Art & Artifice is pleased to bring readers another guest post from our friend Kevin Winters, looking at the concept of the war crime in connection with art and cultural artefacts. This is what he writes:
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 2005
In 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.
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