The Return of Cultural Genocide?

Abstract

Today, cultural genocide and the protection of cultural groups return to occupy criminal international law. Most writers see it as a new problem in need of normative solution. In this article we suggest that the problem is as old as the concept of genocide itself, and suggest to explore it through the lens of law and history. We argue that the original conceptualization of the crime of genocide-as presented by Raphael Lemkin-gave cultural genocide center stage. The novelty of the Nazi crime lay in the methodical attempt to destroy a group-well beyond typical war crimes and acts of repression-and what makes up a group's identity is its culture. Hence, for Lemkin, the essence of genocide was cultural. Ironically, the final text of the Convention on the Prevention and Punishment of the Crime of Genocide does not prohibit cultural genocide as such. What led to this almost total inversion of the original meaning of genocide, from an encompassing concept of genocide to one limited to its physical and biological aspects? Explaining the riddle of cultural genocide is the aim of this article. It will examine the various junctures of law, politics and history in which the concept was shaped: the original conceptualization by Lemkin; litigation in national and international criminal courts; and the drafting process of the Genocide Convention. Against the dominance of criminal law, we return to the forgotten successful struggle for cultural restitution (books, archives and works of art) fought by Jewish organizations after the Holocaust as a countermeasure to cultural genocide. We show that only by bringing together these various struggles can we recover a robust understanding of cultural genocide, once repressed by international law, and now returns to haunt us by the demands of groups for recognition and protection.