3    To Destroy Culture: Raphael Lemkin’s Lessons about Genocide and How They Relate to the Preservation of Cultural Heritage

Cultural heritage has been created and destroyed with regularity around the globe throughout history. There are many causes of destruction, among which are war, politics, imperialism, greed, power, prejudice, and natural or human-made disasters. Sometimes the destruction of cultural heritage is the byproduct of war, and sometimes violence against human beings that has nothing to do with war is accompanied by the deliberate destruction of their cultural records.¹ This chapter traces the concepts of cultural genocide and ethnic cleansing. While these two concepts differ somewhat, they refer to the intentional destruction of the culture of a particular group of people. In one culture’s desire to wipe out an enemy—or to destroy any race or group of people—members of that culture may decide (for a variety of reasons) that it is in their best interest to do it completely if possible in such a way that no trace of those who are vanquished is left behind. Such complete annihilation, first of all, hides the destruction and thus yields a world in which there is no blame for such destruction since no one would ever know there was an annihilation if no traces at all were left of the annihilated. Further, even a small trace of the destroyed people could be a seed that could grow into a reborn culture—or a movement that would condemn the perpetrators of the genocide for their actions.

Complete removal of traces of any peoples is practically impossible, however. But for every destroying body, wiping out other cultures will always be condemned by most who see cultural loss as humanity’s loss. “Any man’s death diminishes me,” John Donne wrote.² We are all the poorer for the loss of any culture (regardless of how brutal or objectionable it may have been) for the cultural elements—there is always something worthy of preservation even if only as a negative example that we can learn from.

Let me be clear at the outset: genocide is evil while cultural genocide is pernicious. To force people to relinquish their language, beliefs, dress, or other aspects of their culture lessens the dignity of people, and is a soulless act. This chapter considers the roots of genocide and cultural genocide.

Preservation efforts may sometimes take place at “the nexus between cultural heritage and human rights,” as András J. Riedlmayer has described the destruction of libraries and archives during and after the Balkan Wars of the 1990s in the former Yugoslavia.³ As I have said, a major cause of human rights abuse is war. A brief overview follows of how human rights and cultural heritage fit into the context of war. The chapter then looks at some international organizations that were created before and after World War II, as well as the many declarations and charters that have been enacted in support of human rights, generally, and cultural heritage, specifically. Recent approaches to human rights will be touched on. The chapter concludes with an analysis of gains that have been made over the past seventy years as well as the profound challenges that continue to effect the preservation of cultural heritage. Finally, I suggest some new preservation strategies.

There are countless histories of the destruction of cultural heritage in particular times and places. Some scholars have attempted to chronicle the history of such destruction. For example, Raphael Lemkin wrote an unfinished history of genocide that included the killing of groups of people and the destruction of their cultural heritage.⁴ More recently, Fernando Báez wrote a history of the destruction of books from ancient Sumer to modern-day Iraq.⁵ Rebecca Knuth documented regime-sponsored destruction of books in Libricide.⁶ Unfortunately, such sources cannot possibly convey the many complex political and social circumstances that led to the destruction of heritage objects. Further, it is not always possible to know when and how the destruction occurred. A thorough understanding of the causes of destruction of cultural heritage as well as the limitations of what can be done to prevent it may lead to effective strategies for its preservation. And even if we do understand the when and the how, it will often be difficult for us to know fully why it happened—and why it was possible to allow the destruction in the first place.

The connection between cultural heritage and human rights is recent. Indeed, the modern concept of human rights is fairly new, even though the ideals behind “rights” and “liberty” can be found in ancient writings. The United Nations—established in 1945 at the end of World War II—established a Human Rights Commission. With Eleanor Roosevelt as its chair, the Commission drafted the Universal Declaration of Human Rights (UDHR) in 1948 (figure 3.1). Two accompanying covenants elaborated on the meaning of the UDHR: the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, though these were not finalized until the 1970s. The three documents are known as the International Bill of Human Rights.

Figure 3.1

Eleanor Roosevelt and the UDHR. Courtesy of the Franklin D. Roosevelt Library and Museum

According to one source, the term human rights came into use in the late eighteenth or early nineteenth century.⁷ However the notion of rights—for some if not all people—goes back to the Magna Carta. Modern conceptions of human rights date back to the Enlightenment. Yet despite the UDHR, realization of universal human rights continues to be elusive.

Likewise, treatises on the conduct of war and rules for its engagement have existed for thousands of years—and in works that continue to be read today, such as Sun Tzu’s The Art of War.⁸ In that as well as other early works such as the Indian Book of Manu, the Old Testament, and classical Greek and Roman literature are the seeds of the idea that people have individual rights. The humane treatment of captured soldiers and civilians, and women, children, and the elderly in particular, is often touched on in these works. But how can such behavior be monitored? Who has legal or moral authority to judge those who do not observe the rules of war? And don’t the spoils of war always go to the victors, who usually call their own shots? Judging those who violate the rules of war is one thing. Another is stopping them—or bringing them to justice after the fact. Who has the authority and the power to do so?

A shift in societal approaches to war emerged in the nineteenth century. With the rise of the sovereignty of nation states, war became a “legitimate” tool with which nations could pursue national policy objectives.⁹ At the same time, massive casualties and the inhumane treatment of prisoners of war as well as of noncombatants caught the attention of many outsiders, including journalists, doctors and nurses on battlefields, social reformers, and other observers. One person, Geneva businessman and reformer Henri Dunant,¹⁰ was an organizer of the First Geneva Conference for the Amelioration of the Condition of the Wounded Armies in the Field (1863–1864), and in the same year he was one of the founders of the Red Cross.¹¹ Even today there is tension between the notion of state sovereignty and human rights laws that seek to limit how countries treat their citizens and their captives.

New approaches to thinking about armed conflict ensued. Across the ocean, also in 1863, German-American jurist Francis Lieber prepared for the Union Army General Orders No. 100: Instructions for the Government of Armies of the United States in the Field (The Lieber Code), which set out rules for the humane treatment of civilian populations in areas of conflict and forbade the execution of prisoners of war. The Lieber Code further sought to ensure that “classical works of art, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places while besieged or bombarded (Article 35).”¹² The ideas expressed in Article 35 of the Lieber Code were further developed in The Hague international peace conferences of 1899 and 1907 whose principles would underpin the “Hague Conventions,” and later the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954; and the 1999 Second Protocol).¹³

The 1935 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, also known as The Washington Pact and the Roerich Pact, was named after Nicholas Roerich (1874–1947), a Russian artist who lived for a time in the United States; he believed that there was a need for international legal recognition of the importance of cultural objects, and that the protection of objects should take precedence over any military necessity. While the 1935 Treaty was signed by twenty-one North and South American states, it was later overshadowed by the 1954 Hague Convention.¹⁴ Significantly, the convention recognizes that there is sometimes a military necessity for destroying “cultural property”—the term used in the convention. For example, historic structures may be situated in the only possible line of fire. The Roerich Pact is recognized in the preamble to the 1954 Hague Convention, which itself was created as an expansion of the earlier Hague documents, and in response to the damage inflicted upon “cultural property” during World War II. It describes the responsibilities of the occupying powers in protecting cultural property.

It is perhaps unfortunate that the 1954 Hague Convention selected the term cultural property because it implies that there is always clear ownership of cultural records—which there is not. Nicholas Roerich’s “artistic and scientific institutions and historic monuments” strikes a more neutral tone, but his words were never adopted. Over the past two decades, however, it has become increasingly common to use the phrase cultural heritage, not cultural property. Using heritage rather than property conveys the idea that in one sense, heritage belongs to everyone and heritage is a more encompassing notion than is property.

The Hague definition is as follows:

Article 1. Definition of cultural property

For the purposes of the present Convention, the term “cultural property” shall cover, irrespective of origin or ownership:

(a)  movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;

(b)  buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);

(c)  centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as “centers containing monuments.”

Despite the progress that the early Hague and Geneva conventions represented, two events of the early twentieth century—the Armenian Massacre (Medz Yeghan) in 1915 and World War I, the so-called “war to end all wars”—made it clear that laws of war are easily broken. For example, the Hague Conventions of 1899 and 1907 forbade the use of “poison or poisoned weapons,” yet these were widely used in World War I. Thus the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare of 1925 was added to the Hague Conventions of 1899 and 1907. It banned all forms of chemical and biological warfare. As recent history shows—for example, in Iraq and Syria—all the laws and conventions in the world will not stop a country from ignoring these prohibitions.

The Kellogg-Briand Pact (or Pact of Paris) of 1928, officially the General Treaty for Renunciation of War as an Instrument of National Policy, called for the peaceful settlement of disputes. Signatory states promised not to use war to resolve conflicts that could be settled by other means. It became the international legal basis for the prosecution of those responsible for waging wars.¹⁵ Unfortunately, the Kellogg-Briand Pact did nothing to prevent World War II or conflicts that immediately followed the pact, such as Japan’s invasion of Manchuria in 1931. With respect to this pact, the historian of the U.S. Department of State said, “its legacy remains as a statement of the idealism expressed by advocates for peace in the interwar period.”¹⁶ Despite its limitations, the pact became the legal basis for the notion of crime against peace.

Yet international strategies that can mitigate the effects of war are critical to a more peaceful world. (How effective they are is still debatable, but we must have them nonetheless.) International humanitarian law (IHL) seeks to balance humanitarian concerns with military necessity. It evolved from the two components of the laws of war, jus ad bellum (reasons a state may engage in war—criteria for a just war) and jus in bello (laws that come into effect once the war has begun—how wars should be fought). The Geneva Conventions (1863, 1906, 1929, and 1949) and the Hague Regulations and Conventions (1899 and 1907, 1954, and the 1999 second protocol to 1954) are examples of IHL, as is the International Court of Justice, which is part of the United Nations.

The International Criminal Court (ICC), which was established in 1998, like the International Court of Justice, is seated in The Hague. It investigates claims of and hears cases on international crimes of genocide, crimes against humanity, and war crimes (figure 3.2). While relatively recent, it was planned for several decades after World War II, but was delayed in part by the Cold War. The ICC draws on the UN Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (hereafter referred to as the Genocide Convention, or UNGC¹⁷) and considers cases referred to it by the UN International Court of Justice. (To date twenty-two cases and nine situations have been brought before the ICC.¹⁸)

Figure 3.2

The International Court of Justice, Old Building, 2014. Permission of Robert Smith, photographer

Despite the various treaties that were signed after World War I, many abuses of international law occurred in the lead up to and during World War II. Many provisions in the Geneva and Hague conventions were violated. At the same time, some people were trying to develop strategies to avoid such violations. One of them was a Polish-Jewish jurist and philologist, Raphael Lemkin (1900–1959; see figure 3.3), who spent many years thinking and writing about discrimination, killing, and crimes against humanity.¹⁹ He and his family lived in a part of Poland that was absorbed by Russia during the partitions, and they suffered many indignities due to restrictions forced upon Jews; they lived through several pogroms. Later as the Germans invaded Russia during World War I, the Lemkin family home would be destroyed. Perhaps as a consequence of his background, Lemkin chose to spend the rest of his life writing about genocide—a term that he coined—and applying the principles of international law to end it. Indeed, according to Thomas de Waal, Lemkin sought “to get the concept of genocide enshrined in international law.”²⁰

Figure 3.3

Raphael Lemkin, back row on the far right. Permission of the United Nations Photo Library

As a young law student at Lvov University, Lemkin became interested in Turkey’s massacre of the Armenians and the question of who should bear responsibility for those crimes. He was also disturbed by the destruction of Armenian art and culture—and what that loss would mean to the larger Ottoman Empire. So strong for him was the link between cultural and physical deprivation that the cultural aspect of human massacre would become part of his definition of genocide. During the time the atrocities were committed against the Armenians, crimes against humanity was the term used. It originated in the 1899 and 1907 versions of the Hague Convention.

Lemkin practiced law in Poland and participated in the activities of the International Association of Penal Law and other such groups throughout the 1930s. He also began promoting his own ideas. When Lemkin first started conceptualizing terms to describe mass killings and the destruction of art and culture, he proposed adding two new crimes covered by international law: barbarity (defined as “the extermination of ethnic, social, and religious groups by means of massacres, pogroms or economic discrimination”) and vandalism (“the destruction of cultural or artistic works which embodied the genius of a specific people”).²¹ In a 1933 report to the Fifth International Conference for the Unification of penal law, sponsored by the League of Nations, he promoted the terms. He hoped that they could be part of “an international treaty … declaring that attacks upon national, religious and ethnic groups should be made international crimes, and that perpetrators of such crimes should not only be liable to trial in their own countries but, in the event of escape, could also be tried in the place of refuge, or else extradited to the country where the crime was committed.”²² He was not successful.

Perhaps it was just as well that Lemkin’s proposal was rejected; use of those terms might have led to ambiguity and might not have been strong enough to have moral—or legal—force. Over the next several years Lemkin continued to write and to attend conferences, and to make professional connections that would eventually help him to escape to the United States in 1941. Through one of his many contacts he was hired to teach at Duke University law school. Tragically, while he was able to get out of Europe, most of the members of his family in Poland were murdered; he had not been able to convince them to leave.

It was only a couple of years after he moved to the United States that Lemkin came up with a concise term to describe the large-scale massacre of groups of people. As noted earlier in this chapter, genocide is the term he introduced. Lemkin devoted chapter 9 to the concept in his 1944 book Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress.²³ Based on the Greek word genos (race, tribe) and the Latin caedere (killing), he meant for genocide to correspond to such words as homicide, infanticide, fratricide, and so on. “Genocide is a new word,” he wrote, “but the evil it describes is old. It is as old as mankind.”²⁴

Axis Rule in Occupied Europe, which was commissioned and published by the Carnegie Endowment for International Peace in Washington, D.C., identified eight components of genocide. Later, Lemkin reduced it to three when he was campaigning for the 1948 Genocide Convention: physical, biological, and cultural. Lemkin, careful legal scholar that he was, documented all the information that he could gather about how the Germans imposed their edicts and laws on the countries that they occupied, and the ways in which they destroyed national order and customs while imposing Nazi culture. He also demonstrated that the Germans had created an elaborate pecking order. These were the seeds of Nazi genocide. Countries that were “more German” were treated less harshly. Finally, Lemkin recorded the laws against Jews that were enacted in the various occupied countries and regions. (For example, denial of wages to Jews, the requirement that they wear insignia, sequestration of their property, and so on.) It is particularly poignant to realize that while writing the book, Lemkin was trying to convince Americans of the atrocities that were taking place in Europe. And he had yet to learn of the fate of members of his family.

Lemkin did not believe that genocide had to refer to the immediate mass killings of all members of a nation. (“Nation” could refer to “families of minds” and a nation could exist “within the minds of people.”²⁵) Rather the term could refer to the coordinated actions that would eventually lead to the “disintegration of 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.”²⁶ Today, the term cultural genocide is used to refer to “culture, language, national feelings,” but for Lemkin, genocide incorporated everything listed above, and thus for him use of the term cultural genocide would have been redundant.²⁷

After publication of Axis Rule in Occupied Europe, Lemkin played supporting roles in the Nuremberg Trials (though his concept of peacetime genocide was not used in the judgment delivered against the accused²⁸), and, as I noted earlier, in the codification of the UN’s Convention on the Prevention and Punishment of the Crime of Genocide of 1948.

Lemkin was unsuccessful in his attempts to include the cultural aspects of genocide in the convention. Some countries, including, notably, Australia, Sweden, the United States, and Canada, felt that the notion of the destruction of customs and culture was too vague and could be too widely applied. Possibly these countries also feared that their own actions against indigenous peoples would be conceived of as genocide under Lemkin’s definition. Thus they rejected Lemkin’s multifaceted conception and thought that use of the term genocide should be limited to cases of mass murder. Despite Lemkin’s persistent lobbying for the Genocide Convention in New York and in Washington, D.C., the United States did not ratify it until the late 1980s. Article 2 of the convention condemned

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)  Killing members of the group;

(b)  Causing serious bodily or mental harm to members of the group;

(c)  Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)  Imposing measures intended to prevent births within the group;

(e)  Forcibly transferring children of the group to another group.²⁹

While Lemkin was immediately recognized for his coinage of genocide, the rest of his work was nearly forgotten after his death. In the 1990s, however, Lemkin’s work received renewed attention and Axis Rule in Occupied Europe was reissued in 2004. In 2005 and 2013, issues of the Journal of Genocide were devoted to him.³⁰ (The fact that there are journals with such titles as Journal of Genocide and Genocide Studies and Prevention points to Lemkin’s legacy.) Today’s scholars examine Lemkin’s work in new interdisciplinary contexts. There is a strong focus on cultural genocide. In addition to legal scholars, historians, political scientists, and sociologists all study Lemkin.

Immediately after World War II, there was a strong conviction that the world could not ignore the mistreatment and suffering of peoples. The United Nations had been founded in 1945, as World War II was drawing to a close. (Since its founding it has consisted of a General Assembly, a Security Council, an Economic and Social Council, the UN Secretariat, and the International Court of Justice.) By 1949 four international documents had been created that continue to hold force: The United Nations Charter, The United Nations Declaration of Human Rights, The Geneva Conventions, and the Genocide Convention. As already discussed, none of these documents adequately addressed cultural genocide.

Since World War II, there have been many conflicts and wars around the globe. The wars and insurgencies in the former Yugoslavia from 1991 to 2001 (War in Slovenia, Croatian War of Independence, Bosnian War, Kosovo War, Insurgency in the Presevo Valley, and Insurgency in the Republic of Macedonia) provide unfortunate examples of ethnic cleansing, genocide, and cultural genocide. All of the conventions and international laws cannot stop an oppressive group from trying to wipe out its “enemies” and their culture. Unfortunately, laws and conventions have little or no power when an aggressor wants to do something “forbidden.” If the act they want to do violates a law, nothing is going to make them stop. The law is merely an inconvenience easily ignored. So, while conventions and laws against genocide and “cultural cleansing” have their place, it is discouraging to see how they can be dismissed or ignored by an aggressor. A civil society must do all it can to stop human rights abuses.

The term ethnic cleansing is often used to refer specifically to the wars in the former Yugoslavia. Ethnic cleansing is the “purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographical areas.”³¹ Ethnic cleansing includes deportation so it does not necessarily include murder. Therefore it is seen by some as being distinct from genocide, in which mass murder is ubiquitous. In genocide and ethnic cleansing, targeted groups are generally ethnic, religious, or indigenous. During the Balkan wars, ethnic cleansing and genocide were practiced; for example, in Srebrenica, Muslims were driven from their homes and some eight thousand men and boys were murdered. (In the Radislav Krstić case, the International Criminal Tribunal for the former Yugoslavia [2004] found that genocide had been committed in Srebrenica in 1995; in 2007 the International Court of Justice upheld that finding.)³²

It is instructive to analyze the term ethnic cleansing. It implies that something is dirty, infected, or even dangerously filthy, and the act of cleansing is actually doing good. It is akin, in its thinking, to the term manifest destiny, used by American settlers in the New World to justify killing millions of Native Americans, or stealing their land and forcing them to live in the worst places in the country, when the settlers wanted their lands.

To add to their justification that their destiny was obvious (manifest, and thus almost an obligation)—and with the attitude of great self-righteousness—settlers called the indigenous peoples savages to prove that savage things needed to be cleansed. They were not displacing or killing human beings—women, men, and children—they were cleansing the land of savages, and making the world cleaner and better. The point is, those doing the aggression—those perpetrating the genocides—have ways of justifying their crimes to make them seem logical and beneficial acts.

Still, there is no consensus as to what constitutes a massacre, a genocide, or ethnic cleansing. As Jacques Semelin has pointed out, “not every massacre can be considered genocide and genocide is composed of one or more massacres.”³³ Yet definitions are sometimes too wide or too narrow. According to Israel Charny, any massacre constitutes genocide.³⁴ The opposite opinion is held by Steven Katz who believes that there has been only one genocide—and it was against the Jews.³⁵ Semelin has tried to bridge these differences by creating the Online Encyclopedia of Mass Violence, which is interdisciplinary in approach. It intentionally uses the more neutral term mass violence although it does include scholarship on genocide.³⁶ Nonetheless, the term mass violence is a weakening of the concept of genocide since the latter has “killing” embedded into its etymology while violence merely implies vicious actions, the “exertion of any physical force so as to injure or abuse.”³⁷ Violence does not even necessarily lead to killing.

Semelin identifies what he perceives as a “UN school of genocide scholars.” They believe that the UNCG offers a legal definition of genocide that has standing. But it is important to understand how genocide is different from other forms of mass murder. According to Meghna Manaktala, “in the final reckoning, the actual issue with regards [sic] to genocide, as with any other violation of human rights, is that of ensuring that it is prevented, or if not, tackled as soon as possible to bring to justice those responsible for such an appalling crime. Any definition is only as good as the contribution it can potentially make to this prime concern.”³⁸

Large-scale cultural genocide took place during the wars in the former Yugoslavia. András Riedlmayer and Andrew Herscher have meticulously documented the destruction of libraries, archives, churches, and other heritage sites in Sarajevo, Kosovo, and many other locations in the former Yugoslavia.³⁹ The importance of the documentation of cultural heritage sites is a theme that will be considered in detail in the following chapters. In this instance, the documentation was used as evidence in the courts of law that tried war criminals like Slobodon Miloševic, former president of Serbia and president of the Federal Republic of Yugoslavia. I must stress here that the documentation of cultural heritage implicitly acknowledges the slaughter of people. The things the victims created—churches, books, documents, and so on—prove that they existed. This is preservation in its fullest sense.

While cultural genocide is not yet recognized in international law, its relationship to genocide was acknowledged by the International Criminal Tribunal for the former Yugoslavia in the Radislav Krstic case. The Trial Chamber wrote that

where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the religious group as well, attacks which may legitimately be considered as evidence of intent to destroy the group. In this case, the Trial Chamber will thus take into account as evidence of intent to destroy the group the deliberate destruction of mosques and houses belonging to members of the group.⁴⁰

The concept of cultural genocide has found resonance among indigenous peoples. Shamiran Mako explains,

cultural genocide has often been invoked as a conceptual framework for the non-physical destruction of a group.… The non-physical destruction facet of genocide, which Lemkin emphasized as part of his original use of the term, is a fundamental factor for assessing the cultural destruction of a group because it exposes other categories of group destruction that are often overshadowed by the limited definition of the Genocide Convention.⁴¹

Not all human rights violations relate to war. Forcing native peoples to assimilate into a dominant culture was one way of committing cultural genocide. Examples of such practices abound in American, Latin American, Canadian, and Australian history, to name just a few places. It is no wonder that these dominant cultures were slow to recognize the criminal nature of this subjugation.

Mako traces post-World War II attempts to acknowledge the rights of indigenous peoples, beginning with the International Labour Organization’s Indigenous and Tribal Populations Convention C107 of 1957. However, this document was limited in scope and later there was a move to address indigenous rights comprehensively in the United Nations, beginning with the 1982 Working Group on Indigenous Populations (WGIP), that addressed such issues as genocide, human rights, cultural preservation, environmental protection, and social and economic development.⁴²

The WGIP was abolished in 2006 and replaced by the UN’s Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). A UN declaration had been in the works since the 1990s. Article 7 of the EMRIP draft had included cultural genocide. But just as objections had been raised in 1948 to the notion of cultural genocide, or to be more precise, Raphael Lemkin’s full definition of genocide, objections were raised again—by some of the same countries. Thus, in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007), the term cultural genocide does not appear. This demonstrates the influence that major world powers have, trying to protect their own reputations in the face of their own barbaric acts—to return to Lemkin’s notion of barbarity and vandalism.

The UNDRIP contains much language about cultural rights, beginning in the Annex, in which it is stated that indigenous peoples may “freely pursue their economic, social and cultural development.”⁴³ The protection of indigenous cultural heritage is addressed in Articles 3, 7, 8, 11, 12, and 31. For example, Article 11 covers the protection of traditions and customs as well as archeological and historical sites, artifacts, designs, and ceremonies. Article 31 is explicit about these rights:

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

Thus the UNDRIP emphasizes the rights of indigenous or native peoples and the obligations of countries to protect those rights. Realizing the mechanisms for assuring such rights is the ultimate challenge. Will the exclusion of cultural genocide from this declaration be an impediment? Moral persuasion is no substitute for international customary law. And just because UNDRIP exists, how can its mandates be policed and enforced in the face of a government bent on the destruction of its “enemies”? Enforcement in the face of outright, blatant violations of the declaration is often (even usually) impossible.

The United Nations Educational, Scientific and Cultural Organization (UNESCO) was founded in 1945. (Plans for it were made in 1942 as countries began to prepare to reconstruct their educational institutions after the War.⁴⁴) Many of its activities have related directly to preservation, including the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage. This resulted in a list of sites that were inscribed beginning in 1978. The 1972 convention was enhanced in 1992 with the creation of the Memory of the World Programme to protect irreplaceable library treasures and archive collections.

There are critics of UNESCO’s approach. Its selection of heritage sites—and of library and archival “treasures”—is highly selective and political; thus it does not advance a systematic approach to preservation. Schüller-Zwierlein points out that “the discourse [of ‘cultural treasures’] … does not define what is to happen to those objects that are not defined as treasures.”⁴⁵ Preservation must be ongoing and systematic. And the discourse for preservation must be more sharply reasoned than it currently is.

Moreover, these programs wield “soft power” in the world, to use the phrase coined by Joseph Nye.⁴⁶ In other words, soft power “co-opts” rather than “coerces,” the way hard, or military, power does. Thus UNESCO can “attract and co-opt” as a means of persuasion; soft power has moral not legal or military force. (UNESCO was established “to create the conditions for dialogue among civilizations, cultures, and peoples, based upon respect for commonly shared values.”⁴⁷) However, soft power depends on shared values and the duty or obligation to contribute to those values. As we have seen in this chapter, not all values related to cultural heritage are shared universally. And, as I have noted before, there really is no way to enforce the principles of the conventions. Co-opting and even coercion are powerless against any power bent on destroying another culture.

Many countries are nonsignatories to UN declarations. For example, the 1954 Hague Convention, discussed earlier, which aims to protect cultural property during war, has only 128 signatories of the 193 UN member states. The United States did not ratify this convention until 2009, and the United Kingdom has signed but not ratified it, making it “the only major power that has failed to do so.”⁴⁸ As explained on the website of the UK Department for Culture, Media and Sport, with the passage of The Hague Second Protocol, the British government plans to ratify the convention.⁴⁹

Syria and Iraq ratified the convention in 1958 and 1967 respectively—though not the tougher 1999 protocol, which takes into account “the experience gained from recent conflicts and the development of international humanitarian and cultural property protection law since 1954.”⁵⁰

The Second Protocol further elaborates the provisions of the 1954 Hague Convention relating to safeguarding of and respect for cultural property and the conduct of hostilities, and thereby providing greater protection than before. It creates a new category of enhanced protection for cultural heritage that is particularly important for humankind, enjoys proper legal protection at the national level, and is not used for military purposes. It also specifies the sanctions to be imposed for serious violations with respect to cultural property and defines the conditions in which individual criminal responsibility shall apply. Finally, it establishes a twelve-member Intergovernmental Committee to oversee the implementation of the Second Protocol and de facto the convention.⁵¹

Does the 1954 protocol apply to Islamic State (IS) since they are in Iraq and Syria, two signatories of the 1954 Hague Convention? They have set up their own government, a caliphate. Could key IS members face prosecution by the International Criminal Court? (It is an unlikely prospect.) In the meantime, IS has destroyed hundreds of cultural heritage sites and untold numbers of cultural heritage objects in Iraq and Syria as part of their campaign of genocide and cultural genocide. IS is a perfect example of how all the protective conventions in the world are useless in the face of a “regime” that has its own agenda, and that sees itself as apart from the rules, laws, conventions, and treaties of states.

How are we to preserve cultural heritage under such circumstances? Can we use new strategies that can enhance the work of organizations such as UNESCO? Such strategies include community-based preservation efforts, social media, and the work of netizens. In countries like Syria, where it is difficult for the mainstream media to cover the news, netizens, or citizens with Internet and social media access, can provide information by recording events on their cell phones and uploading images to YouTube, for example. The challenge is that it is not always possible to independently verify such information. Another challenge is that such “social” efforts may have no effect against a regime that operates outside all international laws and conventions and is a law unto itself.

There are also international groups like Heritage for Peace, which is a nonprofit organization whose mission is

to support all Syrians in their efforts to protect and safeguard Syria’s cultural heritage during the armed conflict. As an international group of heritage workers we believe that cultural heritage, and the protection thereof, can be used as a common ground for dialogue and therefore as a tool to enhance peace. We call on all Syrians of any religion or ethnicity to enter into a dialogue and work together to safeguard their mutual heritage.⁵²

In a 2012 paper on the importance of preserving embattled states’ cultural heritage, Irina Bokova, director-general of UNESCO, noted:

I am keenly aware that in the context of a tragic humanitarian crisis, the state of Syria’s cultural heritage may seem secondary. However, I am convinced that each dimension of this crisis must be addressed on its own terms and in its own right. There is no choice between protecting human lives and safeguarding the dignity of a people through its culture. Both must be protected, as the one and same thing [sic]—there is no culture without people and no society without culture.⁵³

Or as Raphael Lemkin put it seventy years ago: “all our cultural heritage is a product of the contribution of all nations.”⁵⁴

There are echoes of Raphael Lemkin in Bokova’s words. Monumental preservation efforts will require new strategies as well as traditional ones. This chapter has shown the limits of the soft power of international organizations. Nonetheless, without such international organizations and infrastructures, cultural genocide would be more rampant than it currently is. Recent decisions in the International Criminal Court that address the cultural aspects of genocide are encouraging. The ongoing challenge is to develop numerous strategies to protect our heritage. Some new approaches are described in the next chapter.

Notes

1.  I have already mentioned the fire-bombing of Sarajevo’s libraries.

2.  John Donne, from Devotions upon Emergent Occasions, “Meditation XVII” (1624), http://triggs.djvu.org/djvu-editions.com/DONNE/DEVOTIONS/Download.pdf, 31 (accessed January 25, 2017).

3.  András J. Riedlmayer, “Crimes of War, Crimes of Peace: Destruction of Libraries During and After the Balkan Wars of the 1990s,” Library Trends 56, no. 1 (Summer 2007): 107.

4.  Raphael Lemkin’s (unfinished) history is contained in Lemkin on Genocide, ed. Steven Leonard Jacobs (Lanham, MD: Lexington Books, 2012), 59–401.

5.  Fernando Báez, A Universal History of the Destruction of Books: From Ancient Sumer to Modern Iraq, trans. Alfred MacAdam (New York: Atlas & Co., 2004).

6.  Rebecca Knuth, Libricide: The Regime-Sponsored Destruction of Books and Libraries in the Twentieth Century (Westport, CT: Praeger, 2003).

7.  The term human rights probably came into use some time between Thomas Paine’s The Rights of Man (1791) and William Lloyd Garrison’s 1831 writings in The Liberator, in which he stated that he was trying to enlist his readers in “the great cause of human rights,” although the term had been used by at least one author as early as 1742. See https://en.wikipedia.org/wiki/Human_rights (accessed June 30, 2015).

8.  Sun Tzu, The Art of War, trans. Lionel Giles (Blacksburg, VA: Thrifty Books, 2009).

9.  Keith E. Puls, ed., Law of War Handbook. JA 423. (Charlottesville, VA: The Judge Advocate General’s Legal Center and School, 2005). See https://www.loc.gov/rr/frd/Military_Law/pdf/law-war-handbook-2004.pdf. (accessed September 20, 2017).

10.  Dunant described the horrors of war in graphic detail in his book Memory of Solferino, which is in print more than 150 years after its publication. See Henry Dunant, Memory of Solferino (Geneva: International Committee of the Red Cross, 1862; repr. 1986).

11.  Henri Dunant was awarded the Nobel Peace Prize in 1901. For additional biographical information about him see the Nobel Prize website: http://www.nobelprize.org/nobel_prizes/peace/laureates/1901/dunant-bio.html (accessed June 30, 2015).

12.  For the full text of the Lieber Code see Avalon.law.yale.edu/19th_century/lieber.asp#sec2 (accessed June 28, 2015). This excerpt is from Article 35.

13.  Michèle Valerie Cloonan, Preserving Our Heritage: Perspectives from Antiquity to the Digital Age (Chicago: Neal-Schuman, 2015), xxvi–xxvii.

14.  The Convention for the Protection of Cultural Property in the Event of Armed Conflict is often referred to as the 1954 Hague Convention. In this chapter I use both forms of the name.

15.  Puls, Law of War Handbook, 11.

16.  U.S. Department of State, Office of the Historian. See https://history.state.gov/milestones/1921-1936/kellogg (accessed June 30, 2015).

17.  Also referred to as UNCG, from the French version of the convention’s name.

18.  See http://www.icc-cpi.int/en_menus/icc/situationsandcases/pages/situationsandcases.aspx (accessed July 24, 2015).

19.  The biographical information on Lemkin is based on the work of Jacobs (see note 4); John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (London: Palgrave Macmillan, 2008); and The New York Times obituary (August 30, 1959).

20.  Thomas de Waal, “The G-Word: The Armenian Massacre and the Politics of Genocide,” Foreign Affairs 94, no. 1 (January/February 2015): 142.

21.  Cooper, Raphael Lemkin and the Struggle for the Genocide Convention, 18–19.

22.  Quoted in William A. Schabas’s introduction to Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, 2nd ed. (Clark, NJ: The Lawbook Exchange, 2008), ix.

23.  Lemkin, Axis Rule in Occupied Europe, 79–95. The book was first published in 1944 in Washington, DC, by the Carnegie Endowment for International Peace, Division of International Law. This second edition is a reprint of the 1944 edition with another, new, introduction.

24.  Jacobs, Lemkin on Genocide, 20.

25.  Douglas Irvin-Erickson, “Genocide, The ‘Family of Mind’ and the Romantic Signature of Raphael Lemkin,” Journal of Genocide Research 15, no. 3 (2013): 274.

26.  Described on page 79 of Lemkin, Axis Rule in Occupied Europe.

27.  See Cooper, Raphael Lemkin and the Struggle for the Genocide Convention. On p. 15, Cooper discusses how, when a student at the University of Lvov in Poland, Lemkin became interested in Volkgeist, the idea that every nation had a folk spirit, a unique culture. At the same time, he was researching Jewish pogroms and the murder of the Armenians. Thus, well before World War II and the rise of the Nazis, Lemkin was formulating ideas about genocide.

28.  Ibid., 77.

29.  For the complete text of the UNGC, see http://www.hrweb.org/legal/genocide.html (accessed July 2, 2015).

30.  Dominik J. Schaller and Jürgen Zimmerer, eds., Journal of Genocide Research 7, no. 4 (2005): 441–578; and Donna-Lee Frieze, ed., Journal of Genocide Research 15, no. 3 (2013): 247–377.

31.  The Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780. See United Nations, Security Council, “Letter Dated 24 May 1994 from the Secretary-General to the President of the Security Council,” http://www.icty.org/x/file/About/OTP/un_commission_of_experts_report1994_en.pdf (accessed July 18, 2015).

32.  See http://www.icty.org/x/cases/krstic/cis/en/cis_krstic_en.pdf for more information on this case.

33.  Jacques Semelin, “Around the ‘G’ Word: From Raphael Lemkin’s Definition to Current Memorial and Academic Controversies,” Genocide Studies and Prevention: An International Journal 7, no. 1 (2012): 28.

34.  Israel W. Charny cites many examples of genocide in his book How Can We Commit the Unthinkable? Genocide: The Human Cancer (Boulder, CO: Westview Press, 1982).

35.  Katz, in Semelin, “Around the ‘G’ Word,” 26.

36.  Jaques Semelin, Online Encyclopedia of Mass Violence. See sciencespo.fr/ceri/en/ouvrage/oemv (accessed November 30, 2017).

37.  Merriam-Webster’s 3rd New International Dictionary (Springfield, MA: G. & C. Merriam, 1976), 2554.

38.  Meghna Manaktala, “Defining Genocide,” Peace Review: A Journal of Social Justice 24, no. 2 (2012): 185.

39.  For example, Riedlmayer, “Crimes of War, Crimes of Peace”; Andrew Herscher and András Riedlmayer, Destruction of Cultural Heritage in Kosovo, 1998–1999: A Post-war Survey (Expert Report for the International Criminal Tribunal for the Former Yugoslavia). See also the Miloševic Trial Public Archive, HRP Bard, http://hague.bard.edu/reports/hr_riedlmayer-28feb2002.pdf (accessed November 30, 2017); and Andrew Herscher, Violence Taking Place: The Architecture of the Kosovo Conflict (Palo Alto, CA: Stanford University Press, 2010).

40.  Shamiran Mako, “Cultural Genocide and Key International Instruments: Framing the Indigenous Experience,” International Journal on Minority and Group Rights 19 (2012): 189. [The link cited in the article at footnote 55 was broken when consulted on July 18, 2015.]

41.  Ibid., 175–194.

42.  Ibid., 185.

43.  United Nations Declaration on the Rights of Indigenous Peoples (2007), http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (accessed July 18, 2015).

44.  See the UNESCO website, “Building Peace in the Minds of Men and Women: The Organization’s History,” n.d. http://www.unesco.org/new/en/unesco/about-us/who-we-are/history (accessed July 2, 2015).

45.  Italics in the original. André Schüller-Zwierlein, “Why Preserve? An Analysis of Preservation Discourses,” Preservation, Digital Technology & Culture 44, no. 3 (2015): 100.

46.  Joseph Nye, Soft Power: The Means to Success in World Politics (New York: Public Affairs, 2004), p. 5.

47.  See UNESCO, “Building Peace in the Minds of Men and Women: Introducing UNESCO: What We Are,” n.d., http://www.unesco.org/new/en/unesco/about-us/who-we-are/introducing-unesco (accessed July 22, 2015).

48.  See “News: United Kingdom,” The Art Newspaper, no. 269 (June 2015): 10. It was ratified on September 12, 2017.

49.  “Together with a number of other countries, the UK Government did not ratify the [c]onvention when it was first drafted because it considered that it did not provide an effective regime for the protection of cultural property. However, the introduction of the Second Protocol removed this concern and in 2004 a commitment to ratify the convention was announced.” See DCMS, “Hague Convention 1954,” Department for Culture, Media and Sport, http://old.culture.gov.uk/what_we_do/cultural_property/6630.aspx (accessed July 18, 2015).

50.  UNESCO, “Armed Conflict and Heritage: 1999 Second Protocol to the Hague Convention,” n.d., http://www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/convention-and-protocols/1999-second-protocol (accessed September 18, 2017).

51.  Ibid.

52.  See the Heritage for Peace website at http://www.heritageforpeace.org/syria-culture-and-heritage (accessed July 11, 2015). There will be more about international on-the-ground preservation projects in the following chapters.

53.  Irina Bokova, “Discours de la Directrice générale de l’UNESCO Irina Bokova, à l’occasion de la Réunion de haut niveau pour la protection du patrimoine culturel syrien,” August 29, 2013 (DG/2013/119). [French and English]. See http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/ERI/pdf/ReunionPatrimoineSyrie.pdf (accessed July 3, 2015).

54.  Raphael Lemkin, “Genocide—A Modern Crime,” Free World (April 1945): 39.