The Genocide Case Against Putin is Stronger Than You Probably Think: Part 2 – The Preparatory Work

[Kurt Mundorff is the author of A Cultural Interpretation of the Genocide Convention (Routledge, 2020)]

Part 1 outlined the cultural genocide exclusion doctrine and conducted a textual interpretation of the Genocide Convention. As I discussed, most exclusionists bypass the convention’s text, and for good reason. Not only does the text omit any exclusionist language it also appears to support a more culture-centric idea of genocide.

Instead, exclusionists point to its preparatory work, claiming these materials reveal the parties’ intent to exclude cultural matters from the Genocide Convention’s reach. The International Law Commission (ILC) asserts that the preparatory work “clearly show[s]” “the destruction in question is the material destruction of a group either by physical or biological means….” (pp. 45-46, para. 12.) The International Court of Justice (ICJ) argued in Croatia v. Serbia (para. 135) “that the travaux préparatoires of the Convention show that the drafters originally envisaged two types of genocide, physical or biological genocide, and cultural genocide, but that this latter concept was eventually dropped in this context.” And the Krstić Trial Chamber (para. 576) claimed that “[a]lthough the Convention does not specifically speak to the point, the preparatory work points out that the ‘cultural’ destruction of a group was expressly rejected after being seriously contemplated.”

But does the preparatory work support exclusion? For the most part, exclusionists have engaged with the convention’s preparatory work glancingly, invoking its moral weight but ignoring its content. This post combs the travaux, focusing on the ILC’s twin claims, which I highlighted in my previous post, that: 1) all acts of cultural genocide were excluded; and 2) that the drafters intended to exclude from the convention’s reach all incidents where a perpetrator intends a group’s cultural destruction, as opposed to its material or physio-biological destruction. 

The Genocide Convention evolved through three major drafts. The first was compiled by three experts in cooperation with the UN Secretariat. The second was written by an Ad Hoc Committee on Genocide, which had been established by the UN ECOSOC. The UN’s Sixth (Legal) Committee wrote the third and final draft in 1948.

The Ad Hoc Committee Rejects Taxonomies of Genocide

The Ad Hoc Committee began its work by disregarding (p.4) the first draft of the convention. Importantly, the Ad Hoc Committee also distanced itself from the Secretariat Draft’s taxonomies of genocide when it “agreed that titles, such as ‘cultural genocide’ would be omitted from the Convention, …” Its report (p.11.) explained that “[t]he marginal notes placed before the Articles which indicate the subject dealt with therein are not intended to be part of the Convention. They may be of some use during the preparatory work concerning the Convention to help the reader trace the origin of Articles….”

Thus, the Ad Hoc Committee abandoned earlier attempts to categorize types of genocide as cultural, physical, or biological. Article 2 of the Ad Hoc Draft, which was considered “the basic Article defining genocide,” lacked any title or heading designating it as “physical genocide.” Article 3, which was commonly referred to as the “cultural genocide” article, also lacked any heading or title.  

Drafters continued to refer to articles 2 and 3 as the “physical” or “cultural” articles. However, many argued that these provisions were better distinguished by the scale rather than the character of the proposed crimes. They asked, how could burning books, denying library access, or even destroying synagogues be on par with mass exterminations? Referring to Ad Hoc article 2 as “crimes against humans” and Ad Hoc article 3 as “crimes against language, objects, and edifices” would have been more apt.

Taking the Ad Hoc Draft as the basis for their deliberations, the Sixth (Legal) Committee worked through thorny issues around the definition of genocide as they compiled the convention’s final text. From the start, it was clear that Ad Hoc article 3 (the cultural genocide provision) was in serious trouble.

Most Drafters Regarded Article 2(e) as an Act of Cultural Genocide

Exclusionists’ biggest obstacle has always been subparagraph (e) of article 2, prohibiting the forcible transfer of a protected group’s children. The first draft of the Genocide Convention, the Secretariat’s Draft, had included a prohibition on the forcible transfer of children in its “Cultural Genocide” article. However, the second draft, which was compiled by the General Assembly’s Ad Hoc Committee on Genocide, omitted the forcible transfer of children. Greece, which was struggling to repatriate 28,000 Greek children it claimed had been stolen by Balkan Communists at the end of WWII, proposed returning this act to article 2 of the Sixth Committee’s final draft.  

Notably, the Sixth Committee had yet to cut article 3 when they voted in their 82^nd meeting to add prohibitions on child stealing to article 2. The move to add child stealing to the “material” genocide article led to some confusion and debate. Because they believed subparagraph (e)’s prohibition on forcibly transferring children embodied an act of cultural genocide many Sixth Committee delegates objected that child stealing did not fit article 2’s materialist orientation, a discussion that filled the Sixth Committee’s 82^nd meeting.

In proposing to add child stealing the Greek delegate argued it “was not primarily an act of cultural genocide … [a]lthough it could in certain cases be considered a such. …” Mr. Abdoh (Iran) agreed saying the “amendment concerned cultural as well as physical genocide.” Aligning with Soviet Bloc delegates, who made similar statements, Mr. Kaeckenbeeck (Belgium) argued that “[t]ransfers of population did not necessarily lead to the physical destruction of a group” and that “[a] decision had to be taken on article III [addressing acts of cultural genocide] before considering the Greek amendment.” And Mr. De Beus (Netherlands) “agreed that the discussion of the Greek amendment should be postponed until a decision had been taken on cultural genocide.” These statements reveal the majority view that subparagraph (e)’s prohibition on child stealing had both cultural and material implications.

The dissenters were few and far from steadfast. Mr. Maktos (United States) addressed the majority view, asserting “that article III was concerned with cultural elements such as language, religion and monuments, and he found it difficult to see how the transfer of children could fit into that context.” Now toeing the American line, Mr. Vallindas (Greece) argued subparagraph (e) was not connected with cultural genocide, but with the destruction of a group – with physical genocide.” And, Mr. Manini y Rios (Uruguay) “agreed with the United States representative that there was no reason why such acts of physical genocide should be associated with cultural genocide.”

Mr. Maktos implied that incorporating the forced transfer of children into article 2 washed this act of any cultural implications. Whether the Genocide Convention can be said to include cultural genocide hinges on this issue. If the obvious cultural reach of subparagraph (e) was limited by its inclusion in article 2, then it is correct to say that the convention contains only acts of material genocide. However, Maktos’ view found little support. A final tally of delegate statements indicates that only three stated a belief that subparagraph (e) was purely an act of material genocide. Whether or not they supported the inclusion of the proposed cultural genocide provisions, most of those expressing an opinion on subparagraph (e) believed it had a clear cultural reach.

No vote was taken on this matter, nor did the committee offer an authoritative explanation. But given article 2’s lack of delimiting language, subparagraph (e)’s history as an act of cultural genocide, its obvious cultural implications, and majority delegate sentiment that child stealing was an act of cultural genocide, the better interpretation holds that with the addition of subparagraph (e), article 2 shed the last remnants of its materialist orientation. Instead, the better view holds that article 2 embodies acts of physical, biological, and cultural genocide.

The Cultural Genocide Vote

In the subsequent, 83^rd, meeting, the Chairman “opened the discussion of article III of the draft convention, including the question as to whether or not the convention would include cultural genocide.” Exclusionists have relied on this vote in asserting that the drafters had intended to eliminate cultural genocide from the convention. But this narrow vote cannot support their broad contention. This was not a vote on whether the convention would include cultural genocide. Rather, it was a vote on whether to include certain acts against culturally significant edifices, objects, and language use.

UN Rules (110) (A/520) state that a chairman’s statements “may be accorded precedence for the purpose of explaining the conclusion arrived at by their committee, …” and exclusionists defer to the chairman’s characterization of the vote. However, because several delegates directly contradicted his statement, that precedence is unwarranted.

Invoking subparagraph (e), Mr. Kahn (Pakistan) countered that the convention already included cultural genocide, arguing “that in article II genocide was defined as something other than the physical destruction of life….” Mr. Pérez Perozo argued,

The definition given in article II did not specifically lay down that the destruction of a group had to be physical destruction; it might be argued that the first four sub-paragraphs of article II referred only to concrete acts of physical destruction, but it should be borne in mind that the Committee had included a fifth point covering the “forced transfer of children to another human group”; thus the Committee implicitly recognized that a group could be destroyed although the individual members of it continued to live normally without having suffered physical harm.

Mr. Fitzmaurice had argued earlier (81^st Mtg) that subparagraph (b)’s “mental harm” language was neither an act of “physical” nor “biological” genocide, indicating he believed this language embodied an act of cultural genocide.

Because several key delegates believed that the Genocide Convention already contained elements of cultural genocide the vote to cut draft article 3 is best viewed not as one addressing “whether or not the convention would cover cultural genocide,” as the Chairman put it, but as a vote on whether comparatively di minimis acts against language, objects, and edifices belonged in a convention that also addressed mass killings, forced starvation, and child removals.

Drafters Voted to Include Cultural Destruction

The delegates also discussed and rejected two proposed amendments that would have restricted the convention to reach only instances of material destruction. The French delegation proposed (72^nd mtg) replacing “the words ‘acts committed with intent to destroy a … group’ by the words ‘an attack on life directed against a human group….” In supporting his amendment (A/C.6/224), Mr. Chaumont (France) argued “[t]he group was an abstract concept; it was an aggregate of individuals; it had no independent life of its own; it was harmed when the individuals opposing it were harmed.” Mr. Bartos (Yugoslavia) objected because “[h]istory showed that genocide was always preceded by a number of preliminary acts. It was essential to combat genocide in all its forms, not merely at the last stage, which was the stage at which an ‘attack on … life’ occurred.”  Mr. Kahn (Pakistan) argued, “the expression ‘attack on … life’ would restrict the application of article II, since genocide must be condemned, whatever form it assumed.” Facing stiff opposition, the French withdrew their proposal.

New Zealand’s delegate, a fierce opponent of the cultural genocide provisions, supported (73^rd mtg) a “USSR amendment (A/C.6/223) which proposed adding the expression ‘aimed at the physical destruction”’ of the group to article 2.  He argued, “history gave examples of genocide where there had been no intent of physical destruction of the groups concerned. Thus, the older members of a group had been killed and the younger ones converted by divers [sic] means to an ideology different from their own. The group, as such, had ceased to exist, but its members survived.” He supported the language because “[s]uch acts would not constitute genocide according to the terms of the Soviet Union Amendment” [emphasis added]. Mr. Chaumont (France) also supported the Soviet amendment because “the term ‘physical destruction’ corresponded exactly to the text of article II, which dealt solely with biological genocide.” The Soviet proposal was rejected by a wide margin, 36 votes to 11, with four abstentions.

Assessing the ILC’s Twin Claims

As it turns out, the Genocide Convention’s preparatory work does not “clearly show” that the drafters “expressly rejected” the inclusion of cultural genocide. Instead, these materials reveal that most of those drafters expressing an opinion on the matter believed subparagraph (e) addressed an act of cultural genocide. And on two occasions, the delegates rejected language that would have created a purely “material” definition of genocidal destruction, one that actually would have excluded cultural genocide. To be sure, delegates opposed these proposals for a variety of reasons. Nonetheless, it is noteworthy that when asked to adopt language explicitly excluding culture from the definition of genocide, they chose not to.

While they did cut acts against libraries, languages, edifices, and objects, assertions that the drafters eliminated all cultural acts or excluded all matters of cultural destruction are without merit. Therefore, as I will explain in Part 3, there are no grounds for arguing that Russia’s forced transfer of Ukrainian children is somehow beyond the reach of the Genocide Convention.