DAMODARAM SANJIVAYYA

NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE: Cultural Genocide Under International Criminal Law

SUBJECT: International Criminal Law

NAME OF THE FACULTY: Arvindnath Tripathi

Name of the Candidate: B. Milinda

Roll No: 2018017
Semester: 10th
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AKNOWLEDGEMENT

“I would like to express my special thanks of gratitude to my teacher Arvindnath Tripathy

who gave me the golden opportunity to do project on Cultural Genocide Under International
Criminal Law which also helped me in doing a lot of research and I came to know about so
many new things I am really thankful to Sir”
 3

TABLE OF CONTENTS
ABSTRACT ………………………………………………………………..……….…… 4

SYNOPSIS …………………………………………………………………….………….. 4

A BRIEF HISTORY OF CULTURAL GENOCIDE ……………………………………..6

CULTURAL GENOCIDE AND MODERN INTERNATIONAL CRIMINAL LAW ….

1. WAR CRIMES ………………………………………………………………..……..9

2. CRIMES AGAINST HUMANITY AND PERSECUTION

……………………...12

CONCLUSION ……………………………………………………………………………..14
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ABSTRACT
This project analyses the current state of cultural genocide under international law. It
juxtaposes the original legal definition of cultural genocide proposed (and rejected) in the
1948 Genocide Convention against the ways that international law treats cultural genocide
today. The goal is to consider examples of the different ways that international law now
handles cultural genocide in order to compare them to the original conception. To that end,
the concept is analysed in several settings where international law is developed and applied,
such as international criminal tribunals, human rights bodies, domestic courts, and UN
organs. After a brief review of historical antecedents, acts of cultural destruction that prima
facie would meet the original definition are considered through various alternative legal
lenses – as descriptive and evidentiary matters, as human rights violations, and as other types
of international crimes (notably, war crimes and crimes against humanity). It concludes that,
despite some progress, considerable gaps remain. The international community therefore
should continue to work toward an international instrument that addresses the true criminality
inherent in cultural genocide.

SYNOPSIS
Scope of the project:
The present project considers cultural genocide in a broad sense – juxtaposing the original
legal concept proposed (and rejected) when the 1948 Genocide Convention was finalized
against the ways that international law treats cultural genocide today. The concept will be
analyzed and discussed in several settings where international law is developed and applied,
such as international criminal tribunals, human rights bodies, domestic courts, and UN
organs.

Significance of the project:

The harm caused by cultural genocide is the injury to the unique cultural existence of the
group itself, as opposed to infringements upon the individual cultural rights of group
 5

members. The failure to protect the collective’s cultural existence “as such” has real
consequences. In that respect the present project is significant.

Objective of the project:

1. For a better understanding about the international criminal law which is governing the
Genocide and its consequences.
2. To analyse the possible solutions for those consequences.

Research Question:
1. Whether the international criminal law is adequate to deal with the modern issues
related to Genocide?

Research Methodology:
The author followed doctrinal and analytical method of research.

INTRODUCTION
While the practice dates to antiquity 1, the intentional destruction of the cultural heritage,
objects, and practices belonging to other human groups remains a significant problem for the
international community today. As detailed herein, when perpetrated to destroy the unique
cultural attributes of the group itself, attacks on culture qualify as the specific form of
destruction known as “cultural genocide.”
Cultural destruction often is a consequence of war. During the ongoing conflicts in Iraq and
Syria, for example, “in addition to the tragic loss of human life and the humanitarian crisis,
cultural heritage has been intentionally targeted, damaged, trafficked, and destroyed.” Post
conflict environments – especially in failed states like Libya – also are ripe for destruction.
But it also occurs during peacetime, often as part of a wider body of discriminatory state
policies. Cultural genocide has been employed, for example, as a technique to subdue
indigenous populations into the ways of majority rulers. Notable instances include the
“Stolen Generations” of Australian Aborigines removed from their tribes between 1925 and

1
Jack Martin Balcer, “The Greeks and the Persians: The Processes of Acculturation.” Historia: Zeitschrift Für
Alte Geschichte 32, no. 3 (1983): 257-67, 259 (describing “column drums and architectural pieces of the
acropolitan temples destroyed by the marauding Persians” during Persian invasions of Greece in the 5th Century
BCE).
 6

1949 and the century long system of compulsory residential schooling for native children in
Canada.2
Cultural destruction also can arise during territorial occupations by foreign powers, even if
outright hostilities concluded long ago. The Dalai Lama, for example, has accused the
Chinese government of committing cultural genocide in Tibet since his exile in 1959. Among
other practices, in 1995 the Chinese government took into custody a six-year-old child named
Gedhun Choekyi Nyima. Nyima had been identified and designated through Tibetan
Buddhist practices as the 11th Panchen Lama, who in turn identifies and selects the 15th
Dalai Lama following the death of the current 14th Dalai Lama 3, Tenzin Gyatso. It is unclear
whether succession – and thus the survival of the Tibetan Buddhist religion – is possible in
the Panchen Lama’s absence.

A BRIEF HISTORY OF CULTURAL GENOCIDE

The term “genocide” was a neologism created by Polish law professor Raphael Lemkin to
describe Nazi race policy in occupied Europe during World War II. It is an amalgam of the
Greek genos (race or tribe) and the Latin cide (killing) – speaking literally to the killing of the
tribe.4 The core concept of genocide is the destruction of the various facets of existence of a
protected group.
Lemkin’s original conception in 1944 was quite broad. He identified eight dimensions of
genocide: political, social, cultural, economic, biological, physical, religious, and moral –
each aimed at destroying a different aspect of a human group’s existence. 5 Murder, rape, and
similar harm to group members themselves constituted physical genocide, as did longer term
measures such as death through starvation or overwork. The destruction of the group’s
fertility or otherwise impeding its capacity to reproduce constituted biological genocide.
Destruction of the group’s social institutions or political leadership could amount to social
genocide. Attacks on business and economic leaders may constitute economic genocide (the
“destruction of the foundations of economic existence” of a group). Lemkin’s core idea was
that a group existed in numerous dimensions, and that genocide was a broad attack on any or
2
Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for the Future: Summary
of the Final Report of the Truth and Reconciliation Commission of Canada.” Winnipeg: Truth and
Reconciliation Commission of Canada (Dec. 2015): 1, 3, 57, 134.
http://www.trc.ca/websites/trcinstitution/index.php?p=3 (accessed April 6, 2022)
3
International Campaign for Tibet, “Cultural Genocide and the 11th Panchen Lama.” June 4, 2013.
https://www.savetibet.org/cultural-genocide-and-the-11th-panchen-lama/ (accessed April 6, 2022)
4
Raphael Lemkin, Axis rule in occupied Europe (Washington, D.C.: Carnegie Endowment for International
Peace 1944): 79 [hereinafter, Lemkin, Axis Rule].
5
Raphael Lemkin, “Genocide as a Crime Under International Law,” U.N. Bulletin (1948): 70-71
 7

all of those aspects of group life. The victim was the collective itself, as opposed to its
individual members. “Genocide is directed against the national group as an entity, and the
actions involved are directed against individuals, not in their individual capacity, but as
members of the national group.”6
After the war, genocide was prosecuted as a violation of domestic criminal law in three early
trials. The Polish Supreme National Tribunal adopted Raphael Lemkin’s descriptive
framework and convicted Amon Goeth (former Commandant of the forced labor camp at
Plazow (Cracow), Poland)7, Rudolf Hoess (former Commandant of the Auschwitz
concentration camp)8, and Arthur Greiser (former Nazi governor of occupied territory in
Western Poland)9 of genocide under Polish law. These trials took place under a special Polish
decree enacted after the war to deal with German war criminals. While the primary focus was
on acts of physical and biological destruction, the judgments of all three courts (each finding
the accused guilty and imposing the death penalty) recognized the defendants’ guilt for
cultural genocide as well.
The newly-formed United Nations also began to take steps to address the crime, explicitly
recognizing the cultural losses it creates:
“Genocide is a denial of the right of existence of entire human groups, as homicide is the
denial of the right to live of individual human beings; such denial of the right of existence
shocks the conscience of mankind, results in great losses to humanity in the form of cultural
and other contributions represented by these human groups, and is contrary to moral law
and to the spirit and aims of the United Nations. The United Nations sought to codify
Lemkin’s concept into a new Genocide Convention.”10
The first draft in 1946 thus criminalized – in addition to physical and biological genocide.
The concept appeared in the second draft of the Convention in a more abbreviated form. The
third and final draft of the Genocide Convention was negotiated between fifty-seven states 11
against the backdrop of the emergent Cold War between the Western Allies and the Soviet
States. It became clear that agreement on a final treaty would be highly difficult to achieve 12.

6
Id at 79
7
Trial of Hauptsturmführer Amon Leopold Goeth, 7 L. REP. TRIALS WAR CRIMS. 1 (Pol. Sup. Nat’l Trib.
1948)
8
Trial of Obersturmbannführer Rudolf Franz Ferdinand Hoess, 7 L. REP. TRIALS WAR CRIMS. 11, 17 (Pol.
Sup. Nat’l Trib. 1948)
9
Trial of Gauleiter Artur Greiser, in 13 L. REP. TRIALS WAR CRIM. 70, 80–84 (Pol. Sup. Nat’l Trib. 1949)
10
General Assembly Resolution 96(I), “The Crime of Genocide,” A/BUR/50, Dec. 11, 1946
11
U.N. GAOR 6th Comm., 3d Sess., xiv–xix
12
U.N. GAOR 6th Comm., 3d Sess., 67th–110th & 128th–134th mtgs., U.N. Docs. A/C.6/SR.67–SR.110,
A/C.6/SR.128–SR.134 (1948)
 8

In addition to disputes over whether certain groups (eg, political groups) should be protected
under the Convention and whether a permanent international tribunal should prosecute
offenders, significant disagreement also arose over cultural genocide.
Apart from cold war politics, many of the Convention’s drafters saw cultural genocide as
analytically distinct from physical and biological genocide. The Danish representative
argued, for example, that it defied both logic and proportion “to include in the same
convention both mass murders in gas chambers and the closing of libraries.” The drafters
reached consensus on a weak form of cultural protection in Article II(e), which prohibits the
removal of the protected group’s children. This protected human families against the forcible
transfer of the group’s children to environments where they would be indoctrinated into the
customs, language, religion and values of another group, which could be “tantamount to the
destruction of the group, whose future depended on that next generation.” But a direct
prohibition on cultural genocide per se was removed from the final draft of the Convention,
albeit on a divided vote.
Thus, even though cultural genocide often accompanies physical and biological genocide 13,
cultural destruction is not directly covered by the Genocide Convention or treated as a
criminal offense in and of itself. Group culture is protected only insofar as is necessary to
protect the group from biological genocide. Human institutions (schools, libraries, museums,
newspapers, historical monuments, language or religious practices, etc.) are not covered.
Since the Genocide Convention excludes the concept, the question then becomes whether –
and how – cultural genocide might be addressed elsewhere under international law. A useful
starting point is to consider several treaty regimes developed since World War II that protect
and preserve cultural heritage.

CULTURAL GENOCIDE AND MODERN INTERNATIONAL CRIMINAL LAW

As noted above, due to historic realpolitik, cultural genocide is not an international crime in
and of itself. Because the various international criminal tribunals with jurisdiction over
genocide replicate the Convention verbatim 14, criminal prosecution for genocide thus has
focused on the physical and biological dimensions of the offense. Cultural genocide simply is

13
Greiser, 13 L. REP. TRIALS WAR CRIM. at 70
14
ICC Statute art. 6; “Statute of the International Tribunal for the Former Yugoslavia,” U.N. Doc. S/25704, May
25, 1993, art. 4 [hereinafter ICTY Statute]; “Statute of the International Tribunal for Rwanda,” U.N. Doc.
S/RES/955, Annex, Nov. 8, 1994, art. 2 [hereinafter ICTR Statute] (all reproducing Article 2 of the Genocide
Convention)
 9

not covered.15 That said, before discussing how acts of cultural genocide qualify as other
types of international crimes (namely, war crimes and crimes against humanity), it is
important to note two additional ways in which cultural genocide becomes relevant in
international criminal jurisprudence.
The first relates to the requisite mens rea (mental state) of genocide itself. Genocide is a
crime of specific intent, which means that it must be the offender’s actual purpose to destroy
the protected group16. This is a high burden to establish and – barring a confession – requires
courts to consider circumstantial evidence relating to the offender’s mental state. Instances of
cultural genocide have been used as evidence that an offender acted with the intent to destroy
a protected group “as such” in cases of physical or biological genocide. Injuries that violate
(or which are perceived by offenders to violate) the “very foundation of the group” 17
demonstrate the perpetrator’s wider mental state vis a vis the protected group itself. Cultural
destruction in tandem with attacks on group members thus is probative on whether the
accused intended to physically or biologically destroy the group in those attacks.
Second, in some circumstances it can be difficult to identify whether a given collective
qualifies as a protected racial, national, ethnic, or religious group entitled to protection under
the Convention, as well as whether the perpetrator targeted that collective “as such.” 18 There
are no universal definitions of the qualities of protected groups, such that each must be
defined on a case-by-case basis as it exists within a given society. Acts of cultural genocide,
where the perpetrator attacks markers of the group’s unique linguistic, social, historical, and
cultural existence, thus also can help to establish the contours of the protected group itself.
 War Crimes
It is all but inevitable that objects of cultural significance will be destroyed during an armed
conflict. At times, however, such destruction is neither necessary or accidental, as the
International Court of Justice observed in the Application of the Genocide Convention case:
“The Court notes that archives and libraries were also subjected to attacks during the war in
Bosnia and Herzegovina. On 17 May 1992, the Institute for Oriental Studies in Sarajevo was
bombarded with incendiary munitions and burnt, resulting in the loss of 200,000 documents
including a collection of over 5,000 Islamic manuscripts . . . On 25 August 1992, Bosnia's
National Library was bombarded and an estimated 1.5 million volumes were destroyed . . . .
15
Prosecutor v. Krstić, Case No. ICTY-98-33-T, ¶580 (ICTY Trial Chamber Aug. 2, 2001)
16
Krstić (TC), [2001] ICTY ¶572
17
Karadzić and Mladić—Rule 61, [1996] ICTY ¶94.
18
Genocide Convention art. 2 (defining genocide as a number of prohibited “acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such”).
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The Court observes that, although the Respondent considers that there is no certainty as to
who shelled these institutions, there is evidence that both the Institute for Oriental Studies in
Sarajevo and the National Library were bombarded from Serb positions.”19
Most recently, massive cultural destruction has been perpetrated by the terrorist group ISIS to
fuel its own radical ideology and twisted vision for a caliphate 20. This includes the
“systematic destruction of artifacts and archaeological sites) such as Iraq’s ancient Assyrian
city of Nimrud, the ancient Assyrian capital of Khorsabad, artifacts in Iraq’s Mosul Museum
and books and rare manuscripts from the Mosul Library, and the 2000-year-old Temple of
Baal Shamin in Palmyra, Syria”21
The intentional destruction of objects of cultural and historic significance during armed
conflict has long been considered a war crime. Treaties dating to the early 20th Century
specify that “in sieges and bombardments all necessary steps must be taken to spare, as far as
possible, buildings dedicated to religion, art, science, or charitable purposes, historic
monuments, hospitals, and places where the sick and wounded are collected, provided they
are not being used at the time for military purposes.” Seizing cultural property and damaging
cultural institutions also is forbidden.22
After World War II, cultural protection was greatly enhanced through a specialized
instrument – the 1954 Convention for the Protection of Cultural Property in the Event of
Armed Conflict – which reflected the belief “that damage to cultural property belonging to
any people whatsoever means damage to the cultural heritage of all mankind, since each
people makes its contribution to the culture of the world.” 23 The Convention expanded
protections during war to include movable cultural property of artistic, historic, or
informational character as well as non-movable cultural buildings, monuments and centres.
The Additional Protocols to the Geneva Conventions also addressed cultural protection,
reaffirming that it was unlawful in armed conflict [to commit any acts of hostility directed

19
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v.
Yugo.), Judgment, [2007] I.C.J. Rep. ¶342 (Feb. 26)
20
Jessica Mendoza, “Why is ISIS destroying ancient artifacts in Iraq?”, Christian Science Monitor, Feb. 26,
2015. Available at: Why is ISIS destroying ancient artifacts in Iraq? - CSMonitor.com, Accessed on April 6,
2022
21
David Bederman and Chimène Keitner, International Law Frameworks, 4th Ed. (Foundation Press 2016): 258
22
“Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning
the Laws and Customs of War on Land, Annex, 36 Stat. 2277, T.S. No. 539, Oct. 18, 1907, art. 56
23
“Convention for the Protection of Cultural Property in the Event of Armed Conflict,” 249 U.N.T.S. 240, May
14, 1954
 11

against the historic monuments, works of art or places of worship which constitute the
cultural or spiritual heritage of peoples.”24
Developments in international humanitarian law following conflicts in Africa and the
Balkans in the 1990s were reflected in the Second Protocol to the 1954 Hague Convention,
which inter alia applies the original Convention’s protections to non-international armed
conflicts as well as traditional wars between nations. 25 Mechanisms also exist to designate
important physical locations of cultural significance as particularly at risk from armed
conflict. UNESCO, through its Committee for the Protection of Cultural Property in the
Event of Armed Conflict and World Heritage Committee, has the authority to grant, suspend,
or remove “enhanced protection” status for a given site. 26 A “Blue Shield” designation now
serves “as the international equivalent of the Red Cross or Red Crescent to mark cultural
property to be protected and to signify cultural heritage professionals.”27
In order to qualify as a war crime, an attack on culture must occur within the larger context of
an “armed conflict.” The actual existence of armed conflict – and the perpetrator’s awareness
of it – are critical components of war crimes because they transform what otherwise might
constitute ordinary crimes against persons or property into international offenses. Once this
wider context is established, however, any number of offenses against either cultural property
or the cultural identity of group members qualify, either when perpetrated directly or when
committed by subordinates for whom an accused commander is legally responsible.28
International humanitarian law continues to provide meaningful protection against cultural
destruction, as exemplified by a recent prosecution in the International Criminal Court. Under
the ICC Statute, any of the following could constitute war crimes relating to a group’s
cultural property or members:
• Unnecessarily and wantonly destroying the property of the adversary;
• Intentionally attacking civilian objects (targets that are not military objectives);
• Intentionally attacking historic monuments or buildings dedicated to religion, education, art,
science or charitable purposes;
24
“Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (Protocol I),” 1125 U.N.T.S. 3, Dec. 12, 1977, art. 53(a).
25
“Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of
Armed Conflict,” 2253 U.N.T.S. 172, Mar. 26, 1999
26
Committee for the Protection of Cultural Property in the Event of Armed Conflict, 11th Meeting, “Report of
the Secretariat on its activities,” UNESCO, U.N. Doc. C54/16/11.COM/4/REV, Dec 8-9, 2016: 3-4
27
Patty Gerstenblith, “Beyond the 1954 Hague Convention,” in Robert Albro and Bill Ivey, Awareness In The
Military: Developments And Implications For Future Humanitarian Cooperation (Palgrave Macmillan 2014):
83, 87.
28
Prosecutor v. Strugar, Appeal Judgment, Case No. IT-01-42-A, ¶¶277-80 (ICTY App. Chamber July 17,
2008)
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• Pillage;
• Destroying or seizing property unjustified by military necessity; and
• Outrages upon personal dignity, including humiliating and degrading treatment.
In Prosecutor v. Al Mahdi29, the accused – a member of the “Ansar Dine” Islamic extremist
group, which was linked to Al Qaeda – was charged with war crimes under Article 8(2)(e)(iv)
of the Statute for unlawful attacks on historic monuments and similar targets. Following his
guilty plea, he was sentenced to nine years’ imprisonment and received a (largely symbolic)
restitution order of 2.7 million euros for destroying ten religious buildings, including revered
shrines, an ancient mosque, and cemeteries in the Timbuktu region of northern Mali.
In its sentencing decision following Al Mahdi’s guilty plea, the ICC explicitly recognized
that attacks on objects of religious and cultural significance in Timbuktu were, together with
other offenses within the ICC’s jurisdiction, among “the most serious crimes of concern to
the international community.” The Al Mahdi tribunal drew expressly upon wider
international cultural protection regimes in considering the gravity of the accused’s crimes,
noting that many of the destroyed cultural sites were in fact world heritage sites. Victims of
the destruction of religious and culturally symbolic sites thus were regarded as not only “the
[religious] faithful and inhabitants of Timbuktu, but also people throughout Mali and the
international community.”
 Crimes Against Humanity and Persecution
There also are options to criminally prosecute individuals for acts of cultural destruction that
occur outside of the context of armed conflict. Cultural genocide has been considered (and
prosecuted as) a crime against humanity – notably the offense known as persecution. This
crime protects individuals from serious forms of discrimination grounded in their status as
members of certain protected groups. Persecution is “the intentional and severe deprivation of
fundamental rights contrary to international law by reason of the identity of the group or
collectivity.”30 The required contextual element that transforms ordinary offenses into crimes
against humanity is that the offenses take place within the wider context of “a widespread or
systematic attack on a civilian population.”31

29
Prosecutor v. Al Mahdi, Case No. ICC-01/12-01/15, Judgment and Sentence (Int’l Crim. Ct. Trial Chamber
Sept. 27, 2016) [hereinafter Al Mahdi (TC)].
30
ICC Statute art. 7(2)(g).
31
ICC Elements of Crimes, Persecution, art. 7(1)(h) (requiring deprivation of fundamental rights committed “as
part of a widespread or systematic attack directed against a civilian population” of which the perpetrator was
aware).
 13

The modern understanding of persecution reflected in the International Criminal Court

explicitly includes cultural identity. However, the use of cultural characteristics as a basis for
persecution has waxed and waned over the years. Persecution on cultural grounds was not
directly included, for example, in the mandate of the Nuremberg tribunals 32, although some
suggest that offenses against cultural existence were implied within the overall conceptual
mandate.
Following the initial wave of post-World War II trials and the development of the Genocide
Convention and four Geneva Conventions, the 1954 Draft Code of Crimes Against the Peace
and Security of Mankind defined crimes against humanity to include “persecutions,
committed against any civilian population on social, political, racial, religious or cultural
grounds by the authorities of a State or by private individuals acting at the instigation or with
the toleration of such authorities.”33 While the core concept of unlawful discrimination
largely tracked the definition of crimes against humanity applied by the Nuremberg Tribunal,
the International Law Commission expanded the concept of persecution, noting that it was
“necessary to prohibit also inhuman acts on cultural grounds, since such acts are no less
detrimental to the peace and security of mankind than those provided for in the said
Charter.”34
The theft of important property belonging to the group certainly qualifies 35, as do attacks on
civilian members or institutions belonging to the group. It also includes the destruction of
important cultural property belonging to the group and physical harm to group members
based upon their cultural characteristics. Attacks on markers of cultural identity also can help
to establish the “contextual” elements of crimes against humanity in the first place – that the
offenses committed formed part of a widespread or systematic attack on a civilian population,
i.e., against a particular protected group.36

CONCLUSION
It clearly is a good thing that cultural genocidaires can be criminally prosecuted for
something that reflects the criminal nature of their conduct. The stakes are quite high, and the
32
“Charter of the International Military Tribunal,” 59 Stat. 1546, 82 U.N.T.S. 284, Aug. 8, 1945, art. 6(c)
33
“Draft Code of Crimes against the Peace and Security of Mankind,” Report of the International Law
Commission to the General Assembly, Vol. II, Y.B. Int’l L. Comm. 150 (1954), U.N. Doc.
A/CN4/SERA/1954d, Apr. 30. 1954, art. 2(11)
34
“Draft Code of Crimes against the Peace and Security of Mankind,” Report of the International Law
Commission to the General Assembly, Vol. II, Y.B. Int’l L. Comm. 136 (1951), U.N. Doc.
A/CN.4/SER.A/1951/Add.1, Apr. 6, 1951
35
Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, ¶701 (ICTY Trial Chamber Mar. 31, 2003)
36
Prosecutor v Blaskic, Judgment, Case No ICTY-95-14-T, ¶425 (ICTY Trial Chamber Mar. 3, 2000)
 14

UN Security Council has even recognized linkages between cultural destruction and breaches
of international peace and security, at least when such acts occur in the context of armed
conflict and/or terrorism. Even when it does not threaten the international order in and of
itself, cultural destruction makes a bad situation worse and far more difficult to recover
from37.
That said, the picture nevertheless remains far from complete when it comes to protecting the
cultural existence of human groups themselves under international criminal law. The fact
remains that genocide, war crimes and crimes against humanity simply are not the same
offenses, and offenders can be convicted of all three crimes in relation to the same underlying
conduct, depending on context and the perpetrator’s wider intentions. War crimes cover
criminal acts committed within the wider context of an armed conflict and protect individuals
and certain civilian objects (e.g., hospitals, cultural sites) from excessive or unnecessary harm
within that context. Crimes against humanity focus on offenses against civilians (not military
personnel or military objects) and serious discrimination that forms part of a widespread or
systematic attack on a civilian population. Genocide is different: it focuses on protecting
human groups from harm, applies in times of war and peace, and is not limited to civilians. 38
International law recognizes three different offenses because three distinct harms are at issue.
The fact that criminal prosecution is available for something – while better than letting
offenders go unpunished – is not dispositive on whether there should be an additional offense
that more precisely describes the nature of the conduct in question and more overtly
condemns the injuries caused.

RECOMMENDATIONS
1. The international treaty regime around cultural heritage no doubt has ensured the
preservation of important cultural sites and the retention (or return) of many cultural objects
to the groups to which they belong. And in some circumstances, the intentional destruction of
a group’s culture can be punished as another type of crime. This is genuine progress. But it is
important to be clear as to what has been accomplished and what has not. It also is necessary
to recognize the limitations of the current approach.

37
United Nations Security Council, “Maintenance of international peace and security,” S.C. Res. 2347, U.N.
Doc. S/RES/2347, Mar. 24, 2017
38
David L. Nersessian, “Comparative Approaches to Punishing Hate – The Intersection of Genocide and Crimes
Against Humanity,” Stanford Journal of International Law 43 (2007): 221.
 15

2. The fact that criminals can be prosecuted for some of their crimes should not end the
discussion about whether the law also should redress another aspect of the harm caused that
is not presently covered.
3. International law fails to recognize the human group’s inherent right to its own unique
cultural existence and heritage beyond its physical and biological survival. This is far from
satisfactory. It is time for the international community to revisit the question of creating a
specific international instrument to prevent the cultural destruction of human groups “as
such.”

BIBLIOGRAPHY
1. Jack Martin Balcer, “The Greeks and the Persians: The Processes of Acculturation.”
Historia: Zeitschrift Für Alte Geschichte 32, no. 3 (1983): 257-67, 259 (describing
“column drums and architectural pieces of the acropolitan temples destroyed by the
marauding Persians” during Persian invasions of Greece in the 5th Century BCE).
2. Truth and Reconciliation Commission of Canada, “Honouring the Truth, Reconciling for
the Future: Summary of the Final Report of the Truth and Reconciliation Commission of
Canada.” Winnipeg: Truth and Reconciliation Commission of Canada (Dec. 2015): 1, 3,
57, 134. http://www.trc.ca/websites/trcinstitution/index.php?p=3 (accessed April 6, 2022)
3. International Campaign for Tibet, “Cultural Genocide and the 11th Panchen Lama.” June
4, 2013. https://www.savetibet.org/cultural-genocide-and-the-11th-panchen-lama/
(accessed April 6, 2022)
4. Raphael Lemkin, Axis rule in occupied Europe (Washington, D.C.: Carnegie Endowment
for International Peace 1944): 79 [hereinafter, Lemkin, Axis Rule].
5. Raphael Lemkin, “Genocide as a Crime Under International Law,” U.N. Bulletin (1948):
70-71
6. Trial of Hauptsturmführer Amon Leopold Goeth, 7 L. REP. TRIALS WAR CRIMS. 1
(Pol. Sup. Nat’l Trib. 1948)
7. Trial of Obersturmbannführer Rudolf Franz Ferdinand Hoess, 7 L. REP. TRIALS WAR
CRIMS. 11, 17 (Pol. Sup. Nat’l Trib. 1948)
8. Trial of Gauleiter Artur Greiser, in 13 L. REP. TRIALS WAR CRIM. 70, 80–84 (Pol.
Sup. Nat’l Trib. 1949)
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9. General Assembly Resolution 96(I), “The Crime of Genocide,” A/BUR/50, Dec. 11, 1946
10. U.N. GAOR 6th Comm., 3d Sess., xiv–xix
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