Genocide and Restitution - European Journal of International Law

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22 EJIL 22 (2011), 17–47 None of the reported decisions of proceedings brought pursuant to this provision dealt specifically with cultural property. 21 Nor was a similar provision inserted in the subsequent Treaty of Lausanne. Nevertheless, the basic principles contained in the Treaty of Sèvres became an important precedent for Allied governments after World War II when they addressed the restitution of cultural property removed from groups persecuted by the Axis forces. B After World War II 1 Crimes against Humanity and Genocide: The UNWCC and IMT During World War II, the Allied Powers warned that they would hold persons responsible for crimes perpetrated in territories controlled by Axis forces. 22 The UN War Crimes Commission (UNWCC), established to facilitate the investigation and prosecution of these crimes, was also mandated to influence the development of ‘the protection of human rights of populations against violations of their own governments’. 23 It did not confine itself to the violation of the laws and customs of war committed against Allied combatants or occupied civilians. Instead, it also investigated acts perpetrated against civilians who were stateless or Axis citizens on Axis territory and, over time, broadened its work to examine crimes committed against peoples because of their ‘race, nationality, religious or political belief . . . irrespective of where they were committed’. 24 The UNWCC’s Committee III (Legal) maintained that it was not restricted to the 1919 List in its endeavours to include persecution of minorities in the Commission’s brief. However, it did adopt it as a starting point. Committee III extrapolated the notion of ‘denationalization’, which it eventually renamed ‘genocide’. 25 Like the 1919 Commission, the UNWCC looked to international humanitarian law to defined denationalization and its criminalization in international law. 26 Unlike the 1919 Commission, it did not rely on the Martens clause in isolation, but as an aid in its purposive interpretation of the Hague Regulations. 27 It found that the acts of Axis forces fell under the 21 B. Hollander, The International Law of Art for Lawyers Collectors and Artists (1959), at 32–34. 22 Including the St James Declaration, 13 Jan. 1942, and Moscow Declaration, 30 Oct. 1943, in Punishment for War Crimes: The Inter-Allied Declaration Signed at St James Palace, London, on 13 Jan. 1942, and Related Documents (undated); and Declaration on Security, 9 Dep’t St. Bull. 308 (1943), and 38 AJIL (1944) 5. 23 UN Archives, Predecessor Archives Group, UN War Crimes Commission 1943–1949, New York, UN Doc.PAG-3/Rev.1 (1987), at para. ii. 24 Reports on Special Classes of Axis War Crimes, Note by the Secretary-General on the History of the Question, Origin of the Idea, C.72, 29 Jan. 1945, at 4–5, 6/34/PAG-3/1.1.0, UN War Crimes Commission, Predecessor Archives Group, UN Archives, New York (UNWCC). 25 See ‘Criminality of Attempts to Denationalise the Inhabitants of Occupied Territory’, Report presented by Committee III, C.149, 4 Oct. 1945, 6/34/PAG-3/1.1.0, at para. II, UNWCC. 26 Schwelb, ‘Crimes against Humanity’, 23 British Yrbk Int’l L (1946) 178, at 181. 27 Ećer, ‘Scope of the Retributive Action of the United Nations according to their Official Declarations (The Problem of “War Crimes” in connection with the Second World War)’, III/4, 27 Apr. 1944, 9/36/PAG- 3/1.1.3, UNWCC, at 16. Downloaded from http://ejil.oxfordjournals.org/ by guest on January 18, 2014
Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity 23 existing heading of war crimes, including pillage and confiscation of property, which were fundamental components of denationalization. 28 For example, Committee III argued that the ‘rationale’ of Article 56 in 1907 Hague IV for the protection of religious, artistic, and scientific institutions and objects extended to the spiritual values and intellectual life related to them. 29 UNWCC’s definition of denationalization was heavily influenced by the parameters of the inter-war minority provisions. Committee III argued that denationalization covered those policies aimed at the destruction of the collective identity of the targeted group and the imposition of the perpetrators’ identity through assimilatory policies. 30 Acts defined as denationalization included the deprivation of cultural and social rights like the closure of existing schools and universities and their replacement by those of the perpetrator, the removal of children and their education in the perpetrator’s language and religion, banning the use of the national language in all public places and in printed material and books, removal of national symbols and names, both personal and geographically, systematic dissolution of regional differences and the creation of artificial minorities, extermination of the intellectual class and its removal to unskilled labour, and interference in religious services and customs. 31 By late 1945, the UNWCC began debating the replacement of ‘denationalization’ with a term recently coined by Raphaël Lemkin: ‘genocide’. 32 There were significant similarities between Lemkin’s understanding of ‘genocide’ and ‘denationalization’, as defined by Committee III. 33 In 1933, Lemkin had promoted the legal recognition of two new international crimes. These crimes were: barbarity, which covered the ‘oppressive and destructive actions directed against individuals as members of a national, religious or racial group’; and the crime of vandalism, which dealt with the ‘malicious destruction of works of art and culture because they represent the specific creations of the genius of such groups’. 34 His latter conceptualization of genocide fused these two crimes into one. Lemkin argued that genocide aimed to destroy the physical and cultural elements of targeted groups. For this reason, it was more than simply mass murder because it resulted in ‘the specific losses of civilization in the form of the cultural contributions 28 C. 149, supra note 25, at para. 6. 29 Schwelb, ‘Note on the Criminality of ‘Attempts to Denationalise the Inhabitants of Occupied Territory’, III/15, 10 Sept. 1945, at para. 11; and Draft Report of Committee III on the Criminality of ‘Attempts to Denationalise the Inhabitants of Occupied Territory’, III/17, 24 Sept. 1945, at paras 8 and 9, 9/36/PAG- 3/1.1.3, UNWCC. 30 C.149, supra note 25, at para. 6; and Preliminary Report of the Chairman of Committee III, C.148, 28 Sept. 1945, 6/34/PAG-3/1.1.0, at 3. 31 C.149, supra note 25, at para. 4. 32 9/45/PAG-3/1.0.2, Box 5, UNWCC. 33 R. Lemkin, Axis Rule in Occupied Europe. Laws of Occupation, Analysis of Government, Proposals for Redress (1944), at 79. 34 R. Lemkin, ‘Les actes constituant un danger general (interetatique) consideres comme delits de droit des gens, Rapport spécial présenté à la V-me Conférence pour l’Unification du Droit Pénal à Madrid (14-20.X.1933) (explications additionnelles)’, (Acts Constituting a General (Transnational) Danger considered as Crimes under the Law of Nations) (1933), P-154, Box 1/11 and Box 5/3, Raphael Lemkin Collection, American Jewish Historical Society, New York, at 4–6. Downloaded from http://ejil.oxfordjournals.org/ by guest on January 18, 2014
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