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Download The A CULTURAL INTERPRETATION OF THE GENOCIDE CONVENTION by KURT MUNDORFF B.A., The University of Oregon, 1992 M.A., The John Jay College of Criminal Justice, 2001 J.D., The Benjamin Cardozo School of Law, 2004 LL.M., The University of British Columbia, 2007 A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) December 2018 © Kurt Mundorff, 2018 The following individuals certify that they have read, and recommended to the Faculty of Graduate and Postdoctoral Studies for acceptance, the dissertation entitled: A Cultural Interpretation of the Genocide Convention submitted by Kurt Mundorff in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Law Examining Committee: Karin Mickelson, Law Supervisor Douglas Harris, Law Supervisory Committee Member Adam J Jones, Political Science Supervisory Committee Member James G Stewart, Law University Examiner Steven Lee, History University Examiner ii Abstract 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. iii I ascribe this misinterpretation to the historical distance separating the Genocide Convention’s drafting from our own time. I use archival sources, including Lemkin’s personal papers, State Department documents, and early UN documents, as well as legal documents and the secondary literature, to reconstruct the mid-century conversation on genocide and to situate that conversation in the much broader mid-century discourse on justice and society. At that time, the concept of culture exerted a strong normative pull and was believed to possess tremendous explanatory power. Placed in this context, culture is not a distraction to be read out of the Genocide Convention; culture is the very reason it exists. iv Lay Summary This dissertation challenges the prevailing interpretation of the Genocide Convention, which holds that the convention should be understood as excluding “cultural genocide.” As I document, this “exclusionist” interpretation is unsupported by the Convention’s text and its drafting history. Moreover, because the immediate postwar period of the convention’s drafting was a time when the idea of culture held sway in the popular as well as the scholarly imaginations, the exclusionist interpretation is profoundly anachronistic. Using the personal papers of Raphael Lemkin, who originated the concept of genocide and was the Convention’s tireless booster, archival materials of the US State Department and the UN, contemporaneous legal documents, and the secondary literature, I situate the convention’s meaning in the mid- century context of its drafting. Placed in this context, culture is not a distraction to be read out of the Genocide Convention; culture is the very reason it exists. v Preface This dissertation is original, unpublished, independent work by the author, Kurt Mundorff. vi Table of Contents Abstract ................................................................................................................................... iii Lay Summary .......................................................................................................................... v Preface ..................................................................................................................................... vi Table of Contents .................................................................................................................. vii Acknowledgements ................................................................................................................. x Dedication ............................................................................................................................... xi Introduction ........................................................................................................................... 12 Dangers to the Genocide Convention ............................................................................................... 14 The International Law Commission’s Exclusion Doctrine .............................................................. 18 My Initiation into the Genocide Convention .................................................................................... 23 A Note on Historical Theory and Methodology ............................................................................... 26 Structure of the Thesis ...................................................................................................................... 33 Chapter 1—Outlines of a More Humble Interpretation ................................................... 36 The Romantic Hermeneuts ............................................................................................................... 43 Genocide is Romantic .................................................................................................................................. 49 The VCLT is Hermeneutic ........................................................................................................................... 52 VCLT Article 31: The “General Rule of Interpretation” ................................................................. 53 Intertemporality ................................................................................................................................ 61 Post-Phenomenological Insights ...................................................................................................... 64 Humility ....................................................................................................................................................... 73 Truth ............................................................................................................................................................ 76 For the Love of Rules ................................................................................................................................... 82 Consolidating a humble interpretive approach ................................................................................. 85 Conclusion ........................................................................................................................................ 88 Chapter 2—Lemkin in the Cultural Moment .................................................................... 91 Problems in Lemkin Scholarship ................................................................................................................. 94 Nationalism ...................................................................................................................................... 97 Lemkin’s Nationalism ................................................................................................................................ 101 Herder and the Roots of Cultural Nationalism ......................................................................................... 105 Lemkin, the Ethical Nationalist ................................................................................................................. 121 Nationalism Fades ..................................................................................................................................... 122 The Cultural Moment ..................................................................................................................... 124 Boasian Culture ......................................................................................................................................... 128 Culture’s Postwar Reach ........................................................................................................................... 132 Notes Towards the Definition of Culture Circa 1948 ................................................................................ 137 Culture as Resistance ...............................................................................................................................
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