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Gerard John Maguire A GENOCIDE BY ANY OTHER NAME: CULTURAL GENOCIDE IN THE CONTEXT OF INDIGENOUS PEOPLES AND THE ROLE OF INTERNATIONAL LAW. © Gerard John Maguire INTRODUCTION The goal of this essay is to highlight the atrocity that is cultural genocide and discuss the possibility of the crime being punishable under the genocide convention. This piece will offer two case studies to highlight the destruction caused by cultural genocide in varying forms by detailing acts perpetrated by the State in both Guatemala and Canada. This crime is evident in the histories of many States with indigenous populations yet it has generally remained unpunished and a very difficult case to prosecute. WHAT DOES CULTURAL GENOCIDE MEAN? Cultural genocide builds on our existing understanding of the crime of genocide. This crime is especially applicable to the indigenous peoples of the world, who continuously face threats to their cultural survival. When discussing the cultural survival of indigenous peoples, it is important to remember that cultural identity is very much a defining element for these peoples. For this section, it will be argued that an attack on the cultural identity of a people is a direct attack on the survival of those groups - an act of cultural genocide. The issue, as it stands, is that there is no international agreement as to what exactly constitutes as cultural genocide. The Convention on the Prevention and Punishment of the Crime of Genocide 19481 restricts the definition of genocide to violence committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”2, the inclusion of the term violence is the excluding factor for the crime of cultural genocide to fit within the reach of 1 Referred to hereafter as The Genocide Convention. 2 Article 2 Convention on the Prevention and Punishment of the Crime of Genocide 1948 © 2018, G. Maguire. Volume IV Issue I September 2018 the act. Kingston argues that “[m]any advocates of indigenous rights argue that this narrow approach fails to acknowledge the full impacts of cultural destruction and that there is insufficient international discussion of the particular cultural threats to the world's indigenous minorities”3. In his writing on the subject, Davidson defines cultural genocide as “the purposeful weakening and ultimate destruction of cultural values and practices of feared out-groups”4. If this definition is applied to the current understanding of the definition of the crime of genocide, could there be an opportunity to develop the international understanding and legal ramifications of the crime? This remains to be seen, and this section will build on this very idea. The scope of this essay is in relation to the indigenous peoples of the world, who are most often victims of this crime. However, in recent years, there has been a transition of many of these indigenous communities from vulnerable peoples in need of protection to self-actualizing groups who rely on the instruments of international law to ensure their survival. There are numerous articles found in international human rights instruments that recognize the importance of cultural heritage and identity for all the world's’ peoples. The 1948 Universal Declaration of Human Rights5 recognizes that “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”6. Further examples of some of the notable rights to enjoy one’s cultural life are as follows: The International Covenant on Economic, Social and Cultural Rights7 refers to the right of everyone to take part in cultural life, to enjoy the benefits of scientific progress, and to benefit from the protections of scientific, 3 Kingston, L. The Destruction of Identity: Cultural Genocide and Indigenous Peoples. Journal of Human Rights. 14(1). 2015. pp.63-83. 4 Davidson L. “Cultural genocide”. New Brunswick, N.J: Rutgers University Press; 2012. Pp. 18-19 5 Referred to hereafter as UDHR 6 UDHR Article 27(1) accessed at <http://www.un.org/en/universal-declaration-human-rights/> Last Accessed 25/11/2017 7 Referred to hereafter as ICESCR 2 Strathclyde Law Review literary, or artistic works8; The United Nations Educational, Scientific and Cultural Organization's9 Declaration on Cultural Diversity outlines the benefits of cultural diversity for international development and asserts that human rights standards protect the right to culture. The declaration maintains that “is an ethical imperative, inseparable from respect for human dignity”10. The recognition and respect for cultural life, heritage and values are of obvious importance, so much so that they are included in these international legal instruments, it is also valid to note that these rights are not limited to third-generation rights or group rights, they are also included in first and second generational rights instruments further highlighting their importance and significance for, and to, human life. It would be no less valid to consider an attack on an individual or groups cultural life just as deadly as an attack on their physical life. Kristin Hon has given claim that cultural genocide is just as destructive as physical or biological genocide, perhaps with less bloodshed but alluded to the obliteration of a group identity through the process describing it as “nothing more or less than the total destruction of a culture so as to obliterate the identity of a people”11. Here lies the argument that has divided legal professionals and scholars: if the entire cultural heritage, identity and lineage of any given group is annihilated, and forced assimilation into mainstream society occurs, the group, as a cultural entity, separate from the mainstream population ceases to exist, and if this cessation occurred at the hands of a state who, for example, intended to eliminate this cultural group through assimilation, the group, whole or in part ceases to exist. To begin to form an understanding, or perhaps appreciation of why the term cultural genocide is of importance for victims and survivors of such 8 ICESCR Article 15 accessed at <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> Last Accessed 25/11/2017 9 Referred to hereafter as UNESCO 10 Article 4 of UNESCO Universal Declaration on Cultural Diversity 2001 accessed at <http://portal.unesco.org/en/ev.php-URL_ID=13179&URL_DO=DO_TOPIC&URL_SECTION=201.html> Last Accessed 25/11/2017 11 Hon, K. ‘Bringing cultural genocide in by the backdoor: victim participation at the ICC’, Seton Hall Law Review. 43(1). 2013 pp. 359-409 ,p. 360 3 Volume IV Issue I September 2018 crimes, it is necessary to delve into the meaning of genocide as it is currently understood by the international legal community. Drawing upon the work of Nersessian, in this section “culture refers to the wider institutions that are central to group identity. These include (but are not limited to) language, religious practices and objects, traditional practices and ways, and forms of expression”12. It is also a well-known fact that for many indigenous peoples across the globe “markers of culture also include territory, modes of governance, and relationships to the natural environment, including plants and wildlife”13. Many of the world’s indigenous groups have lifestyles very different to mainstream populations, and their customs and traditions are what unite and hold these communities together and bestow an important sense of identity for the members of these groups, which has been passed down through countless generations. CASE STUDY I: GUATEMALA This section will examine the crime of cultural genocide as it relates to the history and continued plight of the indigenous peoples of Guatemala in the pursuit of their collective cultural survival. The measures, actions and inaction taken by the Guatemalan Government in their persecution of the Maya could certainly have amounted to cultural genocide. To apply a definition to the crime, the words used to describe genocide by the General Assembly in 1946 in resolution 96 must also be taken into consideration. It is entirely reasonable to suggest that cultural genocide was understood to be within the definition as “[g]enocide is the denial of 12 Nersessian, D. ‘Rethinking Cultural Genocide Under International Law’ accessed at < https://www.carnegiecouncil.org/publications/archive/dialogue/2_12/section_1/5139> Last Accessed 12/12/2014 13 Kingston, L. The Destruction of Identity: Cultural Genocide and Indigenous Peoples. Journal of Human Rights. 14(1). 2015. pp.63-83. 4 Strathclyde Law Review the right of existence of entire human groups”14 and if a group’s culture and society is attacked and they are forcibly removed from their lands, homes and families it would be consistent with the understanding of genocide as the general assembly understood it, a group who have their entire way of life upended and destroyed. In the case of Guatemala, through extensive attacks on the Indigenous communities of the rural highlands, blatant persecution and an incitement of hatred and disdain for the Mayan lifestyle and customs were all acts of cultural genocide. It has been credibly documented that during the reign of Ríos Montt “[t]he army destroyed ceremonial centres, sacred places and cultural symbols. Language and dress, as well as other elements of cultural identification were targets of repression”15. That is, in essence, a denial of the existence of the group whether in whole or in part. There is a limitation of the definition of genocide within international law, however, “indigenous nations continue to face systemic, widespread threats to their fundamental human rights to culture. These identity groups are increasingly conceptualizing such rights violations as cultural genocide”16. Cultural genocide was a part of the crimes committed by the state and military upon the indigenous communities of Guatemala. The goal, as envisioned by these parties, was complete destruction of the Mayan way of life, their culture, their history and their society.
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