Notes

  1. James Cuno, “The Responsibility to Protect the World’s Cultural Heritage,” Brown Journal of World Affairs 23, no. 1 (Fall–Winter 2016): 104.↩
  2. The first in the series is Thomas G. Weiss and Nina Connelly, “Cultural Cleansing and Mass Atrocities: Protecting Cultural Heritage in Armed Conflict Zones,” J. Paul Getty Trust Occasional Papers in Cultural Heritage Policy, no. 1 (Los Angeles, December 2017), http://www.getty.edu/publications/occasional-papers-1/.↩
  3. Irina Bokova, “Fighting Cultural Cleansing: Harnessing the Law to Preserve Cultural Heritage,” Harvard International Review (August 24, 2015): 5.↩
  4. Rome Statute of the International Criminal Court, UN document, A/CONF.183/9, 17 July 1998, as corrected. See Article 8, 2 (b), (ix) on situations of international armed conflict and Article 8, 2 (e), (iv) on situations of armed conflicts not of an international character. The Mali case was considered by the Court to be the latter.↩
  5. For summaries of the case, see “Prosecutor v. Ahmad Al Faqi Al Mahdi: International Criminal Court Imposes First Sentence for War Crime of Attacking Cultural Heritage,” Recent Cases, Harvard Law Review 130 (May 10, 2017): 1978–85; and Uzma S. Bishop-Burney, “Prosecutor v. Ahmad Al Faqi Al Mahdi,” American Journal of International Law 111, no. 1 (January 2017): 126–32.↩
  6. Jason Burke, “ICC Ruling for Timbuktu Destruction ‘Should Be Deterrent to Others,’” Guardian, September 27, 2016.↩
  7. For contrasting perspectives, see Kathryn Sinkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W. W. Norton, 2011); and Sheri P. Rosenberg, “Audacity of Hope: International Criminal Law, Mass Atrocity Crimes, and Prevention,” in Reconstructing Atrocity Prevention, ed. Sheri P. Rosenberg, Tibi Galis, and Alex Zucker (Cambridge: Cambridge University Press, 2016), 151–74.↩
  8. Irina Bokova, “Culture on the Front Line of New Wars,” Brown Journal of World Affairs 22, no. 1 (Fall–Winter 2015): 289.↩
  9. Ibid., 291 and 294, respectively.↩
  10. UN document, S/PV.7907, provisional verbatim records of the Security Council, 7907th meeting, 24 March 2017, p. 4.↩
  11. For the latter, see UN document, Report of the Secretary-General on the Implementation of Security Council Resolution 2347 (2017), S/2017/969, 17 November 2017.↩
  12. As UNESCO acknowledged in 2015, the term “cultural cleansing” has “been used in public statements, speeches and interviews to raise awareness on the systematic and deliberate nature of attacks on cultural heritage and diversity perpetrated by violent extremist groups in Iraq and Syria. The notion of ‘cultural cleansing’ is not a legal term.” UN document, 38 C/49, UNESCO General Conference, Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict, 2 November 2015, 2n2.↩
  13. The Council had previously included the protection of cultural heritage as one of the multiple mandates of its peace operations in Mali. The 25 April 2013 mandate for the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) included assisting “the transitional authorities of Mali, as necessary and feasible, in protecting from attack the cultural and historical sites in Mali, in collaboration with UNESCO.” UN document, Security Council Resolution 2100 (2013), op. para. 16 (f).↩
  14. Security Council Report, “Briefing and Draft Resolution on Protection of Cultural Heritage in Armed Conflicts,” What’s in Blue, 23 March 2017.↩
  15. UN document, Security Council Resolution 2347 (2017), 24 March 2017, op. para. 1.↩
  16. Ibid., op. para. 5 and passim.↩
  17. UN document, S/PV.7907, p. 10.↩
  18. Ibid., 15.↩
  19. Ibid., 14, 17, and 20, respectively.↩
  20. Ibid., 12, 17.↩
  21. Security Council Report, “Briefing and Draft Resolution.”↩
  22. International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001).↩
  23. There is an enormous and growing literature on R2P, including a dedicated journal. For a succinct narrative on the roots and evolution of R2P, see Alex J. Bellamy and Edward C. Luck, The Responsibility to Protect: From Promise to Practice (Cambridge: Polity Books, 2018), chap. 1.↩
  24. UN document, Report of the Secretary-General, Implementing the Responsibility to Protect, A/63/677, 12 January 2009.↩
  25. Edward C. Luck and Dana Zaret Luck, “The Individual Responsibilty to Protect,” in Rosenberg et al., Reconstructing Atrocity Prevention, 207–48.↩
  26. There has been a marked expansion of the literature on Lemkin and his theory of genocide. See, for instance, Douglas Irvin-Erickson, Raphaёl Lemkin and the Concept of Genocide (Philadelphia: University of Pennsylvania Press, 2017); John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York: Palgrave Macmillan, 2008); and William Korey, An Epitaph for Raphael Lemkin (New York: Jacob Blaustein Institute for the Advancement of Human Rights, 2001).↩
  27. Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, and Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace, 1944), xiii. For a discussion of his Madrid proposals, see James Waller, Confronting Evil: Engaging Our Responsibility to Prevent Genocide (Oxford: Oxford University Press, 2016), 7–8. By 1933, Lemkin later commented, “Hitler had already promulgated his blueprint for destruction. Many people thought he was bragging, but I believed that he would carry out his program if permitted.” Raphael Lemkin, Totally Unofficial: The Autobiography of Raphael Lemkin, ed. Donna-Lee Frieze (New Haven, CT: Yale University Press, 2013), 22.↩
  28. Lemkin, Axis Rule, 91; emphasis in original.↩
  29. Waller, Confronting Evil, 6–7.↩
  30. Lemkin, Totally Unofficial, 241n1.↩
  31. Ibid., chap. 2, 25–40. He found an academic position in Sweden before gaining a post at Duke University in 1941 and then one at Yale Law School.↩
  32. Irvin-Erickson, Raphaёl Lemkin, 73–74.↩
  33. Lemkin, Axis Rule, 79.↩
  34. See, for instance, Philippe Sands, East West Street: On the Origins of Genocide and Crimes against Humanity (New York: Alfred A. Knopf, 2016); and William A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd ed. (Cambridge: Cambridge University Press, 2016).↩
  35. Lemkin, Axis Rule, 79.↩
  36. Ibid.↩
  37. Ibid., xi; emphasis in original.↩
  38. Ibid.↩
  39. Ibid., 82–90.↩
  40. Ibid., xii.↩
  41. Ibid., 84–85.↩
  42. Ibid., quote from 90, list of past wars of extermination from 80n.↩
  43. Ibid., 92.↩
  44. Ibid., 79.↩
  45. Ibid.↩
  46. Lemkin, Totally Unofficial, 125.↩
  47. Ibid., 172↩
  48. A. Dirk Moses, “Raphael Lemkin, Culture, and the Concept of Genocide,” in The Oxford Handbook of Genocide Studies, ed. Donald Bloxham and A. Dirk Moses (Oxford: Oxford University Press, 2010), 34.↩
  49. On the latter, see Lemkin, Totally Unofficial, 172–73.↩
  50. Raphael Lemkin, “Genocide,” American Scholar 15, no. 2 (April 1946): 227.↩
  51. As noted above, the deliberate destruction of tangible cultural heritage has since become the subject of the 1954 Hague Convention and the 1998 Rome Statute of the ICC (the latter as a war crime). Elisa Novic asserts that this has become “part of customary international law.” She notes, however, that the instruments do not cover attacks on intangible cultural heritage and, as pointed out above, do not apply to situations where there is no armed conflict. Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (Oxford: Oxford University Press, 2016), 129–30.↩
  52. In Lemkin’s view: “According to the doctrine of National Socialism, the nation, not the state, is the predominant factor. In this German conception the nation provides the biological element for the state.” Lemkin, Axis Rule, 80.↩
  53. Ibid., 91.↩
  54. Ibid., 80.↩
  55. Raphael Lemkin, “Genocide,” American Scholar 15, no. 2 (April 1946): 228.↩
  56. Ibid.↩
  57. Lemkin, Axis Rule, xiii.↩
  58. Ibid., 93.↩
  59. Ibid., 90.↩
  60. Ibid., 95.↩
  61. At one point, he did note in passing that the Security Council could seek an advisory opinion from the International Court of Justice “to determine whether a state of genocide exists within a given country before invoking, among other things, sanctions to be leveled against the offending country.” Lemkin, “Genocide,” 230.↩
  62. Edward C. Luck, “Roots of Ambivalence: The United Nations, Genocide, and Mass Atrocity Prevention,” in Preventing Mass Atrocities: Policies and Practice, ed. Barbara Harff and Ted Robert Gurr (London: Routledge, 2018).↩
  63. Lemkin, Axis Rule, xii, 93, 94.↩
  64. UN document, General Assembly, Fifty-Fifth Plenary Meeting, Resolution 96 (l), 11 December 1946.↩
  65. For the draft, UN document E/447 (1947), see Christian J. Tams, Lars Berster, and Björn Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (Munich: C. H. Beck, 2014), Annex 2, 419–23.↩
  66. William Schabas relates that the other two independent experts and the Secretary-General had reservations about including the crimes associated with cultural genocide in the draft, but decided that it was better to leave that decision to the Member States in ECOSOC and the General Assembly. Schabas, Genocide in International Law, 61.↩
  67. Ad Hoc Committee Draft, UN document E/AC.25/12; see Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 424.↩
  68. See the debate in the Sixth Committee of the UN General Assembly, Paris, 25 October 1948, UN document, A/C.6/SR.83, p. 204.↩
  69. Lemkin, Totally Unofficial, 173.↩
  70. The draft Article III read, “In this Convention 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 the national or racial origin or religious belief of its members such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; 2. Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.” Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 424.↩
  71. These included Sweden, Brazil, Denmark, Canada, New Zealand, India, Peru, South Africa, the Netherlands, the United States, Belgium, and France. France did not participate in the debate over Article III, but it had already proposed that the question be referred to the Third Committee. Sixth Committee, UN document, A/C.6/ SR.83, pp. 197–204.↩
  72. Ibid., 198, 202, and 203, respectively.↩
  73. Ibid., 197, 199, 200, and 203, respectively.↩
  74. Ibid., 199.↩
  75. These included Pakistan, Venezuela, China, Egypt, Syria, Byelorussia, Ecuador, USSR, and Czechoslovakia. Ibid., 193–206.↩
  76. Ibid., 193–95 and 201, respectively.↩
  77. Ibid., 201–2 and 205–6, respectively.↩
  78. Ibid., 206.↩
  79. Ibid., 197.↩
  80. Ibid., 198.↩
  81. Payam Akhavan, “Cultural Genocide: Legal Label or Mourning Metaphor?,” McGill Law Journal 61, no. 4 (2016): 260.↩
  82. Sixth Committee, UN document, A/C.6/SR.83, pp. 199–200.↩
  83. Ibid., 197.↩
  84. Ibid., 201, 201, 203, and 204, respectively.↩
  85. Ibid., 202.↩
  86. Ibid., 193.↩
  87. Ibid., 199.↩
  88. Lemkin, Totally Unofficial, 172.↩
  89. Ibid., 173.↩
  90. UN document, E/447.↩
  91. Quoted in Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 91–92.↩
  92. Ibid., 92–93; and Akhavan, “Cultural Genocide,” 258–63. Article II (e) of the Convention reads, “forcibly transferring children of the group to another group.”↩
  93. Tams, Berster, and Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide, 81–83.↩
  94. UN Document, ECOSOC Resolution 1982/34 on the Study of the Problem of Discrimination against Indigenous Populations, 28th Plenary Meeting, 7 May 1982.↩
  95. UN Document, E/CN.4/Sub.2/1993/29. The Draft Declaration is included as Annex I of the Report of the Working Group on Indigenous Populations on its Eleventh Session, 23 August 1993, UN Commission on Human Rights, 45th Session, Agenda Item 14.↩
  96. Ibid., 52.↩
  97. It is uncertain what Lemkin would have thought of this application of his concept of cultural genocide. He had long been concerned about minority rights and, as noted above, called in Axis Rule for the enhancement of protections for minorities in Europe. Yet A. Dirk Moses quotes Lemkin as making a distinction that would be quite relevant to the debate on preserving indigenous cultures: “Obviously throughout history we have witnessed decline of nations and races. We will meet this phenomenon in the future too, but there is an entirely different situation when nations or races fade away after having exhausted their spiritual and physical energies, and there is a different contingency when they are murdered on the highway of world history. Dying of age or disease is a disaster but genocide is a crime.” Moses, “Raphael Lemkin, Culture, and the Concept of Genocide,” 28.↩
  98. UN document, UN General Assembly Resolution 61/295, United Nations Declaration on the Rights of Indigenous Peoples, Annex, 13 September 2007. For the vote tally and explanations of votes, see A/61/PV.107, 13 September 2007. Those abstaining included the Russian Federation, Ukraine, Georgia, and eight developing countries.↩
  99. Website of the UN Department of Economic and Social Affairs (DESA), Division for the Inclusive Social Development of Indigenous Peoples. Accessed June 14, 2018.↩
  100. There is a large and diverse literature on these and similar situations elsewhere. See, for instance, Akhavan, “Cultural Genocide”; Moses, “Raphael Lemkin, Culture, and the Concept of Genocide”; Johannes Morsink, “Cultural Genocide, the Universal Declaration, and Minority Rights,” Human Rights Quarterly 21 (1999): 1009–60; Shamiran Mako, “Cultural Genocide and Key International Instruments: Framing the Indigenous Experience,” International Journal on Minority and Group Rights 19 (2012): 175–94; Francesco Francioni, “Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity,” Michigan Journal of International Law 25 (Summer 2004): 1209–28; and Damien Short, “Cultural Genocide and Indigenous Peoples: A Sociological Approach,” International Journal of Human Rights 14, no. 6 (November 2010): 831–46.↩
  101. This appears to have been the case with Da’esh in Iraq and Boko Haram in Nigeria, as both groups engaged inthe abduction of children, apparently targeted by religion.↩
  102. In 2014, U.S. president Barack Obama accused Da’esh of genocidal intent in its destruction of Yazidi communities, and in 2016 Secretary of State John Kerry included cultural genocide among the charges against Da’esh. Kerry asserted that “we know that in areas under its control, Daesh has made a systematic effort to destroy the cultural heritage of ancient communities,” mentioning several of them. See White House, Office of the Press Secretary, Statement by the President, August 7, 2014; and U.S. Department of State, Statement of Secretary of State John Kerry, March 17, 2016, respectively.↩
  103. In developing the term “politicide” as a supplement to genocide, Barbara Harff has pointed out that the Genocide Convention does not cover mass violence “with politically defined victims.” Some of the situations producing very high levels of violence over the past century would qualify as politicides more readily than as genocides. Barbara Harff, “No Lessons Learned from the Holocaust? Assessing Risks of Genocide and Political Mass Murder since 1955,” American Political Science Review 97, no. 1 (February 2003): 58.↩
  104. William Schabas, for instance, has come to regret the exclusion of cultural genocide from the Convention, noting that “the normative protection of ethnic and national minorities against cultural persecution remains an underdeveloped zone within the overall scheme of international human rights.” Schabas, Genocide in International Law, 646.↩