ABSTRACT
The 1948 Genocide Convention was adopted in a specific historical and political context. The massacres and the extermination of groups of various people that occurred on different occasions between the two world wars as well as during the Holocaust shaped the framework of the Convention. The definition of genocide in the Convention was also influenced by certain states’ interests and by the concept of human rights that was emerging in international law at the same time. However, the original formulation of genocide, elaborated by the Polish international lawyer Raphael Lemkin, also included reference to the destruction of culture as an actus reus in the concept of this new international crime. This is also reflected in the initial proposals and drafts of the Convention, although some provisions were eliminated in the later versions before its adoption by the United Nations (UN) General Assembly.
The emerging new definitions of culture and its contemporary legal status, as well as the corollary emergence of collective rights, are also relevant to understanding the possible implications in international criminal law for individuals and groups which are targeted by genocidal acts, and for those responsible of such acts.
This chapter looks at the evolution of certain types of crimes against culture and considers whether – in light of the developments in the definition of culture, its widening forms and content, and its significance for groups and communities – now is an appropriate time to revisit the definition of genocide. This is mainly done through the analysis of the evolution of international law in different areas, in particular within human rights and humanitarian law, which together may provide a better understanding of the concept of culture and its protection in international law. This analysis necessarily takes into account the evolution of international criminal law, particularly through the case law of the international criminal tribunals, which shows a growing interaction between genocide and crimes related to the destruction of cultural goods.
In its conclusions, this chapter provides some considerations on the possible options that may support an enhanced protection of culture and cultural artefacts within the context of international crimes, particularly in relation to genocide.
