Protection of Cultural Property and International Criminal Law

8. 『International criminal lawnprovides an instructive example of how focusing on rules specifically designednto protect cultural heritage is counterproductively short-sighted.』

Discuss.

International criminal law provides substantive crimes specificallynaddressing protection of cultural property, especially some war crimes, whichnproved useful for prosecuting destruction and plunder of tangible culturalnproperty in armed conflicts. However, the role that internationalncriminal law plays to protect cultural property (hereinafter 『CP』) is not justnthrough such rules, some other substantive rules (such as crimes againstnhumanity, genocide and some treaty crimes) and enforcement mechanisms, though donnot specifically address 『cultural property』, can serve as useful tools tonprotect CP.

War Crimes

Indeed, the rules specifically designed fornprotection of CP, especially some rubrics of war crimes relating to culturalnproperty, are not useless. Customary international law and Rome Statute allnembody such war crimes as directing attacks against cultural property, whethernin international or non-international armed conflict, unless such propertynconstitutes military objectives.[1]nIn some cases, persons responsible for destruction of cultural property were successfullynconvicted under the rubrics of such warncrimes against cultural property (eg. Strugar was found guilty under Art. 3(e)nof the ICTY Statute , Al-Mahdi was found guilty by the ICC under Art. 8(2)(e)(iv)nof the Statute).

In addition to war crimes under customaryninternational law, some treaties also contain rules specifically directed fornprotection of cultural property in armed conflicts, imposing state parties responsibilitiesnto establish criminal offences under domestic law, prosecute and sanction actsnof hostility against CP and misappropriation of CP in armed conflicts.[2]nHowever, the roles that these rules have actually played might be limited. Innvery few circumstances have these rules served as a basis for prosecution innnational and international proceedings (one exception would be UK』s 2017nCultural Property (Armed Conflict) Act).

Some other rubrics of war crimes, thoughnnot specifically mention the term 『cultural property』, could also be foundnuseful in prosecuting unlawful conducts against cultural property, such as somenrules applicable to all civilian objects,[3]nto undefended places and buildings[4]nto 『the enemy』s property』 or the like[5]nand to all property.[6]nSuccessful charges against accused responsible for destruction or seizure ofncultural property under the general war crime of 『destruction of property』, fornexample, have been brought in Nuremberg Tribunal and the ICTY (eg. Prosecutor v. Prlic). In nationalncourts, for example, the rules prohibiting attacks against undefended placesn(Art. 25 of 1907 HR) are used to prosecute bombardment of historic center in formernYugoslavia (Prosecutor v. MP et al.,nZadar District Court (Croatia))

In order to qualify as war crimes,ndestruction or plunder of cultural property, must have certain nexus to armednconflicts.(Kunarac, Stakic) It is for this reason, certain offences againstncultural property in armed conflict (eg. demolition of Buddhas of Bamiyan inn2001) could not constitute war crimes. Thus the role that war crimes play innprotection of cultural property is very limited, not to mention those rubricsnof war crimes specifically designed for cultural property, it is thereforennecessary to consider other crimes and enforcement mechanisms.

Crime against humanity

Crimes against humanity (hereinafter 『CAH』)nrefers to certain acts forming part of wide or systematic attack against a civiliannpopulation. Among the rubrics of crimes against humanity in customary internationalnlaw, none is specifically relating to cultural heritage, but destruction andnplunder of cultural property could be prosecuted under persecution as a crime againstnhumanity. (Art .5(h) of ICTY Statute, Art. 7(1)(h) of ICC Statute). CAH doesnnot require existence of or even nexus to an armed conflict, thus it couldnprovide additional protection to cultural property to above rules of warncrimes.

The discriminatory destruction of CP,ncommitted as part of widespread or systematic attacks against civiliannpopulation, has been confirmed to be a crime against humanity of persecution innNuremberg trial and a number of other ICTY jurisprudence (eg. Kordic andnCerkez, Plavsic, Dordevic). In other cases, the ICTY has confirmed that persecutionncould encompass plunder of public or private property (Blaskic, Krajisnik).nLike war crimes, although these rules only refer to general property, they arenpotentially useful for protection of cultural property. However, the role ofnpersecution provided in the ICTY jurisprudence in protection of CP is limitednas it must be based on political, racial and religious grounds. Despite thisnrestriction, a more broad approach to discriminatory grounds have been adoptednin Art. 7(1)(h) of the Rome Statute, adding other grounds that universallynconsidered impermissible under international law, which could potentially benused to offer more protection from destruction of cultural property. Fornexample, itnis suggested that the destruction of CP in Timbuktu also constitute crimes againstnhumanity under Rome Statute. (S. Martinez) Thus,nalthough crimes against humanity do not involve rules specially designed forncultural property, it nonetheless could be used to prosecute destruction ofncultural property with discriminatory grounds, which form part of a widespreadnor systematic attack.

Genocide

Genocide refers to certain acts committednwith intent to destroy in whole or in part one of certain groups. It isnsuggested by some that the term 『destruction』 in the Genocide convention shouldnbe interpreted to cover 『social destruction』 so as to cover cultural genocide (LarsnBerster), however, the notion of 『cultural genocide』 has been rejected manyntimes during drafting of the Genocide Convention, the commentary of the Draft Code of Crimes, and innjurisprudence. (Krstic and Application of Genocide Convention)nDespite so, the crime of genocide could be used indirectly to prevent protectionnof cultural property accompanied with typical genocide acts, as both ICTY in Krstic and ICJ in Application of Genocide Convention agreed that physical ornbiological destruction are always accompanied with attacks on cultural andnreligious property and symbols of the targeted group, the latter of which cannbe considered as evidence of an intent to physically destroy the group. Thusncrime of genocide also adds additional, though indirect, protection to culturalnproperty.

Other treaty crimes

There are a number of criminal lawntreaties, though not specifically addressing cultural property, couldncriminalize offences relevant to cultural property and provide usefulnenforcement mechanisms. For example, crimes defined by the 1997 TerrorismnBombing Convention include acts of terrorist bombing against a place of publicnuse, which, as defined by Art. 1(5) of the Convention, includes cultural,nhistorical, educational, religious sites. Another example is the United NationsnConvention against Transnational Organized Crime. One recital in its preamblenstates that the Convention should be useful for a range of things, includingnoffences against cultural heritage. In recent times, conference of the partiesnto the Convention adopted a resolution, in which it urges the parties to usenthe convention as a tool for international cooperation in combating criminalnoffences against cultural property (eg. the rules on coercive measures could benused for seizure and return of cultural property). Also, illicit trafficking ofnCP and other transnational organized crimes are usually accompanied withncorruption of officials, thus the UN Convention against Corruption, like thenTOC Convention, could also provide a useful enforcement mechanism for fightingnagainst illicit trafficking of CP.

To conclude, international criminal law onnwar crimes provide some rules specifically directed for protection of culturalnproperty, however, only focusing on such rules to protect CP is short-sighted, asnthey are limited to prosecute certain offences against CP which have nexus tonarmed conflicts. Some other war crimes and crimes against of humanity ofnpersecution could offer general protection of civilian property, which could alsoncover CP. In addition, destruction of CP would serve as evidence in proving dolus specialis of genocide, thus thenrules of genocide could provide in direct protection to CP. Finally, otherntreaty crimes (Terrorism Bombing Convention, Transitional Organized Crime Conventionnand UN Convention against Corruption) could also serve as useful tools bynproviding effective enforcement mechanism.

[1] eg. Art. 3(d) of ICTY Statute, i.e. seizure of, destruction or wilfulndamage done to institutions dedicated to religion, charity and education, thenarts and sciences, historic monuments and works of art and science; Art.n8(2)(b)(ix) and (e)(iv) for IAC and NIAC respectively

[2] Eg. Art. 28 of 1954 Hague Convention, Chap 4 of 1999 SecondnProtocol to Hague Convention, Art. 85(4)(d) of 1977 AP I.

[3] eg. war crime direct attacks against civilian objects in Art.n8(2)(b)(ii) and war crime of disproportionate damage to civilian objects in Art.n8(2)(b)(iv) of the ICC Statute

[4] eg. Art. 3(c) ICTY Statute

[5] eg. destruction or seizure ofnenemy』s property not justified with military necessity in Art. 8(2)(b)(xiii) ofnthe ICC Statute

[6] eg. plunder of public and private property innArt. 3(e) of ICTY Statute, wanton destruction of property, cities, towns .. notnjustified by military necessity in Art. 2(d) and Art. 3(b) of ICTY Statute,nsimilar crimes can be found in Art. 8(2)(a)(iv) and (xvi) and Art. 8(2)(e)(v)nand (xii) both in IAC and NIAC