fn69*) The author would like to thank Professor Hannilbal Travis of Florida International University and Professor Sargon Donabed of Roger Williams University for their helpful comments, as well as the anonymous reviewers for their insightful suggestions.
fn11) UNHCHR, 2002, 18.
fn22) United Nations High Commissioner for Human Rights, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32, U.N. Doc. E/CN.4/2002/98, 18.
fn33) Ever since Lemkin’s original usage of the term ethnocide, many definitions have been created in an attempt to pinpoint exactly what such a phenomenon consists of in the real world. For example, in 1981, the UNESCO-sponsored meeting of experts on ethno-development contended in the Declaration of San Jose that “ethnocide means that an ethnic group is denied the right to enjoy, develop and transmit its own culture and its own language, whether collectively or individually” (see W. A. Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press, Cambridge, 2000) p. 189) As for Chalk and Jonassohn, they assert that ethnocide is used “for those cases in which a group disappears without mass killing. The suppression of a culture, a language, a religion, and so on is a phenomenon that is analytically different from the physical extermination of a group” (F. Chalk and C. Jonassohn, The History and Sociology of Genocide (Yale University Press, New Haven, CT, 1990) p. 23). Niezen contends that ethnocide or cultural genocide “occurs more often where the state has a firm grip over a subject people but is still striving to secure its national identity. It is usually manifested in policies or programs of ‘assimilation’ aimed at eliminating stark cultural differences and rival claims to sovereignty that arise from first occupation of a territory. Its goal is the elimination of knowledge of, and attachments to, distinct and inconvenient ways of life” (R. Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (University of California Press, Berkeley and Los Angeles, 2003) p. 55).
fn44) R. Davis and M. Zannis, The Genocide Machine in Canada (Black Rose Books, Montreal, 1973) p. 30.
fn55) J. Burger, Report from the Frontier: The State of the World’s Indigenous Peoples (Zed Books Ltd., London, 1987) p. 31.
fn66) R. Strickland, ‘Genocide-at-Law: An Historic and Contemporary View of the Native American Experience, 34 University of Kansas Law Review (1985/1986) pp. 713–756, at p. 720.
fn88) A. Armitage, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (University of British Columbia Press, Vancouver, 1995) pp. 77–78.
fn1111) M. Castellano, L. Archibald and M. Degané, From Truth to Reconciliation: Transforming the Legacy of Residential Schools. Ottawa, ON: Aboriginal Healing Foundation, Ottawa, ON, 2008) pp. 1–2.
fn1212) For a comprehensive discussion on the genocide of aboriginals in Australia see D. A. Moses (ed.), Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (Berghahn Books, New York, NY, 2004).
fn1313) R. Manne, ‘Aboriginal Child Removal and the Question of Genocide, 1900–1940’, in Moses, ibid., pp. 217–243, at p. 221.
fn1414) R. Van Krieken, ‘The Stolen Generations’ and Cultural Genocide’. 6:3 Childhood (1999) pp. 297–311, at p. 300.
fn1515) D. Maybury-Lewis, Indigenous Peoples, Ethnic Groups, and the State, 2nd edition (Allyn and Bacon, Needham Heights, MA, 2002) p. 16.
fn1717) Ibid., p. 22.
fn1818) Ibid., p. 23.
fn1919) Ibid., p. 25.
fn2020) Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Brazil, Chapter VI: Human Rights of the Indigenous Peoples in Brazil, IACHR Doc.29 rev.1, Washington, DC, 1997, para. 11, available at< www.cidh.org/countryrep/Brazil-eng/chaper%206%20.htm >.
fn2121) Ibid., paras. 12–13.
fn2222) R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation Analysis of Government Proposals for Redress (Howard Fertig, Inc, New York, 1973) p. 79.
fn2323) D.A. Moses, Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History (Berghahn Books, New York, 2008) p. 12.
fn2424) Schabas, supra note 3, pp. 183–184.
fn2525) Moses, supra note 23, pp. 90–91.
fn2626) Unpublished works cited in ibid., p. 94.
fn2828) Unpublished works, cited in Moses, supra note 23, p. 94.
fn2929) Lemkin, supra note 22, pp. 82–89.
fn3030) R. Lemkin, ‘Genocide-a Modern Crime’, 4 Free World (1945) pp. 39–43, para. 5, available at < www.preventgenocide.org/lemkin/freeworld1945.htm >.
fn3131) United Nations Economic and Social Council, Ad Hoc Committee on Genocide, UN Doc. E/AC.25/2, 1948.
fn3232) United Nations Economic and Social Council, Draft Convention on Prevention and Punishment of the Crime of Genocide, UN Doc. E/AC.25/12, 1948.
fn3333) For a comprehensive discussion, see L. Kuper, Genocide: its Political use in the Twentieth Century (Yale University Press New Haven, CT, 1981) pp. 30–31 and Schabas, supra note 3, pp. 179–189.
fn3434) United Nations Economic and Social Council, Commission on Human Rights, Third Session, UN Doc. E/CN.4/SR.76, 1948.
fn3535) For example, the United States’ objection was twofold: one, cultural genocide was not related to genocide in the physical sense of the term and that acts resulting in cultural genocide did not “shock the conscience of mankind”; two, the protection and preservation of a cultural group should fall within the domain of human rights. The Swedish delegation asserted that the cultural protection of minorities should be addressed by general international legal principles rather than through the Genocide Convention. More importantly, it raised serious concerns that Sweden might be accused of cultural genocide due to the country’s education policy toward minorities as well as the government’s forced conversion of the Lapps to Christianity. The Brazilian delegation’s reasoning for the omission of a cultural genocide clause within the Genocide Convention was directly related to the country’s policies toward the assimilation of “local cultures” and that a State “might be justified in its endeavour to achieve by legal means a certain degree of homogeneity and culture within its boundaries”. The Canadian delegation adamantly opposed the inclusion of cultural genocide, noting that the people of Canada were deeply attached to their dual cultural backgrounds comprising of Anglo-Saxon and French elements, and would “strongly oppose” any effort at minimizing the influence of these two cultures in Canada. Iran opposed the inclusion of cultural genocide noting that there was a great difference between the physical extermination of a group and cultural survival and called into question whether barbaric or backward cultures deserved protection from assimilation resulting from the civilization policies of a State. Similarly, the representative of New Zealand also opposed the inclusion of a cultural genocide clause, arguing that it interfered with the Trusteeship Council’s efforts at civilizing the indigenous inhabitants of the Tanganyika regions and that the tribal structure was “an obstacle to the political and social advancement of the indigenous inhabitants … Thus, the Council was opposed to the maintenance of a distinctive cultural trait of the local population. It would be detrimental to the prestige of the United Nations to include in a convention provisions which were so confused that they might be invoked against its own organs.” The ensuing discussion regarding Article III of the Draft Genocide Convention is available in UN Doc. A/C.6/SR.83.
fn3636) J. Morsink, ‘Cultural Genocide, the Universal Declaration, and Minority Rights’, 21:4 Human Rights Quarterly (1999) pp. 1009–1060, at p. 1029.
fn3737) Schabas, supra note 3, pp. 183–184.
fn3838) Ibid., p. 186.
fn3939) International Labor Organization, C107 Indigenous and Tribal Populations Convention, 1957, para. 18, available at < www.ilo.org/ilolex/english/convdisp1.htm >.
fn4040) International Labor Organization, C169 Indigenous and Tribal Peoples Convention, 1990, para. 22, emphasis added, available at < www.ilo.org/ilolex/english/convdisp1.htm >.
fn4141) M. Nakata (ed.), Indigenous Peoples, Racism and the United Nations (Common Ground Publishing, Altona, Victoria, 2001) p. 15.
fn4242) S. James Anaya, Indigenous Peoples in International Law, 2nd edition (Oxford University Press, New York, 2004) pp. 221–222.
fn4343) United Nations Human Rights Council, Report of the Working Group on Indigenous Populations on its Twenty-Fourth Session, UN Doc. A/HRC/Sub.1/58/22, 2006, p. 5.
fn4444) United Nations High Commissioner for Human Rights, Draft Declaration on the Rights of Indigenous Peoples, Geneva: United Nations, 1994, available at < www.unhchr.ch/huridocda/huridoca.nsf/(symbol)/e.cn.4.sub.2.res.1994.45.en?opendocument >.
fn4545) See e.g. Report of the Working Group on the Elaboration of a Draft “United Nations Declaration on the Rights of Indigenous Peoples”, UN Doc. E/CN.4/1996/84, 1996; Report of the Working Group on the Draft Declaration on Indigenous Peoples, UN Doc. E/CN.4/2000/84, 1999; Report of the Working Group on the Draft Declaration on Indigenous Issues, UN Doc E/CN.4/2002/98, 2002; Report of the Working Group Established in Accordance with the Commission on Human Rights Resolution 1995/32 of 3 March 1995 on its Eleventh Session, UN Doc. E/CN.4/2006/79 (2006).
fn4646) United Nations High Commissioner for Human Rights, Discrimination Against Indigenous Peoples: Technical Review of the United Nations Draft Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/Sub.2/1994/2.
fn4747) United Nations High Commissioner for Human Rights, Indigenous Issues: Report of theWorking Group Established in Accordance with Commission on Human Rights Resolution 1995/32, UN Doc. E/CN.4/2003/92, 2003.
fn5151) Ibid., pp. 24–25.
fn5252) United Nations High Commissioner for Human Rights, Declaration on the Rights of Indigenous Peoples, available at < www.un.org/esa/socdev/unfii/documents/DRIPS_en.pdf. >
fn5454) J. S. Nye Jr., Soft Power: the Means to Success in World Politics (Public Affairs, New York, 2004) p. x.
fn5555) United Nations International Criminal Tribunal for the former Yugoslavia Judgement, Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, 2001, The Hague: United Nations, para. 480, available at< www.un.org/icty/krstic/TrialC1/judgement/krs-tj010802e-3.htm#IIIG2bi >.
fn5656) United Nations International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, 2001, The Hague: United Nations, p. 203,available at < www.icty.org/x/cases/krstic/tcjug/en/krs-tj01080e.pdf >.
fn5757) United Nations International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. JP/P.I.S./928e, 2005, The Hague: United Nations., 2005, available at< www.icty.org/x/cases/blagojevic_jokic/tjug/en/050117_Blagojevi_Joki_summary_en.pdf >.
fn5858) Burger, supra note 5, p. 30.
fn5959) United Nations High Commissioner for Human Rights, Report of the Working Group on Indigenous Populations on its Twenty-Fourth Session, UN Doc. A/HRC/Sub.1/58/22*, 2006, p. 7.
fn6060) R. Hitchcock and T. M. Twedt, ‘Physical and Cultural Genocide of Indigenous Peoples’, in S. Totten and W. S. Parsons (eds.), Century of Genocide: Critical Essays and Eyewitness Accounts (Routledge, New York, 2009) pp. 344–384, at p. 363.
fn6161) E. Rogers, ‘Aust Adopts UN Indigenous Declaration’, ABC Australia, April 2009, available at < www.abc.net.au/news/stories/2009/04/03/2534210.htm >.
fn6262) Niezen, supra note 3, p. 182.
fn6363) L. T. Smith, Decolonizing Methodologies: Research and Indigenous Peoples (Zed Books, London, 1999) p. 111.
fn6464) Anaya, supra note 42, p. 70.
fn6565) Ibid., p. 68.
fn6666) Organization for Security and Co-operation in Europe, Conference on Security and Co-operation in Europe, Final Act, 1975, available at < www.osce.org/mc/39501 >. Federation of American Scientists, Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the Conference on Security and Co-operation in Europe held on the basis of the Provisions of the Final Act Relating to the Follow-up to the Conference, Vienna, 1989, available at < www.fas.org/nuke/control/osce/text/VIENN89E.htm >.
fn6767) Organization for Security and Co-operation in Europe, Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 1990,pp. 18–20, available at< www.osce.org/odihr/elections/14304 >.
fn6868) Anaya, supra note 42, p. 66.