21 Spring 2023 (UNDRIP) makes more specific references to Indigenous Peoples’ right not to be subjected to forced assimilation or destruction of their culture.23 This is perhaps because the cultural genocide of indigenous groups is more egregious than other forms of ethnocide. The connection between physical and cultural genocide has practical implications that could also serve to warn of genocide in advance and perhaps prevent the genocide. If evidence of cultural genocide is collected before the physical destruction begins, relevant monitoring bodies such as the UN Human Rights Council, the UN human rights treaty bodies, and especially the UN Office on Genocide Prevention and Responsibility to Protect could intervene to warn of the possibility of genocide. Moreover, the importance of cultural genocide exceeds the legal realm and has broader implications for the social and political context. The fact that the non-physical destruction of a group is a fundamental factor in determining its overall destruction means that the legal understanding of genocide, entrenched by the Genocide Convention, is too limited. Outside the narrow lens of international law in general, and international criminal law in particular, a broader concept of genocide should be endorsed. A sharp distinction between what destroys a culture and what kills a people is often not possible. On the contrary, it is more likely that the two concepts of physical and cultural destruction are inextricable; the 15. James Anaya, cited by Cassidy, supra note 14, n.15, at 129. 16. Genocide Convention, Article 2 determines that a crime of genocide requires “[the] intent to destroy in whole or in part a national, ethnical, racial or religious group, as such.” 17. ICC-02/05-01/09, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Al Bashir, March 4, 2009, ¶ 145. 18. Judgment Krstić (IT-98-33-T), Trial Chamber, Aug. 2, 2001 (Krstić Trial Judgment), § 580; Judgment, Krstić (IT-98-33-A), Appeals Chamber, April 19, 2004 (Krstić Appeal Judgment), § 53. 19. Krstić Trial Judgment, § 580. 20. Bosnia v. Serbia, § 344. 21. Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/Conf.183/9 (entered into force July 1, 2002) (“ICC Statute”), Art.7 (1)(h), 1009-1060, 1025. 22. UN Office of the High Commissioner for Human Rights (OHCHR), The United Nations Declaration on the Rights of Indigenous Peoples, August 2013, HR/PUB/13/2. 23. UNDRIP, Art. 8(1), 8(2). ethnic, or religious origin – cultural genocide was finally removed from the Genocide Convention. The Convention defines the crime of genocide as including five acts of which four pertain exclusively to the physical destruction of the members of the group (and thus, the group itself): killing, causing serious bodily or mental harm, deliberately inflicting specific conditions of life on the group calculated to bring about its destruction, and imposing measures to prevent births within the group. Thus, currently, there is no legal support in a treaty and state practice for the idea that “the destruction of culture short of physical destruction of such protected groups [constitutes] an act of genocide.”15 Nevertheless, this is not to say that the concept of cultural genocide has no relevance in the legal arena and beyond. While studies have identified cultural genocide as part of the process of genocide, they also address it as a process of its own, called ethnocide. In this sense, cultural genocide has an independent existence as a crime in itself: genocide without murder. Cultural genocide has also remained of crucial importance in the legal arena. Various branches of international law address many facets of the concept. In international criminal law, international courts have applied the concept of cultural genocide to maintain that under certain circumstances, cultural genocide can amount to genocide or serve as evidence for the specific intent (mens rea) to destroy the group.16 The ICC prescribed that this can be the case when “such a practice… brings about the commission of the objective elements of genocide… with the dolus specialis [special intent] to destroy in whole or in part the targeted group.”17 The ICTY discussed the mass killing of between 7,000 and 8,000 Bosnian Muslims in Srebrenica and suggested that when a physical or biological destruction takes place, it is often accompanied by attacks on religious property and symbols of the religious group. This can indeed serve as evidence of intent to destroy the group.18 The ICTY, therefore, saw the destruction of mosques and houses of Bosnian Muslims as evidence for the specific intent to commit genocide.19 This argument was also endorsed by the ICJ in the Bosnia v. Serbia case, in which the court applied the decision of the Krstić Trial Chamber when it assessed the special intent of the perpetrators of the Srebrenica genocide.20 In addition, beyond the crime of genocide, international criminal law includes the constitutive acts of cultural genocide within “persecution” – an offence included in crimes against humanity in the ICC Statute.21 International human rights law treaties also protect culture, and the UN Declaration on the Rights of Indigenous Peoples22
RkJQdWJsaXNoZXIy MjgzNzA=