20 No. 69 JUSTICE and forcibly transferring children and preventing births within the group.6 The groups to which the Convention refers are national, ethnic, racial, and religious.7 This article sheds light on the criticism raised against the narrow definition, and focusses on two aspects: the importance of the inclusion of cultural, and not only physical genocide, as an integral element of the crime; and the inclusion of political affiliation among the groups protected by the Convention. 2. Cultural Genocide Cultural genocide refers to the systematic destruction of a group by targeting its cultural heritage, including its tangible and intangible cultural structures. According to the analysis of genocide by Raphaël Lemkin, cultural genocide is one of eight techniques of implementing genocide. These techniques comprise a wide spectrum of physical and non-physical means of destroying a group, including political, social, cultural, economic, religious, and moral means. Cultural aspects include “the destruction of cultural symbols… [which] menaces the existence of the social group which exists by virtue of its common culture.”8 Lemkin views this type of destruction as genocide. Cultural genocide is like the concept of genocide in the sense that it targets a group and not individuals per se. Groups are a fundamental element of genocide because of their crucial significance to the sustainability and continuity of a nation, race, ethnos, and religion. When a group is destroyed, its heritage and even its intergenerational connections may be destroyed. Even though the members of the group are not physically exterminated, they lose the role the group played in their lives, a crucial and irredeemable loss of both external recognition and self-acknowledgment.9 The United Nations Draft Declaration of the Ad Hoc Committee on Genocide established by the Economic and Social Council in 1948 included cultural genocide in the definition of the crime, stating that 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 national or racial origin or religious belief.”10 The committee also provided examples of such acts: the prohibition on the use of the language of the groups and the destruction or prevention of the use of libraries, attending museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group. The draft nevertheless excluded from its definition the forced assimilation of a national group, and determined that a policy of forced assimilation does not constitute genocide.11 One reason for excluding forced assimilation from the purview of “genocide” in the Genocide Convention can also explain the final decision to ultimately exclude cultural genocide from the convention. This explanation rests on some of the political constraints in the background of the drafting of the Genocide Convention. In 1948, when the convention was drafted, colonial states such as the United States, France, and the United Kingdom,12 and other states with indigenous peoples under their sovereignty, such as Canada and Australia, two of which (the United States and France) were members of the Ad Hoc Committee on the Genocide Convention,13 warned that the inclusion of cultural genocide might impede legitimate efforts by states to foster a national community and “civilize” the peoples under their control.14 Therefore, except for the prohibition on transferring children from the targeted group to another – an act that can be interpreted as intending to sever the cultural connection between those children and their national, destruction, allegedly committed at least between 2003 and 2008 in Darfur, Sudan. Some examples of genocide case law in the ad hoc tribunals are: Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, Sept. 2, 1998; Judgment, Jelisic (IT-95-10-T), Trial Chamber, Dec. 14, 1999 (“Jelisic Trial Judgment”); Judgment Krstić ( IT-98-33-T), Trial Chamber, Aug. 2, 2001 (“Krstić Trial Judgment”); Judgment, Brdanin ( IT-99-36-T), Trial Chamber, Sept. 1, 2004. 6. Genocide Convention, Art. 2. 7. Ibid. 8. Raphaël Lemkin, “The Concept of Genocide in Anthropology,” NYPL, Box 2, Folder 2. 9. Larry May, GENOCIDE: A NORMATIVE ACCOUNT 10-87 (Cambridge University Press, 2010). 10. Genocide Draft Convention. 11. Ibid. 12. The United States and France were members of the Ad Hoc Committee on the Genocide Convention. See Jeffrey S. Bachman, “An Historical Perspective,” in LAW, POLITICS, AND GLOBAL MANIFESTATIONS 48 (London: Routledge, 2019). 13. Jeffrey S. Bachman, “An Historical Perspective,” in LAW, POLITICS, AND GLOBAL MANIFESTATIONS 48 (London: Routledge, 2019). 14. Julie Cassidy, “Unhelpful and Inappropriate? The Question of Genocide and the Stolen Generations,” 13(1) AUSTRALIAN INDIGENOUS LAW REVIEW 114-139, 130 (2009); Johannes Morsnik, “Cultural Genocide, the Human Rights Declaration on Minority Rights,” 21 (4) HUMAN RIGHTS QUARTERLY 1009-1060, 1025 (1999).
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