Dissertation
A Cultural Interpretation of the Genocide Convention
(2019)
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 Treatiesand 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.
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.
Keywords
- Genocide,
- Human Rights,
- International Law,
- Legal History
Disciplines
Publication Date
2019
Degree
PhD
Field of study
Law
Department
Law
DOI
10.14288/1.0376035
Citation Information
Kurt Mundorff. "A Cultural Interpretation of the Genocide Convention" (2019) Available at: http://works.bepress.com/kurt_mundorff/6/