Cultural Genocide’s Surrogates

Open PDF in Browser: Anne-Marie Carstens,* Cultural Genocide’s Surrogates

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In recent decades, the continuing wartime destruction of cultural sites and artifacts alongside mass atrocities—and a rising tide of atrocities‑centered allegations in international tribunals—have spurred calls to revive a maximalist definition of genocide. The original definition of “genocide” and early drafts of the treaty on genocide identified not only physical and biological methods of destroying a group, but also “cultural” methods whereby a targeted group’s cultural sites were demolished, its cultural objects repurposed, and its cultural activities curtailed. This maximalist, three‑pronged approach sought to account for the “sinister panorama” of methods used to eliminate all aspects of a targeted population. Treaties, tribunals, and customary law to date, however, have entrenched a minimalist meaning that sharply restricts the crime of genocide to physical killing and specific biological harms. Largely for this reason, critics dismiss calls to return cultural genocide to the fold of the crime of “genocide” as unlikely.

This Article delivers a different, more provocative, retort: that redefining or interpreting “genocide” to encompass attacks on cultural heritage as a standalone version of the crime is not only unlikely, but unnecessary. The concept of cultural genocide has obtained functional force through other developments in the international legal landscape. A myopic fixation on reintroducing cultural genocide to “genocide” disregards the better capacity of legal surrogates to confront animus‑based cultural heritage destruction and misappropriation, especially given intractable challenges in proving genocide. The Article relies on several developments to confirm that legal surrogates fill much of the void between the maximalist and minimalist approaches to genocide, at least with respect to cultural heritage. In particular, intervening developments in international humanitarian law, international criminal law, and international human rights law mutually reinforce the concept of cultural genocide to establish a surrogate regime. Recent developments include prosecutions in the International Criminal Court for damage to the UNESCO World Heritage site at Timbuktu, as well as rulings in the International Court of Justice on a key human rights treaty on eliminating racial discrimination. The Article further maintains that although this existing surrogate regime may not provoke the same degree of moral opprobrium aroused by the freighted term “genocide,” the regime cumulatively shows more promise for future development and even likely exceeds the results that would be obtained by formalizing “cultural genocide” within the definition or legal construct of “genocide.”

Introduction

Cultural heritage destruction has long coincided with other hazards and suffering in war, and contemporary armed conflicts pose no exception.^[1] Cultural heritage remains vulnerable because it consists of the tangible sites, artifacts, and built landscapes closely associated with or representative of a targeted community, as well as the community’s intangible customs, traditions, and languages. Among recent examples of such destruction, armed rebels in Syria wrested control from the brutal Assad regime, capping a long‑running conflict that damaged Syria’s multilayered history and several World Heritage sites.^[2] In addition, Armenia has pursued various avenues for securing or reclaiming the cultural heritage of ethnic Armenians displaced in the conflict in Azerbaijan’s Nagorno‑Karabakh region.^[3] And South Africa, in its pending action against Israel in the International Court of Justice (ICJ), has alleged vast cultural heritage devastation in Gaza committed in response to the Hamas‑led terror attacks in Israel, including on places of worship, cemeteries, and cultural and archaeological sites that housed manuscripts, ancient documents, and artifacts.^[4]

The continuing wartime destruction of cultural sites and artifacts alongside mass atrocities—and a rising tide of atrocities‑centered allegations in international tribunals—have spurred calls in recent decades to revive a maximalist definition of “genocide.”^[5] The original postwar definition of “genocide,” along with early drafts of the treaty on genocide that followed, included more than only physical and biological methods of destroying a national, ethnic, racial, or religious group.^[6] These early definitions also called for including “cultural” methods whereby the targeted group’s cultural sites were demolished, its cultural objects repurposed, and its cultural activities curtailed to further an orchestrated campaign of animus‑based destruction.^[7] Not all cultural heritage destruction will qualify as “cultural genocide” under this definition, to be clear, because not all—or even most—acts spring from qualifying hatred or contempt and the intent to destroy the group in whole or part.

But for Raphael Lemkin—the Polish émigré and jurist who coined the term “genocide” in the waning months of the Second World War^[8]—the reverse was always true: Massacres and mass expulsions of a targeted group were accompanied by destruction and seizure of the group’s cultural heritage as a consistent feature.^[9] To his mind, it was one in a combination of methods that formed the “sinister panorama” of mass atrocity, namely what Lemkin saw as the devastation of a people through various, cumulative means.^[10]

This realization led Lemkin to include “cultural” genocide alongside physical and biological methods of genocide.^[11] Cultural genocide, he argued, “aimed at the rapid and complete disappearance of the cultural, moral and religious life of a group of human beings.”^[12] It therefore complemented the corporeal forms of physical and biological genocide.^[13]

This three‑pronged maximalist approach initially prevailed in early drafts for a treaty on the crime of genocide.^[14] As adopted, however, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)^[15] embraced a minimalist approach that sharply restricted the methods of “genocide” to specific kinds of physical and biological group harm.^[16] Nearly all of the suggested modes of “cultural” genocide were laid aside, save for the forced transfer and assimilation of children.^[17] Later treaties, tribunals, and customary law followed suit, so that “only a shadow of Lemkin’s original idea survived.”^[18] The ensuing public understanding of the term similarly considers it to mean mass killing, though even this popular conception exceeds the contours of the limited legal definition.^[19]

International tribunals and institutions have validated the frequent connection between cultural heritage destruction or misappropriation and systematic efforts to eradicate and suppress targeted groups. The ICJ, for example, has observed that “physical or biological destruction” of targeted groups often is accompanied by “simultaneous attacks on the cultural and religious property and symbols of the targeted group.”^[20] The Prosecutor of the International Criminal Court (ICC), too, has observed that “[c]rimes against or affecting cultural heritage frequently occur in connection with genocide.”^[21]

Persistent threats to cultural heritage gave rise to a growing clamor to revive Lemkin’s maximalist conception of “genocide” by redefining or widening the interpretation of “genocide” to add cultural heritage destruction and misappropriation motivated by animus against a national, ethnic, racial, or religious group.^[22] Critics, however, dismiss normative arguments to expand the definition or interpretation of “genocide” as unlikely.^[23] Among other reasons, they aptly note that the current understanding of “genocide” became firmly cemented both in law and in popular notions since the postwar era—and is understood in both contexts to refer to harm to people of a targeted group rather than harm to property.^[24]

This Article makes a different, more provocative, retort: that a new definition or interpretation of “genocide” for this purpose is not only unlikely, but unnecessary. Despite its exclusion from the definition or customary understanding of “genocide,” the concept of cultural genocide has obtained de facto force elsewhere in today’s international legal landscape. This surrogate regime follows a decades‑long evolution that not only recognized the intrinsic kinship between targeted groups, cultural heritage, and cultural identity, but it also fostered other international initiatives that picked up the mantle. Among these, intervening advances in international humanitarian law form a crucial and oft‑overlooked contribution, though international humanitarian law does not reach atrocities that occur outside the context of armed conflict. As discussed more fully below, however, the role of cultural heritage destruction in other parts of the surrogate regime, such as to help establish the intent requirement for genocide and to prove persecution as a crime against humanity, does not contain this same limiter.^[25]

This critique is further emboldened by very recent developments in international tribunals, especially the 2024 conviction and sentencing of an armed militant in the ICC, which cited damage at the World Heritage site of Timbuktu, and provisional measures considered by the ICJ in two separate cases alleging human rights violations.^[26] These developments confirm that the international community possesses alternative (if imperfect) tools it can employ as legal surrogates for “cultural genocide” to prevent or punish cultural heritage destruction and misappropriation. Of note, these same courts in other contexts have maintained a rigid adherence to a minimalist interpretation of the crime of genocide.^[27]

A myopic fixation on reintroducing cultural genocide to the crime of genocide also fails to look beyond the missing words on the page to see that genocide is frustratingly difficult to prove as a legal construct. Even if one expands the acts comprising genocide (the actus reus), the intractable challenge remains of proving the required special intent (the dolus specialis) to destroy a group, in whole or substantial part.^[28] Since the 1948 adoption of the Genocide Convention, the ICJ has found genocide exactly once: the seventy‑two‑hour Srebrenica massacre in 1995.^[29] That number may change with the recent uptick in genocide cases pending in the ICJ, but the arduous intent standard will remain.^[30] The existing surrogate regime not only has demonstrated better capacity for addressing and redressing animus‑based harms to cultural heritage but also is better poised to develop toward improved cultural heritage protection.^[31] Not only have these other tools proved more open to refinement and further development than the immalleable legal definition of “genocide,” but international tribunals have shown themselves more receptive to preventing and redressing attacks on cultural heritage through these other means.^[32]

As the foundation for establishing this surrogate regime of cultural genocide, Part I traces the historical arc of “cultural genocide” to expose the origins of the debate over whether to adopt a maximalist or minimalist approach to the crime of genocide. It establishes not only that suggestions to include “cultural genocide” as a genocidal act always faced significant and principled objections, but that the voids and silos existing in the international standard‑making of the postwar period remain key to understanding its place today.^[33] Part II surveys the contemporary debate over whether to revive “cultural genocide” and solidify it as a legal concept.^[34] This Part diagnoses shortcomings in the crime of genocide to isolate the core features of “cultural genocide” that cultural genocide revivalists find lacking. Part III presents the thrust of the critique and argues that these core features of “cultural genocide” replicated through legal surrogates—specifically international humanitarian law, the intent requirement for genocide and other aspects of international criminal law, and certain human rights treaties—populate the void separating the maximalist and minimalist approaches to genocide.^[35] Moreover, this surrogate regime of cultural genocide even likely exceeds the results that would be obtained by concentrating the concept of cultural genocide in the Genocide Convention, as Lemkin sorely wished, or otherwise shoehorning it into the crime of genocide where it appears elsewhere in international criminal law.^[36]

Maximalist and Minimalist Approaches to Defining “Genocide”

The concept of cultural genocide was ascendant from the interwar period between the two world wars (without yet being cloaked with that name) through what was seemingly its peak during the early drafting stages of the Genocide Convention in the postwar period. At this nascent stage, the maximalist view of “cultural genocide” often seemed poised to gain a foothold in the definition of the crime of genocide as it developed into an international legal construct. The minimalist view, however, prevailed. Once deleted from the drafts that would ultimately mature into the Genocide Convention, even Lemkin seemed to abandon his arguments for including “cultural genocide” within the crime of genocide.^[37] The concept of cultural genocide then did not just fade into relative obscurity but went dormant for decades—even as the term “genocide” entered the public lexicon.

The Prologue: Cultural Genocide’s Origin Story

The origins of the term “genocide” are well‑known in the existing literature, though not with reference to coinciding international legal initiatives to protect cultural property during armed conflict, which are described here.^[38] Lemkin coined the term in 1944^[39] and wrote thereafter that “[b]y destroying six million Jews, several million Slavs, and almost all the Gypsies of Europe, the Nazis have focused our attention more sharply on this phenomenon.”^[40] In the book in which the term emerged, however, Lemkin was not focused on Nazi conduct in Germany nor on the Holocaust but on the various means by which Germany effected its occupation of many European territories.^[41] Once he had birthed the term, he spent the rest of his life obsessively and possessively attempting to elevate and control it as it hardened into a legal concept, often chafing others in the process.^[42]

Even before he had coined the term “genocide,” Lemkin made clear that he took a maximalist view of the means of eradicating a group based on its racial, religious, ethnic, national, or other identifying characteristics. In his autobiography, he suggests that he was first motivated generally by the cyclical nature of mass atrocities and specifically by mass atrocities committed against Armenian and other Christians by Ottoman authorities during the First World War, as well as Ukrainian pogroms against Jews.^[43] Thus Lemkin, who was Jewish and escaped Warsaw following Nazi Germany’s 1939 invasion of Poland, was moved to act even before the Holocaust that killed his parents and dozens more relatives.^[44]

Lemkin initially articulated his maximalist perspective in 1933 by identifying the twin crimes of “barbarity” and “vandalism” against “collectivities” (groups) in both a report and an abridged version published in an academic journal.^[45] He intended to deliver the report at the Fifth International Conference for the Unification of Criminal Law, which convened to draft offenses against the law of nations (delicta iuris gentium), but he was prevented from attending (apparently due to mounting political concerns).^[46]

The suggestion of the crimes of “barbarity” and “vandalism” were not entirely Lemkin’s brainchild. Both were already circulating in global initiatives to standardize domestic criminal law on certain topics.^[47] Lemkin, however, centered these twin crimes on “attacks carried out against an individual as a member of a collectivity” (namely a cultural, religious, national, or political group).^[48] Each proposed crime was premised on acts performed “out of hatred” and were set out in the report as follows:

Art. 1) Whoever, out of hatred towards a racial, religious or social collectivity or with the goal of its extermination, undertakes a punishable action against the life, the bodily integrity, liberty, dignity or the economic existence of a person belonging to such a collectivity, is liable, for the offense of barbarity . . . .

Art. 2) Whoever, either out of hatred towards a racial, religious or social collectivity or with the goal of its extermination, destroys works of cultural or artistic heritage [oeuvres culturelles ou artistiques], is liable, for the offense of vandalism . . . .^[49]

Barbarity consisted principally of “acts of extermination” that were “directed against the ethnic, religious or social collectivities whatever the motive (political, religious, etc.).”^[50] Vandalism, on the other hand, was his precursor to “cultural genocide” and referred to the “systematic and organized destruction of the art and cultural heritage” of a targeted collectivity.^[51] The reasons for protecting art and other cultural heritage were twofold. Protection not only preserved one facet of group identity but also recognized that “all humanity . . . experiences a loss by this act of vandalism.”^[52]

Lost from the well‑trod history of “genocide” as a legal concept, however, is discussion or acknowledgement of coinciding initiatives underway that focused on wartime cultural heritage protection in international humanitarian law—or, as then called, the law of armed conflict or law of war—with which Lemkin was neither involved nor likely aware. During the early years of the First World War, for example, Germany responded to outcries over its explosive damage to such places as the Rheims Cathedral and the University Library at Louvain by dispatching museum specialists to the Western and Eastern fronts and by hosting a 1915 international conference on preserving art and monuments during war; the conference produced no instruments, however, and included only attendees from Germany, German‑occupied territories, and neutral territories.^[53]

At almost the same moment that Lemkin was expounding on “vandalism” and “barbarism,” a Brussels‑based initiative for protecting historic monuments and other cultural property developed and migrated to the Americas, where the Pan‑American Union passed a 1933 resolution on protecting certain immovable cultural heritage during peace and war.^[54] Two years later, this effort culminated in the adoption of the first treaty dedicated to cultural heritage protection, the 1935 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, signed at Washington and known more popularly as the Roerich Pact (or, less commonly, the Washington Pact).^[55] The Roerich Pact was aimed at preserving “all nationally and privately owned immovable monuments which form the cultural treasure of peoples” during both peace and war, and to this end, it called for according neutrality to qualifying immovable sites, marking these with a distinctive sign, and designating sites on a central registry.^[56] Twenty‑one countries of the Pan‑American Union joined the Roerich Pact,^[57] all located on the American continents, which limited the treaty’s geographic reach and effectiveness at a time of emerging conflicts on the European and Asian continents.

The outbreak of the Second World War also preempted a more promising 1938 conference to consider a draft treaty developed and circulated under the auspices of the League of Nations through its International Museums Office.^[58] The draft treaty’s principal provisions called for including protection of tangible cultural sites and “works of art” in military regulations, taking steps to prevent damage from armed hostilities, and marking qualifying sites.^[59] When the planned conference was cancelled due to the escalating war, a few countries instead disseminated a shortened version as a draft declaration.^[60]

Lemkin’s coinciding proposals to recognize “vandalism” as an international offense therefore shared a common thread with these proposals, even if he was unaware of them. Compared to these early initiatives focused on cultural heritage protection in international humanitarian law, Lemkin’s coinciding proposals differed most critically in positioning cultural heritage protection as part of a holistic approach to protecting vulnerable groups, rather than as a primary objective. His proposals also differed in the framing of the raison d’être for protection. Lemkin focused on protecting targeted groups, while the developments in international humanitarian law during this period posited cultural heritage protection as a means of protecting a universal, common heritage.^[61] The draft convention circulated by the International Museums Office, for example, stated in its preamble that “the destruction of a master piece, whatever nation may have produced it, is a spiritual impoverishment for the entire international community.”^[62] This distinction may have been strategic in the context of drafting rules for armed conflict, by suggesting that cultural sites and works were not really symbolic representations of an opponent but of a universal community that included all combatants.

These developments in international humanitarian law were the outgrowth of broader efforts, which were underway since the start of the century, to moderate war and systematize the international laws and customs governing armed conflicts. Lemkin’s proposals for offenses of “barbarism” and “vandalism” appear of a piece with these heralded broader developments, despite him not mentioning them. The first international treaty that codified the laws and customs of war entered into force in 1900 and was supplanted by a similar treaty in 1907 for parties to both.^[63] These 1899 & 1907 Hague Conventions with Respect to the Laws and Customs of War on Land appended regulations that contained the rules governing the conduct of warfare and occupation during international armed conflicts.^[64] The regulations on land warfare covered a range of topics and included two specific provisions (out of more than fifty) on obligations to protect certain categories of cultural heritage.^[65]

Once the First World War exposed the shortcomings of these treaties (especially due to advances in aerial bombardment and long‑range artillery), various special interests and organizations focused on ways to improve these rules governing armed conflict for their associated causes.^[66] This specialization meant that initiatives to improve cultural heritage protection during the interwar period, such as that of the International Museums Office of the League of Nations, proceeded down separate tracks from initiatives focused on protecting civilians pushed by the International Committee of the Red Cross, for example.^[67] Lemkin’s involvement in developing or codifying crimes against nations during the interwar period, especially in advocating for international offenses of “vandalism” and “barbarism,” took place entirely apart from coinciding initiatives in international humanitarian law.

The disconnect between initiatives focused on protecting cultural heritage and protecting people was not wholly a function of the specialization and fragmentation in the development of international law during this period. Hostility sometimes emerged between initiatives all jockeying for the attention of potential treaty plenipotentiaries. In particular, advocates who focused on civilian protection tended to give the cultural heritage crowd a cool reception, as did some governments.^[68]

When Lemkin articulated his nascent version of “genocide” during the Second World War, it was peak‑maximalist and embraced both objectives.^[69] His barbarism‑vandalism duality, which he first expressed in the interwar period,^[70] now swelled to eight techniques of “genocide”: political, social, cultural, economic, biological, physical, religious, and moral.^[71] In 1944, by which time he had immigrated to the United States, Lemkin devoted a thin slice of his large tome to “genocide” as a neologism.^[72] He joined “the ancient Greek word genos (race, tribe) and the Latin cide (killing)”; in the corresponding footnote, he offered ethnocide as an alternative.^[73]

Lemkin thus gave “genocide” a much broader, “maximalist” meaning than its combined word parts might suggest. Though the aim of the crime of genocide was “annihilating the groups themselves,” the term was “intended to signify a coordinated plan of different actions aiming at the destruction of essential foundations of life of national groups.”^[74] To Lemkin’s mind, such destruction was accomplished by the “disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”^[75] This last part highlighted that Lemkin did not view the elimination of members of the group a necessary condition of genocide.

Within this maximalist view, “cultural” methods of genocide now meant more than the destruction of artistic and cultural works. Examples included suppressing intangible cultural heritage, as done by German Nazi officials, such as by prohibiting a group’s “own language in schools and printing,” channeling students into trades instead of the liberal arts, and “rigid control[ling] of all cultural activities.”^[76] Lemkin nonetheless continued to stress the destruction of tangible cultural heritage, referencing examples from his native Poland, where “national monuments [were] destroyed and libraries, archives, museums, and galleries of art carried away.”^[77]

In the span of a single year after the publication of Lemkin’s book, Axis Rule in Occupied Europe, momentous change influenced the development of “genocide.” The Second World War ended in both the European and Pacific theaters. Closely on the heels of the war’s end, the League of Nations was supplanted by the United Nations (UN).^[78] The UN Charter propounded the new organization’s purposes, which included “[t]o maintain international peace and security” and to cooperatively problem‑solve “international problems, of an economic, social, cultural, or humanitarian character.”^[79]

The four Allied powers also were on the eve of their prosecutions of the top Nazi leaders before an ad hoc international criminal tribunal, the International Military Tribunal at Nuremberg (Nuremberg Tribunal).^[80] The Charter of the International Military Tribunal (Nuremberg Charter), which governed the proceedings, made no mention of “genocide” but instead set out three categories of offenses: crimes against peace, crimes against humanity, and war crimes.^[81]

War crimes covered serious violations of the existing laws of armed conflict that had been codified in the 1899 & 1907 Hague Regulations.^[82] This category of atrocities included ill‑treatment of civilians, deportation to slave labor, killing of hostages, plunder of public or private property, and wanton destruction of cities and towns.^[83] “Crimes against humanity,” a newly created category with no direct precedent, aimed at identifying higher‑level atrocities that were not captured by the “war crimes” label. It included enslavement, extermination, deportation, and “other inhumane acts,” as well as “persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”^[84] “Extermination” in this category came closest to the conception of genocide, albeit a minimalist one. Finally, the drafters considered the other new category, “crimes against peace,” as the most serious. It reflected the planning, preparing for, initiating, or waging of a “war of aggression” against the sovereignty and territorial integrity of one or more other nations.^[85]

Lemkin participated in preparations for Nuremberg, ostensibly as part of the U.S. delegation, and he operated largely at the margins but lobbied hard for use of the word “genocide.”^[86] The Indictment mentioned “genocide” under the heading of the war crime of “murder and ill‑treatment of civilian populations” in occupied territories.^[87] Ultimately, Lemkin’s influence on the proceedings at Nuremberg proved limited, partly because his dogged, one‑note insistence on incorporating “genocide” wore on others who were focused on the fuller breadth of offenses, and also because the term itself suffered from some controversy as to its scope and meaning.^[88] The term was never embraced as a specific offense, received few other mentions during the prosecutions, and did not appear in the Judgment.^[89]

Developing the Narrative: “Genocide” in the 1948 Genocide Convention

At nearly the same time that the Nuremberg Tribunal announced its Judgment, the UN delegations from Cuba, Panama, and India presented a draft resolution on “the crime of genocide” for consideration by the UN General Assembly.^[90] Lemkin had played a hand in the drafting.^[91] The draft soft law resolution highlighted the cultural angle by stating that “crimes of genocide” had “resulted in great losses to humanity in the form of cultural and other contributions represented by these human groups,” and it called for the drafting of a treaty on genocide.^[92] While the draft resolution was pending in the Sixth Committee (the General Assembly’s legal committee),^[93] Saudi Arabia responded first to the call and submitted a draft treaty that same month.^[94] Lemkin’s hand was notably missing from this effort because this original draft treaty omitted any reference to “cultural” methods of genocide and rejected a maximalist approach.^[95] The Saudi draft instead focused on such acts as mass killing, destruction of basic necessities, moral debasement, and terrorism.^[96]

In early December 1946, the General Assembly adopted a slightly revised resolution on the “crime of genocide” promptly, unanimously, and without debate.^[97] The soft law resolution had no binding force on its own, but without mentioning the Saudi draft treaty, it called explicitly for the “drawing up of a draft convention on the crime of genocide” for submission to the General Assembly the following year.^[98] The resolution framed genocide as “a denial of the right of existence of entire human groups, as homicide is the denial of the right to live in individual human beings.”^[99]

Once the UN General Assembly adopted the resolution, the Saudi draft treaty receded from view. UN Secretary‑General Trygve Lie appointed Lemkin, Vespasian Pella, and Henri Donnedieu de Vabres to produce a draft treaty that would become the operative draft.^[100] The three disagreed on many of the draft treaty’s fundamental features.^[101] Only Lemkin supported including “cultural” genocide as one of the qualifying genocidal acts, which he argued “aimed at the rapid and complete disappearance of the cultural, moral and religious life of a group of human beings.”^[102]

The place of “cultural genocide” within the Genocide Convention was therefore questioned and endangered from the very beginning. Cultural methods of “[d]estroying the specific characteristics of the group” nonetheless survived this first round.^[103] Such methods included acts of “systematic destruction of historical or religious monuments or their diversion to alien uses,” the “destruction or dispersal of documents and objects of historical, artistic, or religious value and of objects used in religious worship,” and “systemic destruction of books printed in the national language.”^[104] In this study draft, the provision on cultural genocide was wide‑ranging in other ways. It also added restrictions on language and modes of instruction, forced transfer of children, forced exile of the cultural elite (such as scholars, writers, artists, teachers, clergy, doctors, and lawyers), and restricted use of religious works.^[105] For redress, the draft favored reconstitution of lost heritage, including reconstruction of monuments, libraries, and churches, as well as “compensation to the group for its collective needs.”^[106]

The maximalist approach to genocide therefore prevailed in the first study draft by providing for three methods of genocide: physical, biological, and cultural.^[107] Physical genocide meant “[c]ausing the death of members of a group or injuring their health or physical integrity,” while biological genocide meant the means of restricting births.^[108] The boundaries between the three methods of genocide in this draft were sometimes murkier than their titles suggest—and did not directly break down according to a human‑property divide. Confiscation and looting of property were pegged as a method of physical genocide when it deprived members of the group “of all means of livelihood.”^[109] Methods of cultural genocide, on the other hand, now included the “forced transfer of children to another human group.”^[110] The study draft also specified the separate intent requirement required to establish genocide under any of the identified acts. Importantly, it provided that the enumerated acts must have been committed “with the purpose of destroying it in whole or in part, or of preventing its preservation or development.”^[111]

In subsequent drafts of the genocide treaty, each method became further crystallized along a human‑property divide and progressed toward the minimalist approach. An Ad Hoc Committee on Genocide was established within the UN Economic and Social Council with seven representatives from UN Member States.^[112] It abandoned the study draft and instead used a reduced draft submitted by the Chinese delegation as its operative draft, though it continued to preserve the maximalist view to some degree by preserving “cultural” methods of genocide in some forms, however precariously.^[113]

Cultural methods at this stage were reduced to “[d]estroying the cultural institutions and achievements or suppressing the language of such group.”^[114] All other previous references to seizing or destroying property were omitted throughout, both from the language of “physical” methods of genocide and all mentions of “cultural” methods. This draft also revised the intent requirement, providing that the relevant act must have been committed “for the purpose of destroying its physical existence or preventing its normal development.”^[115]

By this point, the inclusion of “cultural” methods of genocide had been a continuing source of contention, even as the concept continued to morph in different drafts. The Ad Hoc Committee therefore rearranged the three categories into a dichotomy of “physical” (including biological) methods and “cultural” methods, in a purposeful attempt to tease out different governments’ opinions on the latter.^[116] In the resulting draft, “cultural genocide” covered only restrictions on language and “[d]estroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group.”^[117] As anticipated, several governments introduced proposals to delete the cultural genocide provision.^[118]

Ultimately, cultural genocide was excised from the definition of genocide after the draft shifted to the Sixth Committee and constituent nations of the United Nations, en route to the final negotiation and adoption of the Genocide Convention.^[119] Of the acts ever previously identified under the “cultural” label, only the provision on forced transfer of children was ultimately added back into the treaty.^[120] Unlike the cultural heritage destruction provisions, however, this provision crossed the threshold of the human‑property divide and often is considered a method of “biological” genocide. Several representatives in the Sixth Committee had observed that forced transfer of children to another group was virtually indistinguishable from biological measures defined to mean preventing births within the group, such as forced sterilization or by separating men from women, and these measures are widely considered as biological.^[121] But the provision was limited to children and did not cover what is today referred to as “ethnic cleansing.”^[122] An adjacent proposal from Syria sought to include a corollary provision for adults to cover “[i]mposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill‑treatment,”^[123] but this proposal was resoundingly rejected.^[124]

The draft cultural genocide provision always had adherents and detractors. Of the latter, many countries felt strongly that the issue of cultural genocide was better suited to initiatives taking shape in other UN corridors, with suggestions of relegating it to human rights initiatives charged to the UN Commission on Human Rights or committing it to study by the UN International Law Commission (ILC).^[125] Advocates seeking human rights treatment felt that cultural genocide protection fell on the spectrum of efforts to protect minority groups.^[126] At about that same time, the ILC was set upon the task of devising a Code of Crimes Against the Peace and Security of Mankind (ILC Draft Code), a draft code of international criminal offenses based on the Nuremberg example that might ultimately be prosecuted by an international criminal court.^[127] It had a broader remit covering a more expansive array of offenses than the solitary crime of genocide, including war crimes, aggression, and undertaking or encouragement of terrorism.^[128] These efforts served as a precursor to the international criminal codes adopted during the 1990s, which currently form part of the surrogate regime of cultural genocide.^[129]

The suggestion of punting to another UN entity was not unusual. UN standard‑making during this era consisted of diversified projects taking shape across the many specialized agencies that were substantively and sometimes geographically dispersed. The Paris‑based United Nations Educational, Scientific and Cultural Organization (UNESCO) would soon work toward a treaty specifically focused on revising and improving the protection of tangible cultural property in international humanitarian law (also called the law of armed conflict),^[130] although externally and even within the United Nations, UNESCO’s initiatives were seen as focused more on issues of peacetime intellectual and educational cooperation.^[131] The UN Secretary‑General had stressed that a treaty on genocide must not “encroach on other notions which logically are and should be distinct” and specifically must avoid the “danger of the idea of genocide being expanded indefinitely to include the law of war.”^[132]

Other objections to including cultural genocide in the draft convention were substantive, such as objections that its fuzzy contours were not well‑suited to a criminal offense.^[133] The discussions among the various government representatives who participated in the drafting, however, confirmed that a vocal contingent did not view cultural genocide as reflecting the same relative gravity as physical and biological destruction.^[134] The U.S. representative, for example, emphasized that while the destruction of a church or library might be “barbarous and unpardonable,” it nonetheless fell within “an entirely different category” from the other forms of genocide that prevailed in the treaty,^[135] a view shared by several others.^[136] Denmark’s representative similarly remarked, for example, that “it would show a lack of logic and sense of proportion to include in the same convention both mass murders in gas chambers and the closing of libraries.”^[137]

As adopted, the Genocide Convention therefore embodied a minimalist approach, made strict both by its intent requirement and limited acts. It requires genocidal “intent to destroy, in whole or in part” (the dolus specialis, or special intent) and one of the following acts (the actus reus) carried out to destroy “a national, ethnic, racial or religious group” with that intent: (1) killing members of a group; (2) causing serious bodily or mental harm to members of a group; (3) deliberately inflicting conditions calculated to cause the group’s destruction, in whole or in part; (4) imposing measures intended to prevent births; and (5) forcibly transferring children of the group to another group.^[138] The enumerated acts are exhaustive and presented in a single article that dropped the labels of “physical” or “biological” methods.^[139] The treaty also establishes culpability for superiors and States by making “punishable” conspiracy to commit genocide, direct and public incitement to commit genocide, attempted genocide, and complicity in genocide.^[140] In a particular triumph for Lemkin’s vision, the treaty declares genocide a crime “whether committed in time of peace or in time of war.”^[141] It did not, however, adopt a system of universal jurisdiction, which would have required each State Party to prosecute genocide in its own domestic courts regardless of where the relevant acts occurred.^[142]

It is perhaps telling that Schabas concludes, “Only because the General Assembly chose to adopt a narrow definition of genocide, notably excluding cultural genocide from its scope, was it able to agree upon a convention in 1948.”^[143] Support for this assertion is expressly reflected in the official documentation.^[144] This reality might help to explain why, during Lemkin’s aggressive lobbying for States to join the treaty after its adoption in the General Assembly, he moved away from suggesting that the “crime of genocide” did or should encompass the cultural methods that he had urged prior to the treaty’s adoption.^[145]

The Afterword: The Crime of Genocide After the Treaty

The Genocide Convention entered into force in January 1951.^[146] While its deterrent effect cannot be fully measured, visible reliance on the treaty for cases brought in the ICJ, at least, has been mostly anemic. Apart from a 1951 Advisory Opinion on the effect of reservations to the treaty,^[147] no cases pursuant to the treaty hit the ICJ’s docket until 1993.^[148] Since 2019, however, the ICJ has experienced a swifter uptick in new cases filed pursuant to the Genocide Convention, all of which remain pending: The Gambia against Myanmar in 2019,^[149] Ukraine against Russia in 2022,^[150] South Africa against Israel in 2023,^[151] and Nicaragua against Germany in 2024.^[152] Also since the early 1990s, the crime of genocide was adopted verbatim in several new international criminal codes, including the Rome Statute establishing the ICC and international criminal statutes adopted to govern several ad hoc tribunals.^[153] This broader history supports three primary observations: (1) UN actors formally and regularly revisited whether to resurrect “cultural genocide,” always unsuccessfully; (2) one of the most influential pronouncements on the crime of genocide came in ICJ dicta on the international community’s erga omnes obligations; and (3) the most significant developments began in the 1990s.^[154]

First, while the Genocide Convention stood unused on a shelf for nearly a half century, formal reconsideration of cultural genocide came up in almost every decade, each time unavailing. Two separate multiyear studies were undertaken within the United Nations during the 1970s and 1980s with an eye toward possible revision or a new protocol to improve the treaty’s effectiveness.^[155] Both times, suggestions to incorporate “cultural genocide” arose and failed on familiar fault lines.^[156] The Special Rapporteur of the first initiative heard views favoring and resisting cultural genocide over several years, which ultimately left him “unable to draw a definite conclusion” whether it was possible to conclude “an additional convention covering cultural genocide or to include it in a revised convention on genocide.”^[157] Therefore, despite feeling that “cultural genocide cannot be ignored” as one of the existing treaty’s problems, he left the issue to UN Member States and States Parties to pick up at a later date.^[158] The Special Rapporteur of the later effort similarly fielded divergent views on whether to add “cultural genocide or ‘ethnocide.’”^[159] He likewise delegated the issue to future consideration, “including if there is no consensus, the possibility of formulating an optional protocol” that States Parties to the Genocide Convention could elect to join.^[160]

Once those initiatives ended without action, the topic shifted to the ILC. The ILC had abandoned its effort to develop its ILC Draft Code in 1954,^[161] but it picked it up again in the 1980s in a successful push toward drafting a code of international criminal offenses to guide an eventual international criminal court.^[162] The ILC considered the destruction of tangible cultural heritage in a few respects, though it did not initially come up in the context of cultural genocide. The Special Rapporteur noted in 1989 that while its earlier drafts had made no express mention of property, “a new category of property had appeared which was increasingly considered to be the heritage of mankind,” whose destruction violated various treaties.^[163] Initially, this discussion referenced whether such destruction should constitute a crime against humanity when motivated by political, racial, or religious animus and carried out as a mass action; genocide was separately listed in the drafts of that date as another example of a crime against humanity.^[164] Of note, the Special Rapporteur also expressed a view of genocide “as the prototype of a crime against humanity” rather than a wholly separate crime of a different character.^[165]

Yet by 1991, the ILC had isolated genocide as a separate category and also considered whether to incorporate the concept of cultural genocide. Ultimately the ILC came out against including express reference to cultural heritage destruction as anything but a war crime.^[166] The ILC Draft Code adopted the Genocide Convention’s minimalist formulation verbatim, and the ILC therefore rejected cultural genocide and instead focused the actus reus on “listed acts which come within the category of ‘physical’ or ‘biological’ genocide.”^[167] After contemplating whether to switch to making the listed acts representative rather than exhaustive, it settled on the latter. This definition prevailed when the ILC Draft Code was effectively converted into the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute), adopted in 1993 by the UN Security Council to govern prosecutions for atrocities committed during the armed conflict in the Balkans before an ad hoc international criminal tribunal sitting in The Hague.^[168] The Rome Statute, the multilateral treaty adopted only a few years later to govern prosecutions in the permanent ICC, resulted in yet another repeat of the crime of genocide.^[169]

Second, the ICJ planted a seed in the now‑famous dicta in Barcelona Traction, Light and Power Co. (Belgium v. Spain) that the right of protection from genocide constitutes a jus cogens (peremptory) norm^[170]—though the claims in Barcelona Traction^[171] had nothing at all to do with genocide. The tribunal in Barcelona Traction instead used genocide as a reference point to drill home the distinction between the wrongs alleged by the parties, which largely centered on an investment dispute, and graver wrongs “not of the same category” that give rise to obligations erga omnes, or obligations of a State owed to the international community as a whole.^[172] The tribunal admonished the parties and held that the latter derive in contemporary international law from the outlawing of acts of aggression or genocide, for example, as well as from international protection from slavery and racial discrimination.^[173] In Barcelona Traction, the ICJ also exclusively cited the Genocide Convention in discussing obligations that derive from rights of protection that “have entered into the body of general international law,” compared with other obligations that derive from rights “conferred by international instruments of a universal or quasi‑universal character.”^[174] By establishing genocide as a crime of such significance, and one that each country was under legal obligation to prevent,^[175] the ICJ arguably entrenched a meaning of “genocide” that operates to this day as a main constraint against definition‑tinkering, thus limiting its expansion to include cultural genocide.

Third, the most important post‑adoption developments for the Genocide Convention and its minimalist formulation of “genocide” came belatedly starting in the 1990s, both in the ICJ and in newly established international criminal tribunals. In the ICJ, the pace of cases increased slowly at first.^[176] Its 2007 judgment in Bosnia and Herzegovina v. Serbia and Montenegro (Bosnian Genocide Case) held that only the Srebrenica massacre qualified as genocide.^[177] The dispute established the particular challenge in proving the “special intent to destroy” (dolus specialis) a group, in whole or in part.^[178] The ICJ also confirmed, however, that cultural heritage destruction can help to establish the often‑elusive dolus specialis of genocide in certain cases because it can evidence an intent to cause destruction based specifically on a targeted group’s national, ethnic, racial, or religious identity.^[179]

But the 1990s also brought to the fore coinciding efforts to establish an international criminal code and international criminal tribunals, building on the ILC’s renewed efforts. The crime of genocide featured in all of them. First, in 1993, the UN Security Council established the ad hoc International Criminal Court for the Former Yugoslavia (ICTY)—the first international criminal tribunal since Nuremberg—to prosecute offenses from that same conflict.^[180] In addition to providing for war crimes and crimes against humanity,^[181] as at Nuremberg, the governing statute also included the crime of genocide^[182] and grave breaches of the Geneva Conventions of 1949.^[183] The latter two categories represented two developments since that earlier tribunal. The ICTY soon served as a blueprint for other ad hoc tribunals,^[184] though none prosecuted cultural heritage offenses to any material degree and certainly not to the extent of the ICTY.^[185]

The ICTY Statute also broke free some of the logjams that had held up the development of a permanent international criminal court and served as a model for the permanent International Criminal Court, established by the Rome Statute of the International Criminal Court in 1998.^[186] The discussions leading to both instruments show that one reason for adopting the Genocide Convention’s minimalist conception of genocide verbatim was because it was widely considered to have advanced to form part of customary international law, which is binding on all States regardless of their participation in a treaty that contains the same rule or principle.^[187] States now had two avenues of redress for genocide, all based on a uniform, minimalist definition: the ICJ, as established in the Genocide Convention and as a venue for State‑against‑State disputes alleging violation of customary international law, and the international criminal tribunals.

The concept of cultural genocide remained absent. International criminal tribunals have similarly hewed to the minimalist definition but also strongly affirmed the role that destruction of cultural heritage can play in establishing genocide by helping to show the special intent, or dolus specialis, to commit genocide.^[188]

Contemporary Debate Over Reviving “Cultural Genocide”

Contemporary critiques of the minimalist approach to genocide took root in the early 1990s, when the concept was shaken from its dormancy by the conflict that erupted in (and ultimately dissolved) what was then Yugoslavia.^[189] Subsequent cascading events continued to refocus public attention on the previously cast‑aside idea of recognizing “cultural genocide.” By comparing arguments that favor revival and international recognition of cultural genocide, points of convergence reveal the core features of “cultural genocide” that stimulate efforts to revive the maximalist approach.

Framework of the Debate for Reviving Cultural Genocide

The cultural genocide revivalists hail from different corners and include litigants in international and domestic proceedings, public officials, members of the media, and scholars in law and in the humanities. Their references to “cultural genocide” differ by context, audience, and purpose. International litigants (and domestic litigants, although to a lesser degree) are most hamstrung by the existing definition of “genocide” and its interpretation. They therefore have argued in international tribunals that the existing crime of genocide can and should be interpreted more expansively to include acts of cultural genocide. As discussed below, however, the methods and purpose vary.

Among international litigants, as opposed to other actors in the revivalist camp, Bosnia and Herzegovina was the first to argue for recognizing cultural genocide in the ICJ.^[190] As discussed more fully in Section III.A, the court rejected the argument but still gave cultural heritage a foothold in the crime by declaring its relevance to proving intent. More recent cases have therefore followed the blueprint provided by the court’s decision.^[191]

Public officials and the media appear more likely to use “cultural genocide” for its expressive value than in advocating for legal change, especially when employing the term in the immediate wake of attacks on cultural heritage.^[192] It is less clear that these actors are making proposals de lege ferenda. First, public officials have used several similar terms as an expressive vehicle to signal outrage. Examples of such noncrimes include references to a “crime against the common heritage of humanity,” “crime against culture,” “genocide of the cultural rights of a people,” and “crime against humankind” (not to be confused with a “crime against humanity,” which is a recognized category of international offenses).^[193] In a similar vein, Judge Rosalyn Higgins, former ICJ President, has decried “a degradation of the concept of genocide in its all too easy invocation by politicians who have not troubled to learn the distinction between mass murders, war crimes, crimes against humanity and genocide.”^[194]

The use of the term “cultural genocide” might also sometimes be intended to refer to acts as genocide‑adjacent—something distinct from but aligned with genocide—rather than to equate cultural genocide with the recognized forms of genocide. Such use is sometimes reflected especially in the media.^[195] The linguistic pairing of “cultural” with “genocide” suggests this possibility, along analogous lines to the meaning of such pairings as “character assassination” (different from assassination), “digital piracy” (different from piracy), or “commercial warfare” (different from warfare between armed forces). Indeed, using “cultural genocide” to express equivalence with “genocide” is seemingly redundant.^[196]

Scholars more often engage in the discourse over “cultural genocide” to make clear their normative arguments for its recognition as a legal concept. It is not possible within the confines of this Article to survey and dissect all of them, though some central themes emerge. Several scholars suggest that the term “genocide” be expanded to embrace cultural heritage destruction, by revising the definition in the operative instruments or adopting a more sympathetic interpretation in the tribunals.^[197] Anayiotos and Nersessian argue for an entirely new treaty devoted to cultural genocide,^[198] while Nafziger proposes adding “cultural genocide” as a separate offense, such as through an optional protocol to the 1948 Genocide Convention.^[199] Others, such as Lippman, urge or foresee future change to bring the concept of genocide into the fold, without necessarily setting out the preferred or most likely vehicle for doing so.^[200] Mundorff takes a different tack. He acknowledges that the drafters of the Genocide Convention scrapped specific provisions about the use of language and “the destruction of culturally important buildings such as places of worship and libraries,” but he makes a textual argument based on the repeated references to “group” to argue that the general premise of cultural genocide and saving a culture survived in the language of the treaty.^[201]

Some commentators take an intermediate position, arguing that the concept is not likely to emerge within the definition of genocide but nonetheless should be recognized and developed by transplanting it elsewhere^[202]—something that Lemkin himself vehemently opposed.^[203] Novic, after a comprehensive study of the concept of cultural genocide, reaches this conclusion.^[204] Gerstenblith, a leading cultural heritage scholar, considers “it may be worth revisiting the concept” to chip away at other barriers to cultural heritage protection, such as the doctrine of military necessity in international humanitarian law.^[205] She favors only incremental changes to the development of the concept through other avenues, however, and does not promote the development of new treaties or protocols focused on sharpening cultural genocide as part of the crime of genocide.^[206]

Critics, on the other hand, most often observe that the international community has been loath to tinker with the definition of “genocide” in the decades since the 1948 Genocide Convention’s adoption, especially to expand its reach to acts not currently enumerated. Schabas, a preeminent scholarly authority on genocide, stands rooted firmly in this camp, though he has suggested that while the definition of “genocide” is not the place for cultural genocide at this late date, room exists for addressing it elsewhere.^[207] Schabas nonetheless has consistently observed that drafters of the international codes in the 1990s demonstrated no such compunction to refrain from revising “crimes against humanity” or “war crimes” from their earlier incarnations.^[208] Kreß likewise cites the consistency of the definition to suggest that the meaning of “genocide” is effectively set.^[209]

Various reasons are attributed to this intransigence. Some critics cite lack of political will, observing that the international community generally shows no signs of considering, much less embracing, proposals to revise genocide when alternative methods of prosecuting cultural heritage loss are available.^[210] Changing the definition of the offense also could introduce daylight between the new definition, on the one hand, and the recognized customary definition and especially the jus cogens norm, on the other. Other reasons reflect some of the same critiques that hampered cultural genocide from the beginning. The “lowest common denominator” effect of negotiation remains on display, too, meaning that narrow drafting improves chances that States might sign onto it.^[211]

Not all critics are agnostic as to the concept of cultural genocide. Several critics articulate principled objections to marrying cultural heritage destruction with the contemporary meaning of genocide. One concern is the dilution effect: Fein argues that by using terms like “cultural genocide” and related terms like “linguicide,” then “genocide becomes not only unbounded but banal, an everyday occurrence.”^[212] Simon goes even further and asserts that killing is a predicate act for all forms of genocide, even the biological acts already enumerated in the Genocide Convention.^[213] Even apart from the linguistic and etymological argument, though, he asserts that cultural genocide “does not rise to the same magnitude of horror as physical genocide.”^[214] He argues that treating nonlethal acts as genocide “has unacceptable implications” because it would grant them the “same legal and moral status.”^[215]

Finally, one group of scholars who have closely scrutinized Lemkin’s writings question whether even Lemkin envisioned “cultural genocide” as “a stand‑alone crime.”^[216] At least some urge that Lemkin’s conception of “genocide” was necessarily holistic, and while not each instance would necessarily bear the same hallmarks, it was the combination of cultural devastation with the physical and biological methods that made this new crime so sinister and different from existing crimes. Irvin‑Erickson, for example, observes that Lemkin’s whole conception of “genocide” attempted to recognize “‘different actions’ that, ‘taken separately,’ constitute other crimes but, when taken together, constitute a type of atrocity that threatened the existence of social collectivities and threatened a peaceful and cosmopolitan social order of the world.”^[217] He continued: “It bears repeating again, for emphasis, that Lemkin did not believe the destruction of cultural symbols, artifacts, and institutions was genocide, unless these acts of destruction ‘menaces the existence of the social group which exists by virtue of its common culture.’”^[218] Moses, one of the foremost scholars in the genocide studies space, similarly observes that inspection of Lemkin’s writings reveals that Lemkin “did not consider cultural destruction in isolation from attacks on the physical and biological elements of a group.”^[219] In other words, they were “inextricably interwoven.”^[220] Luck is less convinced but leaves room for this position, observing that “Lemkin’s actions, comments, and writings were suggestive, but not definitive, on these matters.”^[221]

The spread of views therefore parallels the fraught debate among States both at the original adoption of the Convention and when the concept of cultural genocide was formally revisited. Postmortems of genocide prosecutions also have been revealing. Many in the international community view the existing apparatus for genocide as needing repair, even for existing enumerated acts. This argument is not typically made as a jab at the concept of cultural genocide specifically, but it does help to further explain resistance to adding or reviving more genocidal acts. Jurisdictional challenges, especially to the power of the ICC, mean that many perpetrators will avoid prosecution absent either more recognition of universal jurisdiction or the attendant responsibility of countries to prosecute offenders found within their borders.^[222] The intent requirement has also made genocide convictions elusive. As the ICC’s first prosecutor noted, tribunals have recognized that the special intent (dolus specialis) often is neither susceptible of direct proof nor backed by “explicit manifestations,” though it can be inferred.^[223] More specific challenges include whether a State can rely on use of force to prevent genocide, as the Russian Federation has claimed to do in Ukraine,^[224] or how the Genocide Convention might be better used to prevent genocide before it occurs.^[225] Calls to fix the broken apparatus or to iron out other challenges in the existing framework implicitly point to another barrier for adding cultural genocide to the repertoire, namely improving the functioning and enforcement of the crime of genocide in its current form before contemplating new terrain.

Core Features of “Cultural Genocide” Driving the Debate

A collective review of arguments supporting cultural genocide revival reveals common themes as to identified gaps in the minimalist approach. Three core features emerge at the center of the Venn diagram: (1) a desire to reinforce cultural heritage destruction as one part of the larger narrative of atrocities; (2) that cultural heritage destruction aims at erasing social and cultural identity; and (3) intentional, orchestrated cultural heritage destruction calls for heightened criminal enforcement.^[226]

First and foremost, cultural genocide revivalists uniformly seek recognition that cultural heritage destruction is one aspect in Lemkin’s “panorama” view of atrocities committed against a national, ethnic, racial, or religious group.^[227] They argue, in essence, that the killing‑centric, minimalist approach to the crime of genocide disregards and obscures a larger narrative that often relies on the combination and layering of several methods by which atrocities are committed, both geographically and temporally.^[228]

Second, they observe that cultural heritage destruction is a vehicle for aggressors to eradicate and erase the identity, memory, and tangible evidence of a national, ethnic, racial, or religious group. They thus share Lemkin’s view that by “destroying institutions and objects through which the spiritual life of a human group finds expression, such as houses of worship, objects of religious cult, schools, treasures of art, and culture,” the “forces of spiritual cohesion within a group are removed and the group starts to disintegrate.”^[229]

This loss, in turn, causes a loss to the collective cultural heritage of humankind. The UN General Assembly’s 1946 resolution on the crime of genocide included similar language: “a denial of the right of existence of entire human groups” and “results in great losses to humanity in the form of cultural and other contributions represented by these human groups.”^[230] Lemkin espoused this view as part‑justification for including cultural genocide in the draft treaty, observing “the value of the contribution made by [a racial, national, or religious] group to civilization generally.”^[231] He had already stated the same in his earlier draft offense of vandalism in 1933, where he wrote that “[t]he contribution of any particular collectivity to world culture as a whole, forms the wealth of all humanity, even while exhibiting unique characteristics.”^[232]

This connection between people and cultural property was not reflected in the existing international legal instruments when the Genocide Convention was adopted. Even rules governing armed conflict that barred unnecessary and intentional attacks on religious, historic, and artistic sites from the hazards of war did not establish this connection.^[233] This proposition holds that cultural property differs fundamentally from other kinds of property, such as the broader range of “civilian property” or the “economic property” that could be reconstituted or whose loss could be financially compensated. This distinction was, in fact, one organizing premise of Allied postwar compensation regimes: Postwar claims for lost property were sorted into “economic” and “cultural” buckets, and financial compensation was provided for the former and then extinguished, while claims for cultural property remained open longer and could be satisfied often only by the recovery of the specific property.^[234] Even critics who challenge normative arguments to resurrect cultural genocide do not necessarily dispute the value of cultural heritage or its intrinsic connection to qualifying groups under the Genocide Convention.^[235]

Third, cultural genocide revivalists seek not just recognition of the concept, but also an international mechanism for enforcement, often specifically an avenue of international criminal enforcement for perpetrators.^[236] Redress for the crime of genocide can be had today through one of two vehicles that provide an international enforcement mechanism: the Genocide Convention, with the ICJ as its primary international enforcement mechanism, and within international criminal law, with the ICC as its primary international enforcement mechanism.^[237]

The ICJ is limited to disputes between States and cannot provide for criminal punishment of individual perpetrators or other individuals who could be found responsible based on conspiracy, incitement, attempt, or complicity.^[238] The Genocide Convention’s specific criminal enforcement provisions are limited mainly to calling for States Parties to conduct criminal prosecutions in their domestic tribunals because it anticipated but did not establish an “international penal tribunal.”^[239]

The ICC fits the bill for the anticipated international penal tribunal. As noted above, it transplanted the crime of genocide verbatim,^[240] though it also added three other categories of crimes in addition to genocide: crimes against humanity, war crimes, and aggression.^[241] The Rome Statute also provides that “[t]he definition of a crime shall be strictly construed” and “not be extended by analogy.”^[242] The jurisdictional hurdles can be considerable.^[243] An individual who commits a crime “shall be individually responsible,” but the Rome Statute also provides for international criminal responsibility for an individual who: (1) orders, solicits, or induces a crime or attempted crime; (2) facilitates, aids, abets, or assists in the commission or attempted commission of a crime; (3) contributes to commission or attempted commission of a crime by acting as part of a group acting with a common purpose; or (4) takes a substantial step toward commencing a crime without abandoning the effort.^[244] For genocide specifically, criminal responsibility also applies to an individual who “directly and publicly incites others to commit genocide.”^[245]

Cultural Genocide Surrogates in the International Legal Framework

The whittling down of the original, maximalist definition of “genocide” to a minimalist definition left a discernible void between the contours of each, but it does not follow that the void remained unfilled. When the 1948 Genocide Convention was adopted, the international landscape was far more barren, and Lemkin’s maximalist approach to genocide intended to compensate for spaces of naked expanse. None of the following had occurred to that date: prosecution for the crime of genocide, which had not been recognized at Nuremberg; a treaty setting out comprehensive obligations toward cultural property during armed conflict in international humanitarian law; the establishment of a permanent international criminal tribunal that would prosecute not only of the crime of genocide, but also crimes against humanity, war crimes, and the crime of aggression; and the adoption of the Universal Declaration of Human Rights and subsequent human rights treaties that flowed from it.

Since then, these and other developments populated much of that expanse and cumulatively perform much of the function of the concept of cultural genocide. First, international tribunals have not ignored cultural destruction in deciding cases alleging genocide but in fact have used such destruction to bolster consideration of such claims in other ways. Second, monumental changes elevated cultural property protection in international humanitarian law—the most overlooked and critical development in this regard.^[246] Third, international criminal law not only developed to include new international criminal tribunals, but also added a menu of claims that can be combined with genocide prosecutions to reflect the “sinister panorama” of atrocities. Finally, as the drafters predicted and as many countries at the time desired, significant developments occurred in international human rights law. A succession of incremental advances that expanded and added heft to human rights law began close on the heels of the 1948 Genocide Convention and has continued through the present day.^[247]

Each of these approaches is better positioned than the offense of genocide to provide a legal basis for protecting and preventing destruction of cultural heritage, having developed and expanded in the maximalist‑minimalist gap while cultural genocide revival efforts stood continually stagnant. These approaches also have already proven themselves as more amenable to future development.

Focusing attention on improving these pathways of cultural property protection also helps to serve two important goals in the broader “panorama” or narrative view of atrocities. First, it allows advocates, drafters, and adjudicators to sharpen their attention on fixing the existing genocide apparatus, under which genocide is only rarely found despite a troubling landscape of atrocities since the first appearance of the crime. Second, it leaves room at the table for advocates seeking other genocide‑related or genocide‑adjacent advances that lack a firm foothold in the existing system. Appeals to expand the menu of crimes in international criminal law, for example, include calling for offenses of ecocide^[248] and ethnic cleansing.^[249] The ICC Office of the Prosecutor also has made a point of developing guidance on how the existing framework can reach femicide^[250] and modern slavery.^[251]

Cultural Heritage & the Dolus Specialis of Genocide

Those arguing for reviving cultural genocide within the existing crime of genocide implicitly seek its recognition as a genocidal act (actus reus) set out in the list of enumerated acts. In both the Genocide Convention and Rome Statute, the acts constituting genocide form only one‑half of the equation for determining criminal responsibility for genocide, however.^[252] Proving the crime of genocide still also requires a party or prosecutor to establish that the individual demonstrated the special intent (dolus specialis) to destroy a group, in whole or in part.^[253]

Far from excising all consideration of cultural heritage destruction from cases alleging genocide, the ICJ has declared that cultural heritage destruction can help to establish the dolus specialis required to prove genocide.^[254] The ICC Office of the Prosecutor has similarly articulated its intention to recognize cultural property destruction as evidence to establish the dolus specialis when “occurring simultaneously with other acts targeting protected groups.”^[255] The issue has not yet come up in any cases before the ICC.

The role of cultural heritage destruction in establishing the crime of genocide arose in the first substantive dispute brought under the Genocide Convention and was prompted by the armed conflict that erupted during the 1990s among the culturally distinct republics comprising the former Socialist Federal Republic of Yugoslavia, which had been created by the postwar treaties after the First World War.^[256] The prolonged non‑international‑turned‑international armed conflict disintegrated the former Yugoslav state and ultimately produced seven present‑day sovereign states: Bosnia and Herzegovina, Croatia, Kosovo, Montenegro, North Macedonia, Serbia, and Slovenia.

While the conflict was still in its infancy, but after Bosnia and Herzegovina obtained UN recognition as an independent state, Bosnia and Herzegovina filed its application alleging the crime of genocide by Serbia and Montenegro (then controlling the residual state of Yugoslavia).^[257] It argued that Bosnian Serb forces’ conduct “to eradicate all traces of the culture of the protected group through the destruction of historical, religious and cultural property” should qualify as a genocidal act under Article II(c) of the Genocide Convention.^[258] To fit these allegations within that article, it therefore needed to establish that the opponent was “[d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”^[259] Among its supporting facts, Bosnia and Herzegovina cited a news report that the “destroyed or damaged treasures include the oldest, the most famous, and the most beautiful mosques in Bosnia,” as well as its national library.^[260]

This argument was not successful. The ICJ made extensive findings of cultural property destruction and found “conclusive evidence of the deliberate destruction of the historical, cultural and religious heritage of the protected group during the period in question.”^[261] It cited earlier findings in the ICTY that the Serb and Serb‑controlled forces in Bosnia and Herzegovina had undertaken a campaign to wipe out non‑Serb religious symbols, for example, including more than one thousand mosques, as well as Catholic churches, synagogues, monasteries, and cemeteries.^[262] They also destroyed movable cultural property, such as by burning the contents of libraries, archives, and collections of ancient manuscripts.^[263] The tribunal nonetheless held that “the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group.”^[264] It noted that the UN General Assembly’s Sixth Committee “decided not to include cultural genocide in the list of punishable acts” and that the ILC likewise “confirmed this approach” when it had revisited the ILC Draft Code during the 1990s.^[265]

But while the ICJ rejected cultural heritage destruction as a genocidal act, the tribunal opened the door to using cultural heritage destruction for the crime’s other requirement: a showing of special intent, the dolus specialis, to destroy the group, in whole or in part.^[266] The ICJ recognized that “such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group.”^[267] It therefore held that systematic attacks on cultural property as symbols of a national, ethnic, racial, or religious group can be considered as evidence to show intent when they coincide with the enumerated genocidal acts.^[268]

Despite making this assertion, however, the tribunal did not rely on any of the allegations or evidence of cultural heritage destruction to establish the special intent to destroy a group, in whole or in part, in holding that genocide was committed.^[269] It ultimately determined that the legal standard for the crime of genocide was proved only as to the 1995 Srebrenica massacre,^[270] specifically the separation and mass execution of thousands of Bosnian Muslim boys and men by Serb‑led Bosnian Serb forces in a designated “United Nations safe area.”^[271] In finding that the dolus specialis was established for the Srebrenica massacre, the tribunal focused instead on evidence of an intent to destroy military‑aged males in the region, and it cited the ICTY’s earlier recognition that the separation and killing of the men “would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.”^[272]

Three decades after the original filing in that case, in December 2023, South Africa filed an ICJ application against Israel under the Genocide Convention for alleged genocidal acts in Gaza.^[273] It took a different tack. South Africa alleged that Israel had damaged or destroyed “places of worship, cemeteries, [and] cultural and archaeological sites.”^[274] Unlike Bosnia and Herzegovina in the earlier action, however, South Africa did not allege these acts as genocidal acts, but as facts that supported an inference of intent to destroy a group, in whole or in part.^[275]

The pending genocide cases in the ICJ may add greater clarity, though the court is not predisposed to embrace an expansion of genocide to include cultural genocide. The pending case of South Africa v. Israel is instructive on this point.^[276] As a sign that it is not poised to change directions, South Africa alleged extensive facts of cultural heritage destruction in Gaza and sought provisional measures, yet none of the provisional measures that it sought included protection for endangered cultural property, and the court ordered none.^[277]

This use of cultural heritage destruction in genocide cases goes a substantial way toward closing the gap between the maximalist and minimalist approaches to genocide, at least as far as cultural genocide. As noted above, a party must show that a genocidal act (actus reus) was committed with a specific intent to destroy a national, ethnic, racial, or religious group, in whole or in part, and this “intent to destroy” requirement forms one of the most challenging hurdles to proving the crime of genocide.^[278] Early drafts of the Genocide Convention posited “cultural” methods of genocide as qualifying genocidal acts under the treaty, or one avenue for establishing the actus reus of the crime of genocide.^[279] The ICJ has instead placed cultural heritage destruction on the back end of the mens rea plus dolus specialis equation, holding—consistent with the concept of cultural genocide—that destruction of the distinctive places and objects specially associated with a group can show that kind of intent.^[280] So cultural heritage destruction might be used in genocide prosecutions in a way that does the heavier lifting.

The crime of genocide has also stayed remarkably consistent, encasing the existing definition in an almost iron‑clad box. Drafters have stayed the course and transplanted the crime in identical terms across multiple instruments, and widespread recognition of its customary status and elevation to a jus cogens peremptory norm means that the crime of genocide carries the same meaning across all these formats.^[281] Crimes against humanity and war crimes, by contrast, have been subjected to varying scope and interpretation over time and through different instruments and tribunals. No tribunal therefore is equipped to make a change to the crime of genocide without causing downstream effects wherever else the offense appears.

Admittedly, the omission of cultural genocide deprives cultural genocide revivalists of something else: Cultural heritage destruction cannot reflexively obtain the special condemnation and opprobrium that attaches to the word “genocide.”^[282] The clearest casualty from the omission of “cultural genocide” will occur in cases in which animus‑based destruction of cultural heritage occurs but without sufficient proof of any genocidal act that involves physical or biological methods of eradicating a group.^[283] Given the number of mass atrocities for which no criminal responsibility has attached and the entrenched legal and popular definition, this result seems to align with the international community’s plans for the now‑and‑future scope of genocide and its presumed gravity.

Cultural Heritage Protections in International Humanitarian Law

From the postwar period through the 1980s, when the Genocide Convention was plagued by an eerie quiet, international humanitarian law underwent a significant, gap‑filling metamorphosis. Leading developments for cultural property took three primary forms: recasting the types of property called out for heightened protection, merging the two streams of international humanitarian law focused on civilian protection and cultural property protection, and expanding obligations toward cultural property. One important shortcoming nonetheless should be noted up front: International humanitarian law applies only during armed conflict; most genocides occur in the context of an armed conflict, but the crime of genocide does not require armed conflict.^[284]

The year 1954 was a critical year for international humanitarian law and cultural property.^[285] That year, the leading treaty governing the wartime protection of cultural property was adopted: the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention).^[286] The 1954 Hague Convention was not only one of the earliest treaties dedicated to cultural property protection but also arguably the most influential within the broader context of international cultural heritage law.

The through line in the concept of “cultural genocide” and the postwar developments in international humanitarian law started with the very premise of protection. The preamble to the 1954 Hague Convention states “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” and that “the preservation of the cultural heritage is of great importance for all peoples of the world.”^[287] This language tracks the historic reasoning underlying recognition of cultural genocide.

One of the 1954 Hague Convention’s most successful innovations was to nix the suggestion that cultural sites and objects qualified for heightened protection by virtue of static attributes, and it thus helped to fill a gap that was existing when the 1948 Genocide Convention was adopted. Until the 1954 Hague Convention, the rules governing armed conflict were those set out in the 1899 & 1907 Hague Regulations. These rules expressly provided for protecting artistic, scientific, or religious institutions, historic monuments, and works of art or science.^[288] The nature of the obligation turned on the stage of the conflict. During hostilities, armed forces were required to take “all necessary steps . . . to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes” and “historic monuments” (the last of which appears only in the 1907 Regulations).^[289] During military occupation, the regulations provided that the property of these same institutions obtained the same inviolability as private property, and they also forbade “[a]ll seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science.”^[290] General property‑related provisions, including prohibitions on pillage and bombardment of undefended buildings, could also function to protect cultural property without relying on these qualifying attributes as artistic, scientific, religious, or historic property.^[291]

The 1954 Hague Convention introduced the term “cultural property” to replace the former categories set out in the 1899 & 1907 Hague Regulations.^[292] With this term, the treaty conditioned protection instead on whether the sites or objects possessed cultural importance, in line with the concept of cultural genocide.^[293] The core of the definition of “cultural property” was “movable or immovable property of great importance to the cultural heritage of every people.”^[294] The definition of “cultural property” extended further to buildings that preserved or exhibited such property, such as museums or libraries, and to areas in which such property was concentrated, “known as ‘centers containing monuments.’”^[295] The latter was intended to protect historic centers with high concentrations of qualifying sites and artifacts, which could include towns or cities if located away from industrialized military objectives.

In other words, cultural value to community and to humankind reigned. This shift in the definition persisted and informed nearly all the legal developments in cultural property protection that proliferated in its wake.^[296] Even the advances and shortcomings of cultural heritage‑related offenses in international criminal law flow directly from this shift.

The 1954 Hague Convention also added two other features that substantially expanded protection for cultural property relevant to comparing it to the concept of cultural genocide. First, it expanded to “armed conflict[s] not of an international character.”^[297] Although often abbreviated as “non‑international armed conflicts,” it has a specific meaning in international law to refer to armed conflicts of a certain intensity involving one or more non‑State armed groups that meet certain indicia of an organized armed force.^[298] Due to longstanding principles of sovereignty, territoriality, and non‑interference, the term does not cover “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”^[299] Second, the treaty added affirmative obligations to help prevent cultural property destruction or misappropriation, in line with one of the operative words in the Genocide Convention’s full treaty title. For example, it requires occupying authorities to provide urgent remedial measures to endangered or damaged cultural property, and it also calls for States Parties “to foster in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples.”^[300]

This focus on the cultural value of property to a collective group has prevailed in international humanitarian law. In 1977, two protocols to the 1949 Geneva Conventions—one applicable to international armed conflicts and the second applicable to armed conflicts not of an international character—reinforced the connection between civilians and cultural property, as well as the emphasis on protecting cultural property that constitutes “the cultural or spiritual heritage of peoples.”^[301] A new protocol to the 1954 Hague Convention came later in 1999.^[302] This treaty, too, emphasized cultural property and the people linked with it.^[303]

In its recent application against Israel in the ICJ, South Africa connected these dots. As mentioned above, it toed the line with prior ICJ jurisprudence in alleging destruction of cultural heritage for the dolus specialis required for the crime of genocide. South Africa stated at the outset of its application that it was “highly cognisant of the fact that acts of genocide are distinct from other violations of international law,” including the prohibition in international humanitarian law on intentionally directed attacks against “civilian objects and buildings dedicated to religion, education, art, science, [and] historic monuments” and “other war crimes and crimes against humanity.”^[304] Yet it stressed “a close connection between all such acts” and recognized that “acts of genocide inevitably form part of a continuum—as Raphaël Lemkin who coined the term ‘genocide’ himself recognized.”^[305] South Africa stated its desire “to place the acts of genocide in the broader context” that included violations in these latter categories.^[306]

While international humanitarian law therefore satisfies the main, core feature of the concept of cultural genocide—international recognition of the connection between certain valued property and groups—it lacks its own international enforcement mechanism. Treaties on international humanitarian law did not anticipate or provide for criminal liability for violations, even egregious violations, but instead imposed responsibility on States Parties for redressing violations committed by their own armed forces.^[307] Once the rules governing armed conflict were agreed, however, a steady drumbeat of efforts to punish egregious violations began to sound.^[308] Enforcing violations of rules protecting cultural property (or the rules more generally) at the international level had proved largely elusive until the 1990s, apart from the postwar ad hoc tribunal at Nuremberg. Individual nations, for their part, often have made an underwhelming show of punishing perpetrators of atrocities within their own domestic or military legal systems.^[309] The development of international criminal law has created an enforcement mechanism for prosecuting war crimes, which are offenses directly tied to serious violations of international humanitarian law.^[310] In other words, international criminal law developed to complement international humanitarian law, while further expanding to also provide a forum for redressing other atrocities that occur within and without armed conflict, as discussed below.

Cultural Heritage, Persecution & War Crimes in International Criminal Law

The path to a fully realized system of international criminal law was a long time coming. Once it took shape in the 1990s, however, it included an expansive panoply of offenses that included genocide, as well as several other crimes that could be prosecuted alongside or independent from the crime of genocide. Cumulatively, this collection of offenses went a long way toward providing a vehicle to redress the “sinister panorama” of atrocities because offenders were often prosecuted for several stacked offenses. And cultural heritage destruction could feature in a variety of ways—to help establish not only the dolus specialis of genocide but also the actus reus of persecution, a crime against humanity, or as a war crime tied to international humanitarian law.^[311]

Genocide and international criminal law both grew from the rib of armed conflict and international humanitarian law. For a half century before the adoption of the Genocide Convention, international humanitarian law hustled to moderate the impacts of war and make it more humane, all while more devastating tools of warfare were created and employed.^[312] War crimes cover violations of these rules but were deemed insufficient to cover atrocities. The adoption of the Genocide Convention came about as a reaction to the most gruesome inhumanity in modern warfare. “Crimes against humanity” was likewise devised by Sir Hersch Lauterpacht for the Nuremberg Trial to translate horrific atrocities into prosecutable offenses, while also prosecuting war crimes as a separate category of offenses.^[313]

Modern international criminal law in the Rome Statute includes all three categories—genocide, crimes against humanity, and war crimes—as well as a fourth category, aggression, that by and large tracks the Nuremberg “crimes against peace” category but was missing from the intervening ad hoc tribunals.^[314] The creation of the permanent ICC in the Rome Statute built on the momentum and experience of the ICTY and other ad hoc tribunals of that era, and it meant that international criminal law no longer depended on the halting and relatively isolated examples of ad hoc tribunals. It was not limited to geographically confined conflicts and was unbounded by any statute of limitations.^[315]

The ICC has relied largely on the two separate paths of war crimes and crimes against humanity for prosecuting cultural heritage destruction. The category of war crimes paves the most direct path because the Rome Statute expressly provides for prosecuting intentional attacks against “buildings dedicated to religion, education, art, science or charitable purposes,” as well as “historic monuments,” when (1) they occur during international or qualifying non‑international armed conflicts, (2) are committed “as part of a plan or policy or as part of a large‑scale commission of such crimes,” and (3) the attacks are not justified by military necessity.^[316]

But of these two categories—war crimes and crimes against humanity—the closest legal surrogate for cultural genocide is persecution, a crime against humanity.^[317] All crimes against humanity qualify by virtue of being “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”^[318] This intent requirement—knowledge of the attack—is considered a lower mens rea standard than the dolus specialis required for genocide. The offenses that come under the umbrella of crimes against humanity include such offenses as murder, extermination, enslavement, forced population transfers, torture, and the crime of apartheid.^[319]

Persecution is the wordiest of the crimes against humanity. The term itself is not defined, but it has several requirements: An individual can be criminally responsible for persecution “against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender” or “other grounds that are universally recognized as impermissible under international law,” but such persecution must have occurred “in connection with” another offense within the ICC’s jurisdiction, including another offense listed as a crime against humanity.^[320] The specific offense of persecution therefore applies to members of the same groups as genocide—racial, national, ethnic, or religious—but adds “political” groups (another hot‑button issue of exclusion from the final Genocide Convention), as well as cultural, gender, and other identifiable groups or collectivities. It is a complementary crime in requiring another offense, but the laundry list of offenses listed as “war crimes” in the Rome Statute do not render this requirement insurmountable in the context of the kinds of cases that reach the tribunal.^[321]

In 2024, an armed militant was convicted and sentenced in the ICC for several crimes based on his control over armed actors who committed destructive acts at the World Heritage site of Timbuktu, in Mali, and other atrocities.^[322] The Timbuktu destruction was also the subject of an earlier ICC prosecution, which resulted in conviction on a guilty plea and an order of reparations against an armed actor who had directed and participated in the destruction.^[323] Through these cases, the ICC established the extent to which war crimes and crimes against humanity, specifically persecution for the latter, have emerged as legal surrogates for the missing concept of cultural genocide. They also form the strongest evidence yet that the same international criminal enforcement mechanism exists for genocide and for prosecuting acts that track the concept of cultural genocide.^[324]

A policy leader within the Ansar Dine armed militant group, Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan), was convicted of persecution and war crimes in June 2024.^[325] The Ansar Dine group took control of Timbuktu in 2012, when many mosques and historic, religiously significant mausoleums were attacked and demolished.^[326] Al Hassan was acquitted of the indicted offenses of ordering targeted attacks on protected buildings, a war crime, because the tribunal determined that he lacked the requisite control over the perpetrators.^[327] He was, however, convicted of other war crimes unrelated to cultural heritage.^[328]

In Al Hassan’s conviction for persecution, which the ICC characterized as “one of the most serious crimes against humanity,”^[329] the destruction of cultural property served as evidence of a persecutory act (actus reus). Among the acts supporting the conviction, the tribunal made the specific observation that “the mausoleums of Timbuktu were crucially important for most of the local community,” a protected group on the basis of religion.^[330] It further noted that local people “were attached to these buildings” for prayer, that the “community strove to keep their heritage alive” through their use and replastering of the structures as a spiritual practice “for almost five hundred years,” and that the mausoleums “also had a role in connecting the various communities that populated Timbuktu.”^[331] The tribunal also made specific findings that the group not only “felt that the demolition of these monuments was a serious attack on the identity of Timbuktu” and was “traumatic” and “emotional” for them, but also that, “[a]t a national level, Malians felt that their national heritage was lost.”^[332]

Likewise, the tribunal restated the relevant conduct at sentencing.^[333] The ICC held that Al Hassan was criminally responsible for several of Ansar Dine’s restrictions on the religious, traditional, social, and cultural practices of the population, in part by limiting religious practices and traditional customs and by damaging or destroying “monuments of historical value to the population of Timbuktu,” which the court noted cumulatively (with other conduct) “had a traumatic effect” on Timbuktu’s population.^[334] The tribunal also emphasized that persecution “constitutes, in and of itself, one of the most serious crimes against humanity, as it amounts to a denial of fundamental rights of one or more persons by virtue of their belonging to a particular group or collectivity.”^[335] It noted that because discriminatory intent was a legal element of persecution, it could not serve as an aggravating circumstance for sentencing purposes, but that “the crime of persecution has been considered ‘inherently very serious’” and therefore nonetheless warranted “a severe penalty.”^[336]

Cultural heritage destruction can be prosecuted most directly as a war crime,^[337] as compared to serving as evidence of the actus reus of persecution or the dolus specialis of genocide, given the war crimes in the Rome Statute that specifically reference certain cultural heritage and property‑based destruction.^[338] Ahmad Al Mahdi Al Faqi (Al Mahdi), also prosecuted for destruction at Timbuktu, pleaded guilty in 2016 for directly ordering and committing the attacks and was convicted as a co‑perpetrator for the war crime of attacking protected objects.^[339] Most significant, Al Mahdi was the first individual prosecuted solely for destruction of cultural heritage before an international criminal tribunal.^[340] The tribunal stressed the cultural connection between the group and the property, even though the relevant war crime in the Rome Statute does not expressly state a standard of cultural significance and only criminalizes “intentionally directing attacks against buildings dedicated to religion, education, art, [or] science,” or “historic monuments.”^[341] While crimes against humanity must be committed as part of a “widespread or systematic attack directed against any civilian population,” war crimes must be committed “as part of a plan or policy or as part of a large‑scale commission of such crimes.”^[342] The tribunal observed the contribution of the cultural sites to the international community, noting that their World Heritage status “reflects their special importance to international cultural heritage.”^[343]

The tribunal in Al Mahdi’s case also concluded that the offense was “of significant gravity” and that his admission of guilt may help “alleviate the victims’ moral suffering through acknowledgement of the significance of the destruction.”^[344] It also awarded reparations of €2.7 million (despite his apparent indigence), as well as “symbolic measures” that “may be particularly appropriate to repair harm caused to a community.”^[345] “Collective reparations” were ordered in part for “disruption of culture of the Timbuktu community” as a whole.^[346] These rulings further hardened the line between animus‑based cultural heritage destruction and the protection of groups and individuals within those groups.

With the core features of cultural genocide in mind, the Timbuktu cases establish persecution and war crimes offenses as viable legal surrogates. The language of these judgments highlights the same rationale for recognizing cultural genocide. As noted above, these findings were made in the same venue in which an individual might be prosecuted for genocide. And again, the ability—but not the requirement—to pair these offenses with other offenses also itself shows that the cumulative collection of international criminal offenses spans out to allow a maximalist approach to prosecuting atrocities.

International Human Rights Law as a Vehicle for Redress for Cultural Heritage Destruction

When the Sixth Committee voted down the inclusion of cultural genocide in the draft Genocide Convention, back in 1948, it reported that several representatives took “no position” on the “principle of cultural genocide, only that action to protection against this form of genocide might more appropriately be taken within the sphere of human rights.”^[347] Coinciding actions were taken to develop the human rights sphere, particularly in the Commission on Human Rights then headed by Eleanor Roosevelt. As it happened, the General Assembly adopted the Universal Declaration of Human Rights^[348] one day after it adopted the Genocide Convention.

International human rights law has grown most conspicuously from the Universal Declaration of Human Rights. It recognizes “the inherent dignity” of all people and espouses several fundamental rights and freedoms “as a common standard of achievement for all peoples and all nations.”^[349] Like other declarations within the UN system, the Universal Declaration is a soft law instrument designed to convey moral influence and reflect aspirations and values. Unlike the Genocide Convention, international humanitarian law, or international criminal law, the Universal Declaration therefore did not create positive legal obligations for any States.^[350] It also did not provide an unmistakable foothold for the concept of cultural genocide. Nonetheless, the Universal Declaration has ultimately served as the core foundation for leading human rights treaties and the development of customary human rights norms, both of which obtain legal force.^[351]

The right of access to culture and, more recently, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)^[352] prove most significant as surrogates for the concept of cultural genocide. The right of access to culture is enshrined first and foremost in the Universal Declaration of Human Rights, which guarantees everyone “the right freely to participate in the cultural life of the community.”^[353] In addition, though, it has gained steam through the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes the right of everyone “to take part in cultural life,” and in the International Covenant on Civil and Political Rights (ICCPR), which recognizes the right of minorities “to enjoy their own culture” in those States where “ethnic, religious or linguistic minorities exist.”^[354]

For decades, the right of access to culture enshrined in these instruments did not have a direct link to protection of cultural sites or misappropriation of cultural objects. That changed by 2011, however, with a series of reports issued by the appointed Independent Expert and then Special Rapporteur in the Field of Cultural Rights.^[355] The most important of these was a 2016 report by the Special Rapporteur on “the intentional destruction of cultural heritage as a violation of human rights.”^[356] The report highlighted the ways that intentional destruction, typically in armed conflict but not necessarily so, can be carried out by States and non‑State actors to attack cultural rights, erase the memory of events, civilizations and peoples, and erase evidence of minorities, religions, and other things.^[357] It identified protection against destruction of cultural property as critical to the right of access to culture and to other cultural rights.^[358]

Human rights treaties have since developed as another viable arrow in the quiver of surrogate measures protecting cultural heritage. After several subsequent years with continued attacks on cultural heritage, the developments in the ICJ for CERD have been most compelling in establishing this particular human rights treaty as a legal surrogate for cultural genocide. Although the title of the treaty suggests that it is aimed at preventing racial discrimination, the terms of the treaty itself are much broader and substantially overlap with the Genocide Convention. It provides that “racial discrimination” means “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin,” where the distinction has “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”^[359]

The first foray into using CERD as a surrogate for cultural heritage destruction and misappropriation was not entirely promising. Ukraine filed an application against Russia under CERD in 2017, alleging violations related to cultural heritage following Russia’s 2014 annexation of Crimea (predating its fuller invasion of Ukraine starting in 2022).^[360] On the facts established, the ICJ ruled in January 2024 that Ukraine did not prove the allegations.^[361] Ukraine had alleged that Russia had undertaken an assault “on the cultural heritage of Crimean Tatar and ethnic Ukrainian communities,” including through “destruction, demolition, failure to preserve and closure of historically and culturally significant sites and institutions.”^[362] The tribunal was of “the view that Ukraine has not established that any differentiation of treatment of persons affiliated with cultural institutions in Crimea was based on their ethnic origin.”^[363] Given this failure to find discrimination “based on” ethnicity, this same finding would have prevented a conclusion that cultural genocide had occurred, if the concept of “cultural genocide” had been incorporated into the Genocide Convention or international criminal law treaties.

Armenia was more successful in obtaining provisional measures under the CERD treaty in an ICJ application filed against Azerbaijan in 2021, four years after Ukraine made the first attempt.^[364] Armenia filed after a delicate détente gave way in 2020 to armed conflict in the region of Nagorno‑Karabakh/Artsakh.^[365] The region is located wholly within the territorial boundaries of Azerbaijan and had long been predominantly populated by ethnic Armenians who had managed to carve out a semiautonomous region, until Azerbaijan renewed hostilities in 2020 to take control of the region. In the face of continued armed conflict, most ethnic Armenians fled by late 2023.^[366] The region was fully subsumed into Azerbaijan in January 2024.

During the hostilities, Armenia alleged several instances of cultural heritage destruction and threats, while Azerbaijan maintained that it had acknowledged and pledged to protect cultural heritage in the region.^[367] It sought, and the tribunal granted, provisional measures for cultural property that included the “prevention and punishment” language derived from the Genocide Convention—which does not appear in the racial discrimination treaty at the core of the case. Specifically, in December 2021, the ICJ ordered Azerbaijan to “[t]ake all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts.”^[368]

The tribunal’s willingness to use CERD for allegations related to the destruction of cultural heritage in an armed conflict therefore moved the needle, as compared to the early case brought by Ukraine. Nonetheless, caution is warranted. The ICJ did not definitively rule that the allegations could be proved on the merits, only that it would not rule out CERD as the basis for granting provisional measures (akin to preliminary relief) on Armenia’s claims related to the destruction of cultural heritage.^[369] In addition, Judge Yusuf, who previously served as a counselor to UNESCO, objected vehemently to the use of CERD to circumvent what he viewed as the proper domain of international humanitarian law.^[370] Right out of the gate, for example, he wrote that “[t]he Court has thrown wide open the gates of [CERD] to all kinds of claims that have nothing to do with its object or purpose” because the ICJ’s order granted international humanitarian law claims “a home in CERD,” including “the law on the safeguarding of cultural heritage.”^[371] Since that time, Judge Yusuf has resigned,^[372] and Armenia and Azerbaijan agreed to settle their differences, which may include dismissal of the pending case prior to a final determination by the ICJ on the merits.^[373]

It therefore remains to be seen how far CERD and other human rights treaties will continue to develop or be interpreted to serve as a surrogate for the concept of cultural genocide. Based on the existing record, however, the attention from the Special Rapporteur on Cultural Rights and the ICJ’s recent receptiveness to CERD mean that human rights instruments still appear well‑poised as the newest entries to the collection of legal surrogates for the concept of cultural genocide that populate the void between the minimalist and maximalist definitions of “genocide.”

Conclusion

The rising clamor to revive the concept of cultural genocide recognizes that armed combatants and other institutionalized actors destroy cultural heritage as one method employed to extinguish targeted groups based on national, ethnic, racial, or religious identity. Efforts to place cultural genocide in its former position as part of the original maximalist formulation of genocide, however, run headlong into the minimalist formulation of genocide that has long prevailed in law and popular conception. At this late date, the likelihood that “genocide” will be revised through new instruments or interpreted by tribunals to conform to this maximalist vision is very slim.

But the concept of cultural genocide already is embodied in a surrogate regime that emerged from a decades‑long evolution in other areas of international law. These legal surrogates that reside in international humanitarian law, in international criminal law, and in human rights law functionally perform much as the concept of cultural genocide would and therefore largely fill the void. Among other things, they not only collectively recognize and reinforce the connection between cultural heritage destruction and efforts to diminish vulnerable groups, but they also provide for redress and aim at prevention of future attacks. These surrogates also provide a broader reach than the concept of cultural genocide likely would have achieved if incorporated into the Genocide Convention, especially because they can provide for redress against individuals who commit, order, or fail to prevent such attacks. Moreover, the current path of international humanitarian law, international criminal law, and human rights law present riper opportunities for further development than likely futile efforts to resurrect cultural genocide within the genocide sphere because they stand in a state of active development and adjudication. These surrogates thus seem particularly better suited to advance protection for cultural heritage in the context of atrocities given the intractable challenges of proving genocide.

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* Associate Professor of Law, University of Baltimore School of Law. I am grateful for comments from Carlos Vázquez, Catherine Baylin Duryea, Nienke Grossman, Ioanna Tourkochoriti, David Jaros, Margaret Johnson, and Colin Starger, as well as from participants at the American Society of International Law’s 2024 Vagts Roundtable, the AALS International Law and International Human Rights Works-in-Progress Workshop, the Northeast Faculty Exchange Workshop at Villa- nova University’s Widger School of Law, and the Faculty Research & Development Workshop at the University of Baltimore School of Law. Finally, thank you to Hayoung Park, Julianna Simpson, Emma Sarigianis, and Paige Lauenstein for re- search assistance, and to C.J. Pipins, David Matchen, Bijal Shah, Geraldine Kalim, and the rest of our law library team for assistance in tracking down obscure sources.

1. In the past decade, the United Nations Educational, Scientific and Cultural Organization (UNESCO) has collaborated with the United Nations Satellite Centre (UNOSAT) to use satellite imagery to assess or confirm conflict‑related damage to cultural heritage sites in Iraq, Syria, Yemen, Ukraine, and Gaza. UNITAR, UNESCO, Satellite‑Based Damage Assessment of Cultural Heritage Sites: 2015 Summary Report of Iraq, Nepal, Syria & Yemen (2016), https://unesdoc.unesco.org/ark:/48223/pf0000245203 [https://perma.cc/8BHK-ZM7T]; UNESCO, Five Years of Conflict: The State of Cultural Heritage in the Ancient City of Aleppo (2018); Thomas Mallard, Damaged Cultural Sites in Ukraine Verified by UNESCO, UNESCO: News, https://www.unesco.org/en/articles/damaged-cultural-sites-ukraine-verified-unesco [https://perma.cc/CQP9-22UU] (last updated Jan. 7, 2026); Impact on Cultural Heritage, UNESCO: UNESCO’s Action in the Gaza Strip/Palestine, https://www.unesco.org/en/gaza/assessment?hub=102070 [https://perma.cc/S5YN-LXMS] (last updated Nov. 24, 2025). ↑
2. For example, one of the armed groups in Syria—the Islamic State of Iraq and Syria (ISIS, or Da’esh)—carried out brutish attacks on cultural heritage during the previous decade as part of its modus operandi in establishing its self‑declared caliphate in the region. See, e.g., UNESCO Director‑General Condemns Destruction of the Tetrapylon and Severe Damage to the Theatre in Palmyra, a UNESCO World Heritage Site, UNESCO World Heritage Convention: News (Jan. 20, 2017), https://whc.unesco.org/en/news/1620 [https://perma.cc/LP2F-NG4J]. The UN Security Council at the time adopted a resolution with a rare rebuke of the conduct of armed actors in the region toward cultural heritage. S.C. Res. 2347 (Mar. 24, 2017). In the resolution’s preambulatory language, the Security Council made a point of “[n]oting with grave concern the involvement of non‑state actors, notably terrorist groups, in the destruction of cultural heritage and the trafficking in cultural property and related offences,” making specific reference to “the Islamic state in Iraq and the Levant (ISIL, also known as Da’esh), Al‑Qaida and associated individuals, groups, undertakings and entities.” Id. pmbl. More recently, the Security Council again condemned cultural heritage destruction in the region, “particularly in Iraq and Syria by ISIL, Al‑Qaida, and [Al‑Nusrah Front], including targeted destruction of religious sites and objects.” S.C. Res. 2734, pmbl. (June 10, 2024). It called on UN Member States to clamp down on the illicit trade in affected artifacts, “thereby allowing for their eventual safe return to the Iraqi and Syrian people.” Id. ↑
3. See, e.g., Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Arm. v. Azer.), Application Instituting Proceedings, 2021 I.C.J. Gen. List No. 180, ¶¶ 32, 39, 70–78, 97, 113–18 (Sep. 16) [hereinafter Application filed by Armenia, Armenia v. Azerbaijan]; Permanent Rep. of Armenia, Letter dated Mar. 10, 2023 from the Permanent Rep. of Armenia to the United Nations addressed to the Secretary‑General, U.N. Doc. A/77/796 (Mar. 13, 2023). ↑
4. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Gen. List No. 192, 2023 I.C.J. 1, ¶¶ 4, 89–92 (Dec. 29) [hereinafter Application filed by South Africa, Gaza Genocide Case]; see also Geraldine Kendall Adams, Widescale Destruction of Cultural Heritage in Gaza, Museums Ass’n: Museums J. (Jan. 30, 2024), https://www.museumsassociation.org/museums-journal/news/2024/01/widescale-destruction-of-cultural-heritage-in-gaza [https://perma.cc/9YJF-9LNY] (reporting that in January 2024, UNESCO stated that it had verified damage to “five religious sites, [ten] buildings of historical and/or artistic interest, two depositories of moveable cultural property, one monument, one museum and three archeological sites”). ↑
5. See infra Part II. ↑
6. See infra Part I. ↑
7. Various permutations of “cultural genocide” in the original definition and early treaty drafts are set out in Section I.A, infra. ↑
8. Raphaël Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress 79 (1944). ↑
9. See, e.g., A. Dirk Moses, Raphael Lemkin, Culture, and the Concept of Genocide, in The Oxford Handbook of Genocide Studies 19, 34 (Donald Bloxham & A. Dirk Moses eds., 2010) (quoting from Lemkin’s collected papers, in which Lemkin stated that “[p]hysical and biological genocide are always preceded by cultural genocide or by an attack on the symbols of the group or by violent interference with religious and cultural activities”). Lemkin scrutinized mass atrocities going back to ancient times with perverse interest. Lemkin, supra note 8, at 80 n.3 (listing mass atrocities); Raphael Lemkin, Genocide as a Crime Under International Law, 4 U.N. Bull. 70, 70 (1948) (same); see also Michael Ignatieff, The Unsung Hero Who Coined the Term “Genocide,” New Republic (Sep. 21, 2013), https://newrepublic.com/article/114424/raphael-lemkin-unsung-hero-who-coined-genocide [https://perma.cc/5JRU-5R7E] (“From earliest childhood, Lemkin admitted to a peculiar fascination with tales of horror: the savagery of the Mongols, the cannibalistic rituals of primitive tribes, the brutal punishment that the Romans meted out to slave revolts.”). ↑
10. Raphael Lemkin, Totally Unofficial: The Autobiography of Raphael Lemkin 19–20 (Donna‑Lee Frieze ed., 2013). Lemkin’s autobiography was published posthumously many decades after his death. Id. According to Donna‑Lee Frieze, a genocide studies scholar who helped organize and prepare the manuscript for publication, Lemkin had nearly completed the manuscript in 1959 but died after collapsing at a bus stop en route either to or from his literary agent’s office. Donna‑Lee Frieze, Introduction, in id., at ix. Frieze cobbled together the autobiography from “various drafts of each chapter and even some phrases and paragraphs that had been crossed out by Lemkin or an editor.” Id. at xxvi. The title of the autobiography, Totally Unofficial, is a nod to a 1957 New York Times editorial pressing the United States to join the Genocide Convention. Editorial, The Crime of Genocide, N.Y. Times, Oct. 20, 1957, at E10, https://timesmachine.nytimes.com/timesmachine/1957/10/20/issue.html [https://perma.cc/WQ9Q-6CER] (observing that “[s]omething might be learned from that exceedingly patient and totally unofficial man, Prof. Raphael Lemkin, who has been urging the Genocide Convention day in and day out, session after session”); see also Obituary, Raphael Lemkin, Genocide Foe, Dies, N.Y. Times, Aug. 30, 1959, at L82, https://timesmachine.nytimes.com/timesmachine/1959/08/30/89233024.html?pageNumber=82 [https://perma.cc/BHU2-83RW] (reporting that Lemkin died of a heart attack while “at work on his autobiography, which would have been called ‘Unofficial Man,’” and again urging the United States to ratify the genocide treaty). ↑
11. See, e.g., Lemkin, supra note 9, at 147; see also Lemkin, supra note 8, at 82–90. ↑
12. U.N. Secretary‑General, Draft Convention on the Crime of Genocide, at 25, 27, U.N. Doc. E/447 (June 26, 1947) [hereinafter Secretary‑General Draft Convention with comments]. Lemkin often referred to both the destruction of cultural property as well as the seizure, repurposing, or other removal of cultural objects. See infra Sections I.A–I.B. For ease of use, “destruction” of cultural property is used herein to encompass all these types of loss as part of the concept of cultural genocide, unless otherwise noted. ↑
13. See infra Sections I.A–I.B. ↑
14. Secretary‑General Draft Convention with comments, supra note 12, art. I(II)(3); U.N. Econ. & Soc. Council, Ad Hoc Comm. on Genocide, Portions of Rep. Adopted in First Reading, at 8, U.N. Doc. E/AC.25/W.4 (May 3, 1948). ↑
15. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention]. The Genocide Convention was adopted unanimously in the General Assembly in December 1948 and opened for signature and ratification by States on that same date. G.A. Res. 260 (III) (Dec. 9, 1948). ↑
16. Genocide Convention, supra note 15, art. II; see also infra Part I (describing how forced transfer of children, which originally came under the heading of “cultural” methods of genocide, was recast as a form of “biological” genocide). See generally Elisa Novic, The Concept of Cultural Genocide: An International Law Perspective (2016) (summarizing the development of the international legal concept of cultural genocide). ↑
17. See infra Section I.B. ↑
18. Linda Kinstler, The Bitter Fight Over the Meaning of ‘Genocide,’ N.Y. Times Mag. (Aug. 20, 2024), https://www.nytimes.com/2024/08/20/magazine/genocide-definition.html [https://perma.cc/QF95-4QMU]. ↑
19. See infra Part II. The public understanding of the term “genocide” nonetheless largely aligns with the narrower, minimalist legal definition in rejecting associations with property harms. See, e.g., Kinstler, supra note 18; Philippe Sands, Opinion, What the Inventor of the Word ‘Genocide’ Might Have Said About Putin’s War, N.Y. Times: Op. (Apr. 28, 2022), https://www.nytimes.com/2022/04/28/opinion/biden-putin-genocide.html [https://perma.cc/CP2F-4KNU]. ↑
20. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J. 43, 185 ¶ 344 (Feb. 26) [hereinafter Bosnian Genocide Case] (quoting Prosecutor v. Krstić, IT‑98‑33‑T, Trial Judgment, ¶ 580 (Int’l Crim. Trib. for the Former Yugoslavia Aug. 21, 2001)). ↑
21. Off. of the Prosecutor, Int’l Crim. Ct., Policy on Cultural Heritage 30 (2021). ↑
22. See infra Part II. ↑
23. See, e.g., William A. Schabas, Genocide in International Law: The Crime of Crimes 646–47 (2d ed. 2009). ↑
24. See id.; infra Section II.B. ↑
25. See infra Part III. ↑
26. See infra Part III. ↑
27. See, e.g., Bosnian Genocide Case, Judgment, 2007 I.C.J. 43, 104, 125, 185, ¶¶ 146–47, 194, 344 (Feb. 26); Prosecutor v. Krstić, IT‑98‑33‑A, Judgment, ¶¶ 25 & n.39 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 19, 2004). ↑
28. The crime of genocide requires intent “to destroy a group, in whole or in part,” and “in part” has been interpreted to mean a substantial part. See Genocide Convention, supra note 15, art. II; Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Order on Provisional Measures, 2024 I.C.J. 3, at 20, ¶ 44 (Jan. 26) (quoting Bosnian Genocide Case, 2007 I.C.J. at 126, ¶ 198); see also Claus Kreß, The Crime of Genocide Under International Law, 6 Int’l Crim. L. Rev. 461, 489–91 (2006). ↑
29. Bosnian Genocide Case, 2007 I.C.J. at 194, ¶ 370; see also Srebrenica: Timeline of a Genocide, U.N. Int’l Residual Mechanism for Crim. Tribunals, https://www.irmct.org/specials/srebrenica/timeline/en [https://perma.cc/F3S2-A5DR] (summarizing the Srebrenica genocide and depicting exhibits from the trials in international criminal tribunals). ↑
30. See infra Part II. The challenge posed by this intent requirement was recognized at the time of the 1948 Genocide Convention’s adoption. See, e.g., Josef L. Kunz, The United Nations Convention on Genocide, 43 Am. J. Int’l L. 738, 743 (1949) (opining that special intent requirement rendered treaty “useless” because governments would be loath to admit an intent to destroy a group and would proclaim instead to act against traitors “and so on”). ↑
31. See infra Part III. ↑
32. See infra Part III. ↑
33. See infra Sections I.A–I.B. In particular, several competing efforts were happening simultaneously in the postwar period, including the development of new treaties dedicated to civilian and cultural property protection, respectively, the development of normative instruments for human rights, and efforts to establish an international criminal tribunal or code of offenses against international security. See Geoffrey Best, War and Law Since 1945 67 (1994) (noting that the UN Charter “was the hub of the international community’s post‑war reconstruction of its legal apparatus” and “authorized the establishment of all the new organs” that governed international relations and initiatives). ↑
34. See infra Part II. ↑
35. See infra Part III. ↑
36. See infra Part III. ↑
37. See, e.g., Letter from Raphael Lemkin, Yale L. Sch., to Brien McMahon, U.S. Sen. (Apr. 3, 1950), reproduced in 2 Senate Foreign Relations Committee, 81st Congress, Executive sessions of the Senate Foreign Relations Committee (Historical Series) 369 (1976) (describing the Genocide Convention as a “historic instrument for outlawing the mass slaughter of human beings because of their race, religion, or national origin”); Kurt Mundorff, A Cultural Interpretation of Genocide Convention 75 (2020) (quoting excerpt of letter from Lemkin, during Congressional debates, in which Lemkin said that “mass murder” was not a sufficient substitute term for the concept of genocide, which focused not only on “depriving life” but also “preventing life,” such as by “sterilization, breaking up of families, and stealing of children”). As a result, at least one scholar who focused on his later writings concluded that Lemkin himself restricted the scope of “genocide” to physical destruction, siding with those who had rejected it as part of the crime of genocide. Cecile Tournaye, Genocidal Intent Before the ICTY, 52 Int’l & Compar. L.Q. 447, 455 (2003). ↑
38. The literature is sufficiently copious that this author will not attempt to corral them all in a footnote. Suffice it to say that a survey of existing legal scholarship and that of many other disciplines, not least of which is the niche field of genocide studies, have set out the familiar story of Lemkin’s coining of the term “genocide.” The brief discussion of coinciding efforts on the cultural property front appear infra at text accompanying notes 53–60. ↑
39. Lemkin, supra note 8, at 79. ↑
40. Lemkin, supra note 9, at 70. As “widely known” historic examples, he cited ancient examples, such as Roman destruction at Carthage, and modern examples, such as the Armenian genocide, the Semele massacre of Christian Assyrians, and pogroms in Russia and Romania, as well as other intervening examples: “the destruction of the Albigenses and Waldenses, the Crusades, the march of the Teutonic Knights, the destruction of the Christians under the Ottoman Empire, [and] the massacres of the Herreros in Africa.” Id. ↑
41. See generally Lemkin, supra note 8 (providing translation and detailed account of administrative laws across various German‑occupied territories). ↑
42. From the extensive documentary record, two things appear to be true: that Lemkin’s tireless promotion of the Genocide Convention helped to advance it, but also that would‑be collaborators and contemporaries found him self‑aggrandizing and sometimes irritatingly persistent for this singular cause. See, e.g., Henry T. King, Jr., Origins of the Genocide Convention: Remarks of Henry T. King, Jr., 40 Case W. Rsrv. J. Int’l L. 13, 13–14 (2007); Kunz, supra note 30, at 738; see also Alexa Stiller, The Mass Murder of the European Jews & the Concept of ‘Genocide’ in the Nuremberg Trials: Reassessing Raphaël Lemkin’s Impact, 13 Genocide Stud. & Prevention: Int’l J. 144, 149 (2019); Mundorff, supra note 37, at 1 (describing Lemkin as a “second‑tier international lawyer” who possessed “a talent for irritating people”); Philippe Sands, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” 186–89 (2016) (writing that Lemkin’s contemporaries who knew him during preparations for the postwar Nuremberg trials viewed him as “[not] a team player” and as someone with “personality difficulties” who took credit for others’ work). ↑
43. Lemkin, supra note 10, at 17–23; see also UN Casebook: Interview with Raphael Lemkin (CBS television broadcast, aired Feb. 13, 1949), reproduced at Edu Gnosis, Raphael Lemkin About the Origin of the Word Genocide, at 0:48–0:50 (YouTube, Apr. 25, 2022), https://www.youtube.com/watch?v=IGUWQJ3Spyk (on file with the University of Colorado Law Review) (stating he became interested in genocide “because it happened so many times”); Peter Balakian, Raphael Lemkin, Cultural Destruction, and the Armenian Genocide, 27 Holocaust & Genocide Stud. 57, 58–59 (2013). ↑
44. Lemkin, supra note 10, at 132, 236. ↑
45. Raphael Lemkin, Les Actes Constituant un Danger Général (Interétatique) Considérés Comme Délits des Droit des Gens [Acts Constituting a General (Interstate) Danger Are Considered Offenses Under International Law.], Prevent Genocide Int’l, http://www.preventgenocide.org/fr/lemkin/madrid1933.htm#Donnedieu%20de%20Vabres [https://perma.cc/7YVN-3MYQ] (last updated June 16, 2000); Raphael Lemkin, Akte der Barbarei und des Vandalismus als Delicta Juris Gentium [Acts of Barbarity and Vandalism as Delicta Juris Gentium], Prevent Genocide Int’l, http://www.preventgenocide.org/de/lemkin/anwaltsblatt1933.htm [https://perma.cc/4TJ7-2B5X] (last updated Apr. 13, 2000). For an English translation of the report, see Raphael Lemkin, Acts Constituting a General (Transnational) Danger Considered as Offences Against the Law of Nations, Prevent Genocide Int’l [hereinafter Lemkin, Offences Against the Law of Nations], http://www.preventgenocide.org/lemkin/madrid1933-english.html [https://perma.cc/L9GU-APEL] (last updated Dec. 9, 2000); see also Balakian, supra note 43, at 59. ↑
46. Lemkin, supra note 10, at 23–24; see also Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919– 1950 189–90 (2014); Balakian, supra note 43, at 59. ↑
47. Lewis, supra note 46, at 88. Vespasian Pella, Secretary General of the League’s International Bureau for the Unification of Criminal Law, had been developing his own theories on “barbarity” and “vandalism” for a period of years. See, e.g., Int’l Ass’n of Penal L., Third International Congress of Penal Law (Palermo, 3‑8 April 1933), in Resolutions of the Congresses of the International Association of Penal Law 141 (1926–2004) (José Luis De La Cuesta ed., 2007). ↑
48. Lemkin, Offences Against the Law of Nations, supra note 45. ↑
49. Id. ↑
50. Id. ↑
51. Id. ↑
52. Id. ↑
53. See Anne‑Marie Carstens, The Hostilities‑Occupation Dichotomy and Cultural Property in Non‑International Armed Conflicts, 52 Stan. J. Int’l L. 1, 12–14 (2016) (citing sources); From World War I to the Nazis and Beyond; Art, History, and the Law, Law Bod Blog (Nov. 7, 2013), https://blogs.bodleian.ox.ac.uk/lawbod/2013/11/07/from-world-war-i-to-the-nazis-and-beyond-art-history-and-the-law [https://perma.cc/VPX9-2N62] (referencing sources). ↑
54. See The Roerich Pact, 69 Bull. Pan‑Am. Union 359, 366 (1935). ↑
55. Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, Apr. 15, 1935, 49 Stat. 3267, 167 L.N.T.S. 289 (entered into force Aug. 26, 1935) [hereinafter Roerich Pact]. The Roerich Pact called on countries to protect and respect historic monuments, museums, and scientific, artistic, educational, and cultural institutions, to mark them with a distinctive sign (as specified in the treaty), and to list them on a registry maintained by the Pan‑American Union. Id. arts. 1–5. ↑
56. Id. pmbl., arts. 1–4. ↑
57. See State Parties to the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact). Washington, 15 April 1935, Int’l Humanitarian L. Databases, https://ihl-databases.icrc.org/en/ihl-treaties/roerich-pact-1935/state-parties [https://perma.cc/G5LE-C2ND]. ↑
58. League of Nations, Int’l Museums Off., Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Time of War, 19 League Nations Off. J. 937 (1938). While League of Nations representatives had earlier dismissed the Roerich Pact as inconsistent with its goal of popularizing the Kellogg‑Briand Pact, which called on states to outlaw war altogether, the experts who later helped to craft the draft treaty were pessimistic about this goal. They felt that “the only possible way to protect monuments and works of art” was to adopt defensive measures “or, still better, to divest such monuments of anything likely to provoke their destruction” by removing them from the vicinity of military objectives. Id. at 961. ↑
59. Id. at 938 (arts. 3–5, 7–8). Like the Roerich Pact, the draft treaty called for a distinctive sign, but it also was much more expansive because it called for shelters or deposit abroad for endangered works, a dual system of general and special protection, peacetime planning, and protective measures set out in military regulations and instructions. Id. (arts. 1–9). ↑
60. League of Nations, Int’l Museums Off., Draft Declaration Concerning the Protection of Historic Buildings and Works of Art in Time of War, in U.S. Dep’t of State, Documents and State Papers 859 (June 1949); Jiří Toman, The Protection of Cultural Property in the Event of Armed Conflict 18–19 (1996). ↑
61. See, e.g., League of Nations, Int’l Museums Off., supra note 58, at 937 (pmbl.); see also John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 Am. J. Int’l L. 831, 833–42 (1986). ↑
62. League of Nations, Int’l Museums Off., supra note 58, at 937 (pmbl.). ↑
63. Convention (II) with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, T.S. 403 (entered into force Sep. 4, 1900); Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. 539 (entered into force Jan. 26, 1910) [hereinafter, collectively, 1899 & 1907 Hague Regulations]. ↑
64. 1899 & 1907 Hague Regulations, supra note 63, annex. ↑
65. 1899 & 1907 Hague Regulations, supra note 63, arts. 27, 56. ↑
66. See Anne‑Marie Carstens, Safeguarding Cultural Property During Armed Conflict ch. 2 (unpublished manuscript) (on file with author). ↑
67. The International Committee of the Red Cross (ICRC), a nongovernmental organization, was the leading proponent of civilian protection, though various other initiatives included proposals to establish sanitary cities. See, e.g., id. A variety of different proposals were launched for improving wartime protection for specific forms of cultural property as early as 1915. See id. ↑
68. See, e.g., id. (noting lack of success of interwar proposals to merge cultural property protection and civilian protection, such as by calling for establishing “Geneva Zones” as places of refuge in “towns of artistic value”). The United Kingdom emphasized that a “pact for the protection of the civil population should be signed before a pact to protect museums and art galleries.” Roerich Pact for the Protection of Artistic and Cultural Institutions, HO 45/16427, Nat’l Archives of the U.K. (TNA) (records of the Home Office). ↑
69. Lemkin, supra note 8, at 79–90. ↑
70. See sources cited supra note 45. ↑
71. Lemkin, supra note 8, at 82–90; accord Raphael Lemkin, Genocide: A Modern Crime, 4 Free World 39, 41–42 (1945). ↑
72. Lemkin, supra note 8, at 79 (“By ‘genocide,’ we mean the destruction of a nation or of an ethnic group.”). ↑
73. Id. at 79 & n.1. ↑
74. Id. at 79. ↑
75. Id. (emphasis added). ↑
76. Id. at 84. For a modern definition of “intangible cultural heritage,” see The Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368 U.N.T.S. 3 (entered into force Apr. 20, 2006) [hereinafter ICH Convention]; see also Lucas Lixinski, Selecting Heritage: The Interplay of Art, Politics and Identity, 22 Eur. J. Int’l L. 81, 82 (2011) (criticizing the ICH Convention because it “leaves to the states, and not the communities, the faculty of determining which manifestations of heritage should be inventoried and protected”). ↑
77. Lemkin, supra note 8, at 84 (citing authorities). ↑
78. U.N. Charter, pmbl.; Transition to the United Nations, U.N. Off. at Geneva, https://www.ungeneva.org/en/about/league-of-nations/transition [https://perma.cc/5JPC-379F]. ↑
79. U.N. Charter, pmbl., art. 1, ¶ 3; see also Kofi Annan, Sec’y‑Gen. of the U.N., We the Peoples: The Role of the United Nations in the 21st Century, at 6, U.N. Sales No. E.00.I.16 (2000) (stating that the United Nation’s purposes include “devising cooperative solutions to economic, social, cultural and humanitarian problems”). ↑
80. See generally 1–38 Int’l Mil. Tribunal, Trial of the Major War Criminals Before the Int’l Mil. Tribunal (1945–1949) (presenting the Charter, Indictments, Judgment, Proceedings, and other prosecution materials). ↑
81. Charter of the International Military Tribunal art. 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter Nuremberg Charter]. The Nuremberg Charter served as the blueprint for the similar charter that governed the International Military Tribunal for the Far East, created in Tokyo by proclamation by U.S. Army General Douglas MacArthur. Cf. Charter of the International Military Tribunal for the Far East art. 5, Proclamation of the Supreme Commander for the Allied Powers art. 5, Jan. 19, 1946, 4 U.S.T. 27 (as amended Apr. 26, 1946); see also The Nuremberg Trial and the Tokyo War Crimes Trials (1945–1948), U.S. Dep’t of State: Off. of the Historian, https://history.state.gov/milestones/1945–1952/nuremberg [https://perma.cc/Q3HU-ZC2N]. ↑
82. See 1899 & 1907 Hague Regulations, supra note 63, Oona A. Hathaway et al., What Is a War Crime?, 44 Yale J. Int’l L. 53, 62–65 (2019). ↑
83. Nuremberg Charter, supra note 81, art. 6(b). ↑
84. Id. art. 6(c). ↑
85. Id. art. 6(a). ↑
86. Julia Klaus, The Evolution of the Prohibition of Genocide: From Natural Law Enthusiasm to Lackadaisical Judicial Perfunctoriness—And Back Again?, 11 Goettingen J. Int’l L. 89, 114–16 (2021); Stiller, supra note 42, at 149; John Q. Barrett, Raphael Lemkin and “Genocide” at Nuremberg, 1945–1946, in The Genocide Convention Sixty Years After its Adoption 35, 44–45 (Christoph Safferling & Eckart Conze eds., 2010); Lewis, supra note 46, at 190–91; Sands, supra note 42, at 185–90. But see William Schabas, Nuremberg and the Drafting of the Genocide Convention, 21 Wash. U. Global Stud. L. Rev. 71, 78–79 (2022) (stating common belief “that Lemkin was obsessed with the use of the word he had devised and that he was frustrated that the judges of the Tribunal did not employ it in their final judgment” but opining that Lemkin’s objection might also have been “about the scope of the crime” because it did not include acts committed during peace). ↑
87. Indictment, in 1 Int’l Mil. Tribunal, Trial of the Major War Criminals, supra note 80, at 27, 43–44 (1947). The Indictment described genocide as “the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.” Id. at 43–44. ↑
88. See generally Stiller, supra note 42 (providing detailed assessment of Lemkin’s activities at Nuremberg and concluding that “Lemkin himself had little influence on the design and application of his concept in the Nuremberg trials”); see also Sands, supra note 42, at 185–90 (noting complaints that he was “unmanageable,” “went off on unauthorized frolics,” and a persistent “bugger,” but also documenting that several members of Nuremberg prosecution teams disliked the term “genocide”). ↑
89. Judgment, in 1 Int’l Mil. Tribunal, Trial of the Major War Criminals, supra note 80, at 171 (1947); see also Lewis, supra note 46, at 190–91. ↑
90. The Crime of Genocide: Request from the Delegations of Cuba, India and Panama for the Inclusion of an Additional Item in the Agenda, U.N. Doc. A/BUR/50 (Nov. 22, 1946); see also Schabas, supra note 23, at 51–52. ↑
91. UN Casebook: Interview with Raphael Lemkin, supra note 43; Kunz, supra note 30, at 739; see also William A. Schabas, Origins of the Genocide Convention: From Nuremberg to Paris, 40 Case W. Rsrv. J. Int’l L. 35, 35–36 (2007). ↑
92. The Crime of Genocide: Request from the Delegations of Cuba, India and Panama for the Inclusion of an Additional Item in the Agenda, supra note 90, ¶ 1. ↑
93. Pres. of the U.N. Gen. Assembly, Letter dated Nov. 13, 1946 from the President of the General Assembly to the Chairman of the Sixth Committee, U.N. Doc. A/C.6/64 (Nov. 13, 1946). ↑
94. G.A., Sixth Comm., Delegation of Saudi Arabia: Draft Protocol for the Prevention and Punishment of Genocide, U.N. Doc. A/C.6/86 (Nov. 26, 1946). Unlike a treaty, which creates binding law for the countries that join it, UN General Assembly resolutions are nonbinding, hortatory instruments through which the General Assembly makes recommendations or articulates principles related to international peace and security. Law Libr. of Cong., Doc. LRA-D-PUB-000467, Legal Effect of United Nations Resolutions Under International & Domestic Law 3–4 (2015). ↑
95. Draft Protocol for the Prevention and Punishment of Genocide supra note 63, art. I. In the published volumes containing the travaux preparatoires of the Genocide Convention, the editors noted that the existence of the first draft from Saudi Arabia is “not widely known.” 1 Hirad Abtahi & Philippa Webb, Preface, in The Genocide Convention: The Travaux Préparatoires xxiii, xxviii (2008). ↑
96. Abtahi & Webb, supra note 95, at xxiii, xxviii. ↑
97. G.A. Res. 96 (I) (Dec. 11, 1946); Oliver Schroeder, Jr., International Crime and the U.S. Constitution 28 (1950); Schabas, supra note 23, at 45. ↑
98. G.A. Res. 96 (I), supra note 97. ↑
99. Id. ↑
100. Secretary‑General Draft Convention with comments, supra note 12, at 15, 21, 26–27. Pella had cofounded and headed the International Bureau for the Unification of Penal Law during the interwar period, for which Lemkin had drafted his 1933 proposal on vandalism and barbarity. Id. at 15. Donnedieu de Vabres, a law professor, had just served as French judge on the Nuremberg Tribunal. Id.; 1 Int’l Mil. Tribunal, Trial of the Major War Criminals, supra note 80, at 1 (1947). ↑
101. See, e.g., Lewis, supra note 46, at 195–99. ↑
102. Secretary‑General Draft Convention with comments, supra note 12, at 26–  27. ↑
103. Id. art. I(II)(3). ↑
104. Id. art. I(II)(3)(d)–(e). ↑
105. Id. art. I(II)(3)(a)–(d) (corresponding comments at 26–28). ↑
106. Id. at 49. ↑
107. Id. art. 3 (corresponding comments at 25–26). ↑
108. Id. arts. I(II)(1)–(3) (corresponding comments at 25–28). ↑
109. Id. ↑
110. Id. art. I(II)(3)(a) (corresponding comments at 27). ↑
111. Id. art. I(II). ↑
112. Draft Convention & Rep. of the Econ. & Soc. Council on Its Third Session: Draft Articles for the Inclusion in the Convention on Genocide, at 1, U.N. Doc. A/760 (Dec. 3, 1948); Econ. & Soc. Council, Ad Hoc Comm. on Genocide, Portions of Report Adopted in First Reading, at 2, U.N. Doc. E/AC.25/W.4 (May 3, 1948) [hereinafter Portions of Report Adopted in First Reading] (identifying representatives from China, France, Lebanon, Poland, the Soviet Union, the United States, and Venezuela). ↑
113. Econ. & Soc. Council, Ad Hoc Comm. on Genocide, Draft Articles for Inclusion in the Convention on Genocide Proposed by the Delegation of China, U.N. Doc. E/AC.25/9 (Apr. 16, 1948) [hereinafter Draft Articles for Inclusion in the Convention on Genocide Proposed by the Delegation of China]; Kunz, supra note 30, at 739. ↑
114. Draft Articles for Inclusion in the Convention on Genocide Proposed by the Delegation of China, supra note 113, art. I(1)–(3). ↑
115. Id. art. I (emphasis added). ↑
116. Irvin‑Erickson attributes this separation as a deliberate effort by the U.S. delegation to kill the provision. Douglas Irvin‑Erickson, Raphaël Lemkin: Culture and Cultural Genocide, in Cultural Genocide: Law, Politics, and Global Manifestations 21, 21–22 (Jeffrey S. Bachman ed., 2019). ↑
117. Portions of Report Adopted in First Reading, supra note 112, at 8–9. ↑
118. Index to the Proceedings of the General Assembly on Its Third Session, at 93, U.N. Doc. A/INF/28 (Mar. 28, 1949). ↑
119. U.N. GAOR, 3d Sess., 83d mtg. at 196–206, U.N. Doc. A/C.6/SR.83 (Oct. 25, 1948) (recording vote on “exclusion of cultural genocide from the scope of the convention”: Twenty‑five States voted to exclude cultural genocide, sixteen States voted to retain it, four States abstained, and thirteen delegations were absent); see also Kunz, supra note 30, at 742 (noting that “all forms of cultural genocide have, after long debate, been eliminated”). ↑
120. Compare Secretary‑General Draft Convention with comments, supra note 12, art. I(II)3(a) (“forced transfer of children to another human [racial, national, linguistic, religious or political] group”), with Genocide Convention, supra note 15, art. II(e) (“[f]orcibly transferring children of the [national, ethnical, racial or religious] group to another group”). ↑
121. Matthew Lippman, The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty‑Five Years Later, 8 Temp. Int’l & Compar. L.J. 1, 35–36 (1994) (quoting U.S. representative who queried “what difference there was between measures to prevent birth half an hour before birth and abduction half an hour after the birth”); Kunz, supra note 30, at 743; Lars Berster, The Alleged Non‑Existence of Cultural Genocide: A Response to the Croatia v. Serbia Judgment, 13 J. Int’l Crim. Just. 677, 690 (2015); cf. Secretary‑General Draft Convention with comments, supra note 12, at 26 (stating that biological methods could be physical, as with sterilization, compulsory abortion, or segregation of the sexes, or even legal, such as establishing obstacles to marriage). Because of its original placement in the treaty drafts, forced transfer of children is sometimes called “cultural genocide.” Australia, Canada, and the United States have recently examined their former official programs of forced transfers of children. All three countries previously removed large numbers of Indigenous children from their communities for decades and placed them in government‑run programs and residential schools. All three countries assembled formal commissions or launched formal probes in recent years that resulted in public reports. See Bryan Newland, Assistant Sec’y of Indian Affs., U.S. Dep’t of Interior, Federal Indian Boarding School Initiative: Investigative Report (2022), https://www.bia.gov/sites/default/files/dup/inline-files/bsi_investigative_report_may_2022_508.pdf [https://perma.cc/AX85-XT5Z]; Canada et al., Indian Residential Schools Settlement Agreement (2006), https://www.residentialschoolsettlement.ca/Settlement.pdf [https://perma.cc/L96R-BEB3]; [Austl.] Hum. Rts. & Equal Opportunity Comm’n, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997), https://humanrights.gov.au/bringing-them-home/sites/default/files/documents/bringing_them_home_report.pdf [https://perma.cc/YK9F-WRRA]. ↑
122. See, e.g., Robin Geiß & Asil Ozcelik, Ethnic Cleansing, in Max Planck Encyclopedias of International Law, https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-9780199231690-e789 [https://perma.cc/R78S-G7K2] (last updated Jan. 2021); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugoslavia), Order on Provisional Measures, 1993 I.C.J. 407, 431 (Sep. 13) (separate opinion by Lauterpacht, J.) (stating that “forced migration of civilians” is “more commonly known as ‘ethnic cleansing’”). ↑
123. Rep. of the Econ. & Soc. Council on Its Third Session and Sixth Comm., Syria: Amendment to Article II, U.N. Doc. A/C.6/234 (Oct. 15, 1948). ↑
124. U.N. GAOR, 3d Sess., 82d mtg. at 184–86, U.N. Doc. A/C.6/SR.82 (Oct. 23, 1948); see also William A. Shabas, Genocide Law in a Time of Transition: Recent Developments in the Law of Genocide, 61 Rutgers L. Rev. 161, 173–77 (2008) [hereinafter Schabas, Genocide Law in a Time of Transition] (recognizing long history of forced displacement to create ethnically homogenous areas but noting that the term “ethnic cleansing” emerged during conflict in former Yugoslavia); William A. Schabas, The Genocide Convention: The Travaux Préparatoires, 104 Am. J. Int’l L. 318, 322 (2010) (book review) [hereinafter Schabas, Review] (“It is one of the great ironies of the drafting of the Convention that Syria’s proposal [was supported by] the Yugoslav delegate, who said: ‘Genocide could be committed by forcing members of a group to abandon their homes.’”); Int’l L. Comm’n, Rep. on the Work of Its Forty‑First Session, at 59, U.N. Doc. A/44/10 (1989) (reporting that ILC member, for updated Draft Code of Crimes Against the Peace and Security of Mankind, felt that “crimes of expulsion or forcible transfer of populations from their territory” were often “either the means or the object of genocide”). ↑
125. See, e.g., Portions of Report Adopted in First Reading, supra note 112, at 8– 10; U.N. GAOR, 3d Sess., 83d mtg., supra note 119, at 196–205. Moses, for example, observes that Lemkin’s insistence on inserting “cultural” methods of genocide into early drafts “raised hackles” among UN Member States, several of whom objected to the “one‑long‑chain argument.” A. Dirk Moses, The Problems of Genocide: Permanent Security and the Language of Transgression 225 (2021). ↑
126. See, e.g., U.N. GAOR, 3d Sess., 83d mtg., supra note 119, at 196–97. ↑
127. See, e.g., Int’l L. Comm’n, Draft Code of Offences Against the Peace and Security of Mankind, [1954] 2 Y.B. Int’l L. Comm’n 112, U.N. Doc. A/CN.4/SER.a/1954/Add.1. ↑
128. Id. art. 2. ↑
129. See infra Part III. ↑
130. UNESCO initiated a project in 1950 that culminated in the adoption of the 1954 Hague Convention. See infra Section III.B. ↑
131. Constitution of the United Nations Educations, Scientific and Cultural Organization, pmbl., Nov. 16, 1945, 4 U.N.T.S. 275 (entered into force Nov. 4, 1946) (declaring that UNESCO was created “for the purpose of advancing, through the educational and scientific and cultural relations of the peoples of the world, the objectives of international peace and of the common welfare of mankind”); 75 Years Ago, UNESCO’s Constitution Adopted, UNESCO: News, https://www.unesco.org/en/articles/75-years-ago-unescos-constitution-adopted [https://perma.cc/Z8UM-TFZJ] (last updated Apr. 20, 2023) (“UNESCO’s main mission, as initially defined in its Constitution, was to establish the conditions of peaceful coexistence between nations.”). Not everyone agreed with UNESCO’s founding premise that fighting ignorance through educational, cultural, or scientific cooperation would reduce the impulses to go to war. See, e.g., Charles A. Siepmann, Propaganda and Information in International Affairs, 55 Yale L.J. 1258, 1277 (1946) (“There are those who believe that a free flow of information between peoples will, of itself, bring about understanding and good will and therefore assurance of peace. A certain naiveté attaches to this point of view. It is certainly not proven.”). ↑
132. Secretary‑General Draft Convention with comments, supra note 12, at 15. ↑
133. See, e.g., Econ. & Soc. Council, Ad Hoc Comm. on Genocide, Rep. of the Comm. and Draft Convention Drawn Up by the Comm., at 17, U.N. Doc. E/794 (May 24, 1948) [hereinafter Ad Hoc Comm. Report]; see also Nehemiah Robinson, The Genocide Convention: A Commentary 65 (1960) (noting that the main arguments against “cultural genocide” were that it was too indefinite). ↑
134. See, e.g., Ad Hoc Comm. Report, supra note 133, at 17; U.N. GAOR, 3d Sess., 83d mtg., supra note 119, at 196–205; see also Berster, supra note 121 (citing remarks by various representatives during the Sixth (Legal) Committee’s debate of the draft convention). ↑
135. U.N. GAOR, 3d Sess., 178th plen. mtg. at 810, 821, U.N. Doc. A/PV.178 (1948); see also Genocide: A Commentary on the Convention, 58 Yale L.J. 1142, 1145 & n.28 (1949) (discussing cultural genocide and reactions of different countries). ↑
136. See, e.g., U.N. GAOR, 3d Sess., 83d mtg., supra note 119, at 196–205. ↑
137. Id. at 199 (statement by Egypt’s representative that “[c]ultural genocide was certainly not such a heinous crime as the physical destruction of a group,” but nonetheless advocating for retaining it in reduced form). ↑
138. Genocide Convention, supra note 15, art. II. Contemporaneous records of the government of the United Kingdom show that renowned international law professor J. L. Brierly advised that the definition of “genocide” might not have encompassed “the famous massacres and persecutions of history” because while “putting a whole enemy population, men, women, and children, to the sword would be a war crime” it might or might not qualify as genocide because it would need to be shown that the mass killing was due to their group status “as such” and not because they were “enemies in war or rebels against the government.” J.L. Brierly, The Genocide Convention (Mar. 2, 1949), HO 45/25308, Nat’l Archives of the U.K. (TNA), at 1. Today, this distinction strikes at the heart of the difference between genocide and mass killing as a crime against humanity. ↑
139. See, e.g., Int’l L. Comm’n, Rep. on the Work of Its Forty‑Third Session, at 96, U.N. Doc. A/46/10 (1991). ↑
140. Genocide Convention, supra note 15, art. III. ↑
141. Id. art. I. Lemkin had suggested genocide as a crime applicable to war and peace in his draft for the original UN resolution, but it had been excised. Schabas, Review, supra note 124, at 320. ↑
142. Schabas, supra note 23, at 84. ↑
143. Schabas, supra note 86, at 71, 90. ↑
144. Portions of Report Adopted in First Reading, supra note 112; Ad Hoc Comm. Report, supra note 133, at 17. ↑
145. See sources cited supra note 37; see also Mundorff, supra note 37, at 74–  75 (“[Lemkin] was, it seems, all too willing to sacrifice his concept to further his law. . . . [L]ater, in his activist role, [he] would sometimes undermine his complex idea by conflating it with mass killings in order to garner support for the Genocide Convention.”). ↑
146. See Genocide Convention, supra note 15, art. XIII (describing entry into force requirements and timeline on the basis of ratifications or ascensions); State Parties to the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, Int’l Humanitarian L. Databases, https://ihl-databases.icrc.org/en/ihl-treaties/genocide-conv-1948/state-parties [https://perma.cc/8HHG-VBB8]. ↑
147. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. 15, at 21, 29–30 (May 28). Responding to the Soviet Union’s reservation, in which the Soviet Union objected to the ICJ’s jurisdiction over treaty disputes, the UN General Assembly sought an ICJ advisory opinion on the status of a State that submitted such a reservation. Id.; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Request for Advisory Opinion, I.C.J. LEG 46/05 (6) (Nov. 17, 1950). The ICJ’s Advisory Opinion stated that each State Party could decide for itself whether to consent or object to the reservation and treat the State accordingly. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 I.C.J. at 25–26; see also Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide: Overview of the Case, Int’l Ct. Just., https://www.icj-cij.org/case/12 [https://perma.cc/QDU3-6QKL]. ↑
148. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Application Instituting Proceedings, 1993 I.C.J. Gen. List No. 91 (Mar. 20) [hereinafter Application filed by Bosnia & Herzegovina, Bosnian Genocide Case]. ↑
149. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gam. v. Myan.), Application Instituting Proceedings and Request for Provisional Measures, 2019 I.C.J. Gen. List No. 178 (Nov. 11), https://www.icj-cij.org/sites/default/files/case-related/178/178-20191111-APP-01-00-EN.pdf [https://perma.cc/5HTD-URUP]. ↑
150. Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ. Fed’n), Request for the Indication of Provisional Measures, 2022 I.C.J. 1 (Feb. 27), https://www.icj-cij.org/sites/default/files/case-related/182/182-20220227-WRI-01-00-EN.pdf [https://perma.cc/5H9T-NDKB]. ↑
151. Application filed by South Africa, Gaza Genocide Case, Gen. List No. 192, 2023 I.C.J. 1 (Dec. 29). ↑
152. Alleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory (Nicar. v. Ger.), Application Instituting Proceedings Containing a Request for the Indication of Provisional Measures, 2024 I.C.J. Gen List No. 193 (Mar. 1), https://www.icj-cij.org/sites/default/files/case-related/193/193-20240301-app-01-00-en.pdf [https://perma.cc/XS96-R5NV]. ↑
153. Rome Statute of the International Criminal Court art. 6, July 17, 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002) [hereinafter Rome Statute]; S.C. Res. 827, Statute of the International Criminal Tribunal for the Former Yugoslavia art. 4 (May 5, 1993) [hereinafter ICTY Statute]; S.C. Res. 955, Statute of the International Criminal Tribunal for Rwanda art. 2 (Nov. 8, 1994) [hereinafter Rwanda Statute]. ↑
154. See infra text accompanying notes 155–187. ↑
155. See, e.g., Benjamin Whitaker (Special Rapporteur on the Prevention and Punishment of the Crime of Genocide), Revised and Updated Rep. on the Question of the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6 (July 2, 1985) [hereinafter Whitaker Report]; Nicodéme Ruhashyankiko (Special Rapporteur on the Prevention and Punishment of the Crime of Genocide), Study of the Question of the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/416 (July 4, 1978) [hereinafter Ruhashyankiko Report]. ↑
156. Whitaker Report, supra note 155, ¶¶ 32–33; Ruhashyankiko Report, supra note 155, ¶¶ 441–61. ↑
157. Ruhashyankiko Report, supra note 155, ¶ 461. ↑
158. Id. ↑
159. Whitaker Report, supra note 155, ¶ 33. ↑
160. Id. ↑
161. See supra text accompanying notes 125–127. ↑
162. William A. Schabas, An Introduction to the International Criminal Court 8–9 (3d ed. 2007) [hereinafter Schabas, ICC] (citing sources); Mundorff, supra note 37, at 3; Anne‑Marie Carstens, The Swinging Pendulum of Cultural Heritage Crimes in International Law, in Intersections in International Cultural Heritage Law 109, 125–26 (Anne‑Marie Carstens & Elizabeth Varner eds., 2020) (citing sources). ↑
163. Int’l L. Comm’n, Rep. on the Work of Its Forty‑First Session, supra note 124, at 63. ↑
164. Id. at 57–59, 63. The 1989 ILC Draft Code also proposed to include intentional environmental harm as a crime against humanity because it considered it an “asset[] of vital importance for mankind.” Id. at 59, 64–65. ↑
165. Id. at 59. ↑
166. Int’l L. Comm’n, Rep. on the Work of Its Forty‑Third Session, supra note 139, at 102. ↑
167. Id. The ILC Report stated that the “destruction in question” for the crime of genocide was “not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.” Id. It noted that “the 1947 draft Convention prepared by the Secretary‑General and the 1948 draft prepared by the Ad Hoc Committee on Genocide contained provisions on ‘cultural genocide’” that covered several acts, including the destruction or preventing use of, inter alia, libraries, museums, historical monuments, and places of worship, but the text adopted by the General Assembly “did not include the concept of ‘cultural genocide.’” Id. ↑
168. ICTY Statute, supra note 153. ↑
169. Rome Statute, supra note 153, art. 6; see also Schabas, Review, supra note 124, at 320 (observing “no traction whatsoever for any amendment to the genocide text, which was left totally unchanged from the words approved by the General Assembly on December 9, 1948”). ↑
170. See, e.g., Rep. of the Int’l L. Comm. on the Work of Its Seventy‑First Session, at 141, U.N. Doc. A/74/10 (2019) (presenting text of the draft conclusions on peremptory norms of general international law (jus cogens)); Bosnian Genocide Case, Judgment, 2007 I.C.J. 43, 110–11, ¶¶ 161–62 (Feb. 26). ↑
171. Barcelona Traction, Light & Power Co. (Belg. v. Spain) (Barcelona Traction), Judgment, 1970 I.C.J. 3 (Feb. 5). ↑
172. Id. ¶¶ 32–35. ↑
173. Id. ↑
174. Id. ¶ 34. ↑
175. See, e.g., Bosnian Genocide Case, 2007 I.C.J. at 110–11, ¶¶ 161–62. ↑
176. See text accompanying notes 148–152. ↑
177. Bosnian Genocide Case, 2007 I.C.J. at 155–66, 194, ¶¶ 278–97, 370; see also Srebrenica: Timeline of a Genocide, supra note 29. ↑
178. Bosnian Genocide Case, Judgment, 2007 I.C.J. at 126, ¶ 198 (“In the first place, the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole.”). ↑
179. See infra Section III.A. ↑
180. ICTY Statute, supra note 153. ↑
181. Id. arts. 3, 5. ↑
182. Id. art. 4. ↑
183. Id. art. 2. ↑
184. See, e.g., Rwanda Statute, supra note 153; Statute of the Special Court for Sierra Leone, Jan. 16, 2002, 2178 U.N.T.S. 145 (entered into force Apr. 12, 2002). ↑
185. For a discussion of different prosecutions for cultural property crimes during the first decade of the ICTY, written by the former ICTY President, see Theodor Meron, The Protection of Cultural Property in the Event of Armed Conflict Within the Case‑Law of the International Criminal Tribunal for the Former Yugoslavia, 57 Museum Int’l 41 (2005). ↑
186. Rome Statute, supra note 153. ↑
187. See, e.g., Int’l L. Comm’n, Rep. on the Work of Its Forty‑Third Session, supra note 139, at 102 (“The definition of the crime of genocide contained in this draft article is thus based entirely on that embodied in article II of the Convention on the Prevention and Punishment of the Crime of Genocide, which has been widely accepted by the international community and ratified by the overwhelming majority of States.”). ↑
188. See infra Section III.A. ↑
189. See infra text accompanying notes 255–267. ↑
190. See Application filed by Bosnia & Herzegovina, Bosnian Genocide Case, 1993 I.C.J. Gen. List No. 91, ¶¶ 10–29 (Mar. 20). ↑
191. See infra Section III.A. ↑
192. See, e.g., UN Experts Warn International Order on a Knife’s Edge, Urge States to Comply with ICJ Advisory Opinion, U.N. Hum. Rts.: Off. of High Comm’r (Sep. 18, 2024), https://www.ohchr.org/en/statements/2024/09/un-experts-warn-international-order-knifes-edge-urge-states-comply-icj-advisory [https://perma.cc/A5GC-3N34] (attaching combined statement from several UN Special Rapporteurs: “The scale of destruction . . . is extreme in Gaza and spreading across the rest of the occupied territory, prompting allegations of domicide, urbicide, scholasticide, medicide, cultural genocide and, more recently, ecocide”);Permanent Rep. of Armenia, supra note 3 (stating that Azerbaijan’s attacks on churches, cemeteries, and khachkars indicated a “policy of cultural genocide”); Press Release, General Assembly, General Assembly ‘Appalled’ by Edict on Destruction of Afghan Shrines; Strongly Urges Taliban to Halt Implementation, U.N. Press Release GA/9858 (Mar. 9, 2001) (statement of former minister in Afghanistan Mission to the United Nations that the Taliban was committing “cultural genocide” in Afghanistan “through the burning of thousands of ancient Persian manuscripts, destruction of paintings and banning of the use of the Persian language as the working language in the areas under occupation”). ↑
193. See, e.g., U.N. GAOR, 70th Sess., 46th plen. mtg. at 5, U.N. Doc. A/70/PV.46 (Nov. 4, 2015) (statement by Colombia’s permanent representative that “the slave trade, in particular the transatlantic slave trade, constitute and should always have constituted a crime against humanity”); UNESCO Gen. Conf., Resolution on “Acts Constituting a Crime Against the Common Heritage of Humanity,” reproduced in 1 UNESCO, Records of the General Conference, 31st Session: Paris, 15 October to 3 November 2001 65 (2002); Matsuura Koïchiro, Les Crimes Contre la Culture ne Doivent pas Rester Impunis [Crimes Against Culture Must Not Go Unpunished], Le Monde (Mar. 15, 2001, at 2:09 PM), https://www.lemonde.fr/une-abonnes/article/2001/03/15/les-crimes-contre-la-culture-ne-doivent-pas-rester-impunis_162090_3207.html [https://perma.cc/782P-DVYR] (statement by then‑Director General of UNESCO, translated as “crimes against culture must not go unpunished”); Choong‑Hyun Paik (Special Rapporteur on the Situation of Hum. Rts. in Afg.), Final Rep. on the Situation of Human Rights in Afghanistan, ¶ 31, U.N. Doc. E/CN.4/1997/59 (Feb. 20, 1997); Ricardo J. Alfaro (Special Rapporteur of the Int’l L. Comm.), Question of International Criminal Jurisdiction, ¶ 6, U.N. Doc. A/CN.4/15 (Mar. 3, 1950); see also Roger O’Keefe, Protection of Cultural Property Under International Criminal Law, 11 Melb. J. Int’l L. 1, 2 (2010). ↑
194. Rosalyn Higgins, Foreword to 1 The Genocide Convention: The Travaux Préparatoires, supra note 95, at xvii; see also Douglas Irvin‑Erickson, Raphaël Lemkin, Genocide, Colonialism, Famine, and Ukraine, 8 E./W.: J. Ukrainian Stud. 193, 194 (2021) (questioning whether the term “genocide” might sometimes be used “to dramatize events for political purposes”); Barry Sautman, “Cultural Genocide” and Tibet, 38 Tex. Int’l L.J. 173, 180 (2003) (maintaining that metaphorical uses of the term by activists “diminishes the analytical utility of the concept and the forcefulness of condemnation that it brings to appropriate cases”). ↑
195. See, e.g., Christina Maranci, What Cultural Genocide Looks Like for Armenians in Nagorno‑Karabakh, Time (Oct. 12, 2023, at 7:00 AM), https://time.com/6322574/cultural-genocide-armenia-nagorno-karabakh-essay [https://perma.cc/GS77-TA7H]; Josh Rogin, Opinion, China Is Getting Away with Cultural Genocide in Tibet, Wash. Post (Nov. 1, 2023), https://www.washingtonpost.com/opinions/2023/11/01/china-tibet-identity-cultural-genocide [https://perma.cc/WW39-8XDS] (stating that “[g]enocide is a powerful charge, often leveled at repressive regimes and warring states,” but “Tibetans are making a strong case that the Chinese government is attempting to wipe out their national identity”); Jade McGlynn, Russia Is Committing Cultural Genocide in Ukraine, Foreign Pol’y (Apr. 23, 2024), https://foreignpolicy.com/2024/04/23/russia-ukraine-cultural-genocide-looting-indoctrination-deporatation [https://perma.cc/NMP4-YPH7] (“Ukrainians are countering attempts to expunge their cultural memory.”); Ahmad Ibsais, Israel’s Cultural Genocide Is Destroying Gaza’s Very Memory, Nation (Feb. 8, 2024), https://www.thenation.com/article/world/gaza-cultural-genocide [https://perma.cc/8DF6-MQZN] (“Cultural heritage offers clues to the past while anchoring group identity and purpose in the present. That’s why consolidating control over a people, colonizing their land, or erasing their national aspirations starts by confiscating their art, artifacts, books, and buildings.”); see also Ralph Peters, Cultural Genocide, Hoover Inst.: Mil. Hist. in the News (July 25, 2024), https://www.hoover.org/research/cultural-genocide [https://perma.cc/BUE7-FAAT] (“[T]he three target groups for cultural genocide tend to be either neighbors who insist on their right to decide their own future; irksome internal minorities; or rebellious imperial subjects. But neighbors excite the most enduring hatreds.”). ↑
196. See, e.g., Irvin‑Erickson, supra note 116, at 22 (attributing to Martin Shaw the argument that “it is oxymoronic to refer to ‘cultural genocide’ if the concept of genocide is already defined in reference to destroying a cultural group”). ↑
197. See, e.g., Berster, supra note 121 (proposing “moderately extending the conventional scope of protection to certain forms of social and cultural destruction of protected groups”); Ben Saul, Was the Conflict in East Timor ‘Genocide’ and Why Does It Matter?, 2 Melb. J. Int’l L. 477, 483 (2001) (suggesting that the definition be expanded or, alternatively, “a more radical jurisprudence should be developed around the existing concept of genocide”); Ciara Finnegan, The Uyghur Minority in China: A Case Study of Cultural Genocide, Minority Rights and the Insufficiency of the International Legal Framework in Preventing State‑Imposed Extinction, 9 Laws, no. 1, Jan. 11, 2020, at 1, 14–17 (stating that “expansion of the definition of genocide to include cultural genocide” is not immediately forthcoming “but this step is necessary to offer protection to other minority groups in the future”). ↑
198. Daphne Anayiotos, The Cultural Genocide Debate: Should the UN Genocide Convention Include a Provision on Cultural Genocide, or Should the Phenomenon Be Encompassed in a Separate International Treaty?, 22 N.Y. Int’l L. Rev. 99, 101, 127–29 (2009) (proposing “an international treaty be created called The Convention on the Protection from Cultural Destruction”); David Nersessian, Rethinking Cultural Genocide Under International Law, Carnegie Council for Ethics in Int’l Affs.: Hum. Rts. Dialogue (1994–2005) (Apr. 22, 2005), https://www.carnegiecouncil.org/media/series/dialogue/human-rights-dialogue-1994-2005-series-2-no-12-spring-2005-cultural-rights-section-1-rethinking-cultural-genocide-under-international-law [https://perma.cc/RRA8-QLN4] (suggesting a new treaty dealing specifically with cultural genocide). ↑
199. See James A. R. Nafziger, Frontiers of Cultural Heritage Law 194, 209 (2021) (also foreseeing that “gradual conversion [of the concept of cultural genocide] into a legal norm is indicated”). ↑
200. Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 3 B.U. Int’l. L.J. 1, 62 (1985) (listing several proposed changes “to render the [Genocide] Convention more efficacious,” including that “cultural genocide should also be prohibited”). ↑
201. Mundorff, supra note 37, at 4–7, 105–33. ↑
202. See, e.g., Kristina Hon, Bringing Cultural Genocide In by the Backdoor: Victim Participation at the ICC, 43 Seton Hall L. Rev. 359, 391–92 (2013). ↑
203. Before it was clear that the UN General Assembly would move toward adoption of a treaty on genocide, Lemkin ingratiated himself with Eleanor Roosevelt, first Chairperson of the Commission on Human Rights, imploring her to take up such an initiative within her office. Raphael Lemkin, Letter dated May 18, 1946 from Raphael Lemkin to Eleanor Roosevelt, Chair of U.N. Hum. Rts. Comm’n, U.N. Archives File SOA 317/1/01(3) (May 18, 1946). Once the Genocide Convention gained momentum, however, he changed course and argued vociferously that efforts to address genocide as a human rights issue endangered the ultimate success of the treaty and, most likely, he felt that it would minimize his role. See, e.g., Genocide Pact Warning, N.Y. Times, Mar. 8, 1954, at 3; U.S. Dep’t of State, Memorandum of Conversation on Genocide Convention and Covenant of Human Rights (Jan. 29, 1952) (on file with U.S. Nat’l Archives, Dean Acheson Paper, Sec’y of State Files, Memoranda of Conversation File, 1949–1953: January, 1952) (describing a meeting between the Secretary of State, a U.S. representative, and Lemkin, and noting that Lemkin also “remarked that the Communists were also seeking to sabotage the Genocide Convention” by supporting the development of an international criminal code). ↑
204. See Novic, supra note 16, 237–44. ↑
205. Patty Gerstenblith, The Destruction of Cultural Heritage: A Crime Against Property or a Crime Against People?, 15 J. Marshall Rev. Intell. Prop. L. 336, 344, 365 (2016). ↑
206. Interview with Patty Gerstenblith, in Chicago, Ill. (Aug. 7, 2025). ↑
207. See, e.g., Schabas, supra note 23, at 646–47; William A. Schabas, The “Odious Scourge”: Evolving Interpretations of the Crime of Genocide, 1 Genocide Stud. & Prevention: Int’l J. 93, 97, 102 (2006) (noting that “Lemkin’s emphasis on what would be called ‘cultural genocide,’ that is, the destruction of the group’s institutions rather than of its physical existence, was bluntly dismissed” by drafters of the Genocide Convention, and cultural genocide has not been included in other expansions); Schabas, Review, supra note 124, at 320 (opining that “an expanded definition of ‘genocide’ is not forthcoming”); accord Schabas, Genocide Law in a Time of Transition, supra note 124, at 175, 190; William A. Schabas, Retroactive Application of the Genocide Convention, 4 U. St. Thomas J.L. & Pub. Pol’y 36, 56–57 (2010). ↑
208. Schabas, Review, supra note 124, at 319 (noting that the scope of crimes against humanity and war crimes “appears to extend far beyond what was imagined in the 1940s”). ↑
209. Kreß, supra note 28, at 487, 499–501 (2006) (detailing rejection of “cultural genocide” by Sixth Committee and observing that negotiations leading to the Rome Statute show “that most States consider Art. II of the Genocide Convention as an almost sacred document of international criminal law that must not be touched in any form whatsoever”). ↑
210. This author has made this claim in earlier writings, making a different argument than here. There, the argument was that law‑creators have tended to hot‑potato the cultural genocide issue, always tending to view it better suited to initiatives underway elsewhere. Carstens, supra note 162, at 128 & n.97. ↑
211. Schabas, supra note 23, at 61; Thomas W. Simon, The Laws of Genocide: Prescriptions for a Just World 53 (2007); see Portions of Report Adopted in First Reading, supra note 112 (“[F]rom the practical point of view, the inclusion of cultural genocide in the Convention might prevent many countries from becoming parties to the Convention and jeopardize its success.”). ↑
212. David Hirsh, Law Against Genocide: Cosmopolitan Trials 54 (2004) (quoting Helen Fein, Genocide: A Sociological Perspective 17 (1993)). ↑
213. Simon, supra note 211, at 53–54. ↑
214. Id. at 53. ↑
215. Id. at 54; see also Thomas W. Simon, Defining Genocide, 15 Wis. Int’l L.J. 243, 252 (1996) (“While so‑called ‘cultural genocide’ may lead to physical genocide, we need to keep cultural and physical genocide separate. Cultural genocide, or ethnocide, is not of the same magnitude as genocide.”). ↑
216. Edward C. Luck, Cultural Genocide and the Protection of Cultural Heritage 19 (2018). ↑
217. Irvin‑Erickson, supra note 116, at 31 (emphasis added). ↑
218. Id. at 32. ↑
219. Moses, supra note 9, at 34. From his study of Lemkin’s writings, Moses draws opinions of Lemkin as a scholar that challenge the reverence he is often afforded in contemporary scholarship. ↑
220. Id. ↑
221. Luck, supra note 216, at 19. ↑
222. Anne‑Marie Carstens, Dissecting International Cultural Heritage Crimes, in Research Handbook on Art, Culture & Heritage Law 212 (2026). ↑
223. See, e.g., Luis Moreno Ocampo, Expert Opinion: Genocide Against Armenians in 2023, 57 Vand. J. Transnat’l L. 1595, 1609 (2024) (statement by former ICC Prosecutor, citing Prosecutor v. Kayishema & Ruzindana, ICTR‑95‑1‑A, Appeal Judgment, ¶ 93 (Int’l Crim. Trib. for Rwanda May 21, 1999)). ↑
224. See, e.g., Mónica Pinto, Remarks by Mónica Pinto, 117 Procs. of the Am. Soc’y Int’l L. Ann. Meeting 385, 387 (2024). ↑
225. This goal is a central mission of the UN Office on Genocide Prevention and the Responsibility to Protect. See, e.g., U.N., Framework of Analysis for Atrocity Crimes: A Tool for Prevention (2014). ↑
226. Some of the features of Lemkinian “cultural genocide” do not emerge to any measurable extent in the suggestions for resurrecting the concept of cultural genocide. For example, Lemkin felt strongly about establishing universal jurisdiction in national courts to adjudicate genocide, regardless of its locus. See, e.g., King, supra note 42, at 14. Discourse on universal jurisdiction tends to occur outside of the discourse on cultural genocide. See, e.g., Restatement (Third) of Foreign Relations Law § 404 (A.L.I. 1987); Anthony J. Colangelo, The Legal Limits of Universal Jurisdiction, 47 Va. J. Int’l L. 149, 163–85 (2006). ↑
227. This mantra occurs throughout the calls for revising cultural genocide in both the academic and public arenas as the primary reason for reviving it. See sources listed supra notes 192–201. ↑
228. See sources listed supra notes 192–201. ↑
229. Lemkin, supra note 9, at 71; see, e.g., Anayiotos, supra note 198, at 127. ↑
230. G.A. Res. 96 (I), supra note 97. ↑
231. Secretary‑General Draft Convention with comments, supra note 12, at 27. ↑
232. Lemkin, Offences Against the Law of Nations, supra note 45. ↑
233. See infra Section III.A. ↑
234. See Carstens, supra note 66. ↑
235. See, e.g., Schabas, supra note 23, at 646–47 (stating that exclusion of cultural genocide was regrettable but that the existing definition of “genocide” should remain fixed). ↑
236. See, e.g., Lawrence Davidson, Cultural Genocide 128 (Alexander Laban Hinton et al. eds., 2012) (observing a “qualitative difference” between human rights instruments and the Genocide Convention, only the latter of which allows for criminal prosecution of perpetrators). ↑
237. The respective treaties also call for prosecution in domestic courts. Genocide Convention, supra note 15, art. V; Rome Statute, supra note 153, art. 17. The emphasis here, however, is on international enforcement mechanisms. ↑
238. Genocide Convention, supra note 15, art. III; see also Sean D. Murphy, The United States and the International Court of Justice: Coping with Antinomies, in The Sword and the Scales: The United States and International Courts and Tribunals 46, 61 (Cesare P. R. Romano ed., 2009) (noting that the ICJ resolves State‑on‑State disputes). ↑
239. Genocide Convention, supra note 15, arts. V–VI. ↑
240. Rome Statute, supra note 153, art. 6. ↑
241. Id. arts. 7, 8, 8 bis. ↑
242. Id. art. 22(2). ↑
243. See id. arts. 11–14. For a discussion of the jurisdictional limits of the ICC for cultural heritage‑related crimes, see generally Carstens, supra note 222. ↑
244. Rome Statute, supra note 153, art. 25. ↑
245. Id. art. 25(3)(e). ↑
246. The contemporary scholarship evaluating cultural genocide focuses primarily on perceived shortcomings in international criminal law and subsidiarily on international human rights law. International humanitarian law is rarely mentioned and, if so, forms a mere blip in the analysis. For example, the source that most comprehensively addresses whether the concept of cultural genocide has a place in the twenty‑first century international landscape largely dismisses its relevance in a few short sentences: “The notion of human harm associated with the destruction of cultural property is rarely present in the framework of protection of tangible cultural heritage.” Novic, supra note 16, at 125. ↑
247. See supra Section I.B, infra Section III.D. ↑
248. See, e.g., Jojo Mehta, Stop Ecocide Foundation, Statement to the 20th Assembly of States Parties to the Rome Statute of the International Criminal Court (Dec. 2021), https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP20/ASP20.GD.StopEcocide.07.12.pdf [https://perma.cc/M956-NXW8]; Rachel Pannett, What Is Ecocide and Could It Become an International Crime Like Genocide?, Wash. Post (Sep. 10, 2024), https://www.washingtonpost.com/climate-environment/2024/09/10/ecocide-law-crime-genocide-icc [https://perma.cc/YUK7-RZ4P]. ↑
249. Definitions of Genocide and Related Crimes: Ethnic Cleansing, U.N.: Off. on Genocide Prevention & Resp. to Protect, https://www.un.org/en/genocide-prevention/definition [https://perma.cc/36RP-G7TU] (“Ethnic cleansing has not been recognized as an independent crime under international law.”); see also text accompanying notes 123–124. ↑
250. Press Release, ICC Prosecutor, Abominable Acts of Violence Against Women Must Cease (Nov. 25, 2018), https://www.icc-cpi.int/news/statement-icc-prosecutor-fatou-bensouda-international-day-elimination-violence-against-women-0 [https://perma.cc/575J-5HK3]. See generally Caroline L. Davidson, Femicide as Gender Persecution, 46 Harv. J.L. & Gender 325, 349–98 (2023) (arguing for increased recognition of femicide within the crime against humanity of gender persecution). ↑
251. Press Release, ICC Prosecutor, ICC Office of the Prosecutor Publishes New Policy on Slavery Crimes: Statement by Prosecutor Karim A.A. Khan KC (Dec. 2, 2024), https://www.icc-cpi.int/news/icc-office-prosecutor-publishes-new-policy-slavery-crimes-statement-prosecutor-karim-aa-khan [https://perma.cc/J9EQ-QNBL]. ↑
252. Genocide Convention, supra note 15, art. II; Rome Statute, supra note 153, art. 6. ↑
253. Genocide Convention, supra note 15, art. II; Rome Statute, supra note 153, art. 6. ↑
254. See Bosnian Genocide Case, Judgment, 2007 I.C.J. 43, 185–86, ¶ 344 (Feb. 26); supra Part II; supra text accompanying notes 246–253; infra text accompanying notes 255–268. ↑
255. Off. of the Prosecutor, supra note 21, at 30, ¶ 79. ↑
256. Id.; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugoslavia), Order on Provisional Measures, 1993 I.C.J. 407, 431, ¶ 69 (Sep. 13) (separate opinion by Lauterpacht, J.) (“[T]he forced migration of civilians, more commonly known as ‘ethnic cleansing,’ is, in truth, part of a deliberate campaign by the Serbs to eliminate Muslim control of, and presence in, substantial parts of Bosnia-Herzegovina.”). ↑
257. Application filed by Bosnia & Herzegovina, Bosnian Genocide Case, 1993 I.C.J. Gen. List No. 91 (Mar. 20). ↑
258. Id. ¶¶ 29, 33; see also Bosnian Genocide Case, Judgment, 2007 I.C.J. at 176, ¶ 320; id. at 182, ¶ 335 (detailing allegations). ↑
259. Genocide Convention, supra note 15, art. II(c). ↑
260. Application filed by Bosnia & Herzegovina, Bosnian Genocide Case, 1993 I.C.J. Gen. List No. 91, ¶ 33; see also id. ¶ 86 (alleging “the unjustified sacrilegious acts culminating in destruction within 83% of our churches and 33% of other church buildings”). ↑
261. Bosnian Genocide Case, Judgment, 2007 I.C.J. at 182–86, ¶¶ 336–44. ↑
262. Id. at 182–85, ¶¶ 335–41. In essence, these findings reflect attacks on institutions and representations of religions other than those of the Serbian Orthodox faith. ↑
263. Id. at 185, ¶ 342 (citing field survey conducted by expert András Riedlmayer). ↑
264. Id. at 186, ¶ 344. ↑
265. Id. ↑
266. Id. ↑
267. Id. ↑
268. Id. ↑
269. Id. at 194, ¶ 370 (holding that “save for the events of July 1995 at Srebrenica, the necessary intent required to constitute genocide has not been conclusively shown” for events alleged by Bosnia and Herzegovina in the case). ↑
270. Id. ↑
271. Id. at 162–63, 165–66, ¶¶ 291, 295–97 (reviewing elements of genocide for events at Srebrenica); U.N. Secretary‑General, Rep. of the Secretary‑General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, ¶¶ 318–93, U.N. Doc. A/54/549 (Nov. 15, 1999) (stating also that the report’s purpose included “to describe in a coherent narrative how thousands of men and boys were summarily executed and buried in mass graves within a matter of days while the international community attempted to negotiate access to them”); see also S.C. Res. 1004 (July 12, 1995) (expressing concern for deterioration of conditions for civilians and UN protection forces, in and near the demilitarized area at Srebrenica). ↑
272. Bosnian Genocide Case, Judgment, 2007 I.C.J. at 164–65, ¶ 293. ↑
273. Application filed by South Africa, Gaza Genocide Case, Gen. List No. 192, 2023 I.C.J. 1 (Dec. 29). ↑
274. Id. ¶ 4. In later paragraphs, South Africa alleged specific examples, including the destruction of an ancient port nominated for inclusion on the World Heritage List, Muslim and Christian places of worship that included the Great Omari Mosque and the Church of Saint Porphyrius, the Rafah Museum, and leading libraries. Id. ¶¶ 90–92. ↑
275. Id. ¶ 4. ↑
276. Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Request for the Indication of Provisional Measures, 2024 I.C.J. 3, 20 ¶ 44 (Jan. 26) (quoting Bosnian Genocide Case, Judgment, 2007 I.C.J. at 126, ¶ 198). ↑
277. Application filed by South Africa, Gaza Genocide Case, 2023 I.C.J. at 190– 92, ¶ 144; S. Afr. v. Isr., 2024 I.C.J. at 30–32, ¶ 86. ↑
278. See, e.g., Definitions of Genocide and Related Crimes: Ethnic Cleansing, supra note 249 (calling intent requirement “the most difficult element to determine”). Domestic hate crimes often face this same challenge. See, e.g., Urbanski v. State, 286 A.3d 626, 639 (Md. App. 2022) (“Appellant was acquitted of the hate crime because the circuit court could not find that the Appellant murdered Lt. Collins solely ‘because of’ his race.”). ↑
279. See supra text accompanying notes 102–144. ↑
280. Bosnian Genocide Case, Judgment, 2007 I.C.J. at 185–86, ¶ 344 (quoting Prosecutor v. Krstić, IT‑98‑33‑T, Trial Judgement, ¶ 580 (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001)). ↑
281. See, e.g., Kreß, supra note 28, at 467–68 (stating “it is now beyond question that genocide is a crime under general customary international law” and identifying authorities). ↑
282. Prosecutor v. Krstić, IT‑98‑33‑A, Judgment, ¶ 36 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 19, 2004); accord Lemkin, supra note 9, at 70 (declaring, prior to adoption of the Genocide Convention, that “genocide must be treated as the most heinous of all crimes”); Madeline K. Albright & William S. Cohen, Preventing Genocide: A Blueprint for U.S. Policymakers xxi–xxii (2008) (observing the term’s “unmatched rhetorical power”); Kreß, supra note 28, at 463 (noting that “a particular stigma is attached to any conviction for this crime”). ↑
283. Genocide Convention, supra note 15, arts. II, III; Rome Statute, supra note 153, art. 25. ↑
284. See, e.g., Kreß, supra note 28, at 470 (“A clear demarcation line exists between genocide and war crimes [based on violations of international humanitarian law] because only the latter category presupposes the existence of an armed conflict.”). The Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention) and its protocols include language regarding peacetime obligations, though the wording makes clear that these are charged to States Parties to perform according to their own resources and inclinations and, therefore, are limited as enforceable obligations. See Convention for the Protection of Cultural Property in the Event of Armed Conflict art. 3, May 14, 1954, 249 U.N.T.S. 240 (entered into force Aug. 7, 1956) [hereinafter 1954 Hague Convention]; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict art. 5, Mar. 26, 1999, 253 U.N.T.S. 172 (entered into force Mar. 9, 2004) [hereinafter Second Protocol to the Hague Convention of 1954]. ↑
285. By contrast, the Genocide Convention had entered dormancy, and the ILC had produced its last draft code of international criminal offenses for decades, tripped up by an inability to define the crime of aggression that would satisfy the many divergent views held by UN Member States. See G.A. Res. 897 (IX) (Dec. 4, 1954); see also Carstens, supra note 162, at 118–23 (summarizing relevant history). ↑
286. 1954 Hague Convention, supra note 284. ↑
287. Id. pmbl.; see also Merryman, supra note 61, at 833–42 (stating that the 1954 Hague Convention epitomizes a legal regime for cultural property based on “cultural internationalism”). ↑
288. 1899 & 1907 Hague Regulations, supra note 63, arts. 27, 56. ↑
289. Id. ↑
290. Id. art. 56. Occupation refers to the state of armed conflict when one sovereign State exercises temporary control over the territory of another. Eyal Benvenisti, The International Law of Occupation 1–7, 48–49 (2d ed. 2012). ↑
291. See, e.g., 1899 & 1907 Hague Regulations, supra note 63, art. 25 (prohibiting “attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”); id. art. 28 (prohibiting “pillage of a town or place, even when taken by assault”); id. art. 46 (prohibiting confiscation of private property during occupation); id. art. 48 (prohibiting pillage during occupation). ↑
292. 1954 Hague Convention, supra note 284, art. 1. ↑
293. Id. pmbl., art. 1; Toman, supra note 60, at 50. ↑
294. 1954 Hague Convention, supra note 284, art. 1(a); see also Toman supra note 60, at 49–54. ↑
295. 1954 Hague Convention, supra note 284, art. 1(b)–(c). ↑
296. See, e.g., Toman, supra note 60, at 45–54 (discussing definition of “cultural property” in official commentary); Roger O’Keefe, The Protection of Cultural Property in Armed Conflict 101–06 (2006). ↑
297. 1954 Hague Convention, supra note 284, art. 19. ↑
298. See Sylvie‑Stoyanka Junod, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949: Protocol II, ¶¶ 4446–79 (Yves Sandoz et al. eds., 1987). The 1954 Hague Convention adopted rules governing hostilities for non‑international armed conflicts, but the term has been developed most extensively in the context of Additional Protocol II to the Geneva Conventions of 1949, a treaty of international humanitarian law that is devoted to specifying rules that apply to such conflicts. See id. Rules set out in Additional Protocol II are widely considered to exist also as customary obligations binding on all parties to an international or non‑international armed conflict. ↑
299. See, e.g., Rome Statute, supra note 153, art. 8(2)(d). ↑
300. 1954 Hague Convention, supra note 284, arts. 5(2), 7(1). ↑
301. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts art. 53, June 8, 1977, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1979) [hereinafter Additional Protocol I]; accord Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non‑International Armed Conflicts art. 16, June 8, 1977, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Additional Protocol II]. ↑
302. Second Protocol to the Hague Convention of 1954, supra note 284. ↑
303. Id. art. 1(b) (adopting the same definition of “cultural property” as that presented in the 1954 Hague Convention). ↑
304. Application filed by South Africa, Gaza Genocide Case, Gen. List No. 192, 2023 I.C.J. 1, 7–8, ¶ 2 (Dec. 29). ↑
305. Id. ↑
306. Id. ↑
307. 1899 & 1907 Hague Regulations, supra note 63; Schabas, ICC, supra note 162, at 2. ↑
308. Schabas, ICC, supra note 162, at 2–8. ↑
309. Indeed, the Rome Statute expressly recognizes the principle of complementarity, such that a case is inadmissible before the ICC if a State is already investigating or prosecuting the same offense, unless a relevant State is unwilling or does not appear genuine in its efforts. Rome Statute, supra note 153, art. 17. In other words, the ICC will not act in those instances in which a State enforces violations. ↑
310. See, e.g., id. art. 8. ↑
311. See, e.g., id. arts. 7(1)(h), 7(2)(g), 8(2)(b)(ix), 8(2)(e)(iv). ↑
312. See, e.g., Toman, supra note 60, at 1–21; Best, supra note 33, at 39–64; O’Keefe, supra note 296, at 35–91. ↑
313. Elihu Lauterpacht, The Life of Hersch Lauterpacht 272 (2010); Katharine Thomson, The Papers of Sir Hersch Lauterpacht, Churchill Archives Ctr. (Apr. 2023), https://archives.chu.cam.ac.uk/collections/research-guides/lauterpacht [https://perma.cc/MS9E-64DD]. ↑
314. Rome Statute, supra note 153, arts. 6–8 bis. States could not agree on the scope of the crime of aggression when the Rome Statute was adopted and therefore left a placeholder. Schabas, ICC, supra note 162, at 88. The crime was eventually developed and “activated” in 2018. Rome Statute, supra note 153, art. 8 bis & n.4. ↑
315. Rome Statute, supra note 153, art. 29. ↑
316. Id. arts. 8(1), 8(2)(e)(iv) (applicable in international armed conflicts), 8(2)(b)(ix) (applicable in qualifying non‑international armed conflicts); see also Anne‑Marie Carstens, Beyond War Crimes, 85 Md. L. Rev. 522, 525, 544–57 (2026) (observing that the category of war crimes provides the most “unambiguous avenue” for prosecuting perpetrators who attack cultural property during an armed conflict and advocating for greater reliance on other pathways that better reflect the role of protecting cultural property as part of the broader narrative of protecting at‑risk communities). ↑
317. Rome Statute, supra note 153, art. 7(1)(h). ↑
318. Id. art. 7(1). ↑
319. Id. ↑
320. Id. art. 7(1)(h). ↑
321. See id. art. 8. ↑
322. Prosecutor v. Al Hassan, ICC‑01/12‑01/18, Sentencing Judgment (Nov. 20, 2024) [hereinafter Al Hassan, Sentencing Judgment]; Prosecutor v. Al Hassan, ICC‑01/12‑01/18, Trial Judgment (June 26, 2024) [hereinafter Al Hassan, Trial Judgment]. ↑
323. Prosecutor v. Al Mahdi, ICC‑01/12‑01/15‑236, Reparations Order (Aug. 17, 2017) [hereinafter Al Mahdi, Reparations Order]; Prosecutor v. Al Mahdi, ICC‑01/12‑01/15‑171, Trial Judgment and Sentence (Sep. 27, 2016) [hereinafter Al Mahdi, Trial Judgment]. ↑
324. In other words, any jurisdictional limitations that would prevent an individual from being brought before the ICC for genocide would likewise prevent the individual from being prosecuted based on war crimes or crimes against humanity in the same court—apart from the exceptional case of a party that “directly and publicly incites others to commit genocide.” Rome Statute, supra note 153, art. 25(3)(e). ↑
325. Al Hassan, Trial Judgment, supra note 322, ¶ 1785. ↑
326. Id. ¶¶ 1030–55. ↑
327. Id. ¶¶ 1052–55. ↑
328. Id. ¶ 1785. ↑
329. Al Hassan, Sentencing Judgment, supra note 322, ¶ 70. ↑
330. Al Hassan, Trial Judgment, supra note 322, ¶ 403. ↑
331. Id. ¶ 404. ↑
332. Id. ¶¶ 1045–46. ↑
333. Al Hassan, Sentencing Judgment, supra note 322, ¶¶ 72–73. ↑
334. Id. ↑
335. Id. ¶ 70 (citing ICTY cases). ↑
336. Id. ¶ 70. ↑
337. Rome Statute, supra note 153, art. 8(2)(b)(ix) (applicable to international armed conflicts); id. art. 8(2)(e)(iv) (applicable to non‑international armed conflicts). ↑
338. Id. arts. 8(2)(a)(iv), 8(2)(b)(ii), 8(2)(b)(iv), 8(2)(b)(v), 8(2)(b)(ix), 8(2)(b)(xiii), 8(2)(b)(xvi), 8(2)(e)(iv), 8(2)(e)(v), 8(2)(e)(xii). ↑
339. Al Mahdi, Trial Judgment, supra note 323, see Rome Statute, supra note 153, arts. 8(2)(e)(iv), 25(3)(a). ↑
340. See, e.g., Haydee J. Dijkstal, Destruction of Cultural Heritage Before the ICC: The Influence of Human Rights on Reparations Proceedings for Victims and the Accused, 17 J. Int’l Crim. Just. 391, 391 (2019). ↑
341. Rome Statute, supra note 153, art. 8(2)(e)(iv). ↑
342. Id. arts. 7(1), 8(1). ↑
343. Al Mahdi, Trial Judgment, supra note 323, ¶ 46. ↑
344. Id. ¶¶ 82, 100. ↑
345. Al Mahdi, Reparations Order, supra note 323, ¶¶ 49, 90, 106, 114, 134–35. At the time of the judgment on August 17, 2017, this amounted to approximately $3,168,000 (USD). Foreign Exchange Rates – H.10, Fed. Rsrv. (Aug. 21, 2017), https://www.federalreserve.gov/releases/h10/20170821[https://perma.cc/8JWV-HCBX] (providing exchange rate from day of decision for USD calculation). The symbolic measures included providing victims with access to a video of Al Mahdi’s apology, a symbolic award of one euro to the Malian state (which was requested “for the material and moral harm suffered”), and the possibility of a memorial or ceremony for the collective harm of “disruption of culture of the Timbuktu community as a whole.” Id. ↑
346. Id. ¶ 90. ↑
347. Draft Convention & Rep. of the Econ. & Soc. Council on Its Third Session, supra note 112, at 3; see also U.N. GAOR, 3d Sess., 83d mtg. at 196–205, U.N. Doc. A/C.6/SR.83 (Oct. 25, 1948) (presenting debate and vote in the Sixth Committee). ↑
348. G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter Universal Declaration of Human Rights]. ↑
349. Id. pmbl. ↑
350. See, e.g., Andrew T. Guzman & Timothy L. Meyer, International Soft Law, 2 J. Legal Analysis 171, 172–73 (2010) (giving the UN Declaration of Human Rights as an example of “soft law,” which the authors posit is “law‑like” and falls short of binding treaty law on a continuum). ↑
351. For example, several subsequent international human rights treatises expressly tip their hat to the UN Declaration of Human Rights by referring to it directly in their preambles. See, e.g., International Convention on the Elimination of All Forms of Racial Discrimination pmbl., Dec. 21, 1965, T.I.A.S. 94‑1120, 660 U.N.T.S. 195 (entered into force Jan. 4, 1969) [hereinafter CERD]; International Covenant on Civil and Political Rights pmbl., Dec. 16, 1966, T.I.A.S. 92‑908, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment pmbl., Dec. 10, 1984, T.I.A.S. 94‑1120.1, 1465 U.N.T.S. 85 (entered into force June 26, 1987); International Covenant on Economic, Social and Cultural Rights pmbl., Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR]; Convention on the Elimination of All Forms of Discrimination Against Women pmbl., Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sep. 3, 1981); Convention on the Rights of the Child pmbl., Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sep. 2, 1990); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families pmbl., Dec. 18, 1990, 2220 U.N.T.S. 3 (entered into force July 1, 2003); International Convention for the Protection of All Persons from Enforced Disappearance pmbl., Dec. 20, 2006, 2716 U.N.T.S. 3 (entered into force Dec. 23, 2010); Convention on the Rights of Persons with Disabilities pmbl., Dec. 13, 2006, 2515 U.N.T.S. 3 (entered into force May 3, 2008). ↑
352. CERD, supra note 351. ↑
353. Universal Declaration of Human Rights, supra note 348, art. 27. ↑
354. ICESCR, supra note 351, art. 15; ICCPR, supra note 351, art. 27; see also Karima Bennoune (Special Rapporteur in the Field of Cultural Rights), Rep. of the Special Rapporteur in the Field of Cultural Rights (II), ¶¶ 43–52, U.N. Doc. A/HRC/34/56 (Jan. 16, 2017). ↑
355. See, e.g., Karima Bennoune (Special Rapporteur in the Field of Cultural Rights), Cultural Rights, U.N. Doc. A/71/317 (Aug. 9, 2016) [hereinafter Bennoune, Cultural Rights]; Karima Bennoune (Special Rapporteur in the Field of Cultural Rights), Rep. of the Special Rapporteur in the Field of Cultural Rights (I), U.N. Doc. A/HRC/31/59 (Feb. 3, 2016) [hereinafter Bennoune, Field of Cultural Rights]. ↑
356. Bennoune, Cultural Rights, supra note 355. ↑
357. Id. ¶¶ 66, 81. ↑
358. Id. ¶ 34. ↑
359. CERD, supra note 351, art. 1(1). It does not apply to distinctions between citizens and noncitizens. Id. art. 1(2). ↑
360. Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukr. v. Russ. Fed’n), Judgment, 2024 I.C.J. 78, 195, ¶ 336 (Jan. 31) [hereinafter Ukraine v. Russia CERD Case]. After Russia’s February 2022 invasion, Ukraine almost immediately filed a new application in the ICJ under the Genocide Convention. Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ. Fed’n), Application Instituting Proceedings, 2022 I.C.J. Gen. List No. 182 (Feb. 26) [hereinafter Application filed by Ukraine, Ukrainian Genocide Case]. ↑
361. Ukraine v. Russia CERD Case, 2024 I.C.J. at 196, ¶ 336. ↑
362. Id. at 193, ¶ 324; see also id. at 193–95, ¶¶ 325–33. ↑
363. Id. at 195, ¶ 336. ↑
364. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Arm. v. Azer.), Provisional Measures, 2021 I.C.J. 361 (Dec. 7). ↑
365. For Armenia’s presentation of the history of the region and conflict, see Application filed by Armenia, Armenia v. Azerbaijan, 2021 I.C.J. Gen. List No. 180, at 14–24 ¶¶ 20– 39. Azerbaijan responded to these allegations by stating that contrary to Armenia’s representations, it “exercised its legitimate right of self‑defense under international law to oust a foreign aggressor from its sovereign territory.” Prelim[i]nary Objections of Azerbaijan, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Arm. v. Azer.), 2021 I.C.J Pleadings 3, ¶ 7 (Apr. 21, 2023), https://icj-cij.org/sites/default/files/case-related/180/180-20230421-wri-01-00-en.pdf [https://perma.cc/XR6G-Q5QX]. ↑
366. See, e.g., UN Karabakh Mission Told ‘Sudden’ Exodus Means as Few as 50 Ethnic Armenians May Remain, U.N.: News (Oct. 2, 2023), https://news.un.org/en/story/2023/10/1141782 [https://perma.cc/P5V8-AFL3]. ↑
367. Arm. v. Azer., 2021 I.C.J. at 364, 366–67, 384–87, 388, ¶¶ 5, 11, 66–68, 72– 75, 79. ↑
368. Id. at 391, ¶ 92. ↑
369. Id. ↑
370. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Arm. v. Azer.), Provisional Measures, 2023 I.C.J. 14, 31, ¶ 3 (Feb. 22) (declaration by Yusuf, J.); Arm. v. Azer., 2021 I.C.J. at 395, ¶ 1 (Yusuf, J., dissenting). ↑
371. Arm. v. Azer., 2021 I.C.J. at 361, ¶ 1 (Yusuf, J., dissenting). ↑
372. Press Release, Judge Abdulqawi Ahmed Yusuf to Resign as Member of the Court with Effect from 30 September 2025, I.C.J. Press Release No. 2025/30 (June 11, 2025). ↑
373. Karoun Demirjian & Luke Broadwater, Leaders of Armenia and Azerbaijan Sign Peace Pledge at White House, N.Y. Times (Aug. 8, 2025), https://www.nytimes.com/2025/08/08/us/politics/trump-armenia-azerbaijan-peace-deal.html [https://perma.cc/2P6G-5YAQ]; Agence France-Presse, Azerbaijan and Armenia Strike Deal to End Decades-Long Conflict, Guardian (Mar. 13, 2025, at 12:45 PM), https://www.theguardian.com/world/2025/mar/13/azerbaijan-and-armenia-strike-deal-to-end-conflict-nagorno-karabakh [https://perma.cc/WH36-5822]. ↑