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1. The Return of Cultural Genocide?

Author:
Leora Bilsky and Rachel Klagsbrun
Publication Date:
04-2018
Content Type:
Journal Article
Abstract:
Cultural genocide, despite contemporary thinking, is not a new problem in need of normative solution, rather it is as old as the concept of genocide itself. The lens of law and history allows us to see that the original conceptualization of the crime of genocide – as presented by Raphael Lemkin – gave cultural genocide centre stage. As Nazi crime was a methodical attempt to destroy a group and as what makes up a group’s identity is its culture, for Lemkin, the essence of genocide was cultural. Yet the final text of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) does not prohibit cultural genocide as such, and it is limited to its physical and biological aspects. What led to this exclusion? In this article, we examine the various junctures of law, politics and history in which the concept was shaped: the original conceptualization by Lemkin; litigation in national and international criminal courts and the drafting process of the Genocide Convention. In the last part, we return to the mostly forgotten struggle for cultural restitution (books, archives and works of art) fought by Jewish organizations after the Holocaust as a countermeasure to cultural genocide. Read together, these various struggles uncover a robust understanding of cultural genocide, which was once repressed by international law and now returns to haunt us by the demands of groups for recognition and protection.
Topic:
Genocide, International Law, History, Culture, Courts, and Holocaust
Political Geography:
Europe and Germany

2. Transnational Holocaust Litigation

Author:
Leora Bilsky
Publication Date:
05-2012
Content Type:
Journal Article
Abstract:
International adjudication of the Holocaust has played a defining role in the development of international criminal law. Its legacy has recently been challenged by the Holocaust restitution actions brought before American courts in the 1990s. Settled for unprecedented amounts, the litigation has been sharply criticized by legal scholars and historians, who raise doubts as to the justice achieved for victims, and criticize the representation of the Holocaust in the actions. This article assesses the contribution of civil proceedings to conceptions of justice in international law. First, contrary to the critics, it argues that the civil class action provides an appropriate legal tool to deal with the liability of bureaucratic institutions for participation in gross human rights violations. Secondly, this article argues that the restitution actions altered the relationship between law and the history of the Holocaust as shaped under the paradigm of criminal law. Precisely because it was structured as a civil action and was settled, the litigation made a substantial contribution to historical research on the relationship between the state, corporations, and civil society in the carrying out of mass crimes. Thus, in opposition to the prevailing view that criminal law is the privileged form of law for dealing with atrocity, this article uncovers the valuable contribution of this new model of litigation to international law.
Political Geography:
America