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The Hypothetical
The Republic of Amistan has brought an action in the International Court of Justice [ICJ] against Malevoland, for violations of the Convention on the Prevention and Punishment of the Crime of Genocide. Both are parties to the convention. There is ample proof in expert reports and the media that Malevoland has targeted a religious minority group by: 1) Confining and, in some cases, executing the groups religious and political leaders who have resisted Malevolands assimilation policies, and 2) Removing children from the group to place them in camps where the children are forbidden from speaking the language of their group or engaging in other cultural practices. At this point it is unclear whether Malevoland intends to return the children. The ICJs jurisdiction in this matter, under article IX of the Genocide Convention, hinges on whether Malevolands actions amount to genocide under article II of the convention. You will conduct an interpretation of the Genocide Convention in order to offer an opinion on whether either of the two acts listed above amount to genocide. At issue is whether the Genocide Convention excludes cultural genocide.
The Assignment
As we have seen, there is wide disagreement among courts and scholars over whether the Genocide Convention reaches acts intended to destroy a group culturally, as opposed to physically or biologically. You will write an interpretation of the Genocide Convention focusing on this issue. Your interpretation should be no longer than 5 pages (1,250 words) and should follow this outline:
1. What if anything does the Genocide Conventions text say about cultural genocide?
2. Applying VCLT article 32, to article 2 of the Genocide Convention, is recourse to supplementary means of interpretation permitted to clarify this issue?
3. What do the Genocide Conventions drafters say about:
a. Whether all acts of cultural genocide were excluded.
b. Whether the parties intended to include only physical-biological (material) destruction, thereby excluding all incidents where a perpetrator intends cultural destruction.
4. Conclusion: Tell me whether the Genocide Convention contains acts of cultural genocide and/or reaches incidents of cultural destruction. Do Malevolands acts (of removing and selectively killing a religious groups leaders and forcibly transferring its children) amount to genocide and therefore trigger ICJ jurisdiction?
This is a factual exercise. Each of your opinions and assertions needs to be backed up by reference to one of the textual sources listed below. If you cant support your argument by pointing to a treaty, a report, or summary record, then your argument is not grounded in fact and should be abandoned. The word limit on this assignment is tight. You will need to write concisely, which means you will need to edit your text, repeatedly. Leave time for this.
Words that are not your own need to be within quotation marks and cited. Ideas youve borrowed need to be cited. You should cite specific treaty provisions or resolutions in your text like this: (VCLT art 31(b); UNGA Res 96(1)). UN documents should be cited by providing the document title and its UN Doc #, like this: (Secretariats Draft UN Doc E/447). You can cite 6th Committee meetings like this: (6th Comm SR.83, comment of Mr. Abdoh). Cite plenary sessions like this: (UNGA 178th Plen Mtg, comment of Mrs. Ikramullah). Please use a normal, easy to read 12 point font in black.
Your Research
In 1996 the International Law Commission [ILC] issued an influential commentary on the Genocide Convention where it asserted that: 1) the Genocide Conventions drafters intended to exclude all acts of cultural genocide and 2) that this proves the drafters intended it to reach only incidents where the perpetrator had intended to destroy a protected groups physical or biological existence, excluding situations where the perpetrator intended to destroy a group by attacking its cultural functioning.
Begin by reviewing the ILC statement. Then, review articles 31 and 32 of the Vienna Convention on the Law of Treaties [VCLT] which provide the standard of interpretation.
What Does the Treaty Say?
Conduct an interpretation of the text of the Genocide Convention according to VCLT article 31, placing article 2s terms in the conventions broader context including its preamble, which references UN General Assembly Resolution article 96(1). What does article 2 of the Genocide Convention have to say about cultural issues? Does the type of groups singled out for protection say anything about the Genocide Conventions concerns? Are any acts of cultural genocide included among article 2s prohibited acts? What does UNGA Res 96(1) indicate about the General Assemblys concerns in outlawing genocide? What does the chapeau say about destruction? Is physical destruction mentioned in any of article 2s prohibited acts and does this mean anything in regard to its other provisions?
Is Recourse Permitted?
Considering VCLT article 32, is the Genocide Conventions language so vague or absurd on the issue of cultural genocide as to justify recourse to supplementary means of interpretation? Explain.
Draft Distinctions
Next, turn to the Genocide Conventions preparatory work asking what these materials indicate about the drafters intent. The ILC finds significance in the fact that the conventions first draft, compiled by the Secretariat, and second draft, compiled by an Ad Hoc Committee on genocide, contained provisions addressing cultural genocide while the final draft, compiled by the Sixth (Legal) Committee Draft did not. Is the elimination of the cultural genocide provisions significant?
What do the Sixth Committee Delegates Say?
Most of the debate on cultural genocide happened in the 63rd, 64th, 65th, 66th, 83rd, and 108th meetings. Review these records. What are the delegates saying?
The cultural genocide provision was voted down in the 83rd meeting of the Sixth Committee. How significant is this? A statement by a chairman is given precedence in explaining a committees views. But what did other delegates make of his statement that the vote concerned whether or not the convention would cover cultural genocide? (Pay attention to the comments by Mr. Prez Perozo and Mr. Kahn in the 83rd meeting.)
Is Article 2(e) an Act of Cultural Genocide?
Look at the Sixth Committees 82nd meeting. What do the delegates have to say about the forcible transfer of children and its relation to cultural genocide? Is there a majority view on the issue and if so, what is it?
Destruction: Physical-Biological and Cultural?
Novic and Schabas claim the delegates never engaged the characteristics of genocidal destruction. Look at the discussion of the French and Soviet proposed amendments in the Sixth Committees 72nd and 73rd meetings. Are the delegates discussing the issue of physical and biological (material) destruction versus cultural destruction? What, if anything, do the votes on these amendments say about their intentions?
What Did Delegates in the UN General Assembly Plenary Meetings Say About Cultural Genocide?
Delegates in the Plenary Sessions debated the Sixth Committees draft and decided not to change anything. What did they say about cultural genocide? Did they support adding a cultural genocide provision? Did they state whether they believed the acts prohibited under article 2 might be acts of cultural as well as physical-biological (material) genocide? Did they address the issue of whether they intended to prohibit attacks on a groups cultural existence?
Scholarly Opinion
Scholarly opinion is a source of international law and you have now read several scholars whose work might be relevant (Lauterpacht, Novic, and Schabas). If it helps your argument, feel free to cite and/or quote these sources.
Finally, all the UN documents listed here (and many, many more) are available on the UN Official Document System website, where you can search be doc #: https://documents.un.org/prod/ods.nsf/home.xsp
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