Power point presentation:
Cultural genocide, a challenge for international law
The protection and promotion of the diversity of human groups: Does culture matter?9 May 2009
Overview- Prevention of genocide: Does culture matter?
- Switzerland’s possible contribution to the goals addressed in the Genocide Prevention Task Force’s Report of December 8, 2008
- Research hypotheses: A round trip from cultural diversity to cultural genocide
- Case study: China and Tibet – WTO and UNESCO dispute resolution compared, see www.culturalgenocideresearch.blogspot.com/
Prevention of genocide and mass atrocities
1798: Napoleon in Nidwalden - Reluctance to intervene
- The later the intervention the higher its cost
- Highest cost when intervention is too late
- Weakness of international criminal law to prevent genocide
2008: New development in law? Mrs. Josiane Aubert, Member of the Swiss parliament (National Council) and President of its Culture and Education Commission submitted a motion signed by 82 lawmakers inviting the federal government to elaborate and propose legislation on cultural genocide prevention. The Swiss government rejected the proposal on 13 May 2009.
See text at: www.culturalgenocideresearch.blogspot.com/
Protection and promotion of the diversity of human groups 1) Taking stock of existing law (with an assessment of its effects)
2) Overcoming fragmentation of law and seeking coherence, for example on human rights in relation to “human group” rights
3) Taking inspiration from (and reinforcing) laws and policies on biological and cultural diversity – taking culture as seriously as biology…
--> Desirable new law: A convention on the protection and promotion of the diversity of human groups?
History of human groups protection- Pre WW I treaty clauses non-systematically protecting religious minorities
- Post WW I system protecting minorities within the League of Nations
- Post WW II:
Nurnberg Trials, Genocide Resolution (1946) and Convention (1948)
ICTY Statute, ICTR Statute and the Rome Statute of the ICC.
Domestic law (e.g. Eichmann Trial: Nazis and Nazi Collaborators (Punishment) Law of 1950 that covers acts “destroying or desecrating Jewish religious or cultural assets or values”.
The value of human groups as source of culture “Genocide (…) results in great losses to humanity in the form of cultural and other contributions represented by these human groups (…)” (UN General Assembly Genocide Resolution, 1946 96 (I))
“It takes centuries and sometimes thousands of years to create a natural culture, but genocide can destroy a culture instantly, like fire can destroy a building in an hour.”
(Raphael Lemkin, The importance of the Convention, p. 1, reel 2, Lemkin Papers, New York Public Library)
Reasons for exclusion of “cultural genocide” - Dilution (preparatory works of the Genocide Convention):
The Canadian, French, United States and United Kingdom held that this crime was not on par with physical genocide and should be dealt with separately, and that too wide a definition of genocide would render the Convention meaningless.
- Desintegration (e.g. China versus Tibet)
- A human rights rather than human group rights issue (see also preparatory works)?
Human rights and human group rights Vertical and horizontal application of human rights: protection of the individual vis-à-vis the public or private group (for example Art. 10 ECHR on freedom of speech)
-->A Protection of groups vis-à-vis other groups:
- Minorities protection
- Protection of majorities against desintegrating minorities?
- Protection of individual members of human groups be protected from each other?
--> Promotion of the diversity of human groups?
Exploring new legal avenues Two legal instruments may inspire the research:
- 1992 Convention on biological diversity (www.cbd.int/)
- 2005 Convention on the diversity of cultural expressions (www.unesco.org/culture/en/diversity/convention)
--> What about research on diversity in other scientific disciplines?
Biological Diversity Convention Signed by 150 government leaders at the 1992 Rio Earth Summit, the Convention on Biological Diversity is dedicated to promoting sustainable development. The Convention recognizes that biological diversity is about more than plants, animals and micro organisms and their ecosystems – it is about people and their need for food security, medicines, fresh air and water, shelter, and a clean and healthy environment in which to live.
Cultural Diversity Convention Article 4 of the 2005 UNESCO Cultural Diversity Convention:
2. Cultural content
“Cultural content” refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities.
3. Cultural expressions
“Cultural expressions” are those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.
Differentiating human groups Definition of “human group” based on
- biological / physical (“natural” differences – “discovery”)
- social / political / ethnical / cultural / intellectual / religious / economic etc. (“man made” differences – “invention”)
differences.
--> All differences, but biological and physical ones, are based on “cultural expressions”.
Shift of mentality? Original mainstream celebrating “monoculture” and “uniform culture” for economic reasons (agriculture) and for the purpose of assimilation (culture).
Recently: shift of paradigm to “biological diversity” and “cultural diversity”
Next step: shift of mentality from “supremacy” and “purity” to valorizing the “diversity of human groups”?
Hypothesis 1 Legal developments tend to indicate that the enforcement of the Genocide Convention of 1948 increasingly deters the perpetration of classical forms of genocide; for this reason, cultural genocide may gain new significance on the international level as a way for perpetrators to circumvent the prohibition of physical and biological genocide.
Comments Assumption: Physical acts (actus rea) according to the Genocide Convention initial two drafts
Destruction of a human group (mens rea) through the destruction of its “cultural expressions”:
- Would it be enough to destroy the cultural identity in order to destroy the group?
- Quid other “identities” such as national, political and religious identities?
- Attacks on “cultural expressions” of a human group can reinforce such group’s cohesion, identity and culture (cultural stress test)
CommentsIs there a real risk of circumvention?
- Difficult assessment of the preventive effect of criminal law.
- Do potential perpetrators consider the legal consequences of their behavior?
Is existing law enough to address “cultural genocide”? - Compare also recent case law based on the Genocide Convention on rape, selective killing and deportation (“ethnic cleansing”)
Hypothesis 2 The prevention of cultural genocide de lege ferenda strengthens the prevention of physical and biological genocide de lege lata; this hypothesis combined with an appropriate application of the mental elements (mens rea) insures that cultural genocide de lege ferenda will not diminish or dilute the meaning of physical or biological genocide as the “crime of crimes” de lege lata.
CommentsCan the prevention of “cultural genocide” contribute to prevent physical and biological genocide?
Yes: preventing acts that remove inhibition by destroying first culture and than people
Issues of dilution and desintegration?
Mens rea safeguard: destruction of the group “as such”
Hypothesis 3 The prevention of physical and biological genocide can be more effective by reinforcing the protection and promotion of cultural diversity in international law in order to prevent cultural genocide.
Comments Article 8 of the UNESCO Convention on Cultural Diversity presents a particular interest since it provides that Parties may take all appropriate measures to protect and preserve cultural expressions in special situations where cultural expressions on their territories are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding.
Comments Cultural genocide is the most extreme negation of cultural diversity.
A society who cares for biological and cultural diversity will care for the diversity of human groups --> A legal round trip from cultural diversity to cultural genocide
Degree of cultural and biological diversity as indicator of genocide risk – towards an early warning system based on “cultural expressions” addressing “uniformity”, “purity”, “supremacy” etc.
4 Hypothesis If hypotheses 1 to 3 are verified, culture really matters.
In order to acknowledge the full meaning of culture, “cultural genocide” as the most extreme negation of cultural diversity must be considered as a crime as serious as physical and biological genocide.
Test the hypotheses in the case of China and Tibet At the end of December 2006, China ratified the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
“Ratification would help China protect its cultures and promote the development of a cultural industry, so reverse an imbalance in cultural trade”, said Culture Minister Sun Jiazheng according to People’s Daily online of 29 December 2006.
In March of 2008, the Peace Nobel Prize winner Dalai Lama denounced that “some kind of cultural genocide is taking place."
Preliminary conclusions1) Criminal law is not the only legal avenue to prevent the destruction of a human group as such, but it presents also a symbolic meaning.
2) Cultural diversity matters as much as biological diversity for the individual and the group. As a consequence, new international criminal law on “cultural genocide” is desirable.
3) A new convention on the diversity of human groups inspired by the Convention on Biological and Cultural Diversity is desirable.
Materials and comments “Despite its status as the oldest of the major human rights treaties, the Genocide Convention remains a work in progress.“
John Quigley, The Genocide Convention, An International Law Analysis, Ashgate, Hampshire 2008, p. 284
