Cultural Genocide as an International Legal Issue in XXI Century1

Davit Jaiani2

Abstract

The paper addresses the history of drafting the 1948 Convention on Prevention and Punishment of
the Crime of Genocide and its relation to the Cultural aspects of the crimes against certain groups. It
discusses the development in the sphere of international criminal justice and gives particular
examples of the case-law from the international tribunals, also some soft law pieces and judgements
of the relevant regional human rights courts. The paper aims to investigate if this kind of activities all
around the world legal, academic and political are enough to conclude that the timing is right for the
academia and international society to review once again the scope and notion of cultural genocide,
taking into consideration ongoing crises and related international criminal law challenges to that.
Responses to cultural property destruction in Syria are also presented as case study.

Key Words: Genocide, 1948 Convention, Culture, Peoples, Cultural Property, ICC, ICTY

“Burning books is not the same as burning bodies

but when one intervenes against mass destruction
of churches and books, one arrives just in time to
prevent the burning of bodies.”
Raphael Lemkin

1. Introduction

Any legal discussion that focuses on peoples, their identities and culture and criminal intent
against them certainly brings us to the Crime of Genocide, its scope and applicability in this
XXI century. Before mentioning some signals and activities that shall be taken as signs that
the Cultural Genocide is back on the international criminal law agenda, let us look at
experience from previous decades.
Author of this contribution is tend to agree that the lens of law and history allows us to see
that the original conceptualization of the crime of genocide gave cultural genocide center

1
Report for the proceedings of the International Thematic Conference – ‘Protection of Natural Environment
and Cultural Heritage in Armed Conflict - under Geneva Conventions and Beyond’.
2
Davit Jaiani, is PhD Researcher at the Tbilisi State University, and invited lecturer in courses of IHL; People’s
Right to Self-Determination; IHRL.

1
stage.3 As Nazi crime was a methodical attempt to destroy a group and as what makes up a
group’s identity is its culture, for Lemkin, the essence of genocide was cultural.4
Yet the final text of the 1948 Genocide Convention does not prohibit cultural genocide as
such, and it is limited to its physical and biological aspects.5

Present text seeks to represent Cultural Genocide as an International Legal Issue, based on
past cases and litigation in national and international criminal courts, and the drafting
process of the 1948 Convention, in order to focus more about the question – if we live in a
century of return of cultural genocide?

2. The 1948 Convention – Agreements and Disagreements on Principal Framework

Cultural genocide broadly refers to ‘the extermination of a culture that does not involve
physical extermination of its people’.6 The International Law Commission finds it can be -

‘Any deliberate act committed with the intent to destroy the language, religion, or
culture of a group, or preventing the use of libraries, museums, schools, historical
monuments, places of worship or other cultural institutions…’7

Therefore, cultural genocide is based on the idea that a group can be destroyed by attacks on
its capacity to preserve and transmit its own specific culture, which would then disappear.
Not the idea but the scope of cultural genocide was a major issue challenged during the
drafting process of the Convention, back in 1948. Opponents said - it would be difficult to fix
the ‘limits of ‘cultural’ genocide, which affected the violations of human rights and the rights
of minorities’.8 Based on this and some other pragmatic and even some ‘colonial’ concerns,
the 6th Committee excluded cultural genocide from the text of the Convention.9

3
L. Bilsky, R. Klagsbrun, The Return of Cultural Genocide, EJIL (2018), Vol. 29 No. 2, p.373
4
Ibid. at 374.
5
Convention on Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of
the United Nations on 9 December 1948. United Nations, Treaty Series, vol. 78, p.277
6
J. Gilbert, Perspectives on Cultural Genocide, From Criminal Law to Cultural Diversity, in Arcs of Global
Justice. Edited by Margaret M. deGuzman and Diane Marie Amann, p.321
7
Report of the International Law Commission on the Work of Its Forty- Eighth Session (6 May– 26 July 1996)
UN Doc A/ 51/ 10.
8
Report of the Ad Hoc Committee on Genocide and Draft Convention Drawn up by the Committee (5 April–
10 May 1948) UN Doc E/ 794, 17.
9
J. Gilbert, Perspectives on Cultural Genocide, From Criminal Law to Cultural Diversity, in Arcs of Global
Justice. Edited by Margaret M. deGuzman and Diane Marie Amann, p.326

2
Moreover, the promise of 1948 that not including cultural genocide as a crime under the
Genocide Convention would be remedied by a strong inclusion of cultural rights for
minorities under the human rights framework still feels unfulfilled.10
The only relevant inclusion, till now, comes under Convention Article II (e) which addresses
‘forcibly transferring children of the group to another group’. This is to cover situations
where offenders intentionally forcibly transfer children with the intention of destroying the
group in a cultural sense.11

This reference to the removal of children was seen as particularly important for many
indigenous peoples who have in the past suffered such policies of forced removal. It is also
explicitly mentioned in the 2007 UN GA Declaration on the Rights of Indigenous Peoples.12

3. Cultural Genocide and the International Criminal Tribunals

Omission of cultural genocide from the Convention’s text, as described in the previous
chapter, has not stopped claims of cultural genocide reaching different courts and criminal
tribunals.

The International Criminal Tribunal for the Former Yugoslavia (ICTY) in Krstic, Blagojevic
and its several consequent cases ruled that the cultural destruction provided an important
element to determine the existence of the specific intent (dolus specialis) required for geno-
cide. More specifically, in case against Radislav Krstić, on cultural aspect of the genocide that
took place in Sebrenica, the tribunal highlighted that cultural genocide had been rejected
from the Genocide Convention, and stated that:

‘Where there is physical or biological destruction there are often simultaneous attacks
on the cultural and religious property and symbols of the targeted group as well,
attacks which may legitimately be considered as evidence of an intent to physically
destroy the group. In this case, the Trial Chamber will thus take into account as
evidence of intent to destroy the group the deliberate destruction of mosques and
houses belonging to members of the group.’13

10
Ibid, at 332.
11
Ibid, at 326.
12 See. UN Declaration on the Rights of Indigenous Peoples, UNGA Res 61/ 295 (13 September 2007) UN Doc
A/ Res/ 61/ 295.
13
Prosecutor v. Radislav Krstic, (Trial Judgment) ICTY IT- 98- 33- T (2 August 2001), para 580.

3
Same approach was crystalized by the ICJ in Bosnia and Herzegovina v. Serbia and
Montenegro, of 2007 and in Croatia v. Serbia, one year later, extending the debate to the
next, state responsibility level.

More recently, in September 2016, the International Criminal Court (ICC) rendered its first
verdict that deals entirely with cultural destruction. Al Mahdi14 decision was applauded for
its precedential value for recognizing the link between an attack on a group’s cultural
heritage and its destruction. However, in doing so, the Court did not invoke the crime of
genocide that deals with the destruction of groups and indicted the accused for the more
limited war crime of destruction of cultural property.15

The Al-Mahdi order, even more than the judgment and sentence, reveals the breakthrough
that the Court has tried to privilege collective reparations over individual compensation,
with the understanding that culture cannot be reduced to harm to the individual. The Court,
therefore formulated a hybrid solution whereby persons who suffered direct and exclusive
harm were entitled to individual compensation. The larger circles of victims are entitled to
collective reparations with various modalities of implementation, such as the rehabilitation
of the sites of the protected buildings and the rehabilitation of the community of Timbuktu.16

4. Conclusion

In parallel to the practice and attitudes given in the previous chapter, worldwide, the Inter-
American Court of Human Rights and the African Commission on Human and People’s
Rights have both taken decisions affirming the right of indigenous peoples to have their
cultural integrity protected. This notion of cultural integrity is a combination of their rights
to culture, religion, health, development, and natural resources.17

The ongoing situation in Syria is to be mentioned. Humanitarian Catastrophe, war-torn

cultures and societies living in fear and destruction, remain a live example of an ongoing
challenge for States, civil society and international organizations to elaborate a
comprehensive legal and political toolkit and ensure effective protection of cultural property
in times of armed conflict. In general, cultural property destruction has been rarely
prosecuted, especially at the national level.18 The Special Rapporteur in the field of cultural

14
The Prosecutor v Ahmad Al Faqi Al Mahdi ICC- 01/ 12- 01/ 15 (27 September 2016).
15
L. Bilsky, R. Klagsbrun, The Return of Cultural Genocide, EJIL (2018), Vol. 29 No. 2, p.374
16
Ibid, at 395.
17
J. Gilbert, Perspectives on Cultural Genocide, From Criminal Law to Cultural Diversity, in Arcs of Global
Justice. Edited by Margaret M. deGuzman and Diane Marie Amann, p.338
18
Polina Levina Mahnad, Protecting cultural property in Syria: New opportunities for States to enhance
compliance with international law?, International Review of the Red Cross, (2017), 99 (3), p.1068

4
rights highlighted this fact in her most recent report, expressing disappointment at learning
from cultural heritage professionals that, despite the many examples of destruction of
cultural heritage contrary to international treaties, there have reportedly not been any
national prosecutions on the basis of the 1954 Hague Convention.19

Lastly, one of the newest publications on topic concludes that –

‘the merit of cultural genocide lies in its universal dimension, as it is a concept likely
to apply to any culture. [and] its rejection in the late 1940s was partly due to its
incompatibility with the universal character of the international legal system’.20

Taking into consideration this conclusion and all facts, new legal attitudes and pieces of case-
law presented in this article, it can be occurred that the international legal system, its
subjects and the international community as a whole might be more ready and capable to
deal with the challenge of dealing with the acts related to cultural genocide. Different
regional court decisions, enhanced academic research and some political vows give us some
ground to believe that indeed the XXI century will witness creation of the solid legal
framework to defend more peoples and cultures and fight this most complex crimes, recalling
the General Assembly of the United Nations language and spirit, when it called the states to
draft a first human rights conventions of the UN System. This call stays so very relevant even
after 70 years –

‘Genocide is a denial of the right of existence of entire human groups;

such denial … shocks the conscience of mankind, results in great losses to humanity
in the form of cultural and other contributions represented by these human groups,
and is contrary to moral law and to the spirit and aims of the Unites Nations.’21

19
Report of the Special Rapporteur in the Field of Cultural Rights, UN Doc. A/HRC/31/59, 3 February 2016,
para. 58
20
E. Novic, Concept of Cultural Genocide, 2016, p. 244
21
United Nations General Assembly Resolution 96 (I): The Crime of Genocide’. United Nations. 11 December
1946.