By Joseph Moses - Culture, Society & Security Desk

Introduction

The term “dehumanization”, although popular in the political lexicon, is notorious for often generating debate on its usage, rather than addressing the incidents and crimes it is supposed to aggregate and label. As it lacks a legal and fixed definition under international law, it means that a consensus can be drawn about attention to the subject only when sufficient political momentum is built up, or, in retrospect, when these activities lead to crimes labelled under international criminal law, such as war crimes, crimes against humanity, and/or genocide.

While this article will address the relatively abstract, intangible and subjective natures of this term, it will focus more on the challenges that the implementation of international law faces regarding the destruction of intangible cultural heritage (ICH). This destruction leads to the dehumanization of certain demographic groups, placing them under the risk of ethnic cleansing and, potentially, crimes addressed under international criminal law. ICH broadly consists of customs, beliefs, traditions, languages and cultural expressions. In the investigation and proceedings related to an ongoing or past genocide, destructing of ICH (and advocating for the latter)  can be covered by the clause of intent in the Convention on the Prevention and Punishment of Genocide. Dehumanization precedes Genocide, and this often involves a long process of de-legitimization, condemnation and destruction of the targeted social group’s ICH as part of their dehumanization.

International frameworks and risk factors

The United Nations, in 2014, launched its Framework of Analysis for Atrocity Crimes which is a tool outlining 14 risk factors to observe and analyze the risk of atrocity crimes and their preceding symptoms. While the Framework specifies that in the initial stages it is not always possible to  identify the trajectory of trends into crimes, it divides risk factors into “specific risk factors” which outline precursors to specific crimes using their legal definitions. Under the subcategories of Genocide (Risk Factor 10) and War Crimes (Risk Factor 13), it outlines in detail the application of dehumanisation trends against groups of people.

Sub-factors 10.3, 10.5 and 10.7 specify targeted systemic discriminatory practices against the lives and freedoms of a protected group, even if not reaching the level of elimination. They address the usage of methods intended to dehumanize, humiliate, or coerce and fragment the group with an intention to change the group’s identity, and declaring euphoria at the control of protected groups.

In the context of an armed conflict, sub-factors 13.4, 13.5, and 13.6 specify the promotion of ethnicity or religion as a determinant of national allegiance, the dehumanization of particular groups by exhibiting disrespect for their traditions, values, objects and institutions, and the adoption of measures that curtail the rights of protected groups who are perceived to be aligned to a hostile group.

Legal gaps and challenges in protecting intangible Cultural Heritage

It must be noted that to provide cover for discriminatory policies of exerting control over a group, states and hostile actors may also indefinitely extend the status of armed occupation or armed conflict by declaring security measures. The tool acknowledges that the intention behind these actions can often be calculated with certainty only in retrospect and that even those indicators may not be explicit. It highlights that even if uncertain, the intent to annihilate could always exist. It must be noted that while genocide and ethnic cleansing are not spontaneous acts, case law has associated intent with State or organizational policy.

The destruction and de-legitimization of ICH can take place during either peace time, periods of curfew, or active conflicts. Due to this state of definitional limbo, policies emphasizing security reasons for freedom restrictions pose a significant threat against the identity of certain groups of people, especially when they affect practices like gatherings. Re-shaping educational policy after specific narratives under the guise of de-radicalization, beyond directly targeting tangible cultural heritage as the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, describes that there is a deep-seated interdependence between ICH and tangible cultural and natural heritage, and that ICH is something that is constantly recreated and transmitted from generation to generation. Thus, beyond dehumanization, actions against ICH aim at also de-legitimizing ICH practices by breaking its continuity, hoping to expel or replace and reform the groups of people whose identity is tied to these practices.

Safeguarding cultural identity

It has been pointed out that the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is not sufficient in addressing protections for ICH. Dr. Chainoglou, associate professor at the University of Macedonia, writes that the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, together with the norms of the 1949 Geneva Conventions and other international legal regimes, provides legal protection for intangible cultural heritage  in all phases in the event of an armed conflict. While there are legal protections during times of armed conflict, the momentum and migratory flows from conflict zones cause complications to the actual protective capability and resources at the disposal of international regimes. This  places a higher degree of onus on refugee diasporas or severely affected groups to rebuild and revive ICH (although ICH can still be continued by transforming its identity with derivations from the respective conflict itself), rather than on the aggressor upholding these protections.

While the dehumanization also contributes to deliberately inflicting conditions of life calculated to bring about the destruction of a group under Article II of the Genocide Convention of 1948, as precursors are often social and political and can be intentional or unintentional in their nature and conception, determining intent to commit genocide can be the most ambiguous at this stage. This further complicates the interpretation and enforcement of international law if the aggressor (State) uses the turbulence caused by declared security and reform policies, i.e., under domestically legal and bureaucratic procedures that adversely affect a group’s ICH, especially when intended to do so. The 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage provides a broad interpretation of “cultural heritage” but still places the onus of the protection of cultural heritage on the State against their intentional destruction. The 2003 Declaration also consolidates peacetime protections for [intangible] cultural heritage and the responsibilities of States across the entirety of international cultural heritage law applicable during peacetime. While Article VI of the Declaration covers State responsibility in the event of destruction of cultural heritage regardless of whether it is inscribed on a UNESCO or another international organization’s list, under international law, there is debate about the lack of explicitly lower thresholds of what constitutes heritage, especially when the affected and disenfranchised groups tend to have a more holistic approach to what is considered cultural heritage.

While it is no secret that the enforcement of international law is entirely subjective based on the enforcing State’s interest, the protections afforded to ICH face significant challenges during peacetime, especially if its targeting is constantly upheld through perceived innocuous policies citing higher priority agendas such as reform and security campaigns, regardless of intent – unless the intention is explicitly stated. While a trend can be drawn retrospectively, the high threshold for what constitutes ICH and what can and must be protected by States becomes an ambiguity which can be adjusted conveniently, especially when the affected groups have a lower threshold and a higher degree of holistic approach to what they consider their ICH and its destruction. This gradual and subtle wedging and fragmenting of customs and practices (while having multiple effects on the affected group’s identity) allows political precedent to be set to trigger further cascading motions of dehumanization and disassociation of identity from the group.