Distinction between Crimes against Humanity and Cultural Genocide - Essay Example

? DISTINCTION BETWEEN CRIMES AGAINST HUMANITY AND 'CULTURAL GENOCIDE' Law: Introduction Some gaps and overlaps has developed in differentiating between genocide and crime against humanity; in fact, distinction between these two terms can be derived from the ideas based on enforcement by international, hybrid and national courts1. Furthermore, in the process of differentiating these terms it should be considered that national crimes are different from humanitarian law crimes. Moreover, in order to define these terms, there is need to understand that international crimes are derived from international customary law or treaties. However, there are some treaties that do not qualify to be expressions of customary law in situation where they have not be assimilated or complied with by countries that are considered civilized; thus, some customary law are not integrated in these treaties. Definition of Cultural Genocide (Article II of the Genocide Convention) Genocide has been encapsulated in the Genocide Convention of 1948, thereby undertaking an insufferable ratification for years; in fact it has been textually static. Genocide is not classified under national criminal codes; thus it is an international crime that is subjected to periodic re-evaluation and codification based on objectives of developing an integrated body of law. According to The Genocide Convention of 1948, Cultural Genocide is considered a form of crime that involves intention to obliterate entire or a section of racial, religious, or ethnic group. Moreover, this is a common of the five selected crimes, which are accomplished through a war. Nevertheless, there have been precisions regarding definitional expectations of Conventions, which were provoked during debate when this Convention was being drafted among other ratifications that were involved. Definition of Cultural Genocide (Article VI of the Rome Statute) Article IV of the Rome Statue considers Genocide to be a means of committing acts, which are aimed at destroying a whole or section of national ethnical, racial, or religious group, and moreover, it specifies by indicating, this also entails murdering members of a certain group, causing serious physical or psychological harm to these members, or inflicting conditions that are considered physically destructive to a group of people. There are elements of the international Criminal Court (ICC) that add other requirements of genocide acts committed in the context of a manifested trend, which resembles this conduct being direct against a given group. Moreover, this involves behaviours, which is deemed to have effect that can cause destruction of a given group. Definition of Crime against Humanity (Article VII of the Rome Statute) Article VII of the Rome Statue defines crime against humanity is a perspective that considers it to be an attack on a territory that is very large to be considered “widespread”. In this case, the Rome Statue defines crime against humanity as “an attack or a course of conduct that involves multiple commissions of specific acts against a civilian population, who is a pursuant or in furtherance of a country or organized policy to undertake this attack”. Therefore, this statue considers the fact that crime against cannot be perpetrated by a single person by himself or herself, without involvement of a campaign against civilians2. On the other hand, the Article VII of the Rome Statue has recently added a list of crime against humanity, which entails deportation, extermination, forcible displacement of a population within a given country, incarceration, afflict, rape, enforcement of people to engage in activities such as sex slavery, prostitution. Other acts that have recently been considered crime against humanity include enforced pregnancy, enforced sterilization, and other acts, which count to be forms of sexual violence. Besides, persecuting against people of a certain political, racial, ethnic, cultural, gender, national or religious group is also considered a crime against humanity under Article VII of the Rome Statue. There are other connections to these acts, which are of nature based on the jurisdiction of the court such as enforced vanishing of person or a felony of apartheid and other acts that are considered inhumane. Cultural Dimension Envisaged by Lemkin Lemkin considers genocide to be an act that affects all aspects of certain group’s life; in fact he considers it to be social phenomena, which represent intricacy in amalgamation of diversity features3. He also explains that the act of genocide involves a concept of multiple impacts and repercussions; thus, being social practice genocide entails all the methods that are employed to destroy a given group. Nevertheless, in some instances, Lemkin was basically misapprehended by numerous scholars due to his perception regarding genocide; thus, they did not agree with his concept of cultural genocide; unfortunately, Lemkin was a pragmatist, who was prepared to compromise4. In order to understand cultural genocide, there is need to explore the perspective of cultural integration of culture with society, which facilitates fulfilment of its members in terms of basic needs. Therefore, culture entails a systematic totality of different types of interlinked institutions, convictions, and practices. In this case, Lemkin introduced an idea of cultural change through exogenous influence, whereby he argued that societies that are weaker tend to assimilate institution of the other societies that are more effective, thereby resulting to absorption in order to have a better way of fulfilling the basic needs. On the other hand, culture is meant to ensure internal equilibrium and stability, which is also regarded to be a derived need. In this case, Lemkin argued that there is a necessity of a culture existing in order to fulfil their basic physiological need; hence, destruction of cultural symbols can be deemed to be a form of cultural genocide5. Moreover, cultural genocide constitutes destruction of functions based on existence of social group that exist through the virtue of a common culture. Lemkin experienced criticism regarding his conception, whereby scholars considered his argument to be imprecise and incoherent; in fact, some established a counter argument indicating that mass murder is expected to be a definitional core of genocide, which indicates that Lemkin’s point was significantly missed6. However, comprehension of Lemkin’s argument regarding cultural genocide, there is need for an assumption that these critics had difficulties conceiving cultural hybridism and assimilation. Besides, there is also need to consider the cultural options that Lemkin envisaged in encounter, which he considered to be genocide. Differences between Crime against Humanity and Cultural Genocide One of the textual differences between crimes against humanity and cultural genocide is the fact that acts involving the latter are prosecuted being a part of a systematic or broad attack against civilian population. On the other hand, cultural genocide involves acts that are not specific, but they are committed against racial, religion, national, or ethnic group. Moreover, acts that constitute to cultural genocide are perpetrated with intention to destroy a section or a part of a group. The other difference is that cultural genocide can be perpetrated against a few people of a certain cultural group, unlike crime against humanity, which defines an act that is widespread, systematic and involving campaign against civilians. Nonetheless, in relation to crime against humanity, there is a new requirement by Rome Statue in its Element of Crime codicil indicating that crime against humanity should occur in context of manifest trend of similar conduct, which is to be directed against a given group with destructive effects. The other difference regard the restrictions imposed on Genocide Convention to the terms “destroy”; thus, this eliminates other terms such as physical or biological destruction of a group7. In fact, the argument entailed in this definition regarding cultural destruction that is not sufficient since there is an exclusion of targeted groups such as women social, political, and economic classes; thus, this invokes frustration on the part of numerous human rights groups. In this case, this definition is not placated by the fact that victims of these groups undergo vindication based on prosecution of crimes against humanity; genocide has been considered the worst of all other crimes; hence, it is limited making to avoid losing deterrence currency through expansive application of every form of massacre. On the other hand, there are notions indicating that Rome Statues focused beyond customary law in the process of recognizing crime against humanity. For instance, cases of discrimination against cultural and gender groups is considered, though with a cut back on customary law, and moreover, this requires persecution of discrimination in relation to other crime in jurisdiction of court. Crime against humanity is considered to be grounded through an overlap of war crime; in fact, based on definition of Rome Statues, Crime against humanity involves more than one victim, and this attack is organized. On the other hand, cultural genocide does not involve any forms of arrangement; in fact, it does not have to affect a widespread area and it does not involve a campaign. The other difference related to the fact that crime against humanity does not have to occur within the boundaries of a country; in contrast, cultural genocide occurs within the boundaries of a country. The concept of cultural genocide is considered to be a culmination deeply rooted in convention of European legal and political critique of imperialism and conflict against civilians. On the other hand, crime against humanity is not projected in the world history based on imperial context or involvement of warfare against civilians; unlike the case with cultural genocide, the most commonly charged crime against humanity is persecution8. Moreover, crime against humanity does not require discriminatory intentions against groups as the case that is not prohibited in order to safeguard the interest of these groups. The other difference between crimes against humanity and cultural genocide involves the aspect of extermination, whereby in cases where religious houses of worship, libraries among other elite institution of cultural transmission are damaged, this can be regarded as cultural genocide. Furthermore, this consideration is taken even in situation where civilians survived without any physical or psychological damage. In other instances, cultural genocide may take place through attacks by between different countries with aims of eradicating their groups. Nevertheless, this eradication cannot be compared to mass killing, which is a case that can be referred to as crime against humanity. Apparently, cultural genocide is not equal to crime against humanity since there are cases where the destruction can involve entire nation, whereby it is accomplished mass killing of all members of the nation. The last difference between crimes against humanity and cultural genocide is based on dilemma involving the discrete application of the former involves a tag by prosecutors or a significant guidance by international law experts and judiciary. Unlike the case with cultural genocide, crime against humanity evokes the initial conceptual role of being a sanction. There are cases where crime against humanity involves atrocities, which are perpetrated by government officials or organizations against a group of people. Therefore, crime against humanity transcends form of crimes which are attributed to local scenes of war. On the other hand, cultural genocide is considered to be taking a course of its own, whereby victims involved in the massacres feel deceived in case the court consider the case to be a crime against humanity instead of genocide. Conclusions In conclusion, the paper has focused on offering an explanation of various elements regarding the notion of crimes against humanity and cultural genocide development of these categories of crime. The paper began with an introduction part, which gave an overview of the topic, which was followed by sections defining both crimes against humanity and cultural genocide in regard to the Rome Statues and Genocide Convention of 1948. The other section presented Lemkin’s perception towards cultural genocide, and this was followed by the main discussion of the paper, which regarded the differences between crimes against humanity and cultural genocide. Nevertheless, this distinction was based on the principal perspectives of international crimes, thereby focusing on crime persecution in the perspective of perpetrators and victims. Therefore, after discussing this distinction between crime against humanity and cultural genocide, there are principles of specialty, which have been established in regard to criminal law during the process of dealing with intersecting crimes. In this case, this paper provides rational arguments to support the notions regarding the difference between crimes against humanity and cultural genocide. Bibliography Cooper, John. Raphael Lemkin and the Struggle for the Genocide Convention. Houndmills: Palgrave MacMillan, 2008. Moses Dirk. Chapter 1: Raphael Lemkin, Culture, and the Concept of Genocide. Available at: http://fds.oup.com/www.oup.com/pdf/13/9780199232116.pdf[Accesed on July 19 2013] Hwang Phylilis. Defining Crimes against Humanity in the Rome Statute of the International Criminal Court. Fordham International Law Journal. Volume 22, Issue 2. 1998. Available: http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1594&context=ilj[Accesed on July 19 2013] Korey, William, An Epitaph for Raphael Lemkin. New York: Blaustein Institute for the Advancement of Human Rights, 2002 Orentlicher, Diane. The Law of Universal Conscience: Genocide and Crimes against Humanity. Available at: http://www1.ushmm.org/conscience/analysis/details/1998-12-09/orentlicher.pdf[Accesed on July 19 2013] Robertson, Geoffrey. Crimes against Humanity: the Struggle for Global Justice, 2nd ed. Penguin Books, 2002 Wald Patricia. “Genocide and Crimes against Humanity”. Washington University Global Studies Law Review. VOL. 6:621 Available at: http://law.wustl.edu/WUGSLR/Issues/Volume6_3/wald.pdf[Accesed on July 19 2013] Yavuz Aydin. “The distinction between crimes against humanity and genocide focusing most particularly on the crime of persecution”. Ministry of Justice of Turkey. Available at: http://www.justice.gov.tr/e-journal/pdf/Genocide_Crimes.pdf[Accesed on July 19 2013] Read More