In a recent article in the Wall Street Journal, it was said that there was a need for the destruction of cultural heritage to be deemed a War Crime. This followed the reported destruction of a number of statues and relics of the Assyrian empire by extremist organisations in Iraq. The article advocated a change in the legal regime governing War Crimes, and for the destruction of cultural heritage to result in charges being brought against perpetrators before the International Court of Justice.
The discussion in the article throws into the spotlight an obvious question: what is the law regarding the destruction of cultural property? It is the responsibility of different countries to decide how much importance they wish to attach to cultural property, and to legislate accordingly. The situation is slightly different in the international sphere.
Cultural heritage has been recognised as being protected under international law for quite some time. In "Intentional Destruction of Cultural Heritage and International Law" Thesaurus Acroasium XXXV (2007) 377-396. available here, Professor Vrdoljak demonstrates that both international tribunals and organisations have expressly recognised the importance of the protection of cultural heritage. There are in fact several instruments that advocate the protection of cultural heritage including:
- Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954;
- Convention on the Protection of Natural and Cultural Heritage 1972;
- Convention for the Safeguarding of Intangible Cultural Heritage 2003; and
- Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005In its widely cited 2003 Declaration, UNESCO, having noticed an increase in the number of instances where cultural heritage was being intentionally destroyed, stated that:“The International community recognizes the importance of the protection of cultural heritage and reaffirms its commitment to fight against its intentional destruction in any form so that such cultural heritage may be transmitted to the succeeding generations.”
The full text of the 2003 Declaration is available here.
It is quite clear that there is a great deal of international law that recognises a need for the preservation of cultural heritage. The only remaining question to be determined is how these legal rules are enforced. It is incredibly important to understand that there is no ‘police force’ in international law. The principal subjects in the international legal regime are States themselves, and by extension, they are the most powerful enforcers of international law. In the context of enforcing the rules of protection of cultural property, a number of international tribunals have been very active, particularly the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). This post will focus on the ability of the ICC to enforce international law given that the former tribunal was designed to deal with international crimes that took place at a particular point in time.
The ICC has jurisdiction to investigate and prosecute some of the most grievous crimes ever imagined. It is interesting to note the prominence that the protection of cultural heritage is given in the Rome Statue (the governing treaty for the ICC which sets out its jurisdiction, its procedures and the mechanisms by which States interact with it). In Article 8(2)(a)(iv) the Rome Statue defines ‘War Crimes’ as the‘Extensive destruction and appropriation of property, not justified by the military necessity and carried out unlawfully and wantonly’Furthermore, the Rome statue goes on to give more detail on the substance of a War Crime as including at Article 8(2)(b)(ix):‘Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’.The full text of the Rome Statue is available here.
From a reading of the Rome Statue it appears quite clear the destruction of cultural heritage does in fact already constitute a War Crime. The issue for many may be the nature of the regime under which the protection of cultural property operates.
International law is a consensual regime (States must agree to be bound by it), which some may view as a flaw of the system. It is suggested however that this is inaccurate, as this is how the system was designed: States cannot be bound by international law e.g. treaties unless they have agreed to be so bound. The same can also be said of the jurisdiction of the ICC in that States must implement the Rome Statue and invite the ICCs and its Prosecutors jurisdiction. There are however other means through which the Prosecutor of the ICC may investigate and prosecute crimes regarding the destruction of cultural property:
- Either a State which is not a party to the Rome Statue may accept the jurisdiction of the ICC under Article 12; or
- The Security Council of the United Nations may refer a matter to the ICC for its determination under Article 13.Notwithstanding the avenues that may be pursued to bring a matter before the ICC, many may feel that this is not sufficient to adequately protect cultural heritage. This may be for a number of reasons: the consensual nature of international law; or as has been argued by other commentators, the law as it stands is not sophisticated enough to be of real benefit. It is beyond the scope of this blog article to enter into these debates.
The point however is to illustrate that, contrary to what has been reported international law does classify the destruction of cultural heritage as a War Crime. Further, there is machinery to deal with these infringements as and when they occur. Whether or not the regime is satisfactory however, remains subject to debate.