Comment: Written by Elizabeth Norman.
The debate surrounding whether the legal definition of genocide should include the deliberate eradication of one group’s culture, along with their physical and biological destruction, has gained a lot of attention in recent years. Last year the Canadian Truth and Reconciliation Committee made headlines when, in their final report, they stated that the indigenous schools policy of the 20th century amounted to cultural genocide.
Meanwhile, in September 2016, Ahmad al-Faqi al-Mahdi became the first person to be sentenced by the International Criminal Court for destroying important cultural monuments. He received a nine year sentence after being found guilty of destroying historic shrines in Timbuktu, an act which has now been classified as a war crime. This was welcomed by Mark Ellis, who specialises in war crimes and is the Chief Executive of the International Bar Association, as he argued that ‘the destruction of cultural heritage is not a second-rate crime. It’s part of an atrocity to erase a people.’
The concept of cultural genocide and cultural cleansing has also been brought to the forefront of international debate in the wake of ISIS’ continued destruction of sacred sites within Iraq and Syria. Most notably this destruction has included the looting and annihilation of artefacts within the Mosul museum in Iraq – which was filmed by those carrying out the attack – and the demolition of some of the most treasured relics in the ancient Syrian city of Palmyra. This has since prompted both UN spokesperson Stephane Dujarric and UNESCO Director-General Irina Bokova to declare that ISIS is deliberately committing cultural cleansing in order to rob people of their past. Bokova went as far as to say that ISIS are trying to re-write history and that such actions ‘deprive the Syrian people of its knowledge, its identity and history.’
Despite this, the deliberate destruction of one group’s cultural identity is not currently legally defined as genocide. Although cultural cleansing is sometimes considered during investigations into physical genocide – as was the case with the International Criminal Tribunal for the Former Yugoslavia during their investigation into the genocide committed by the Serbian army during the Bosnia war.
The concept of cultural genocide is nothing new. It has existed since the term ‘genocide’ was first coined by Polish Law Professor Raphael Lemkin, in his ground-breaking text Axis Rule in Occupied Europe, in 1945. Within this work Lemkin himself argued that the deliberate and coordinated attack on one group’s culture and property was a key component of genocide. In addition, when he proposed the treaty against genocide to the UN in 1945, Lemkin also stated that: ‘[w]hoever, while participating in a conspiracy to destroy a national, racial or religious group, undertakes an attack against the life, liberty or property of members of such groups is guilty of genocide.’
Despite this the 1948 Convention on the Prevention and Punishment of Crimes of Genocide failed to include cultural genocide, except for prohibiting the forceful transfer of one group’s children to another group. However, Article’s 22 and 27 of the UN Universal Declaration of Human Rights do specify that everyone is entitled to cultural rights and should be free to partake in cultural life. There are also other various human rights treaties that specify the need to protect culture. This has led many to claim that cultural identity is already protected under international law and that it should be kept distinct from the issue of genocide – which should stay purely focused on the destruction of people.
To claim that human rights treaties can adequately deal with the deliberate eradication of one group’s cultural identity and to argue that genocide should just focus on the destruction of people is to completely misjudge the severity of the actions being taken.
As Professor David Nersessian explains in his essay Rethinking Cultural Genocide Under International Law ‘limiting genocide to its physical and biological manifestations, a group can be kept physically and biologically intact even as its collective identity suffers in a fundamental and irremediable manner. Put another way, the present understanding of genocide preserves the body of the group but allows its very soul to be destroyed.’
In the wake of the rise of such attacks on cultural identity and monuments by extremist groups such as ISIS, it is about time we returned to the question of whether the current legal definition of genocide goes far enough towards protecting the preservation of a group. Until the legal definition recognises that the destruction of culture, just as much as the destruction of persons, can bring about the death of a group’s identity then I am afraid to say it does not.