“… it is a moral call on mankind to protect its cultural heritage – a moral call that involves our deepest understanding of aesthetics, and our deepest commitment to an ethic that may call upon us to sacrifice wealth, health, and sometime life itself, in order to preserve art …”
The purpose of this paper is not to propose a philosophical view of the aesthetic and ethical aspects of the protection of cultural heritage, but rather to follow the development of customary international law and to explore the legal doctrines and codification of rules and principles created from our civilization to protect our cultural heritage (particularly cultural property) and the issues that evolved in the implementation of these norms and principles. Nevertheless, the goals of the countries which supported the regulation of this matter throughout the history were driven by moral, ethical and aesthetic values and ideas of humanity and preservation of the world’s cultural identity.
II. Legal Review – History and Development
Throughout history, mankind’s most basic human nature has restricted the conduct of waging war. The earliest writings of ancient civilizations demonstrate attempts to limit the effect and consequences of war and find a more humane way to protect innocents and wounded.
Following World War II and its devastating destructions and damages to the human race and to cultural heritage, the international community decided to make steps in the preparation of an international convention, which will prevent future devastations of irreplaceable historical and artistic treasures. Upon the initiative of the Netherlands, the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a Resolution 6.42, which after several conferences, sessions and discussions between 1949 and 1954 led to the adoption of the Convention of Cultural Property in the Event of Armed Conflict, the Regulations for its Execution and its Protocol and three resolutions, on May 14th 1954 at the Conference held in Hague.
The Convention is the first international multilateral treaty with a universal scope entirely focused on the protection of cultural heritage in the event of armed conflict. The convention shields movable and immovable property, including architectural, artistic or historical monuments, archeological sites, works of art, manuscripts, books and other objects of artistic, historical or archeological interests as well as scientific collections of all types.
The definition of cultural property varies depending on the applicable international instrument. Article 1 of the Convention and its two Protocols define cultural property as follows, irrespective of origin or ownership:
· Movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art, history, whether religious or secular; archeological sites, groups of building which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archeological interest; as a as scientific collections and important collections of books or archives or of reproductions of the property defined above;
· Buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);
· Centers containing a large amount of cultural property as defined in sub-paragraph (a) and (b), to be known as “centers containing monuments”.
Such protection is divided in two categories: so-called ‘general protection’ extends to all movables and immovables satisfying the definition of cultural property, while ‘special protection’ entails a supplementary and stricter standard of respect concerning a narrower range of property.
There are also rules for the transportation of cultural property during an armed conflict and for the treatment of personnel engaged in its protection. To facilitate its enforcement the Convention and its Regulations established an international regime of control.
The First Protocol of 1954 was adopted with the Convention and was specific to movable cultural property and the issues of exportation and importation of cultural property from occupied territory and its restitution. The Protocol prohibits the export of such property from the occupied territories and requires its return to the territory of the country from which the property was exported. The Protocol excludes the submission of this ‘specific’ property to the retention of cultural property as war reparations.
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Unfortunately, by the 1980s, the 1954 Hague Convention was suffering from ‘benign neglect’.
The outburst of the Iran – Iraq War, brought considerable destruction in the cultural heritage of Iran and the Convention showed its inadequacies. The Director-General of UNESCO convened a meeting of legal experts to discuss the issue. In 1987, Iran demanded that the agenda of the twenty-four session of the General Conference should include the question of “The role played by UNESCO in ensuring the application and implementation of the provisions of the 1954 Hague Convention for the Protection of Cultural Property, the protection of educational establishment and historic monuments, in the event of armed conflict.”
The numerous conflicts, that took place at the end of 1980s and the beginning of the 1990s, proved to be often “internal” and of “ethnical” nature, thus not within the scope of the international law applicable to classic “inter-state” warfare. The character of these armed struggles was also particularly destructive to any cultural heritage that represented the emanation of the enemy’s cultural identity. By destroying their past they were destroying their future. This exemplified by the destruction during the war in the ex Yugoslavia, where cultural property that was not a military target was deliberately attacked by the combatants of different ethnic background, “seeking to destroy the traces or symbols of the ethnic enemy’s” culture. Significant destructions were observed during the bombardment of the old town of Dubrovnik in Croatia and the destruction of the Mostar Bridge in Bosnia and Herzegovina.
In 1991, a process of review of the Convention of 1954 began, and was finalized by the negotiation and adoption in The Hague in March 1999 of the Second Protocol to the Convention.
The Protocol emphasized on provisions that strengthened the rules adopted for the protection and the respect for cultural property and the rules for the conduct (rights and obligations) of the parties during hostilities. The Protocol creates a new category of protected property – “enhanced protection” – for these objects which are of great importance for humanity and which are not used for military purposes. The Protocol directly defines the sanctions due in the event of serious violations against the Convention and its Protocols, and the circumstances under which individual criminal responsibility applies.
A Committee for the Protection of Cultural Property in the Event of Armed Conflict was established, consisting of twelve States Parties, with the responsibility to promote the implementation of the Second Protocol and to guarantee the enforcement of its provisions. The Protocol entered into force on 9th of March 2004 and as of 2008, had fifty-one States Parties.
As an international treaty, the Convention and the two Protocols are legally binding legal acts for their respective States Parties only.
UNESCO Resolution 3.5 on the Convention for the Protection of Cultural Property in the Event of Armed Conflict, reaffirmed that “the fundamental principles of protecting and preserving cultural property in the event of armed conflict could be considered part of international customary law.” Thus, some or all of the provisions of the Convention and its Protocols that have been followed and practiced by third-party States, acquired a value of international customs and are binding for these States as well. This is applicable mostly to the principles ensured by Articles 3 and 4 of the Convention regarding the safeguarding of and respect for the cultural property.
The Convention and its two Protocols prescribe protective measures during peacetime and during an armed conflict. According to Article 3 of the Convention the States Parties should prepare in peacetime for the safeguarding of cultural property situated within their own territories. Further more Article 5 of the Second Protocol prescribes for: the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such objects. The Protocol requires that the States Parties designate the authorities that will be responsible for the safety of these objects. These preemptive methods prove to be very useful during natural disasters as well.
The Convention requires the placement of refuges, monumental centers and other immovables cultural property under “special” protection, after their registration in the “International Register of Cultural Property under Special Protection” (Chapter II of the Convention and Articles 11 to 14 of the Regulations for its Execution and the regime of “enhanced” property is provided in Chapter III of the Second Protocol).
The States Parties have to plan and establish institutional coordination and co-operation, involving the armed forces, specialists and personnel from the government and experts from non-governmental organizations, whose purpose will be to secure respect for cultural property protection. The countries are encouraged to promote the principles of the Convention and its Protocols and educate their military and the civil society in their activities to preserve cultural heritage.
The movable cultural property should be removed from areas close to military objectives and military objectives should not be located close to immovable cultural property. This protection should be marked with the special distinctive emblem for identification (Articles 6, 16 and 17 of the Convention and Article 20 of the Regulations for its execution). A further implementation of the Convention and its Protocols is required with the enactment of national criminal and disciplinary punishments for the violation of these norms by a citizen or non-citizen, military or civilian who ordered or committed such crimes (Article 28 of the Convention).
The respect for cultural property during an armed conflict has to be enforced by the States Parties on their own territory, as well within the territory of other High Contracting Parties, and the parties in the conflict should refrain at all time from any act of hostility directed against such property, during an attack or as a foreseen effect of the attack (Articles 6, 7, 8 and 19 of the Convention). The Parties are obliged to refrain from any act directed by way of reprisals against cultural property and have to prevent and stop acts of vandalism, theft, pillage or misappropriation of cultural objects and take the necessary measures to prosecute and penalize the infringement of the Convention.
During the conflict the Parties have to protect the cultural property in occupied territories and preserve it in particular from attempts of illegal export, removal or transfer. After the end of hostilities, the cultural property that was removed or exported from the occupied territories has to be returned to the competent authorities. The retention of such property is totally prohibited as war reparations (Article I (3) of the 1954 Protocol).
In response to the increased number of cases of international violation of the Convention of Hague and the destruction of cultural heritage, during its 32nd session UNESCO adopted with unanimity The Declaration Concerning the International Destruction of Cultural Heritage of 2003. The Declaration demonstrates the international community condemnation of the destruction of the Buddhas of Bamiyan (Afghanistan) in March 2001.
The Declaration is a non-legally binding document, thus does not create rights and obligations for the States, nevertheless its moral power carries an important message, representing the commitment of the majority of the world, to fight intentional destruction of cultural property so that this heritage will go to the next generations; to undertake measures of legislative, administrative, technical, educational and other nature, and endorse the implementation of the international agreements for the protection of cultural heritage.
States are entitled to observe the principles and objectives of international agreements and recommendations regarding the protection of cultural property, during peace time. During armed conflicts and occupation, they are required to abide by the international customary law and the principles and objectives of international agreements, and UNESCO recommendations for the protection of cultural heritage during hostilities. The heart of the Declaration reflects in the provisions concerning the State’s responsibility for the intentional destruction of cultural heritage, in case the State intentionally destroys it or intentionally fails to act to prevent such destruction. The Declaration introduce the individual criminal responsibility, and emphasize the need to establish State’s jurisdiction and punishment for persons who have committed or given the order to commit acts of intentional destruction. Here the question arises pertaining to the situation in the so called “failed states” where lack of order or established security and functioning governmental authorities are not in place to provide the endorsement of these rules.
Other serious problems of the implementation of these international regulations for cultural property protection developed with the recent defense mechanisms that certain countries adopted, using justifications like ‘collateral damages’ or ‘military necessity’ to support acts of destruction and aggression against cultural property.
The Declaration also accentuates on the development of international cooperation for the protection of cultural heritage from intentional destruction through awareness, information exchange between the States, consultation, use of legal and administrative expert networks and engagement of the general public. The Declaration reaffirms the respect to international humanitarian law and to human rights law and calls the Parties to ensure its dissemination.
III. The Contribution of International Humanitarian Law. The Doctrine of Military Necessity
With the process of decolonization of several states during the 60’s the need to establish a new international order and strengthening the provisions of international humanitarian law became part of the agenda of the international community. The Geneva Conventions of 12 August 1949 were not adequate to the new forms of armed conflict, therefore, during the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts (Geneva, 1974-1977), hosted by the Swiss government, were adopted the two Additional Protocols to the 1949 Geneva Conventions (June 8, 1977).
The two Protocols contained two provisions dedicated to the “protection of cultural property and of places of worship.”
Protocol I, relating to the Protection of Victims of International Armed Conflict, stresses in Article 54, that: “Without the prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples: (b) to use such objects in support of the military efforts; (c) to make such objects the objects of reprisals.”
Protocol II, relating to the Protection of Victims of Non-International Armed Conflicts in the same ways prohibits the commitment of “any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort”.
Protocol I considers as a grave breach to make “the clearly-recognizable historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, sub-paragraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives”, when the act is done intentionally, in violation of the Geneva Conventions and of its Protocol I, Article 85 (4) (d).
The Doctrine of Military Necessity
With the revision of The Hague Convention of 1954 and the adoption of its Protocol of 1999, a major area of concern had been in regard to the provision of the military necessity justifications contained in the Convention. According to some scholars, the 1999 Protocol has failed to tackle the question of military necessity and created even more confusion.
The 1993 Boylan Report, which proposed that the Hague Convention of 1954 should be reviewed, strongly recommended that the States Parties should waive the military necessity exception altogether.
The Second Protocol to the Hague Convention clarifies the peace time duties of the States Parties with regard to the dissemination of information about the Convention and the incorporation of its provision to the professional military education and operations. It enhances the regime of protection of cultural property to objects of “greatest importance to humanity”, but addresses Boylan recommendation regarding the military necessity in making numerous amendments to the provisions in an attempt to give further body to the concept itself, instead of eliminating the latter.
An attempt to balance military interest with the postulate to protect cultural property is reflected in the Second Protocol, and mandates that the States Parties should “to the maximum extent feasible … remove movable cultural property from the vicinity of military objectives or provide for adequate in situ protection”, and should avoid to locate military objects near cultural property” (Article 8, Second Protocol). The opposing Party should also “do everything feasible” to verify that the targets are not cultural property protected under the Convention, and “shall take precautions in the choice of means and methods of attack with a view to avoiding … or minimizing incidental damage” (Article 7(a), (b), Second Protocol). Further, in case the attack could cause such damages, it should be not undertaken if the damage could be considered “excessive in relation to the concrete and direct military advantage anticipated” (Article 7(d), Second Protocol). These provisions seem to reduce military necessity to military advantage, which obviously reflects the application of the principle of proportionality so as balance humanitarian considerations against military advantage, rather than necessity.
As observed by Forrest, this approach was carried out even more pronouncedly in Article 6(a) of the Protocol related to the military necessity exception itself. It describes the circumstances under which States Parties can invoke the exception of military necessity in order to act in a hostile manner against protected cultural property. This is allowed when “cultural property has, by its function, been made into a military objective” and “there is no feasible alternative available to obtain a similar military advantage” (Article 6(a), Second Protocol). This was argued to be a repetitive provision to the existing waiver in Article 4(2) of the Hague Convention which allows the undertaking acts of hostility on the basis of an imperative military necessity.
The Protocol talks about the exception, in the situation when the function of the property “has been made a military objective”, thus we should find the definition of military objective, and this is “an object which by its nature, location, purpose, or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definitive military advantage” (Article 1(f), Second Protocol). The cultural property becomes part to the military contribution in the ongoing hostilities, merely by its location, nature, purpose or use and its destruction may bring military advantage that cannot be achieved by other alternatives. It would be more reasonable if the use of the term “function” was limited to the word “use” and not extended to the location, nature, or purpose, therefore creating a much wider door for interpretation of the circumstances required for the use of military necessity.
Article 6(d) allows an attack against cultural property even without advance warning, as the requirement is “as circumstances permit” and because military advantage is always a priority and advance warning will obstruct this advantage, it is very likely that such warning will not occur as it is not a prerequisite.
Article 6 introduces two criteria which limit the use of military necessity exception. First, the decision to invoke the exception “shall only be taken by an officer commanding a force equivalent of a battalion in size or larger, or a force smaller in size where circumstances do not permit otherwise.”
It has been argued that the effort to define military necessity as a concept in Article 6 has effectively eliminated it from consideration because it will “virtually never be invoked to justify an attack on cultural property … as there are almost always alternatives to circumvent the property”. Circumventing would be applicable only if such an alternative is available that it will be possible to “obtain a similar military advantage” (Article 6(a) (ii), Second Protocol). This, as Forrest explains, can dramatically reduce the number of alternatives a military commander will have to consider before launching the attack against the cultural property in question.
The Second Protocol presents the concept of “enhanced” protection and while the term “military necessity” does not appear within the articles dealing with enhanced protection, it is trying to stipulate the circumstances when the cultural property under the enhanced regime can be attacked rather than leaving the decision to a State Party under the cause of military necessity, and by suspending the enhanced protection to allow the invocation of military necessity as waiver to the ordinary obligations. The Second Protocol constrains the scope of such removal of protection by making analogy to other belligerent state’s breach of its duties under the Protocol, which the waiver for property under the regime of special protection did not necessarily require.
In order to benefit from the regime of enhanced protection, the cultural property should not only be of great cultural importance to humanity, but also should not be “used for military purposes or to shield military sites” (Article 10, Second Protocol).
In addition, the state that requires enhanced protection has to make a declaration “confirming that it will not be used” (Article 10(c), Second Protocol). Once the property is entered to the Register of property under enhanced protection “[t]he Parties to a conflict shall ensure the immunity of such property by refraining from making it object of attack or from any use of the property or its immediate surroundings in support of military actions” (Article 12, Second Protocol).
Article 14 become even more confusing, providing that should the cultural property no longer meet the criteria of Article 10(c) the enhanced protection status must be suspended or cancelled. Article 14(2) then talks about the case of serious violation of the duty under Article 12, when the cultural property is used in support of “military action”. In this case the enhanced protection will be suspended or cancelled as well. A difficulty arises in reconciling the terms “for military purposes” and “in support of military action”, terms that are not defined in the Protocol. In the former case a mere breach will lead to cancellation or suspension while in the latter case only a serious violation will have the same effect. Scholars contend that there is probably no significant difference between the terminologies employed in the two articles. If this is the case, there must be no difference between “a serious violation” and the inability of a state to meet the requirements for enhanced protection because of its use of the cultural property “for military purposes.” This breach will be regarded as a serious breach of States Parties’ obligations and the consequence of cancellation or suspension will be that the cultural property will lose its enhanced protection, and become subject to the ordinary rules to respect cultural property and the easy imaginable possibility of subsequent waiving the protection on the basis of military necessity.
The same logic follows behind Article 13, entitled “loss of enhanced protection”, and its primarily concerns are the raising of the military necessity exception in relation to cultural property that had been protected under the original regime. It reiterates that cultural property will loose its status if it is being used for a “military purpose” or in support of “military action.” It includes, though, another ground for the loss of enhanced protection: if, and for as long as, the property has, by its use, become a military objective (Article 13(1) (b), Second Protocol). The introduction of “military objective” causes further confusion. While a military objective is defined, the terms “military action” and “military purpose” are not. This does not help to reconcile these three terms. To regard these as synonyms is rejected in Article 13(2) since this article is concerned with the provisions when such cultural property may be attacked if it has become a military objective. The article does not apply in the case of suspension or cancellation because of the property’s use for “military purposes” or in support of “military action”, which will subject the property to the exception on grounds of military necessity as provided for in Article 6.
Article 13 creates different criteria limiting the actions States Parties can take against cultural property being used as a military objective, but does not introduce the requirement of an imperative military necessity, nor the case that there must be any military advantage to justify the attack. The only validation needed is to conclude that the cultural property is used as military objective. This shows that the enhanced protection acts to punish a State Party that has used such important cultural property to achieve a military purpose.
Professor Toman explains that the inclusion of military necessity exception is essential in order to ensure that military operations would not be curtailed to the point that they will become merely impossible. This statement is very true in case the Parties involved in a conflict would be able to understand the importance of these cultural heritage to the world’s future and the meaning and philosophy behind the legal provisions embedded in international agreements and customs. Unfortunately, the result in the last and still enduring conflicts, such as the ones in Iraq and Afghanistan, showed that the cultural heritage of the world is in considerable danger and the opposing belligerents invoke military necessity as an excuse to acquire simply military advantage, without any further considerations or respect to the cultural legacy that has been destroyed, without any remorse that out of these acts of aggression the future generation will easily forget the past and the values and accomplishments of their ancestors.
As General Dwight Eisenhower has said “Nothing can stand against the argument of military necessity.”
VI. Criminalizing the Destruction of Cultural Property – The Rome Statute of the International Criminal Court (ICC)
The seizure of, destruction, or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science, are also sanctioned by the Statute of the International Criminal Tribunal for Former Yugoslavia (Article 3 d). The Court’s cases concerning violation against cultural property constitute stare decisis. Some of them are under review at the Tribunal – Blaskic, Kordic, Naletilic and Jokic.
The intentional destruction of monuments and cultural property (lato sensu) is now sanctioned by Article 8 (2) (e) (ix), applicable to international conflicts and Article 8 (2) (e) (iv) of the Rome Statute of the ICC, applicable to non-international conflicts.
While the establishment and operation of international tribunals advance the rule of law, it is considered that the enforcement of international criminal law cannot depend solely on international tribunals. Consequently, the drafters of the Rome Statute acknowledged the important role of domestic courts in that field by determining that the ICC “shall be complementary to national criminal jurisdictions.”
In this respect the question of the jurisdiction of national courts is likely to arise.
With the exception of the 1999 Protocol, the international conventions that govern the field of protection of cultural property do not cover issues of jurisdiction. Thus, it appears that the criminal jurisdictional paradigm; territorial principle, the active and passive principles, the sovereignty (protective interest jurisdiction) principle and the universal jurisdiction principle, may be applicable in cases of destruction of cultural property. Therefore, a person who ordered the destruction of cultural property might face criminal charges not only in the country where the crime was performed (territorial principle), but also in the country of his or her nationality (based on the active nationality principle). Similarly the sovereignty principle can be invoked if a state from which a plane has illegally been removed would be able to exercise jurisdiction over the individual offender.
The passive personality principle provides for jurisdiction over aliens for acts abroad which are harmful to nationals of the forum. An interesting scenario would be when the destroyed property is privately owned by a forum’s national, directly related to the exercising of his/her rights, like the destruction of a property of religious significance. Although the principal remedy of the state may be found in a protest on an international state-to-state level, criminal charges based on passive personality jurisdiction are also conceivable. That is the reason why the ICC Rules of Procedure and Evidence define the term “victim” broadly, including not only national citizens, but also organizations and institutions that have sustained direct harm to certain types of their property (ex. historic monuments).
Universal jurisdiction allows every state to bring criminal charges against individuals “even in the absence of territorial, national or other accepted contacts with the offender of the victim” and is particularly appropriate when the destruction of cultural property in armed conflict is considered to be a violation of customary law.
Invoking the universal jurisdiction standard is generally moderate, although States Parties to the 1999 Protocol are obliged to apply it and to prosecute alleged offenders who are present on their territory (Article 16(c), 1999 Protocol).
UNESCO’s 2003 Declaration offers a similar approach, even if it has no legal binding force.
Countries who have ratified the Rome Statute and implemented it into their national legal systems, could apply universal jurisdiction based on the enactment of the new crimes in their national criminal system. Such example is Bulgaria and its Criminal Code that has adopted a new Title 14 – Crimes against Humanity, War Crimes, Genocide and Apartheid, which establishes jurisdiction in all cases where a crime was committed outside of the territory of Bulgaria and after the offence is alleged the perpetrator has been arrested on the territory of Bulgaria.
In situations where invoking the universal principle jurisdiction is not compulsory, two factors will determine its application. The first is the attitude of the international community in general and the forum state in particular towards that principle. The Second is the preferred characterization used in the debate over the legal definition and status of cultural property; would it be regarded as an asset of a given state or as a world heritage belonging to the international community. If the latter view prevails and the property destroyed is considered as belonging to all humanity, universal jurisdiction is more likely to apply.
The international legal regime regarding the destruction of cultural property does not appear to have a definition of the term cultural property, even in the established international tribunals. The nomenclature of legal acts focuses on the protection of tangible immovable property, while the intangible property is largely disregarded.
Different levels of protection, as we examined earlier, has been accorded to the same property in times of peace and in times of hostilities and the doctrine of military necessity has been invoked too liberally in the recent conflicts, to the extent of becoming the rule rather than the exception. Absence of specific crime definitions seems also to be a problem for the enforcement of the international regime for protection of cultural property.
The Rome Statute, which claims to represent the most comprehensive approach to individual responsibility under international law, should serve as a normative platform for the inclusion of new crimes, despite its heavy mechanisms for amendments.
It has to be emphasized that while the 1999 Protocol includes a list of offences, its enforcement implements and international status differ from that of the Rome Statute. It was proposed that instead of amending the existing provisions in the Rome Statute, it would be more practical and theoretically accurate to add the crimes in separate part in order to accentuate their truly independent nature. The present inconsistency on the subject and weakness of Article 8(2)(b)(ix) of the Rome Statute, can be notice in the fact that the Article which criminalizes attacks against certain objects (building dedicated to art and historic monuments), also protects immovable property such as schools and hospitals that have not yet acquired the status of cultural property.
It was proposed that the existence of general provisions in the Statute will provide for that a great number of perpetrators could be potentially held accountable. It is proposed that the doctrine of superior responsibility, incorporated already in the ICTR Statute in Article 6(3) and the ICTY Statute 7(3) and developed in the tribunal jurisprudence, can be extended to Article 28 of the Statute that will allow the prosecution of leaders who did not prevent destruction of cultural property or did not punish the perpetrators under their command for their acts of destruction.
The introduction of new crimes to the Rome Statute, as suggested, would demand the elaboration of a working definition of “cultural property”. The task would be quite difficult considering that the existing definitions differ from one legal source to another. We agree that it should imply the various forms of the existing forms of cultural property as well potential forms and include intangible cultural property, within its variables as oral traditions, performing arts, and social rituals.
These innate aspects of cultural property were not recognized till 2003. And as the international community became slowly aware of their dramatic extinction and linked them to the innumerous violations committed during recent conflicts, the harmonization of the different legal regimes on cultural property grew to be a prominent objective advocated for by UNESCO’s leadership.
In defining cultural property as such Gottlieb argued that this characterization should not be based on the “property’s purpose but rather on its cultural value.”
“Cultural and spiritual heritage covers objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people.” Art transcends not only geographical but also time boundaries, cultural differences. Through its uniqueness, beauty and symbolic expressions, it relates humans to this sense of cosmopolitism that has a philosophical and existential meaning.
Back to the legal aspects of our discussion, an important element in the enforcement process is the legal regime of special and enhanced protection given to property of “great importance” (concept applied in the 1954 Convention and the 1999 Protocol) accommodated with the constraints of “military necessity”, which in many cases allows the States Parties to use the “ends-justify-the-means” approach in their personal behavior, political or military decision-making and impair further prosecution or impose any liability on the perpetrators for their unlawful acts.
Another predicament to address is whether the definition should empower individual states to designate cultural property or whether the cultural value test will be based on universal standards. According to Merryman there are two schools of thoughts – the nationalist (cultural nationalism) and the internationalist one (cultural internationalism). The cultural nationalism reflects the notion of state sovereignty which empowers the state to assign as cultural property the objects of its choice. This is argued to be the case in the 1970 Convention.
Cultural internationalism views cultural property as belonging to the heritage of the world, “independent of property rights or national jurisdiction.”
The “nationalists” approach is considered to be a very clear test carrying important characteristics for the purpose of criminal law. It is believed that this approach would be embraced by the majority of the states parties to the Rome Statute, since concerns evolved in respect to the changing concept of state sovereignty.
Nevertheless, some fears rise that leaving the decision-making process to states may threaten the protection of cultural property, in cases where states are not party to the Rome Statute, or are unwilling to cooperate and protect cultural heritage, or are even involved in its destruction, as was the case Bamiyan or Baghdad.
Many scholars are more inclined to the international approach following the recent events and international development, as well the numerous destructions of cultural property.
The Preamble of UNESCO’s 2003 Declaration looks back to the events: “Recalling the tragic destruction of the Buddhas of Bamiyan that affected the international community as a whole.”
The declaration describes the act of intentional destruction as “unjustifiable offence to the principles of humanity and dictates of public conscience.” And most of all imposes responsibility for both states (failing to prevent, stop, punish intentional destruction) and individuals who were involved in intentional destruction of “cultural heritage of great importance for humanity, whether or not it is inscribed on a list maintained by UNESCO or another international organization.”
The recent war and violence in Iraq and Afghanistan have resulted in disastrous consequences.
We have seen that public awareness and media coverage of destruction of cultural heritage, even if, as the case of the Iraq Museum, where the presented facts were not always correct, had a tremendous impact on the world and the consequent reactions – political pressure, efforts to stop the pillage and to recollect the losses.
As we discussed in this paper, the international and domestic legal regimes need to be built as carefully and precisely as possible to give maximum protection to cultural heritage, and our decision-makers must be committed to following and enforcing these postulates and legal norms. Unfortunately, changes in the international legal regimes happen always after the facts.
Incremental changes must occurred but with lasting, effective and significant impact. We have seen incremental changes in the adoption by the U.S. Congress of the Cultural Heritage Resource Crime Sentencing Guideline, which provides for effective punishment of those who damage or destroy cultural heritage resources. Another incremental change was observed in the new ratifications of the 1970 UNESCO Convention and implementation into domestic law. These changes according to some scholars are both permanent and universal – therefore, they apply to protect cultural property anywhere in the world, not just in Iraq or Afghanistan.
In the face of war and fighting, when human lives and suffering are at stake, when the devastation of the ongoing war, poverty and political instability are present, it may become extremely hard to understand why we should not destroy any of these non-organic monuments, if it helps us to save our own or our soldiers’ lives. Combatants and non-combatants may also consider the destruction of cultural property to be justifiable as long as it is harmful to the opponent or might bring about some kind of tactical advantage.
It is exactly at this very moment, when destroying the value of these non-living objects, these stones with human hearts, that we come to the point of losing our hearts, “… that the value of cultural goods enters the ethical realm and encounters a human moral orientation.”
Because of the sensitivity and irreplaceable character of cultural heritage, it is an indicator by which our actions can be ethically judged. When cultural heritage is sacrificed, it is likely that many other aspects of life that identify us as human beings are also being sacrificed. It is indeed our obligation to preserve cultural heritage as the universal inheritance of future generations.
“ … In the past, the looting and destruction of cultural property has been the signal of conquest and the death of empires. When the Mongols invaded Iraq in the thirteen century, the invaders created a bridge of paper across the Tigris by dumping millions of Islamic texts into the river. Seven hundred and fifty years later, the motives of the United States government in invading Iraq are very different. Indeed, in many ways, the United States hopes to reshape Iraqi identity around the very heritage that is now being destroyed, stolen and exported. To avoid becoming simply another “barbarian” invader, the United States must commit itself to the people of Iraq and their cultural heritage. …”