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A cultural interpretation of the Genocide Convention

University of British Columbia

In 1948, a mere four years after Raphael Lemkin coined the word “genocide,” the UN General Assembly codified his concept in the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Over time, the definition of genocide has become increasingly estranged from the concept originated by Lemkin and adopted by the UN. This dissertation critiques the prevailing materialist interpretation of the Genocide Convention, which originated in a 1996 commentary by the International Law Commission (ILC). As I document, this interpretation has found increasing acceptance among international courts including the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Criminal Court, and the International Court of Justice. According to the ILC, the Genocide Convention is concerned only with the “material” existence of human groups and therefore excludes incidents of “cultural genocide.” The interpretive method that I lay out begins with the rules of interpretation embodied in the Vienna Convention on the Law of Treaties and grounds them in post-phenomenological hermeneutic theory. Surveying the Genocide Convention’s text, its preparatory work or travuax perparatoires, and the historical context of its drafting, I find little support for the “exclusionist” interpretation. Instead, I find that many of its drafters believed the Genocide Convention would protect groups as culturally functioning entities. In fact, as I document, the drafters voted down provisions that would have created an explicitly materialist convention and excluded cultural matters.

Text

2019-01-10

Attribution-NonCommercial-NoDerivatives 4.0 International

http://hdl.handle.net/2429/68227

Law

University of British Columbia

UBCV

http://creativecommons.org/licenses/by-nc-nd/4.0/