might unfold differently, whether in terms of which fields or techniques come into play or of how their sequencing occurs over time. What distinguished genocide was the intent to destroy a group in whole or in part, as the Convention later phrased it.
Given Lemkin’s holistic understanding of the scope of genocide, two questions arise about the place of cultural genocide in his larger conception. One is whether genocide must have a significant cultural component. The other is whether cultural genocide can be considered a stand-alone crime. Lemkin’s actions, comments, and writings were suggestive, but not definitive, on these matters. Over time, references to five of the eight fields or techniques of genocide tended to fade from his commentaries, perhaps because they gained less attention from others, even as references to genocide’s cultural, biological, and physical components came to the forefront. As discussed in more detail below, these three fields featured prominently in the negotiation of the Genocide Convention, to which Lemkin served as both an expert and an advocate. His initial theory of genocide did not privilege one field or technique over another. As he increasingly assumed the roles of policy adviser and public advocate, however, he tended to emphasize this trio of techniques over the others. Understanding how they related to and complemented each other is therefore essential to understanding the scope and dimensions of genocide.
In Lemkin’s conception, at least, cultural destruction appeared to be on a par with physical and biological destruction. As he put it in a 1945 meeting with representatives of civil society:
The history of genocide, especially in antiquity, is written in the pages of archeology. The murder of civilizations was not yet a fully told story. The impact of the concept of genocide could be greatly enriched if the cultural losses that occurred through assassination of civilizations could be brought before the eyes of the world.Citation: Lemkin, Totally Unofficial, 125.
The intent to destroy a group had to include the destruction of their way of life. Otherwise, the horrific task would be incomplete. Attacks on culture, in his view, usually came first. As he put it, borrowing from the nineteenth-century German poet Heinrich Heine, “First they burn books and then they start burning bodies.”Citation: Lemkin, Totally Unofficial, 172. A. Dirk Moses quotes Lemkin as having asserted that “physical and biological genocide are always preceded by cultural genocide or by an attack on the symbols of the group or by violent interference with religious or cultural activities.” Citation: A. Dirk Moses, “Raphael Lemkin, Culture, and the Concept of Genocide,” in The Oxford Handbook of Genocide Studies, ed. Donald Bloxham and A. Dirk Moses (Oxford: Oxford University Press, 2010), 34. (If this assertion were literally and consistently true, then the implications for policy making in respect to preventing genocide would be enormous. It would make little sense for practitioners to downgrade the status of cultural genocide if it is, in fact, the most reliable sign of coming physical and biological genocide. This is another reason, of course, to be alarmed by recent assaults on the world’s cultural heritage.)
Likewise, it would have been difficult for Lemkin to conceive of concerted attacks on the culture of a group as a stand-alone crime. Destruction of a group in whole or in part had to include biological and physical destruction as well. Lemkin did refer to “cultural genocide” from time to time, and he expressed regret that certain related provisions were not retained in the Genocide Convention as it was adopted in 1948.Citation: On the latter, see Lemkin, Totally Unofficial, 172–73. Yet these references sound like a convenient shorthand. They may well have been in response to the statements and formulations of others, who found it convenient, for journalistic or political purposes, to segregate the notion of cultural genocide. But that did not seem to be Lemkin’s preference. He saw genocide as a much more systematic and strategic crime, one with many dimensions and layers (the notion of a layered or multifaceted crime might apply to cultural destruction as well).
In 1946, several years after publicly articulating the notion of genocide, Lemkin wrote that “the last war has focused our attention on the phenomenon of the destruction of whole populations—of national, racial and religious groups—both biologically and culturally.”Citation: Raphael Lemkin, “Genocide,” American Scholar 15, no. 2 (April 1946): 227. Though he often paired these two aspects of genocide, he did not unequivocally equate them, nor did he articulate a binary theory of genocide. Indeed, as noted above, biological and cultural destruction were only two of the eight techniques of genocide he identified. (Moreover, his initial list made a distinction between biological and physical destruction, though later he sometimes seemed to refer to the two techniques almost interchangeably.) Yet there is little doubt that in his conception genocide required efforts to destroy a group both biologically and culturally. Placing cultural assault on the same level as physical assault was a significant departure from more traditional strands of thinking about and codification of the crimes of war and other mass atrocities. Citation: As noted above, the deliberate destruction of tangible cultural heritage has since become the subject of the 1954 Hague Convention and the 1998 Rome Statute of the ICC (the latter as a war crime). Elisa Novic asserts that this has become “part of customary international law.” She notes, however, that the instruments do not cover attacks on intangible cultural heritage and, as pointed out above, do not apply to situations where there is no armed conflict. Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (Oxford: Oxford University Press, 2016), 129–30. Lemkin, however, had witnessed in his native Poland the tragic results of the intrinsic connection between the cultural and physical annihilation of groups made both in the ideology of National Socialism and in the actions of the Nazis and their collaborators.
Lemkin appreciated—as the Nazis had as well—the significance of nations (or groups) defined by culture and identity in shaping values and affiliations of populations, often across state borders.Citation: In Lemkin’s view: “According to the doctrine of National Socialism, the nation, not the state, is the predominant factor. In this German conception the nation provides the biological element for the state.” Lemkin, Axis Rule, 80. State governments could provide order but not culture. He believed deeply in what would now be called multiculturalism, something anathema to those seeking to destroy any sense of a common cultural heritage across religions and races, whether in the 1930s and 1940s or today. In Axis Rule, Lemkin put it this way:
Nations are essential elements of the world community. The world represents only so much culture and intellectual vigor as are created by its component national groups. Essentially the idea of a nation signifies constructive cooperation and original contributions, based upon genuine traditions, genuine culture, and a well-developed national psychology. The destruction of a nation, therefore, results in the loss of its future contributions to the world…. Among the basic features which have marked progress in civilization are the respect for and appreciation of the national characteristics and qualities contributed to world culture by the different nations—characteristics and qualities which, as illustrated in the contributions made by nations weak in defense and poor in economic resources, are not to be measured in terms of national power and wealth.Citation: Lemkin, Axis Rule, 91.
Writing in his new home, the United States, a country completely consumed with mobilizing whatever power and wealth it could muster to defeat the Axis powers and keenly aware of the urgency of defeating the “total war” launched by the latter, Lemkin was surely not denigrating such assets.Citation: Lemkin, Axis Rule, 80. But he may well have feared that a preoccupation with military capacity and geopolitical considerations, particularly in the reshaping of the postwar world order, could lead to an underappreciation of the real and potential contributions of small countries with distinct cultures. In 1946, he wrote:
Cultural considerations speak for international protection of national, religious and cultural groups. Our whole heritage is a product of the contributions of all nations. We can best understand this when we realize how impoverished our culture would be if the peoples doomed by Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a Dvorak; the Greeks, a Plato and a Socrates; the Russians, a Tolstoy and a Shostakovich.Citation: Raphael Lemkin, “Genocide,” American Scholar 15, no. 2 (April 1946): 228.
These were passionate and compelling words, and Lemkin was a determined advocate. However, as discussed more fully below, Lemkin failed to gain explicit endorsement of his notion of cultural genocide by any intergovernmental body.
As rich and nuanced as Lemkin’s conception of genocide was, it was never matched by a comparable understanding of the measures and institutions that would be required to curb it. He tended to put too much faith in legal remedies while giving too little thought to compliance mechanisms. Always a promoter, Lemkin contended that his 1933 Madrid proposals could have altered the course of history. His proposals, he later suggested, would have provided for universal jurisdiction for the prosecution of “acts of persecution amounting to what is now called genocide.”Citation: Lemkin, “Genocide,” 228. Moreover, he asserted that they “would also provide an adequate machinery for the international protection of national and ethnic groups against extermination attempts and oppression in times of peace,” given that they would have included procedural machinery for the extradition of such criminals. Citation: Lemkin, Axis Rule, xiii. “We should not overlook,” he noted, “the fact that genocide is a problem not only of war but also of peace.” Citation: Lemkin, Axis Rule, 93. Though he acknowledged some evolution in the coverage of international law, he faulted the Hague conventions for their inapplicability to times of peace and because they “deal with the sovereignty of a state, but they are silent regarding the preservation of the integrity of a people.” Citation: Lemkin, Axis Rule, 90. He also favored a more proactive approach, for if one waits for “the actual moment of liberation,” then “it is too late for remedies, for after liberation such populations can at best obtain only reparation of damages but never restoration of those values which have been destroyed and which cannot be restored, such as human life, treasures of art, and historical archives.” Citation: Lemkin, Axis Rule, 95. Yet he offered few ideas about actual protection of vulnerable populations, a concept apparently outside his comfort zone. Citation: At one point, he did note in passing that the Security Council could seek an advisory opinion from the International Court of Justice “to determine whether a state of genocide exists within a given country before invoking, among other things, sanctions to be leveled against the offending country.” Lemkin, “Genocide,” 230.
Lemkin was a legal scholar, not a student of politics or of international enforcement machinery. As this author has commented elsewhere and will be addressing in a longer piece, Lemkin demonstrated remarkably little interest in the development of the United Nations and its Security Council.Citation: Edward C. Luck, “Roots of Ambivalence: The United Nations, Genocide, and Mass Atrocity Prevention,” in Preventing Mass Atrocities: Policies and Practice, ed. Barbara Harff and Ted Robert Gurr (London: Routledge, 2018). His remedies lay in the legal realm. It follows, then, that the Genocide Convention he so passionately nurtured speaks of prevention and punishment, not of protection. The narrow scope of the tools for response he advocated contrasts unfavorably to the strikingly comprehensive and foreboding picture he painted of genocide as the systematic destruction of a nation or people. How could he be so confident that an enterprise of such scope, intensity, and passion could be deterred by the uncertain prospect of criminal indictments by an unreliable international system down the road? Though Axis Rule briefly touches on proposals for redress, centered on restitution, reporting on the treatment of populations under military occupation, and strengthening the legal protection of minorities, it is the power of Lemkin’s dispassionate dissection of the scope of the genocidal enterprise that has proven so unsettling and so compelling. Citation: Lemkin, Axis Rule, xii, 93, 94. At its core, as addressed above, is the inseparable link between cultural and physical destruction. That connection is every bit as relevant today as it was when written seventy-five years ago.
The story of the postwar struggle to include the cultural components of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide, as adopted by the UN General Assembly on December 9, 1948, is telling. The political lessons of that time remain relevant to the current effort to strengthen the international legal, political, and institutional regime for protecting world cultural heritage. The war had changed many things, among them, Lemkin’s status. He had become widely recognized for his prescience about the dangers of the persecution of groups. His persistent advocacy was instrumental in building support for UN General Assembly Resolution 96 (I) of December 11, 1946, requesting “the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.” The resolution declared that “genocide is a denial of the right of existence of entire human groups.” Though it did not refer directly to any of the eight fields or techniques of genocide enumerated by Lemkin, it did note that genocide “results in great losses to humanity in the form of cultural and other contributions represented by these human groups.”Citation: UN document, General Assembly, Fifty-Fifth Plenary Meeting, Resolution 96 (l), 11 December 1946.
The following spring, Lemkin was appointed by UN Secretary-General Trygve Lie as one of three independent experts mandated to produce a Secretariat draft of a genocide convention. It is noteworthy, given Lemkin’s holistic approach, that their draft made no mention of physical, biological, and cultural genocide as distinct categories. Instead, it included three points in a single article, II, listing genocidal acts: “causing the death of members of a group or injuring their health or physical integrity,” “restricting births,” or “destroying the specific characteristics of the group.”Citation: For the draft, UN document E/447 (1947), see Christian J. Tams, Lars Berster, and Björn Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (Munich: C. H. Beck, 2014), Annex 2, 419–23. These points, of course, roughly corresponded to the physical, biological, and cultural dimensions of genocide, as articulated by Lemkin. Citation: William Schabas relates that the other two independent experts and the Secretary-General had reservations about including the crimes associated with cultural genocide in the draft, but decided that it was better to leave that decision to the Member States in ECOSOC and the General Assembly. Schabas, Genocide in International Law, 61. A subsequent intergovernmental draft did break the acts into two separate articles, one on “‘physical’ and ‘biological genocide’” and the second on “‘cultural’ genocide.” Citation: Ad Hoc Committee Draft, UN document E/AC.25/12; see Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 424. At the time, the Soviet delegate charged that placing the cultural genocide provisions in a separate article—at the alleged insistence of the U.S. delegation—had been done to make it easier to drop it from the draft when the Sixth Committee of the General Assembly considered it. Citation: See the debate in the Sixth Committee of the UN General Assembly, Paris, 25 October 1948, UN document, A/C.6/SR.83, p. 204. Lemkin reports that once it became clear that there was not sufficient support to include certain provisions related to cultural genocide in the draft convention, he considered the possibility of an additional protocol to the Convention on these matters down the road, but this was not something he pursued vigorously. Citation: Lemkin, Totally Unofficial, 173. Throughout, his primary quest seemed to be to convince others to recognize how integral the destruction of culture was to the whole genocide project, not to see it treated as a distinct crime.
The debate in the Sixth Committee over the draft provisions on cultural genocide is instructive. As noted above, the intergovernmental Ad Hoc Committee had edited and rearranged the Secretariat draft to include a separate section—Article III—on “cultural” genocide.Citation: The draft Article III read, “In this Convention genocide also means any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of the national or racial origin or religious belief of its members such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; 2. Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.” Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 424. The question before the Sixth Committee was not whether cultural genocide was a valid notion or an appropriate topic for the eventual convention but whether the draft Article III should be retained. The debate in the Sixth Committee was lively and polarized, but no delegate suggested that cultural genocide did not exist or should not be addressed by some organ of the United Nations. The representatives of a dozen Member States contended that the matter should be referred to the Third Committee of the Assembly as a human rights issue or that a separate convention should be considered to deal with cultural genocide. Citation: These included Sweden, Brazil, Denmark, Canada, New Zealand, India, Peru, South Africa, the Netherlands, the United States, Belgium, and France. France did not participate in the debate over Article III, but it had already proposed that the question be referred to the Third Committee. Sixth Committee, UN document, A/C.6/ SR.83, pp. 197–204. Brazil, Peru, and the Netherlands contended that the notion of cultural genocide was too new and too vague to be included in the draft convention. Citation: Sixth Committee, UN document, A/C.6/ SR.83, 198, 202, and 203, respectively. Sweden, Denmark, Iran, and the United States questioned whether cultural genocide should be placed on the same level as physical genocide, with the U.S. delegate suggesting that the former did not shock “the conscience of mankind” to the same degree as the latter. Citation: Sixth Committee, UN document, A/C.6/ SR.83, 197, 199, 200, and 203, respectively. Denmark was blunt: “It would show a lack of logic and of a sense of proportion to include in the same convention both mass murders in gas chambers and the closing of libraries.” Citation: Sixth Committee, UN document, A/C.6/ SR.83, 199.
Nine Member States—all from the developing world or the Soviet bloc—argued for the inclusion of Article III given that assaults on cultural heritage were an integral component of genocide.Citation: These included Pakistan, Venezuela, China, Egypt, Syria, Byelorussia, Ecuador, USSR, and Czechoslovakia. Sixth Committee, UN document, A/C.6/ SR.83, 193–206. The Pakistani delegate was especially passionate on the subject, helping to explain the Indian opposition to including Article III. Citation: Sixth Committee, UN document, A/C.6/ SR.83, 193–95 and 201, respectively. The delegates from Eastern European countries, particularly Byelorussia and Czechoslovakia, emphasized their own experience of suffering the destruction of cultural heritage under German occupation. Citation: Sixth Committee, UN document, A/C.6/ SR.83, 201–2 and 205–6, respectively. Their accounts echoed those detailed by Lemkin in Axis Rule.
The final vote was 25 in favor of deletion, 16 opposed, and 4 abstentions. So many delegations were absent—13—that Egypt tried unsuccessfully to get the vote postponed.Citation: Sixth Committee, UN document, A/C.6/ SR.83, 206. The decision to delete Article III was decisive but hardly overwhelming. For our current purposes, the numbers matter less than the political considerations that shaped the vote. Decolonization was becoming a divisive issue in the early days of the world body. Current or former colonial powers—Belgium, Denmark, France, Netherlands, and the United Kingdom—opposed the retention of references to cultural genocide in the draft convention. So did settler countries that had displaced indigenous peoples but otherwise were champions of the development of international human rights standards, including the United States, Canada, Sweden, Brazil, New Zealand, and Australia. The political dynamics within the General Assembly, of course, shifted markedly with the influx of new Member States, many of them former colonies, in the 1960s and 1970s. There is every reason to believe that support for the retention of Article III would have been much greater in the 1970s or 1980s, when North-South and East-West divides redefined the power balance in the Assembly.
During the debate in 1948, however, the concerns of colonial and settler countries carried the day. The Swedish delegate asked whether “the fact that Sweden had converted the Lapps to Christianity might not lay her open to the accusation that she had committed an act of cultural genocide.”Citation: Sixth Committee, UN document, A/C.6/ SR.83, 197. Denmark cautioned that if the convention included references to cultural genocide, “it might even become a tool for political propaganda instead of an international legal instrument.” Citation: Sixth Committee, UN document, A/C.6/ SR.83, 198. According to an insightful article by Payam Akhavan, the Canadian representative was under instructions to oppose the emerging genocide convention in its entirety if Article III was retained. Citation: Payam Akhavan, “Cultural Genocide: Legal Label or Mourning Metaphor?,” McGill Law Journal 61, no. 4 (2016): 260. Leaving out the contributions of its indigenous populations, the Canadian delegate underscored that “the people of his country were deeply attached to their cultural heritage, which was made up mainly of a combination of Anglo-Saxon and French elements, and they would strongly oppose any attempt to undermine the influence of these two cultures in Canada.” Citation: Sixth Committee, UN document, A/C.6/SR.83, pp. 199–200. The Brazilian representative commented that “through the amalgamation of local cultures, a State might be justified in its endeavor to achieve by legal means a certain degree of homogeneity and culture within its boundaries.” Citation: Sixth Committee, UN document, A/C.6/SR.83, 197. In different ways, New Zealand, India, the Netherlands, and Belgium also raised concerns about whether the implementation of the provisions of Article III would involve an infringement of national sovereignty. Citation: Sixth Committee, UN document, A/C.6/SR.83, 201, 201, 203, and 204, respectively. The delegate from South Africa, which was on the verge of adopting its infamous apartheid policy, was a bit cruder: “Like the representative of New Zealand, he wished to point to the danger latent in the provisions of Article III where primitive or backwards groups were concerned. No one could, for example, approve the inclusion in the convention of provisions for the protection of such customs as cannibalism.” Citation: Sixth Committee, UN document, A/C.6/SR.83, 202.
Some of the advocates for Article III were not shy about raising issues related to colonialism or the treatment of domestic minorities. In a thinly veiled reference to India, the Pakistani representative lamented that “thirty-five million people, bound to Pakistan by ties of religion, culture and feeling but living outside its frontiers, faced cultural extinction at the hands of ruthless and hostile forces.”Citation: Sixth Committee, UN document, A/C.6/SR.83, 193. The delegate from Egypt referred to fears inspired “by the behavior of certain metropolitan Powers in Non-Self-Governing Territories, which were attempting to substitute their own culture for the ancient one respected by the population.” In his view, “the crime of cultural genocide was at present being committed in the Holy Land and elsewhere.” Citation: Sixth Committee, UN document, A/C.6/SR.83, 199. Though the Soviet bloc countries did not raise the sensitive issues of colonialism and settler countries in their defense of Article III, and this debate occurred before the Cold War became full blown, undoubtedly many Western diplomats could see the political handwriting on the wall. Even at that early point in the UN’s development, when the West largely got its way in the Assembly, the prospect of a coalition of southern and eastern countries on these matters would have been troubling. Whatever the merits of the case for including cultural genocide in the emerging convention, it must have looked to many Western capitals as a potential opening for international discussions of their histories and domestic practices that would be decidedly uncomfortable. Their united opposition to the inclusion of Article III may help explain why Lemkin decided not to pursue the matter once he determined that “on this issue the wind was not blowing in my direction.” Citation: Lemkin, Totally Unofficial, 172. He questioned whether this pursuit could “endanger the passage of the convention[.] Dr. Evatt [the Australian president of the General Assembly] was also against the inclusion of cultural genocide. So with a heavy heart I decided not to press for it.” Citation: Lemkin, Totally Unofficial, 173.
This spelled the end of Article III but not of efforts to include some elements of cultural genocide in the draft convention. The original draft prepared by the three independent experts, including Lemkin, had placed the “forced transfer of children to another human group” as the first of the crimes under the “destroying the specific characteristics of the group” category, which corresponded to cultural genocide.Citation: UN document, E/447. In the view of the experts, “The separation of children from their parents results in forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents’. This process tends to bring about the disappearance of the group as a cultural unit in a relatively short time.” Citation: Quoted in Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 91–92. With persistent lobbying by the Greek delegation, this provision was retained in the Convention despite the deletion of Article III. Citation: Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 92–93; and Akhavan, “Cultural Genocide,” 258–63. Article II (e) of the Convention reads, “forcibly transferring children of the group to another group.” It has also been argued persuasively that the wording of Article II (b)—“causing serious bodily or mental harm to members of the group”—suggests that the drafters of the Convention did not limit their conception of genocide to physical and biological destruction. Citation: Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 81–83. Social and cultural factors also matter, as Lemkin’s holistic analysis had confirmed. Nevertheless, there is no doubt that the notion of cultural genocide faded from international attention for several decades after the rejection of Article III.
The Return of the Notion of Cultural Genocide
With the defeat of Article III, interest in cultural genocide ebbed, but it did not disappear. The increasing political activism of indigenous peoples in the 1970s and early 1980s provided a political opening for the return of cultural genocide to international discourse, though in a somewhat altered form. In 1982, the United Nations established the Working Group on Indigenous Populations as a subsidiary organ of the Sub-Commission on the Promotion and Protection of Human Rights.Citation: UN Document, ECOSOC Resolution 1982/34 on the Study of the Problem of Discrimination against Indigenous Populations, 28th Plenary Meeting, 7 May 1982. It meets annually and includes a combination of independent experts and members of the intergovernmental Sub-Commission from different regions. (In 2001, the UN Commission on Human Rights also appointed a special rapporteur on the rights of indigenous peoples.) It is a bit ironic that the return of cultural genocide—at least as the object of international debate—took place in the sphere of human rights, not the Genocide Convention, just as many Western countries had urged in 1948. However, substantively and politically, this was hardly what they had in mind in those early days.
In 1993, the Working Group produced the Draft Declaration on the Rights of Indigenous Peoples.Citation: UN Document, E/CN.4/Sub.2/1993/29. The Draft Declaration is included as Annex I of the Report of the Working Group on Indigenous Populations on its Eleventh Session, 23 August 1993, UN Commission on Human Rights, 45th Session, Agenda Item 14. According to Article 7, “indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide.” It then called for the “prevention of and redress for” a number of acts, beginning with “any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities.” Citation: UN Document, E/CN.4/Sub.2/1993/29. The Draft Declaration is included as Annex I of the Report of the Working Group on Indigenous Populations on its Eleventh Session, 23 August 1993, UN Commission on Human Rights,45th Session, Agenda Item 14, 52. Not unexpectedly, these proved to be contentious assertions. The Draft Declaration was debated and amended a number of times over the next decade and a half, resulting in, among other things, the deletion of the reference to cultural genocide. Citation: It is uncertain what Lemkin would have thought of this application of his concept of cultural genocide. He had long been concerned about minority rights and, as noted above, called in Axis Rule for the enhancement of protections for minorities in Europe. Yet A. Dirk Moses quotes Lemkin as making a distinction that would be quite relevant to the debate on preserving indigenous cultures: “Obviously throughout history we have witnessed decline of nations and races. We will meet this phenomenon in the future too, but there is an entirely different situation when nations or races fade away after having exhausted their spiritual and physical energies, and there is a different contingency when they are murdered on the highway of world history. Dying of age or disease is a disaster but genocide is a crime.” Moses, “Raphael Lemkin, Culture, and the Concept of Genocide,” 28. Nevertheless, consensus proved elusive. When the General Assembly finally adopted the Declaration in 2007 by a vote of 143 to 4 (with 11 abstentions), the four holdouts came from the settler countries that had opposed Article III almost sixty years earlier (Australia, Canada, New Zealand, and the United States). Citation: UN document, UN General Assembly Resolution 61/295, United Nations Declaration on the Rights of Indigenous Peoples, Annex, 13 September 2007. For the vote tally and explanations of votes, see A/61/PV.107, 13 September 2007. Those abstaining included the Russian Federation, Ukraine, Georgia, and eight developing countries. According to the UN Secretariat, however, all four have since reversed course and decided to support the Declaration. Citation: Website of the UN Department of Economic and Social Affairs (DESA), Division for the Inclusive Social Development of Indigenous Peoples. Accessed June 14, 2018. Though the Declaration does not refer explicitly to cultural genocide, it does offer a backdoor to the concept in a manner that is relevant to current concerns with protecting the world’s cultural heritage.
According to Article 7(2) of the Declaration, “indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.” As discussed above, this was the one aspect of cultural genocide that was retained in the Genocide Convention. In Australia and Canada, among other places, historical practices of removing indigenous children from their families and communities for purposes of reeducation and cultural assimilation have proven enormously controversial and have elicited charges of cultural genocide.Citation: There is a large and diverse literature on these and similar situations elsewhere. See, for instance, Akhavan, “Cultural Genocide”; Moses, “Raphael Lemkin, Culture, and the Concept of Genocide”; Johannes Morsink, “Cultural Genocide, the Universal Declaration, and Minority Rights,” Human Rights Quarterly 21 (1999): 1009–60; Shamiran Mako, “Cultural Genocide and Key International Instruments: Framing the Indigenous Experience,” International Journal on Minority and Group Rights 19 (2012): 175–94; Francesco Francioni, “Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity,” Michigan Journal of International Law 25 (Summer 2004): 1209–28; and Damien Short, “Cultural Genocide and Indigenous Peoples: A Sociological Approach,” International Journal of Human Rights 14, no. 6 (November 2010): 831–46. These controversies have brought the notion of cultural genocide back into the policy as well as academic spotlight, though they have done little to lessen its contentiousness. At the same time, however, it should be noted that some of the armed groups that have sought to destroy priceless pieces of the world’s cultural heritage have also engaged in the abduction of children in an attempt to sever their cultural and/or religious ties. Citation: This appears to have been the case with Da’esh in Iraq and Boko Haram in Nigeria, as both groups engaged inthe abduction of children, apparently targeted by religion. It is quite possible too that armed groups and criminal networks that have engaged in the trafficking of cultural property might also have engaged in the trafficking of children or other persons. Clearly, the political dynamics that have accompanied the return of cultural genocide are proving both complicated and layered. They are, as yet, underexplored and little understood.
Cultural Genocide and Cultural Protection: A Sixth Lens?
It would be more distorting than clarifying to view contemporary threats to cultural heritage solely through a cultural genocide lens. The deficits are obvious. Cultural genocide lacks a clear or accepted definition. The notion of cultural genocide has never been defined, accepted, or codified by the world’s governments. It was controversial when first raised in the 1940s and remains so today. There have been recent situations, such as the Da’esh assaults on the Yazidi population in Iraq, in which it appeared that the cultural, physical, and biological elements of genocide were all being pursued simultaneously.Citation: In 2014, U.S. president Barack Obama accused Da’esh of genocidal intent in its destruction of Yazidi communities, and in 2016 Secretary of State John Kerry included cultural genocide among the charges against Da’esh. Kerry asserted that “we know that in areas under its control, Daesh has made a systematic effort to destroy the cultural heritage of ancient communities,” mentioning several of them. See White House, Office of the Press Secretary, Statement by the President, August 7, 2014; and U.S. Department of State, Statement of Secretary of State John Kerry, March 17, 2016, respectively. The armed groups intent on destroying cultural heritage in Afghanistan, Mali, and Nigeria were also committing assaults on local populations, so there appeared to be a link between cultural and physical destruction in those cases. But the motivations may have been closer to politicide than genocide. Citation: In developing the term “politicide” as a supplement to genocide, Barbara Harff has pointed out that the Genocide Convention does not cover mass violence “with politically defined victims.” Some of the situations producing very high levels of violence over the past century would qualify as politicides more readily than as genocides. Barbara Harff, “No Lessons Learned from the Holocaust? Assessing Risks of Genocide and Political Mass Murder since 1955,” American Political Science Review 97, no. 1 (February 2003): 58. It is doubtful that all of the incidents of cultural destruction in recent years have been associated with genocide or that the commission of physical genocide has always been closely tied to campaigns of cultural extinction. Clearly more research and analysis of these connections are needed. In the meantime, there is a case to be made for adding cultural genocide as a sixth lens—alongside the five mentioned at the outset of this paper—for thinking about how to frame a strategic, political, normative, and institutional effort to protect the world’s cultural heritage.
The lack of codification of cultural genocide might make it a bit easier to reshape and adapt it to the task of cultural protection. (R2P, because it has been so narrowly defined and intensively deliberated by the UN Secretariat and Member States, respectively, has a much more rigid and less flexible conceptual and legal structure.) It is also telling that public, scholarly, and, to a lesser extent, governmental attention to cultural genocide has been growing in recent decades.Citation: William Schabas, for instance, has come to regret the exclusion of cultural genocide from the Convention, noting that “the normative protection of ethnic and national minorities against cultural persecution remains an underdeveloped zone within the overall scheme of international human rights.” Schabas, Genocide in International Law, 646. The concept is showing new life seven decades after it was declared dead. This persistence suggests that Lemkin was on to something when he sought to weave cultural, physical, and biological destruction into a larger pattern or strategy. These linkages, though not always well understood, also speak to the outspoken desire of many advocates of cultural protection to underscore its international security and/or human security implications.
Differences in context are critical here. Lemkin’s theory of genocide grew out of his direct observation and extensive research into the practices of a conquering and occupying power, which was then capable of pursuing its genocidal aims—in all eight fields or techniques—without much fear of interruption or physical resistance, at least over the short run. As he acknowledged, this was the most extreme manifestation of genocidal intent. The armed groups carrying out much of the cultural destruction in recent years either do not control territory or can only do so for limited periods. The groups and cultures they are targeting are not necessarily minority populations that they could hope to eliminate in any foreseeable time period (the Yazidis were a chilling exception). In some cases, there may be a gap between intent and capacity for destruction, though such a judgment would be well beyond the scope of this discussion and research. What would be critical, however, would be to reimagine the 1940s conception of cultural genocide in a contemporary context. It would look quite different today.
As a number of scholars have argued (see note 100), however, the experience of colonial or settler societies comes closer to that of an occupying force that manages, at some point historically, to obtain a virtual monopoly on power and authority within a territory. As discussed above, this is uncomfortable territory for many governments, including Western ones, whether viewed politically or legally, particularly if the emotionally charged term “cultural genocide” is employed. At first glance, this might seem an apt reason not to consider making this a sixth way to frame these questions. Most of these countries, however, have been coming to grips with their histories for some time and are a lot less sensitive to these matters than they were seventy years ago. Also, a willingness to discuss cultural heritage through this frame might make that discussion more engaging for key potential partners in the Global South, as suggested by the stances taken in the 2017 Security Council debate. The differences on display in that debate will not disappear for inattention.
There is a deeper reason to consider cultural genocide as a further lens on the protection of cultural heritage agenda. And that is the core question of what and whose cultural heritage needs protection. As this conception expands, so too will the potential breadth of international political support for this enterprise. If the protection of indigenous cultures comes under the umbrella, then the political dynamic becomes more layered and more promising. The clauses in UN documents referring to the “primary responsibility” of the state could ease concerns among Western governments as well as southern ones. The conversation could become both richer and more inclusive, and the results more sustainable. This could be a first step toward recasting the debate in a way that builds on the connections among the six lenses and that seeks to engage all of their respective stakeholders in a common and productive search for better ways to protect everyone’s cultural heritage.