Thake on The Intentional Destruction of Cultural Heritage as a Genocidal Act and a Crime Against Humanity

Ann Marie Thake, Government of Malta, Courts of Justice (Superior Jurisdiction), has published The Intentional Destruction of Cultural Heritage as a Genocidal Act and a Crime Against Humanity, Conference Paper No. 15/2017 given at the European Society of International Law (ESIL), 2017 Annual Conference (Naples). Here is the abstract.

Lemkin originally envisaged the crime of genocide as encompassing not only physical and biological acts of genocide, but also the intentional destruction of cultural heritage. In fact, earlier drafts of the Genocide Convention proposed the criminalisation not only of physical and biological genocide, but also of cultural genocide, with the latter understood as involving the destruction of specific characteristics of the protected group. This was eventually left out of the final draft of the Convention, save for the prohibition of the forcible transfer of the protected group’s children. However, the destruction of a protected group can be brought about not only by physical or biological means, but also by systematically erasing its culture heritage and therefore its group identity, destroying the group from its very core, an act which is described by Chaumont as constituting ‘ethnocide’. In fact, the ad hoc criminal tribunals have considered the systematic and intentional destruction of cultural heritage as evidence of the specific intent to destroy a group. The aim of this paper is to analyse the intentional destruction of cultural heritage from a human perspective, considering it as a crime against persons, not solely against property, and to examine whether it is time to revise the definition of genocide to incorporate the intentional destruction of cultural heritage as a genocidal act, as it was originally conceived by Lemkin.

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A Response To David Luban's Reassessment of Hannah Arendt On Genocide

Luis Pereira Coutinho, University of Lisbon School of Law, has published Hannah Arendt's Moral Ontology: Comments on David Luban's Arendt on the Crime of Crimes at 28 Ratio Juris 326 (2015). Here is the abstract.

David Luban identifies a tension between Arendt's conception of ethnic identification in a context of persecution and her conception of humanity. That tension pertains to the reality - or realities - that Arendt addresses: the moral reality of her Bildung that appears throughout her work, and is centered on the “dignity of man,” on the one hand, and the divisive, “political” reality that she was forced to face when “attacked as a Jew,” on the other. By implicitly accepting that in a context of persecution one cannot escape the framing relevance of the “political” - an idea that is also present in her imaginary condemnation speech of Eichmann - Arendt betrays a fundamental theme of her work: “forgiveness” and the inherent possibility of a “new beginning.”

The full text is not available for free from SSRN.

Reassessing Arendt On Genocide

David J. Luban, Georgetown University Law Center, has published Arendt on the Crime of Crimes at 28 Ratio Juris 307 (2015). Here is the abstract.

Genocide is the intentional destruction of a group as such. What makes groups important, over and above the individual worth of the group's members? This paper explores Hannah Arendt's efforts to answer that question, and concludes that she failed. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept.

The full text is not available free from SSRN.

Hannah Arendt and Genocide

David Luban, Georgetown University Law Center, is publishing Arendt on the Crime of Crimes in Ratio Juris (forthcoming). Here is the abstract.

Genocide - the intentional destruction of groups “as such” – is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her systematic philosophy refers to the multiplicity of unique human individuals, never of groups. Indeed, Arendt is famously skeptical of views that subordinate individuality to group identity. That makes her theorizing an instructive test case of whether individualism can yield an account of why groups matter.

The paper analyzes several possible approaches to the problem of explaining the special value of groups, beginning with Raphael Lemkin’s theory of groups as contributors to universal civilization, and then turning to Arendt’s efforts. In the course of the argument, it examines her understanding of Jewish history, her ideas about “the social,” and her conception of “humanity” as a normative stance toward international responsibility rather than a descriptive concept. For Arendt, group identification makes sense solely as a political act of resistance to persecution. In the conclusion, the paper examines a remarkable moment during the trial of Radovan Karadzić, when a defense witness explained his conversion to radical nationalism by quoting “Mrs. Hannah Arendt, a prominent philosopher.” The moment illustrates how hard it is to maintain the stance of humanity while assigning political value to group identity.

Download the article from SSRN at the link.