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This chapter details the rapid development of genocide from an academic concept to a substantive international crime. It provides a brief overview of the etymology of the term ‘genocide’ following its first usage by Professor Raphael Lemkin in 1944 to describe Nazi atrocities during World War II. It details the early usages of the concept in subsequent criminal trials of Nazi offenders, as well as the definition of genocide in the 1948 Genocide Convention. It also discusses the critical (and controversial) decision of the Convention's drafters to exclude political groups, thereby limiting the Convention to national, ethnic, racial, and religious collectives. Acts intended physically or biologically to destroy these four groups thus are condemned as ‘genocide’, whereas the identical criminal conduct—directed instead at other human collectives—is not.

This chapter clarifies some key issues on the prevention of genocidal atrocities. It states that the definition of the term indigenous peoples is problematic, since in many places groups may migrate and identify themselves in different ways. It identifies the four key characteristics of indigenous peoples (as stated by the Independent Commission on International Humanitarian Issues), and distinguishes physical genocide, cultural genocide, “ecocide,” and other typologies of genocide. This chapter also tries to show how such devastation is often implicitly or explicitly legitimated by metanarratives of modernity.

This chapter provides a historical–legal analysis of the concept of ‘cultural genocide’ and the way in which Raphael Lemkin’s original ‘technique’ of genocide has been transformed throughout the twentieth century. It is argued that by anchoring the definition of genocide in a physical-biological perspective, as reflected in the 1948 Genocide Convention, international law has provided space for the concept to evolve as an autonomous form of genocide, also called ‘ethnocide’. This broader conception has in turn fuelled a defensive judicial interpretation of the legal definition of genocide, against the inclusion of processes of socio-cultural destruction that have then been re-qualified in terms of ‘forced assimilation’ or ‘ethnic cleansing’.

The introduction sets out the premise for the research, starting with the difficulty of coining a unique definition of cultural genocide. This is due to the fact that the concept relies both on the concept of culture, understood broadly as a way of life, and the concept of genocide, which is very narrowly defined in international law. Against this background, it proposes to address the question of the status of cultural genocide in international law by acknowledging the evolution of both international law and the concept of cultural genocide since the debate originally emerged in the 1940s, and looks at which gaps remain to be filled instead of advocating for the codification of the concept.

Cultural genocide broadly refers to ‘the extermination of a culture that does not involve physical extermination of its people’. This chapter examines how, from a criminal law concept, cultural genocide has moved to a concept aimed at protecting cultural diversity. This chapter in Section II will first examine how and why the crime was rejected under international criminal law. Based on this analysis, it will then examine how human rights law, which was meant to address the issue of cultural protection of minorities, has in fact left this area of the law undeveloped. Section III will then assess to what extent the notion of cultural genocide can act as an important tool for conflict prevention when minorities’ cultural assets are under attack. Finally, Section IV will explore how the indigenous peoples’ rights movement has renewed the idea that prohibiting cultural genocide constitutes an essential elements of human rights law.

Drafted from 1946 to 1948, the Genocide Convention is the product of its time: a document reflecting the sociology of immediate post-WWII inter-states relations. This chapter seeks to shed light on hidden facts behind the Genocide Convention’s drafting, negotiations, and adoption processes during 1946–1948. There are secrets and surprises in the travaux préparatoires relating to the origins of the Convention, cultural and political genocide, the obligation to prevent, the issue of an international criminal court, and the question of reparations to victims of genocide. William Schabas has repeatedly recognised in his academic writing the value that can be gained from a close study of the travaux.

The previous chapters have confirmed two ideas: the complexity of the concept of cultural genocide, which renders its codification particularly arduous, and the unlikeliness that the concept will be reintroduced in the legal category of genocide. Against this background, international human rights law seems to constitute the most solid basis for a comprehensive approach to cultural genocide, as it provides solid primary obligations and mechanisms of responsibility, which can be extended to criminal responsibility for the crime of persecution, and especially reparation for the victims. This result might be disappointing for some, as it ends up placing the term ‘cultural genocide’ outside the international legal sphere. The concept still remains particularly relevant as a paralegal concept, the use of which is likely to provide greater resonance to instances of cultural destruction and thus trigger the implementation of the various international legal tools identified throughout this study.

Contemporary prosecutions in international criminal tribunals have exposed a long-standing debate over the role of cultural heritage-based crimes in international criminal law. This chapter presents an historical analysis that reveals that the pendulum has swung back and forth with regard to support for including offenses that expressly refer to the destruction or seizure of artistic, historic, and scientific property and of ‘historic monuments’. While cultural heritage destruction was proposed as an offense after the First World War, a pervasive reluctance to include it largely prevailed from the postwar Nuremberg trials until the late 1980s. This chapter attributes this reluctance in part to coinciding developments in cultural property protection that were occurring outside international criminal law, such as the 1954 Hague Convention and the early drafts of the 1948 Genocide Convention. Before the end of the century, though, the pendulum swung back in favor of including the deliberate and unnecessary destruction of certain cultural heritage as a discrete and separate war crime. Both ad hoc international criminal codes and the Rome Statute of the International Criminal Court reflect lasting recognition of the role that cultural heritage destruction can play in the larger narrative of oppressing, persecuting, and even eradicating targeted collective groups.

The indigenous rights movement has embraced the idea of self-determination for framing their demands for economic, political, and cultural survival. Indeed, calls for tribal sovereignty problematize the international community’s central focus on state governments for legitimizing human rights claimants. For communities such as the Onondaga Nation of Central New York, state membership comes second to the ties that bind one to an indigenous nation. (Indeed, the Onondaga Nation maintains a legally distinct territory just outside Syracuse, New York, and some members have rejected US citizenship in favor of tribe-issued passports.) While this chapter explores the historical trajectory leading to modern indigenous rights concerns—which include an ongoing process of cultural genocide—it focuses on how indigenous nations and tribal sovereignty challenge the reliance on state citizenship for recognizing personhood and claiming human rights. Calls for indigenous sovereignty offer alternative pathways for conceptualizing identification, legal status, and political membership.

This chapter talks about the Loyal White Knights of the Ku Klux Klan, based in Pelham, North Carolina that got into the Charlottesville act and applied for a permit to hold a rally in Charlottesville. It mentions the Loyal White Knights leaders Christopher Barker and his wife, Amanda Barker, who led the protest against Charlottesville's plan to remove the Robert E. Lee statue from Emancipation Park in order to stop cultural genocide. It also discusses Glendon Scott Crawford, a Ku Klux Klan member from Albany, New York, who claimed to have invented a radiation-spewing “death ray” gun that he planned to use to kill Muslims. The chapter highlights Jason Kessler's displeasure with Christopher Barker and the Pelham Ku Klux Klan's involvement in the Charlottesville arena. It also discloses Richard Spencer's disinterest and distanced himself from the Klan rally.