Emerging Voices: Destruction of Social Units–Towards the Resurgence of Cultural Genocide?

[Catherine Savard is a LL.M. student at Université Laval and assistant coordinator of the Canadian Partnership for International Justice. While she collaborated to the legal analysis on genocide of Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls, the present post is written in a personal capacity and entirely independent of the Inquiry’s works.]

Canada’s National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) delivered its Final Report on June 3, 2019. Tasked with the delicate mandate to investigate and report on the root causes of the violence perpetrated against Indigenous women and girls in Canada, the Inquiry found that this violence results from an ongoing genocide perpetrated by the Canadian state against Indigenous peoples. This conclusion is supported by a Supplementary Report which presents the Inquiry’s legal analysis on genocide.

From an international law perspective, the National Inquiry’s Supplementary Report outlines several developments of interest, notably regarding the nature of genocidal intent. Relying on an emerging trend rooted in existing law, the approach followed by the Inquiry encompasses not only the physical and biological destruction of the group, but also that as a social unit. It is unclear whether this conception of genocidal intent, somewhat broader than the traditional understanding, could be connected to cultural genocide, which has been at the heart of controversies for decades now. This piece questions the possible interactions between the genocidal destruction of a group as a social unit and cultural genocide, exploring whether these concepts are completely different or share common features – and if so, to what extent.

The concept of genocide was coined in 1944 by the Polish jurist Raphael Lemkin from the Greek and Latin roots genos (race, tribe) and cide (destruction). He envisioned genocide as a two-phased process: it first involved the “destruction of the national pattern of the oppressed group”, followed by the “imposition of the national pattern of the oppressor” (see p. 79).

Infatuated with a keen interest in history, Lemkin did look into the past and identified many atrocities as genocides, some of which taking place in colonial contexts. He then classified them in three groups: physical genocide consisted in the destruction of a group through the physical destruction of its individual members; biological genocide entailed the imposition of measures intended to hobble the group’s reproductive capacity; and cultural genocide qualified the annihilation of a group through the destruction of the structures and practices allowing it to survive as a group. To Lemkin, cultural genocide notably included the forcible transfer of children from a group to another group.

In late 1946, the then newly created United Nations Organization, following the impetus given by the Holocaust and the recent judgement of the Nuremberg Tribunals, undertook the elaboration of what would become the Convention on the Prevention and Punishment of the Crime of Genocide. Two years of intense deliberations followed, characterized by a complete obliteration of Indigenous and gender perspectives coupled with vocal advocacy by colonial states against the inclusion of cultural genocide. Members States of the UN 6th Special Committee finally withdrew draft article III expressly codifying cultural genocide, and the Convention was adopted shortly thereafter, on December 9, 1948. However, the underlying act of forcible transfer of children, provided for in paragraph II (e), had not been removed. Still today, this inclusion appears “somewhat anomalous” (William A Schabas, Genocide in International Law: The Crime of Crimes, 2nd ed (Cambridge: Cambridge University Press, 2009) at 294.): the travaux préparatoires suggest that some state delegates might have perceived this act as constituting physical or biological genocide, but an analysis of the nature of physical and biological genocide clearly demonstrates that this act is completely irreconcilable with these types of destruction.

For decades after 1948, the concept of cultural genocide was recurrently disputed in literature as well as before international courts, but the predominant view consistently emphasized the negotiations surrounding the Convention to justify the exclusion of cultural genocide. However, this overemphasis on the Convention’s preparatory works must be decried: the travaux are but supplementary means of interpretation, and the Convention must be interpreted in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose, pursuant to articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT). For instance, the inclusion of forcible transfer of children within the definition of genocide leads to the conclusion that the term “destruction”, understood in the context of the Convention, cannot be interpreted as providing exclusively for physical and biological genocide. This flawed dichotomous conception of intent is criticized in an emerging jurisprudential trend, which views the intent to destroy a group as including its destruction as a social unit.

In its legal analysis on genocide, the Canadian National Inquiry into Missing and Murdered Indigenous Women and Girls conducted a careful doctrinal and jurisprudential review pertaining to genocidal intent. In particular, it took heed of the dialogue between, on one hand, German domestic courts and the European Court for Human Rights (ECHR), and, on the other hand, the International Criminal Tribunal for the Former Yugoslavia (ICTY). In the 1997 Jorgić case, the Higher Regional Court in Düsseldorf, acknowledging the diverging jurisprudence of the ad hoc tribunals, adopted a literal interpretation of genocide based on existing principles of international law. This Court found that “[t]he intent to destroy a group, taken literally as part of the elements of the genocide crime, includes more than sheer physical-biological destruction” (Ruth Rissing-van Saan, “The German Federal Supreme Court and the Prosecution of International Crimes Committed in the Former Yugoslavia” (2005) 3 J Int Crim Just 381 at 398) and also comprises the “destruction of the group as a social unit.” (Karolina Wierczynska, “Evolution of the Notion of Genocide in the Context of the Jurisdiction of the National Courts” (2006) 28 Polish YB Intl L 83 at 90). This ruling was upheld in appeal before all German domestic courts. In 2007, the ECHR unanimously confirmed the German interpretation.

However, in the meanwhile, the ICTY expressed divergent views. In the 2001 Krstić case, this Tribunal expressly rejected the precedent laid out in the Jorgić case, with a notable dissent of Judge Shahabuddeen on appeal. He distinguished the nature of the prohibited genocidal acts and the intent with which they are perpetrated, and found that “[i]t is not apparent why an intent to destroy a group in a non-physical or non-biological way should be outside the ordinary reach of the Convention on which the Statute is based, provided that that intent attached to a listed act.” This reasoning was subsequently followed by the ICTY Trial Chamber in the 2005 Blagojević and 2006 Krajišnik judgments (respectively overturned on appeal on a different point of law and upheld by the Appeals Chamber).

To this day, both jurisprudential trends coexist. However, as outlined by the National Inquiry into MMIWG, given that the traditional interpretation is not consistent with principles of international law laid down in theVCLT, it is arguably “likely that future tribunals or courts will accept this view of intention to destroy if they feel it is required to achieve justice.”

Little has been said about the exact nature and scope of the intent to destroy a group as a social unit. The Higher Regional Court in Düsseldorf elaborates on the “destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together” (emphasis added). The ICTY in Krajišnik affirms while members of a group are, of course, physical or biological beings, […] the bonds among its members, as well as such aspects of the group as its members’ culture and beliefs, are neither physical nor biological. Hence the Genocide Convention’s “intent to destroy” the group cannot sensibly be regarded as reducible to an intent to destroy the group physically or biologically, as has occasionally been said.

It thus seems that social bonds between the members of the group as well as cultural and spiritual considerations are key to a group’s social unity. These aspects are not foreign to cultural genocide, defined as the destruction of structures and practices allowing a group to survive as such. Indeed, for the purpose of the application of the Genocide Convention, the definitions of both “culture” and “social unit” have yet to be clarified by competent judicial organs. Nevertheless, an argument can be made that all cultural groups form social units, while not all social units constitute cultural groups. In other words, the destruction of a group as a social unit could actually be broader than the concept of cultural genocide: cultural groups are a specific type of social units, as social units may be characterized by bonds that are not cultural per se. Therefore, it would not be surprising if the emerging jurisprudential trend outlined by the National Inquiry incidentally renews the debate on cultural genocide, especially in the current political context which slowly paves the way for an increased legitimacy of Indigenous claims.