Tye Tavaras

Abstract

The Genocide Convention is hailed as a great protection mechanism and the one document that will prevent future destruction of groups. This convention however, has a variety of shortcomings that fail to protect groups outside of attempted physical destruction. An article criminalizing cultural genocide is a devastating omission and this paper seeks to create a working legal definition to be used a framework for creating an article or convention to provide such criminalization. Beginning with an analysis of the drafting of the Genocide Convention with particular attention paid to the importance of culture in the foundation of the convention as well as the debate surrounding the inclusion of cultural genocide in the final draft. The arguments used to prevent the inclusion of cultural genocide into the final draft provide insight into the fears of states and also provided the foundation of the argument for the necessity of the criminalization of cultural genocide. The second section analyzes the intersection of culture, law, and genocide. Defining culture as an abstraction is difficult and has to be broken down into components of culture, which can provide clear legal standards for cultural rights protection and the criminalization of cultural genocide. An analysis of current cultural protection mechanisms provides an understanding of the dominant viewpoint of culture in the international community. Furthermore, this viewpoint provided a majority accepted definition of cultural components requiring protection that was used to frame a definition of cultural genocide. The final section explicates the necessity of a definition of cultural genocide. The remnants of cultural genocide in the Genocide Convention seen in the prohibition of the forced transfer of children, demonstrates the importance of preventing loses of culture. Furthermore, the definition of cultural genocide is framed by the existing definition of genocide, and uses the combination actus reus and dolus specialis in its determination. Similar to genocide, the final definition of cultural genocide requires the intent to destroy a group as the distinguishing factor between genocidal acts and human rights violations.

Department

Law Department

Degree Name

MA in International Human Rights Law

Graduation Date

6-1-2011

Submission Date

May 2011

First Advisor

Skouteris, Thomas

Second Advisor

Monforte, Tanya

Extent

NA

Document Type

Master's Thesis

Library of Congress Subject Heading 1

Genocide -- Prevention.

Library of Congress Subject Heading 2

Cultural property -- Protection.

Rights

The author retains all rights with regard to copyright. The author certifies that written permission from the owner(s) of third-party copyrighted matter included in the thesis, dissertation, paper, or record of study has been obtained. The author further certifies that IRB approval has been obtained for this thesis, or that IRB approval is not necessary for this thesis. Insofar as this thesis, dissertation, paper, or record of study is an educational record as defined in the Family Educational Rights and Privacy Act (FERPA) (20 USC 1232g), the author has granted consent to disclosure of it to anyone who requests a copy.

Institutional Review Board (IRB) Approval

Not necessary for this item

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