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The creation of the U.N. Genocide Convention in 1946–48 was a response to gaps in the Nuremberg Judgment, as well as a way of combining minorities protection from the 1920s with criminological jurists’ ideas about using prosecution as a means of enforcement. The main drafters of the Genocide Convention—Polish jurist Raphael Lemkin, French jurist Henri Donnedieu de Vabres, and Romanian jurist Vespasien Pella—had all participated in the interwar movement to reform the laws of extradition and draw up new international criminal laws to ensure international security. However, while Lemkin and various non-governmental organizations lobbied for the convention, government negotiators made major changes to weaken the efficacy of the convention. Lemkin and his allies approved these changes, taking the position that passing a convention was better than nothing. However, the governments’ political priorities ultimately created a convention that did not require a permanent international criminal court for prosecution and did not contain specific guidelines for how the U.N. Security Council should conduct a genocide investigation. When the convention was completed in 1948, jurists expressed considerable skepticism about whether it could actually deter the crime.

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.

In light of the difficulties that arise in reintroducing the concept of cultural genocide in the legal definition of genocide through treaty interpretation, this chapter focuses on the evolution of international law when it comes to group cultural protection. International law has adopted two concomitant approaches in this regard. Firstly, cultural rights have been increasingly recognized and valued, including collective rights for indigenous peoples. Secondly, a specific branch related to the protection of cultural heritage has been progressively developed, starting with the protection of tangible cultural heritage in time of armed conflict and having more recently been recalibrated to cover both the protection of cultural heritage in peace time and intangible cultural heritage. The chapter further draws connections between these two approaches, as well as between these approaches and international criminal law. Other international crimes thus emerge as potential tools to address cultural genocide, beyond the crime of genocide.

Most developments related to the concept of cultural genocide occurred in the field of public international law (international human rights law and international cultural heritage law), thus involving state responsibility. If international law does not recognize state criminal responsibility, states can still be held responsible for the crime of genocide and serious violations of cultural rights. This chapter builds upon this context to inquire whether state responsibility could be articulated in order to cover some specific features of cultural genocide. The current state of international law indicates that its intentional character could be addressed through a principle of aggravated state responsibility. However, international law still seems to lack mechanisms of genocide prevention, in which context attacks against groups’ cultures may stand as an early warning of potential further escalation.

Why do governments fail to intervene to prevent genocide and other mass atrocities? We examine this question with reference to prospect theory, one of the foundations of behavioral economics. When people rely on their moral intuitions, they behave according to prospect theory’s value function, which implies that the importance of protecting an individual life diminishes as the number of lives at risk increases. In some cases, intuitive valuation of the collective threat may actually decrease as the number of lives at risk increases, which undoubtedly contributes to failures to respond aggressively to mass atrocities. Understanding this failing of moral intuition should help to inform the development of new institutional mechanisms concerned with atrocity prevention. Such new mechanisms are necessary to force us to pursue the hard measures needed to combat massive human rights abuses. Accordingly, we propose several policy recommendations and institutional designs to improve international decision-making in this arena.

In an anarchical international order mediated by the current UN, the world does not have a reliable capacity to prevent genocide. However, there is an increasing appeal of evolving norms regarding the international responsibility to protect (R2P) vulnerable communities worldwide, and hence to renegotiate the scope of sovereignty. This supersedes the earlier doctrine of humanitarian intervention. There is also a greater sense of national responsibility to prosecute génocidaires in national courts. The clues to genocide management in the age of globalization are obvious: they consist of checks on the otherwise unbridled exercise of power of sovereigns. These checks—a free press, a culture of political negotiation, autonomous civil and religious sectors, a responsive international community, gender justice and the embrace of cosmopolitan norms in respect of human rights—are among the keys to a future free of genocide.