Challenging the Exclusion of Cultural Genocide from the International Crime of Genocide

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Challenging the Exclusion of Cultural Genocide from

the International Crime of Genocide

Marta Maria Campos Pinto da Cruz

LL.M International and Transnational Criminal Law Supervised by Dr. S. V. Vasiliev

July 2020 13.985 words

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Statement of Originality

This thesis is written by Marta Cruz who declares to take full responsibility for the contents of this work.

I hereby declare that the text and the work presented in this document are original and that no sources other than those mentioned in the text and its references have been used in creating it.

The Faculty of Law of the University of Amsterdam is responsible solely for the supervision of completion of the work, not for the contents.

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Acknowledgments

First and foremost, I would like to thank my supervisor Dr. Sergey Vasiliev for his thorough feedback and constructive criticism, as well as his constant availability and invaluable support. Thanks to him, I strove to be more critical and perceptive in my writing and research.

Secondly, I am indebted to the Faculty of Law of the University of Amsterdam for the opportunity to delve deeper into the fascinating fields of International and Transnational Criminal Law. This master’s programme has allowed me to both grow as an aspiring international lawyer, and develop an ever greater appreciation for the gargantuan quest for justice at the international level.

I would also like to thank my colleagues from the master’s programme, some of whom I am proud to call my closest friends and with whom I have shared the ups and downs of this process.

Lastly, and on a more personal note, this work is dedicated to my family, particularly my parents, Maria de Lurdes and Luís, as well as my brother, Bernardo. I would not have been able to complete this programme or this thesis without their unwavering support and tireless encouragement, especially their willingness to be a listening ear to legal quandaries. Everything I have accomplished throughout my academic journey thus far, I owe it to them.

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Introduction

Reports of the treatment of the Muslim Uyghur minority in the Chinese region of Xinjiang are reminiscent of some of the ‘techniques of genocide’ denounced by Raphael Lemkin in his seminal oeuvre, Axis Rule in Occupied Europe.1 The victimization of the Uyghur community has allegedly taken on many forms, most of which do not directly target the lives of individuals:

[F]orced separation of families, the targeting of scholars and other community leaders for detention and “reeducation”, the bans on Uyghur language instruction in schools, the razing of mosques, and the onerous restrictions on signifiers of cultural identity (…).2

Such a list is comparable to that of practices carried out in German occupied territories, inter alia, the ‘forbidden use’ of national languages ‘in schools and in printing’, the ‘regimentation’ of ‘national creative activities in the cultural and artistic field’, the destruction of national monuments and the depletion of ‘libraries, archives, museums and galleries of art’.3

There is little doubt that the enumerated acts could comprise ‘a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups’.4_{Then, how come these ‘other techniques of group destruction’}5_{– bar the forcible}

transfer of children – have failed to be included alongside acts of physical and biological destruction when criminalizing genocide?

Granted, the situation in Xinjiang has ignited public outrage and clamors of (cultural) genocide.6 However, it is unlikely that such a scenario will give rise to individual criminal

1_{Kate Cronin-Furman, ‘China has Chosen Cultural Genocide in Xinjiang – For Now’ (Foreign Policy, 19}

September 2018) < https://foreignpolicy.com/2018/09/19/china-has-chosen-cultural-genocide-in-xinjiang-for-now/> accessed 3 December 2019; cf. Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, D.C.: Carnegie Endowment for International Peace, 1944) 82.

2_{Cronin-Furman (n 1).} 3_{Lemkin, Axis Rule (n 1) 84-5.} 4_{Lemkin, Axis Rule (n 1) 79.}

5_{Opening Statement of the Prosecution, United States of America vs. Ulrich Greifelt, et al (‘RuSHA case’),}

Case VIII, Military Tribunal I (20 October 1947) 29.

6_{Bernhard Zand, ‘The Equivalent of Cultural Genocide’ (Spiegel International, 28 November 2019)}

< https://www.spiegel.de/international/world/chinese-oppression-of-the-uighurs-like-cultural-genocide-a-1298171.html> accessed 3 December 2019.

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responsibility under the heading of the international crime of genocide. This is, among other reasons, tied to jurisdictional limitations and prosecutorial discretion, as well as the long and much-debated exclusion of cultural genocide from the legal definition of the crime of genocide.

So far, the investigations into a reported ‘system of internment camps for Muslims in Xinjiang’, or so-called ‘re-education schools’,7_{have not yielded evidence of attempted}

mass extermination. They have, however, revealed the implementation of ‘a mass brainwashing scheme designed and directed at an entire ethnic community’.8 More specifically, both tangible and intangible cultural structures of the Uyghur community are being targeted, such as language, intergenerational traditions, community ties and cultural heritage.9 When combined under a coordinated plan, it becomes clear that the indirect, but ultimate target of such practices is the group’s identity. This description seems to fit most of the many definitions of cultural genocide, understood either as a ‘technique of genocide’ or as ‘a process of its own’.10

Yet, this case will most likely join the ranks of many others before it, whereby the cultural genocide label is merely used as a symbolic recognition of the destructive effect of practices that prey on culture and cultural identity, without any legal or operational meaning being attached to such a label, least of all criminalization.11 Two cases in point are Australia’s and Canada’s treatment of indigenous people, namely children, in the context of the Forced Removal Policy of Aborigine Children and the Residential School System for Aboriginal Children, respectively. Both instances have been labelled as

7_{John Sudworth, ‘China’s hidden camps: what’s happened to the vanished Uighurs of Xinjiang?’ (BBC}

News, 24 October 2018) < https://www.bbc.co.uk/news/resources/idt-sh/China_hidden_camps> accessed 3 June 2020.

8_{‘Data leak reveals how China “brainwashes” Uighurs in prison camps’ (BBC News, 24 November 2019)}

<https://www.bbc.com/news/world-asia-china-50511063> accessed 18 February 2020.

9_{Adrian Zenz, ‘Break their Roots: Evidence for China’s Parent-Child Separation Campaign in Xinjiang’}

(2019) 7(7) Journal of Political Risk available at < http://www.jpolrisk.com/break-their-roots-evidence-for-chinas-parent-child-separation-campaign-in-xinjiang/> accessed 1 June 2020; Lily Kuo, ‘Revealed: new evidence of China's mission to raze the mosques of Xinjiang’ (The Guardian, 7 May 2019) < https://www.theguardian.com/world/2019/may/07/revealed-new-evidence-of-chinas-mission-to-raze-the-mosques-of-xinjiang> accessed 1 June 2020.

10_{Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (Oxford: OUP, 2016)}

5.

11_{‘[Cultural genocide] is evident in the histories of many States with indigenous populations yet it has}

generally remained unpunished and a very difficult case to prosecute.’ Gerard John Maguire, ‘A Genocide by any Other Name: Cultural Genocide in the Context of Indigenous Peoples and the Role of International Law’ (2018) 4(1) Strathclyde Law Review.

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‘cultural genocide’,12_{but, as Elisa Novic notes, ‘states and tribunals have been quite}

reluctant to recognize such experiences of victimization as genocide’.13

The alarming news arriving from Xinjiang force the international community to contend, once again, with the definitional conundrum that has long plagued the international regime of genocide. Should the current definition of the international crime of genocide be challenged, provided that the exclusion of cultural genocide from its purview is precluding international law from properly addressing cultural genocide?

This is the research question at the core of this thesis, which has been the object of a long-standing debate. This debate is ‘revived’ whenever denunciations of alleged new instances of cultural genocide fail to elicit a response, at least under the international legal regime of genocide.14_{The nebulous distinction between the different types of genocide}

has contributed to the controversy. As such, it is imperative to dispel confusion over the relationship between cultural genocide and the international crime of genocide, in order to determine whether the distinction between them is warranted. By doing so, the aim is to establish the effect of the exclusion of cultural genocide from the international legal regime of genocide. In turn, if that effect is adversely felt at the level of group protection, then there are grounds for believing that a narrow approach to the international crime of genocide is limiting its reach and its purpose.

To approach the questions at the core of this thesis, which focus mainly on positive law as it currently stands, a lex lata perspective is in order. Nevertheless, the ultimate question – regarding whether the criminalization of cultural genocide is necessary – is one of lex ferenda.

Virtually all findings and conclusions have been informed by a descriptive, desk-research into the existing body of law, with the Convention on the Prevention and Punishment of Genocide (‘Genocide Convention’) taking center stage.15 A significant part of this work is dedicated to its historical context, as well as its interpretation and application by jurisprudence. A review of academic literature has also been crucial, given

12_{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 (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).

13_{Novic (n 10) 38.} 14_{Novic (n 10) 1.}

15_{Convention on the Prevention and Punishment of Genocide (adopted 9 December 1948, entered into}

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that cultural genocide has long been the subject of controversy amongst scholars. It must be noted that not all authors referenced are legal scholars, which is a testament to the interdisciplinary nature of the topic.

Indeed, the topic in question is fraught with considerations of a sociological and political nature, which is why it has proved difficult to approach it from a strictly legal point of view. One could argue that the exclusion of cultural genocide from the final text of the Convention was ultimately a political decision.16 However, while international law may itself be restricted to a narrow understanding of the phenomenon, interdisciplinary genocide studies have, in contrast, been able to take stock of the ‘complexity and the various aspects of genocide’.17_{With an eye turned to the future of international criminal}

law (‘ICL’), it is important to understand the complex criminality of genocide, in order to craft a comprehensive approach, capable of absorbing all its harmfulness. Besides, the lack of a black-letter definition of cultural genocide compels us to borrow from inter alia the sociological perspective.18

The current body of work is not concerned with the effectiveness of international criminal law enforcement, which is conditional upon factors other than the definitional contours of crimes – prosecutorial discretion being one of them, along with political pressures. Such considerations have no place in the current discussion, since they concern a broader issue that affects all international criminal law enforcement. Before moving onto the practical dimension of application one must conclude whether, on the formal front, criminalization is warranted in the first place.

This thesis is divided into three chapters. Chapter 1 will address the question of how the current legal definition of genocide, as enshrined in the Genocide Convention, came to be. Accordingly, it will provide a brief exposition of the legal-historical process leading to the formal definition of the crime of genocide and, in particular, the omission of cultural genocide from the final text of the Genocide Convention. This process is relevant to the discussion at hand, insofar as it reveals that said omission was preceded by Lemkin’s holistic conceptualization, as well as by several attempts to include cultural genocide in

16_{William A. Schabas, Genocide in International Law: The Crime of Crimes (2nd ed. Cambridge: CUP,}

2009) 646 (‘political bargain’).

17_{Leora Bilsky and Rachel Klagsbrun, ‘The Return of Cultural Genocide?’ (2018) 29(2) European Journal}

of International Law 373, 381.

18_{Helen Fein, Genocide: A Sociological Perspective (London: Sage, 1991), quoted in Jens Meierhenrich,}

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the Convention. Therefore, the option for exclusion was neither straightforward, nor uncontroversial.

Nevertheless, Chapter 2 will go beyond the apparent exclusion postulated by a literal reading of the Convention, in order to ascertain whether the current definition of the international crime of genocide does, in fact, exclude cultural genocide. More specifically, is the definitional separation between the two merely artificial? If so, can the international crime of genocide cover practices of cultural genocide, in general, through a hermeneutical effort? These questions fit under a wider definitional problem: whether the international crime of genocide and cultural genocide are two distinct phenomena, meant to be addressed separately – one as a crime and the other not.

Although practices of cultural genocide have not, thus far, been prosecuted internationally, at least under the heading of the crime of genocide, cultural genocide is not completely absent from international law. Chapter 3 will take note of other areas of international law, to determine whether protection against practices of cultural genocide is being adequately provided. This ties into the question of categorical distinction, insofar as the separation between the types of genocide predetermined that physical and biological genocide were to be criminally proscribed, while cultural genocide was to be treated elsewhere. For there to be an impunity gap on account of under-criminalization, practices associated with cultural genocide cannot already be adequately covered by the international legal framework, as a whole.

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Chapter 1. The evolution of the definitional contours of the

international crime of genocide

1.1. Introduction

The present chapter will delve into the question of how the definitional contours of the international crime of genocide were established. To that end, it will begin with an analysis of Raphael Lemkin’s original conceptualization of genocide, followed by a brief exposition of the Convention’s drafting process, namely the debates on the circumscription of the legal definition of genocide. While the former encompassed practices of cultural genocide as techniques of group destruction, express references to culture ultimately disappeared from the final text of the Convention. The shift from Lemkin’s holistic approach to the narrow approach postulated by such a disappearance will, thus, be highlighted.

1.2. The genesis of the concept of genocide: outlawing the ‘destruction

of human groups’

[A] co-ordinated 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. (…) Genocide is directed against individuals, not in their individual capacity, but as members of the national group.19

In this description lies the rationale behind the concept of genocide, as introduced by Raphael Lemkin. In his quest to ‘outlaw the destruction of human groups’, 20 Lemkin drew up a concept whose protective scope covered the existence of whole groups, not just its individual members. In other words, the group is the object of protection and group membership is necessary in order for individuals to fall under the scope of protection of genocide.

19_{Lemkin, Axis Rule (n 1) 79.}

20_{Christopher J. Powell, ‘The destruction of Sarajevo's Vijećnica: a case of genocidal cultural destruction?’}

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Additionally, for Lemkin a group’s existence could not be conflated with the existence of its individual members; the destruction of human lives was one of the objectives of the genocidal plan, not the single or exclusive one. Amongst them, the ‘disintegration of culture’ was also featured.21_{Given the ‘composite’ nature of genocide,}

it covered ‘ingenious measures for weakening or destroying [inter alia] cultural elements in national groups’.22

Culture operates as the connecting tissue between individuals, that, by reason of sharing the same cultural elements – such as language, traditions, and heritage –, are part of the same designated group. In fact, one could argue that readily perceptible cultural elements (as opposed to latent ones, like shared values) are a potential indicator of group membership; that is to say, in order to determine whether an individual belongs to a certain group, one may take into account inter alia their language, garb, social and/or ritualistic practices that partly make up their ‘cultural DNA’.

It is, thus, not surprising that Lemkin would be just as concerned with practices targeting cultural identity as with those targeting the physical integrity and biological survival of the group, given that the former might have just as much destructive power over a group’s vitality as the latter.23 Cultural identity might be defining for a group’s existence, both as an original bond without which there would be no group in the first place, and as the combination of (some of the) distinctive traits without which an individual would not be recognizable as a member of a group. Hence, according to Lemkin, culture underpinned all aspects of the existence of the group, to the point where ‘a racial, national or religious group cannot continue to exist unless it preserves its spiritual and moral unity’.24 Or, as Powell put it, for Lemkin ‘there is no “collective life” when tangible and intangible aspects of a group’s culture are decimated’.25

These concerns found expression in the draft law that Raphael Lemkin submitted to the Fifth International Conference for the Unification of Penal Law, in 1933.26 There he

21_{Lemkin, Axis Rule (n 1) 79.} 22_{ibid 92.}

23_{‘Denying 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.’ Larry May, Genocide: A Normative Account (Cambridge: CUP, 2010) 104; ‘[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’ Novic (n 10) 5.

24_{Schabas, Genocide in International Law (n 16) 208.}

25_{Powell, ‘The destruction of Sarajevo's Vijećnica’ (n 20) 61-2.} 26_{ibid 60.}

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drew a distinction between acts of cultural destruction and acts of physical destruction, under the labels of acts of vandalism and acts of barbarity, respectively; nevertheless, both were given equal attention and were addressed under the rubric of penal law.27

Besides, Lemkin’s vision went beyond the protection of a single group’s existence: the outlawing of genocide served the greater purpose of preserving humanity’s cultural diversity, or ‘world culture’.28 Seeing that the interests of the whole of humanity were at stake, it only made sense for the international community to intervene and outlaw genocide as an international crime. Lemkin vested his hopes in the United Nations and the drafting of the Genocide Convention, the philosophy of which was to be ‘based on the formula of the human cosmos’, in the sense that ‘[t]he groups are protected not only by reason of human compassion but also to prevent draining the spiritual resources of mankind’.29

However, in spite of an initial reception of cultural genocide within the purview of the crime, the final text of the Genocide Convention does not, at first reading, adopt a holistic approach akin to Lemkin’s. It does outlaw the destruction of human groups, but it ‘prioritizes the physical over the cultural techniques of genocide’,30_{thereby doing the}

opposite of what Lemkin had hoped for when conceptualizing genocide: a comprehensive solution for ‘the entire problem of genocide… as a whole’.31

27_{‘The author [of the present work] formulated two new international law crimes to be introduced into the}

penal legislation of the thirty-seven participating countries, namely, the crime of barbarity, (…) and the crime of vandalism, (…).’ Lemkin, Axis Rule (n 1) 91.

28_{Quoted in Powell, ‘The destruction of Sarajevo's Vijećnica’ (n 20) 61.}

29_{Lars Berster, ‘Article II’ in Christian J. Tams, Lars Berster, and Björn Schiffbauer (eds.), Convention on}

the Prevention and Punishment of the Crime of Genocide: A Commentary (München, Germany: C.H. Beck, 2014) 84, 85.

30_{Bilsky et al. (n 17) 379.} 31_{Lemkin, Axis Rule (n 1) 92.}

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1.3. The final text of the Genocide Convention: the crystallization of the

narrow approach?

At first reading, Article II of the Genocide Convention reveals that the scope of protection of its legal definition of genocide is greatly diminished, in comparison to Raphael Lemkin’s original conceptualization of genocide. While, in its genesis, the concept of genocide was meant to encompass both practices of cultural destruction and those of physical and/or biological destruction,32_{currently the only legally relevant concept of}

genocide under international law excludes any reference to culture. This was the outcome of a drafting process marked by much debate and confusion.33

In fact, the initial impulse for the drafting process – the UN General Assembly Resolution 96(I) – contained a description of genocide that closely resembled Lemkin’s, both in aiming against the ‘destruction of entire human groups’ and striving for the preservation of cultural diversity.34 Accordingly, the General Assembly described genocide as ‘a denial of the right of existence of entire human groups’ which ‘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 oral law and to the spirit and aims of the United Nations’.35

Then followed the UN Secretariat Draft Convention on the Crime of Genocide.36 Acts of cultural genocide – i.e. destruction ‘by brutal means of the specific characteristics of a human group, that is to say, its moral and sociological characteristics’37 – were featured as one of three categories of genocidal acts, under the heading of ‘acts destroying the specific characteristics of the group’.38_{In turn, that category included five}

32_{‘The techniques of genocide… represent a concentrated and coordinated attack upon all elements of}

nationhood. Accordingly, genocide is being carried out in [inter alia, the cultural, biological and physical fields].’ Lemkin, Axis Rule (n 1) 84-9.

33_{‘Bearing in mind this historical context helps one better understand the discussions among the}

delegations, including why particular topics generated in-depth – and at times passionate – debate.’ Hirad Abtahi and Philippa Webb, ‘Preface’ in Hirad Abtahi and Philippa Webb (eds.), The Genocide Convention: the Travaux Préparatoires (Boston: Martinus Nijhoff Publishers, 2008) xxvii.

34_{UNGA Res 96(I), The Crime of Genocide (11 December 1946) UN Doc A/RES/96.} 35_ibid.

36_{First UN Draft Convention on the Crime of Genocide (prepared by the UN Secretariat in pursuance of}

ECOSOC Res 28 March 1947) (26 June 1947) UN Doc E/447 (UN Secretariat Draft).

37_{UN Secretariat Draft (n 36) 17.} 38_{ibid art I(II)(3).}

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subcategories,39 of which the forcible transfer of children of acts was the sole that remained in the final text, as an underlying offence punishable under Article II.40 Nevertheless, concern over an overly expansive definition led the Secretariat to admonish against the ‘idea of genocide being expanded indefinitely to include the law of war, the right of peoples to self-determination, the protection of minorities, the respect of human rights, etc.’.41_{This faint suggestion that cultural genocide might fall outside the purview}

of the international legal regime of genocide and belong in another realm of international law would later develop into a recurring argument for the exclusion of cultural genocide from the Convention.42

Even though references to culture were retained in the preamble of the first formal draft,43 they were omitted in the second draft, prepared by the Ad Hoc Committee on Genocide set up by the UN Economic and Social Council (‘ECOSOC’).44 Moreover, acts of cultural genocide were no longer punishable under Article II, but rather under a separate provision,45_{following a suggestion of the chairman of the Committee, John}

Maktos, to ‘enable Governments to make reservations on a particular point of the Convention’.46_{Such a suggestion forebode a change of the tide. Trepidation grew}

primarily amongst Western countries, namely the United States, Canada and France, who favored the exclusion of cultural genocide, not only from the Convention, but from the international legal regime of genocide as a whole.47 The main argument was that cultural genocide concerned the cultural rights of minorities and, accordingly, it belonged to the

39_{ibid art I(II)(3)(a)-(e).}

40_{Genocide Convention (n 15) art II(e).}

41_{Schabas, Genocide in International Law (n 16) 174.} 42_{ibid 208 (‘a theme in the debate on cultural genocide’).}

43_{‘[Genocide] defies universal conscience, inflicts irreparable loss on humanity by depriving it of the}

cultural and other contributions of the group so destroyed, and is in violent contradiction with the spirit and aims of the UN.’ UN Secretariat Draft (n 36) 5.

44_{Second UN Draft Convention on the Crime of Genocide (prepared by the ECOSOC Ad Hoc Committee}

on Genocide, meeting between April 5, 1948 and May 10, 1948) (10 May 1948) UN Doc E/AC.25/12 (Ad Hoc Committee Draft).

45_{ibid art III.}

46_{Ad Hoc Committee on Genocide, ‘Summary Record of the Fifth Meeting’ (8 April 1948) UN Doc}

E/AC.25/SR.5.

47_{‘[The United States’ representative] agreed with the representatives of Canada and France that the}

inclusion of the notion of “cultural” genocide was a dilution of the purpose of the Convention which might render it much less effective.’ Ad Hoc Committee on Genocide, ‘Summary Record of the Two Hundred and Nineteenth Meeting’ (26 August 1948) UN Doc E/SR.219.

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field of minority protection under both international human rights law (‘IHRL’) and international humanitarian law (‘IHL’). 48

Then followed the amended version of the Ad Hoc Committee Draft, recommended to the UN General Assembly by its Sixth Committee. The decisive move towards a narrower approach to genocide came in the course of the Eighty-Third meeting of the Sixth Committee.49 Any reference to cultural genocide was removed and the prohibition under Article III of the Ad Hoc Committee Draft was erased.50

Cultural genocide was, in the end, excluded from the Convention. Those who favored the exclusion insisted upon a separate treatment of cultural genocide under the international human rights regime, particularly in the context of the cultural rights of minorities.51_{However, as will be elaborated upon, such a treatment is wanting. Besides,}

‘rather than any limitation inherent in the concept’,52_{political considerations were the}

reason which tipped the scale in favor of exclusion; the criminalization of cultural genocide was ultimately foregone in order to accommodate the political sensibilities of States who feared ‘interference in [their] domestic affairs’ and potential liability for their treatment of minority groups.53

Consequently, the Convention definition of the international crime of genocide that entered into force – and so remains – clearly prohibits physical and/or biological destruction of (certain) human groups. A clarity that is lacking regarding the (non)proscription of cultural destruction. This lack of clarity is due to the omission of any reference to culture and the erasure of all but one trace of the attempt to include practices of cultural destruction amongst the numerus clausus of genocidal acts – i.e. the forcible transfer of children. Nevertheless, at least the predominantly physical and biological

48_{Inter alia, France, Belgium, Sweden, Iran were in favor of separate treatment. See Schabas, Genocide in}

International Law (n 16) 211-212; ‘The US also argued that the matter was one of defence of national minorities, especially in time of armed conflict, and on that account it should be included in the conventions regarding war.’ ibid 209.

49_{UNGA Sixth Committee, ‘Summary Record of the Eighty-Third Meeting’ (25 October 1948) UN Doc}

A/C.6/SR.83.

50_{‘By 25 votes to 16, with 4 abstentions, 13 delegations being absent during the vote, the Committee}

decided not to include provisions relating to cultural genocide in the convention.’ ibid.

51_{‘Certain delegations held that the purpose of article III could be attained by introducing suitable}

provisions into the declaration of human rights or into a charter for the protection of minorities.’ ibid.

52_{David Nersessian, ‘Rethinking Cultural Genocide under International Law’, (2005) 2(12) Human Rights}

Dialogue 7, 8.

53_{UN Commission on Human Rights (UNCHR), ‘Revised and updated report on the question of the}

prevention and punishment of the crime of genocide prepared by Mr. B. Whitaker’ (2 July 1985) UN Doc E/CN.4/Sub.2/1985/6, 17.

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nature of the actus reus of the crime is perceptible by way of a literal reading of the limited list of underlying offences. By contrast, the mens rea element of genocide, more specifically, the special requirement of the intent to destroy a protected group, has been vaguely formulated, leaving room for opposing views as to the meaning of ‘destruction’.54

Subsequently, on the one hand, the disappearance of culture from the final text of the Convention has drawn a distinction between different categories of genocide, prioritizing the physical and biological dimension of the crime over its cultural aspects.55 On the other hand, such an omission, coupled with a lack of definition of cultural genocide under international law, does not clarify what distinguishes cultural genocide from the other types enshrined in the Convention. Additionally, the marginal recognition of practices that could be deemed culturally destructive – i.e. the forcible transfer of children – raises issues as to how airtight the distinction is and whether there is overlap between the categories.

This approach to cultural genocide is not made any less elusive by reference to the Convention’s travaux préparatoires. On the contrary, the latter provide a puzzling account of a drafting process which, despite being marked by protracted discussions over ‘cultural genocide’, culminated in a text not once featuring the word ‘culture’. Admittedly, such an omission is indicative of the drafters’ reluctance to address the issue at a time when the concept of genocide itself was uncharted territory and its regime was embryonic.56 Still, it does not provide a definitive argument for (or against) the peremptory exclusion of cultural genocide as a whole from the overall genocide legal framework. There was confusion over what cultural genocide meant and what practices

54_{Lars Berster, ‘The Alleged Non-Existence of Cultural Genocide: A Response to the Croatia v. Serbia}

Judgment’ (2015) 13 Journal of International Criminal Justice (Oxford: OUP) 677, 677-692.

55_{‘At the core, we find physical genocide, an attempt to physically destroy the group by killing its members,}

and, in the margins, we can find cultural genocide that manifests itself, for instance, in forced assimilation policies towards a group.’ Bilsky et al. (n 17) 379.

56_{‘In the sphere of the prevention and suppression of genocide, as in all other spheres covered by}

international law, progress had to be slow and codification progressive. The Peruvian delegation held that the time was not yet ripe to extend the application of the convention to so-called cultural genocide (…).’ A/C.6/SR.83 (n 49).

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it entailed;57 moreover, there was no agreement over its relation to other types of genocide, nor over its status as an international crime.58

1.4. Conclusion

Whether or not genocide can be divided into different categories, displaying varying degrees of gravity, and engaging different areas of international law, for Raphael Lemkin ‘[t]he entire problem of genocide needs to be dealt with as a whole; it is too important to be left for piecemeal discussion and solution in the future’.59 The ideal solution was, thus, an international treaty which would formulate genocide as an international crime and go beyond the then existing legal framework, namely the Hague Regulations, which only partly addressed genocidal dangers.60

However, the instrument that was to crystallize the new concept of genocide in the annals of international law fell short of Lemkin’s ambition. In fact, the international legal regime of genocide, as inaugurated by the Genocide Convention, suffers from similar shortcomings to those that led Lemkin to suggest, in 1946, a whole new international legal framework for genocide.61 The Convention definition centers physical and/or biological acts of destruction. Furthermore, it seemingly marginalizes cultural genocide and leaves it to be dealt with elsewhere. As a result, the favored approach to the crime of

57_{‘[The Danish representative] objected to the inclusion of the concept of cultural genocide in the}

convention, because it was not clearly defined. (…) On the one hand, the text submitted to the Committee failed to mention many acts which could be described as cultural genocide; on the other, many acts which were not criminal could be designated in those terms.’ A/C.6/SR.83 (n 49).

58_{‘The delegation of Pakistan went so far as to say that cultural genocide represented the end, whereas}

physical genocide was merely the means. (…) Thus the end and the means were closely linked together; cultural genocide and physical genocide were indivisible. It would be against all reason to treat physical genocide as a crime and not to do the same for cultural genocide.’ A/C.6/SR.83 (n 49); cf. ‘[The Dutch representative] would vote for the deletion of [article III] (…) in particular for the following: First, there was an essential difference between cultural genocide and genocide as defined in article II; Secondly, cultural genocide fell rather within the sphere of the protection of human rights or of the rights of minorities; (…).’ ibid.

59_{Lemkin, Axis Rule (n 1) 92.}

60_{‘But other acts falling within the purview of genocide (…) are not prohibited by the Hague Regulations.’}

ibid.

61_{‘Once we have recognized the international implications of genocidal practices, we must create the legal}

framework for the recognition of genocide as an international crime.’ Raphael Lemkin, ‘Genocide’ (1946) 15(2) American Scholar, 227, 228.

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genocide has been narrow, allowing for less than comprehensive protection from genocide in all its guises, under ICL.

Having said this, it is undeniable that the Genocide Convention does not address cultural genocide directly or expressly. When read literally and in isolation, the final text of the Convention postulates the exclusion of cultural genocide from the crime of genocide. However, the lack of clarity expounded above has left room for diverging interpretations regarding the protective scope of the crime.

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Chapter 2. The muddled distinction between cultural genocide

and the international crime of genocide

2.1. Introduction

The formal definition of the international crime of genocide, enshrined in the Genocide Convention, seemingly endorses a narrow approach that excludes cultural genocide. That does not mean, however, that the definitional boundaries between the two concepts are set in stone. In fact, they are blurry, owing to the very disappearance of cultural genocide from the final text of the Convention. This has left us with no definition of cultural genocide under ICL.

The question, however, is not simply where the line is to be drawn between both concepts, but rather whether a distinction is warranted at all. In order to determine whether the detachment of cultural genocide from the international crime of genocide is merely artificial or not, it is imperative to go beyond the surface level and the letter of the law.

Said question will be addressed in two steps. Firstly, are cultural genocide and the international crime of genocide distinct, merely by virtue of the omission of cultural genocide from the final text of the Genocide Convention or by their very own nature? Secondly, if they are not distinct, could the Convention definition cover practices of cultural genocide, in general, through an exercise of hermeneutics?

These issues pertain to the composite nature of the concept of genocide, as well as the categorical distinction between different types of genocide.

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2.2. The state of affairs post-Convention: a stable definition in contention

The Genocide Convention solidified genocide as ‘a crime under international law’, thereby heralding the arrival of an international legal regime against genocide.62_In

essence, the Convention was the driving force behind the conversion of the concept of genocide into a legally operational crime at the international level, i.e. a first step towards prevention and punishment.

Since its adoption, the Convention definition has been used as a point of reference to distinguish between cultural genocide and the international crime of genocide.63 Does this mean that alternative readings of the Convention’s wording, or even different formulations, cannot find any support in other bodies of law, literature, or jurisprudence? Contention over the definitional contours set forth in the Convention may be an indicator that the distinction drawn only exists due to an option made in the context of a politically charged drafting process;64 and not rooted in conceptual differences.

Notwithstanding the importance of the Convention, as ‘the rock upon which the international regime against genocide is built’,65 this regime goes beyond this one instrument and has been solidified by the case law of international courts and tribunals, and the work of legal scholars. Bearing in mind that over 70 years of international jurisprudence and legal writing have followed since the drafting of the Genocide Convention, it is prudent to wonder whether the definition enshrined therein has gone unopposed; or if, on the contrary, it has been challenged. Arguably, both questions could be answered affirmatively.

The language of Article II has been reiterated time and time again.66_{This might be}

interpreted as a constant renewal of the international community’s endorsement of the

62_{The Convention’s law-making quality is, however, debatable. See Kevin Jon Heller, ‘What is an}

International Crime? (A Revisionist History)’ (2017) 58(2) Harvard International Law Journal 355, 372.

63_{‘(…) the UNGC (…) categorically distinguished the strictly legal meaning of genocide from the related}

notions of cultural genocide and ethnocide.’ Jeff Benvenuto, ‘What Does Genocide Produce? The Semantic Field of Genocide, Cultural Genocide, and Ethnocide in Indigenous Rights Discourse.’ (2015) 9(2) Genocide Studies and Prevention 26, 27.

64_{Novic (n 10) 80 (‘the political dimension of the travaux préparatoires’).}

65_{Christian J. Tams, Lars Berster, and Björn Schiffbauer, ‘General Introduction’ in Tams et al. (eds.),}

Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (München, Germany: C.H. Beck, 2014) 5.

66_{Statute of the International Tribunal for the Former Yugoslavia (adopted 25 May 1993) UN Doc S/25704}

(ICTY Statute) art 4; Statute of the International Tribunal for Rwanda (adopted 8 November 1994) UN Doc S/RES/955 (ICTR Statute) art 2; Rome Statute of the International Criminal Court (adopted 17 July 1998)

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narrow approach to genocide and as an insistence upon the intentional omission of cultural genocide as a punishable (genocidal) offence. In fact, Schabas claims that ‘the definition has remained and should continue to remain relatively stable’.67 Regarding the drafting of the Rome Statute in particular, Schabas notes that ‘any legal imperative to amend the definition had essentially disappeared with the dramatic expansion of the concept of crimes against humanity’.68

At first sight, the case law of international criminal courts and tribunals seems to corroborate this assumption of stability within the international legal regime against genocide.69 Nevertheless, it is worth noting some nuances, especially in the case law of the ICTY.

In the Krstić case, the Trial Chamber curiously alluded to some ‘recent developments’ regarding cultural and other non-physical forms of group destruction,70_and

acknowledged that ‘attacks on the cultural and religious property and symbols of the targeted group (…) may legitimately be considered as evidence of an intent to physically destroy the group’.71_{However, the Chamber did not recognize those attacks as genocidal}

acts in themselves; it merely recognized their (limited) relevance in establishing the mens

rea of genocide. As such, no recognition of cultural genocide as an offence per se can be

derived therefrom. More in line with the judgement would be the a contrario inference that attacks on culture, when unaccompanied by ‘physical or biological destruction’, do not amount to a crime of genocide. In short, the Chamber doubled down on the narrow approach and merely attached significance to cultural destruction as evidence of the intent to physically destroy the group.72

Similarly, in the Rule 61 review of the indictments against Karadžić and Mladić, the Trial Chamber recognized the importance of acts of cultural destruction (accompanying physical and biological destruction) in establishing genocidal intent. Remarkably, the

UN Doc A/CONF.183/9, 2187 UNTS 3 (Rome Statute) art 6; Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006) art 4 (ECCC Law).

68_{William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2}nd_ed.

Oxford: OUP, 2016) 127.

69_{Tams et al. (n 65) 4.}

70_{Trial Judgement, Prosecutor v Krstić, IT-98-33-T, TC I (2 August 2001) paras 577-579.} 71_{ibid para 580.}

72_{‘[D]espite recent developments, customary international law limits the definition of genocide to those}

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Chamber filed them under ‘acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group’, that despite not being covered by the list of punishable acts, are ‘committed as part of the same pattern of conduct’.73_{It is,}

thus, paradoxical to consider them to be in violation of the foundation of the group, without, in the same token, punishing them for being just as much of a threat to the group as the listed acts.

Additionally, in the Krajišnik case, the Trial Chamber conceded, albeit in a footnote, that ‘the Genocide Convention’s “intent to destroy” the group cannot sensibly be regarded as reducible to an intent to destroy the group physically or biologically, as has occasionally been said.’74_{However, this was not an appeal for the expansion of the}

definition of genocide as enshrined in the Genocide Convention; it only served as a supporting argument for, once again, contending that one may rely on acts of cultural destruction as ‘evidence of the mens rea of genocide’.75

Nevertheless, the destructiveness of attacks targeting culture has not gone completely ignored in the international jurisprudence. The destruction of cultural property has been prosecuted internationally, but under the heading of war crimes and crimes against humanity (more specifically, the crime against humanity of persecution).76 Still, that approach is not adequate enough to cover the dangerousness of cultural genocide in its entirety.77

As it stands, international case law reveals, for the most part, a lack of judicial challenge to the definitional boundaries set out by the Genocide Convention. In this regard, the judgement of the International Court of Justice (‘ICJ’), in the Application of

the Genocide Convention case, cannot be ignored, given its status as a ‘beacon of

orientation’ in interpreting and applying the Convention.78_{The court was clear-cut in}

asserting that ‘the destruction of historical, religious and cultural heritage cannot be considered to be a genocidal act within the meaning of Article II of the Genocide

73_{Review of the Indictments Pursuant to Rule 61, Prosecutor v Karadžić and Prosecutor v Mladić,}

IT-95-5-R61 and IT-95-18-R61, TC I (11 July 1996) para 94.

74_{Trial Judgement, Prosecutor v Momčilo Krajišnik, IT-00-39-T, TC I (27 September 2006) fn 1701.} 75_{ibid para 854.}

76_{Appeal Judgement, Prosecutor v Blaškić, IT-95-14-A, AC (29 July 2004) para 149; Appeal Judgement,}

Prosecutor v Strugar, IT-01-42-A, AC (17 July 2008) paras 277-80; Trial Judgement, Prosecutor v Al Mahdi, ICC-01/12-01/15, TC VIII (27 September 2016); Decision on the Confirmation of Charges, Prosecutor v Al Hassan, ICC-01/12-01/18, PTC I (30 September 2019) paras 522, 683-690.

77_{See 3.3.}

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Convention’.79_{Incidentally, the ICJ referred specifically to the aforementioned trial}

judgement in the Krstić case to support its view on the intentional exclusion of cultural genocide from the final list of punishable acts.80

While the preceding analysis substantiates Schabas’ claim that the Convention definition ‘has remained and should continue to remain relatively stable’,81_{said stability}

should not be conflated with a lack of definitional controversy.

The ‘energizing’82_{effect that the Convention managed to produce, at first, has}

dwindled, leaving room – at least amongst legal scholars – for disillusionment with the limited reach of ICL. In reality, the Convention’s exclusion of cultural genocide has been disputed since its crystallization,83 and controversy over its soundness is constantly ‘reignited’.84

While it is true that the chances for expanding the definition have never been seized,85

it would be wrong to assume that the Convention has not been defied.86_{As far back as}

the 1980s, Benjamin Whitaker – the special rapporteur on genocide at the time – acknowledged that there were ‘supporters’ of a broader definition of genocide, even amongst the Sub-Commission on Prevention of Discrimination and Protection of Minorities.87 In other words, the inclusion of cultural genocide found support even within international bodies.

79_{Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and}

Herzegovina v Serbia and Montenegro) (Judgement) [2007] ICJ Rep 43, para 344.

80_{Krstić (Trial Judgement) (n 70) para 580.}

82_{‘That the international legal regime against genocide has undergone change, and been ‘energized’, seems}

beyond doubt (…).’ Tams et al. (n 65) 30.

83_{‘Over the decades, reform proposals have been directed at the definition of genocide as set out in Article}

II, which is considered “exceedingly narrow” by many.’ Tams et al. (n 65) 15.

84_{‘The achievements of the indigenous peoples’ movement throughout the 1980s reignited the debate}

surrounding cultural genocide within the international arena.’ Shamiran Mako, ‘Cultural Genocide and Key International Instruments: Framing the Indigenous Experience.’ (2012) 19(2) International Journal on Minority and Group Rights 175.

85_{‘No suggestion to enlarge the list of [genocidal] acts or to deem the enumeration non-exhaustive even}

arose during the drafting of the Rome Statute.’ Schabas, Genocide in International Law (n 16) 175.

86_{For a list of definitions that include cultural genocide, see J. S. Bachman, ‘Bringing cultural genocide}

into the mainstream’ in J.S. Bachman (ed.), Cultural Genocide: Law, Politics and Global Manifestations (London: Routledge, 2019) 2-4.

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Nevertheless, divergent understandings of cultural genocide seem to be restricted to the socio-anthropological plane,88 not having, thus far, been properly transposed into the legal sphere, at least at the international level.89

Meanwhile, ‘domestic legislators have imposed their own views [on genocide], some of them varying slightly or even considerably from the established international definition’.90 The tendency to ‘renationalize the definition of genocide when transposing it’ led Schabas himself to acknowledge that‘even at the legal level, it is imprecise to speak of a single, universally recognized meaning of genocide’.91

It is worth noting that some domestic jurisdictions have expressly included practices that target culture under the actus reus of their definition of genocide. One case in point is the Paraguayan Penal Code, which ‘encompasses the impossibility for a group “to exercise its cult or practice its customs”’.92

Admittedly, criminalization on the basis of autonomous national law provisions is of limited relevance to the international legal regime. A broad definition of genocide at the national level is not to be mistaken for an endorsement of a broad approach to the international crime of genocide. Nonetheless, if in some domestic systems ‘the definition of criminalized activities is broader than the definition of the Genocide Convention’,93 then the Convention’s definitional boundaries have not inhibited the existence of parallel conceptualizations of genocide, even in the legal sphere.

As such, the Convention definition, stable as it may be, is not uncontroversial. This clarification dispels the idea that a narrow, exclusionary reading of the crime of genocide is the be-all, end-all definition. Furthermore, it suggests that the debates over the inclusion of cultural genocide were not settled by its mere disappearance from the final text of the Convention.

88_{Novic (n 10) 35-8.}

89_{ibid (‘[t]he legal vacuum surrounding the concept of cultural genocide’).} 90_{William A. Schabas, Unimaginable Atrocities (Oxford: OUP, 2012) 104.} 91_ibid.

92_{ibid 95.}

93_{Helmut Kreicker, ‘National Prosecution of International Crimes from a Comparative Perspective. The}

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2.3. Cultural genocide and the international crime of genocide as

interconnected concepts

By providing a black-letter definition of genocide, the Genocide Convention broke new ground at a time when the concept was surrounded by a legal vacuum, both in conventional and customary law. Bearing that in mind, all of the debates that took place during the drafting process were decisive in edifying a new legal regime. However, the new legal framework was not designed simply by reference to the drafters’ imagination and impulses. Their decisions were informed by the historical context that prompted the intervention of international law – i.e. the atrocities committed during the Holocaust –94 and Raphael Lemkin’s pioneering work on the subject. In other words, the legal vacuum surrounding genocide could not be conflated with a conceptual vacuum.

In his comments on the first draft convention, the UN Secretary-General refers to ‘three types of genocide’, noting that Lemkin distinguishes between physical, biological and cultural genocide.95 This passage, in isolation, would suggest that Lemkin saw the ‘types of genocide’ as different phenomena;96_{when, in reality, he conceived them as}

different categories of techniques employed in the context of the same phenomenon. As a matter of fact, Lemkin’s reasoning for formulating a ‘new term’ for a ‘new conception’ was the inadequateness of the words used in the past, ‘connoting only some functional aspect of the main generic notion of genocide’.97_{For Lemkin, any term that did not}

convey the ‘common elements of one generic notion’ was ‘much too restricted’;98_{by the}

same token, and as mentioned before, the ‘entire problem of genocide’ was to be addressed altogether and at once.99

Raphael Lemkin did distinguish between three types of genocide, in order to refer to different techniques of the same crime, thereby breaking down the composite nature of the crime. The Convention drafters, however, inflated the importance of the

94_{‘German Nazism endowed [genocide] with tragic reality by organizing the systematic and large-scale}

destruction of various racial or national groups.’ The Crime of Genocide: Note by the Secretary-General (1947) UN Doc E/330.

95_{Comments on Article I, UN Secretariat Draft (n 36).}

96_{‘Lemkin’s analysis of the various ‘techniques’ of genocide is read by some to mean a hierarchy or a clear}

division between the ‘types’ of genocide.’ Bilsky et al. (n 17) 379.

97_{Lemkin, Axis Rule (n 1) 80.} 98_ibid.

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categorization by using it to distinguish between graver and lesser forms of genocide. The former – i.e. physical and biological genocide – were decidedly part of the definition of the international crime of genocide, while the latter were to be treated elsewhere. Such hierarchization stemmed from the fact that, while every contracting party could agree on the physical and biological dimension of genocide, not all were convinced that genocide could be perpetrated by targeting the cultural structures of a group.

As a result, while, at its genesis, the notion of genocide encompassed all three types of genocide, when it was inscribed into positive law, the concept became atomized, and the respective legal regime fragmented.

However, that separation was not clear-cut, given that the international crime of genocide and cultural genocide have a common precursor – i.e. Lemkin’s original, holistic concept of genocide. Accordingly, there are still vestiges of the overlap between both concepts. Most notably, the inclusion of the forcible transfer of children in Article II(e) of the Convention.100

In order to reconcile its addition to the actus reus of the crime with the mainly physical or biological character of the list of punishable acts, the forcible transfer of children has been ‘redefined as being in actuality an element of physical or biological genocide’.101 According to the International Law Commission (‘ILC’), said practice ‘would have particularly serious consequences for the future viability of a group as such’.102_{While the}

ILC meant to highlight the biologically destructive effect of the acts in question, its statement holds true from a cultural perspective.

Forcibly transferring children to another human group depletes a group of its members, not only by means of biological erasure,103 but by stripping the individuals of what connects them to the group – i.e. their cultural identity. As Schabas points out, by being ‘raised with another group, speaking its language, participating in its culture, and practicing its religion’, children’s ‘cultural identity may be lost’.104 Subsequently, they

100_{Bilsky et al. (n 17) 390 (‘the only remnant of cultural genocide’).}

101_{Robert van Krieken, ‘Cultural Genocide Reconsidered’ (2008) 12 Australian Indigenous Law Review}

76, 78.

102_{ILC, “Report of the International Law Commission on the work of its Forty-eighth Session” (6 May –}

26 July 1996) UN Doc. A/51/10, para 17.

103_{‘[I]t can have consequences for the group’s capacity to renew itself, and hence to ensure its long-term}

survival.’ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgement) [2015] ICJ Rep 3, 136.

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lose what made them a member of the group in the first place and are not able to reproduce or maintain their original group’s culture. In short, there is the risk of ‘disappearance of the group as a cultural unit in a relatively short time’.105_{Bearing in mind that a group’s}

existence cannot be reduced to physical or biological survival,106 the effects of the practice on culture is as detrimental to a group’s existence as any physically or biologically lethal measure.107

Seeing as other practices that target culture are just as capable of leading to the loss of cultural identity,108 the question then becomes why the forcible transfer of children was the ‘sole exception to the general rule by which cultural genocide was excluded’.109_{It is}

most likely due to ‘the indecisiveness amongst the [Sixth] Committee members as to whether the transfer of children should be conceived of as a species of cultural, biological or physical genocide’.110

Moving on to the mental aspect of the crime, there, too, cultural genocide and the international crime of genocide remain connected.

As seen in the previous section, jurisprudence has taken cultural genocide into account as evidence of the required mens rea of the crime of genocide, namely, the special intent to destroy the group. In this regard, however, it is important to distinguish between two jurisprudential views: that expressed by the majority of the Trial Chamber in Krstić, whereby acts of cultural destruction ‘may legitimately be considered as evidence of an intent to physically destroy the group’;111 and that voiced by Judge Shahabuddeen, in his dissenting opinion in the appeal judgement of the same case.112 Judge Shahabuddeen went further than the Trial Chamber, by challenging the notion that the dolus specialis of the crime was restricted to physical or biological destruction.

105_{Comments on Article I(3)(a), UN Secretariat Draft (n 36).}

106_{David Nersessian, ‘The Current Status of Cultural Genocide Under International Law’ in J.S. Bachman}

(ed.), Cultural Genocide: Law, Politics and Global Manifestations (London: Routledge, 2019) 32.

107_{‘Those who advocated the Greek amendment held that the forced transfer of children could be as}

effective a means of destroying a human group as that of imposing measures of biological or physical genocide.’ Berster, ‘Article II’ (n 29) 91-3.

108_{According to the representative of Venezuela, ‘[a] group could be deprived of its existence not only}

through the physical destruction of its members, but also through the destruction of its specific traits, the loss of which led to the dissolution of its unity, even though no attempt had been made on the life of its members.’ A/C.6/SR.83 (n 49).

109_{Schabas, Unimaginable Atrocities (n 90) 115.} 110_{Berster, ‘Article II’ (n 29) 91-3.}

111_{Krstić (Trial Judgement) (n 70), para 580.}

112_{Partial Dissenting Opinion of Judge Shahabuddeen, Appeal Judgement, Prosecutor v Krstić,}

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[I]t is not convincing to say that the destruction, though effectively obliterating the group, is not genocide because the obliteration was not physical or biological. (…) The intent certainly had to be to destroy, but, except for the listed act, there is no reason why the destruction must always be physical or biological.113

This view finds support in the ambiguous formulation of the intent to destroy in the letter of the law, which has prompted ‘an interpretive dilemma’.114 Given that, in Article II, ‘destruction’ is not qualified, the mens rea of the crime has been considered an ‘open door’ through which ‘the cultural dimension of the crime of genocide could possibly be re-introduced.’115 A ‘broader understanding of mens rea’116 thereby includes the intent to destroy the group as a ‘social unit’.117

However, a socio-cultural understanding of ‘group destruction’ that widens the scope of genocidal intent does not lead to the inclusion of cultural genocide under the protective scope of the crime of genocide. In fact, Judge Shahabuddeen, himself, admonished that: [T]he foregoing is not an argument for the recognition of cultural genocide. It is established that the mere destruction of the culture of a group is not genocide: none of the methods listed in article 4(2) of the Statute need be employed.118

To use cultural destruction as evidence of the intent to destroy the group as such does not cover the criminality of acts of cultural genocide; it does not acknowledge them as genocidal acts, capable of destroying a group, on their own. Consequently, a paradoxical scenario arises. The use of culturally destructive practices might suggest that the perpetrator intends to destroy the targeted group. However, so long as none of the acts under the restrictive list of Article II are perpetrated, the legal definition of genocide cannot be applied. In the end, those acts cannot be prosecuted under the heading of genocide. It would be almost as if saying that there is bare intention with no corresponding conduct to criminally prosecute. This assessment does not make sense, when considering that the genocidal intent is manifesting itself through acts ‘targeting cultural structures and practices that allow the group to continue as a group’.119

113_{ibid para 50.} 114_{Novic (n 10) 51.} 115_{ibid 38.}

116_{ibid 94.}

117_{Krstić (Partial Dissenting Opinion of Judge Shahabuddeen) (n 112) para 50.} 118_{ibid para 53.}

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Furthermore, linking cultural genocide to the international crime of genocide by considering the former as evidence of the latter establishes a hierarchical relationship between the different types of genocide. Cultural genocide is a tool for prosecuting physical and/or biological genocide, but it is not itself prosecutable, nor labelled as ‘genocide’. In short, cultural genocide is treated as a distinct and subordinate reality, not as the crime of genocide per se.

It then becomes apparent that, despite the persisting links, cultural genocide and the international crime of genocide remain separate, insofar as the list of punishable acts under Article II of the Convention is interpreted restrictively. As Novic puts it, ‘even in the case of an alternative interpretation of the mens rea, the issue of “cultural genocide” would still be confronted with the mainly biological and physical nature of the actus

reus’.120

2.4. The actus reus obstacle

Having concluded that the main obstacle to the inclusion of cultural genocide within the protective scope of the crime of genocide is the current list of punishable acts, the question is, then, whether through hermeneutical efforts, practices of cultural genocide could be read into the actus reus of the crime.

A strict literal reading of Article II would preclude such a possibility. The wording of the provision – i.e. ‘any of the following acts’ – suggests that the enumeration thereafter is exhaustive. Moreover, in the Sixth Committee, China’s proposal to replace those words with ‘including the following’, in an attempt to make the list merely enunciative, was defeated.121 As a result, ‘any suggestion that article II invites the addition of analogous acts is unsustainable’.122

The inclusion of the forcible transfer of children, despite being associated with cultural genocide, cannot be seen as inviting the addition of other acts of cultural genocide, either. On the contrary, the exclusion of all but one of the acts that were laid

120_{Novic (n 10) 94.}

121_{Schabas, Genocide in International Law (n 16) 174-5.} 122_ibid.

Challenging the Exclusion of Cultural Genocide from the International Crime of Genocide