By Ramneet Kaur
Introduction
Interest in cultural heritage and its protection has been present since the beginning of modern laws of war; a fringe interest, but discrete, identifiable, and expressive of a coherent set of values that tend toward universal claims of common humanity and shared heritage. The intertwined elements of law: international criminal law (including international humanitarian law) and norms of cultural protection have a significant impact on the development of provisions governing and protecting cultural heritage in times of armed conflict. With increasing hostility and wanton destruction of such buildings, especially dedicated to art, science, charity, and hospitals, they remain committed to its protection, but face problems related to its scope and enforceability.
International Criminal Law and International Humanitarian Law
Among the important instruments of modern laws committed to the protection of cultural heritage are the Geneva Conventions of 1949, which confirm the protection of cultural heritage. These do not explicitly focus on the protection of culture, although many of their general provisions for civilians and civilian objects may also apply to cultural heritage. For example, "extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and arbitrarily" can be used. Similarly, the two Additional Protocols of 1977 deal directly with cultural heritage.
Additional Protocol II, which focuses on internal conflicts, has a similarly worded provision. Additional Protocol I also introduces enhanced protection for monuments that have been granted special protection under the treaty regime, although the usual conditions relating to military use (as well as the requirement of proximity to military objectives) are included.
The Ad Hoc war crimes Tribunals for Yugoslavia and Rwanda and the Rome Statute establishing the International Criminal Court, both contain provisions for the protection of cultural heritage. The ICTY Statute, although drafted in response to the Yugoslav crisis, draws on widely recognized existing customary law and treaties recognized as having customary force. The most direct connection in Article 3 concerns violations of the laws and customs of war. Article 3(d) provides jurisdiction for "seizure, destruction or willful damage to institutions devoted to religion, charity and education, arts and sciences, historical monuments and works of art and science[.]".
Interestingly, the usual qualification of protection subject to the fact that the protected structure is not used for military purposes is not established. Other provisions of Article 3 could be relevant to the protection of cultural heritage, including prohibitions on arbitrary destruction not justified by military necessity and attacks on unprotected cities and buildings, and Article 2, which includes serious violations of the Geneva Conventions. In addition, through the Rome Statute, the ICC was given jurisdiction over war crimes, including "intentionally directing attacks against buildings designated for religious, educational, artistic, scientific or charitable purposes, historical monuments...provided they are not military objectives[.]"
As with the ICTY Statute, there are general provisions governing other crimes that may indirectly protect cultural heritage. Some of these rules are enshrined in specific treaties, but together they contribute to a generally accepted customary norm, which the International Committee of the Red Cross summarized as follows:
As a consequence, "the use of property of great importance to the cultural heritage of any nation for purposes likely to expose it to destruction or damage is prohibited unless required by military necessity."
IHL and ICL thus demonstrate a consistent, if qualified, commitment to the protection of cultural heritage by classifying attacks on cultural property that are not justified by military necessity as war crimes.
Cultural Heritage
A separate project for the codification of cultural heritage, conducted under the auspices of UNESCO, is also available for this protection obligation. The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, a direct response to the ravages of World War II, protects cultural heritage from destruction by war. It provides for cultural protection directly within IHL – the preamble of the 1954 convention refers to the Hague Conventions of 1899 and 1907 as well as the Roerich Pact. It lays down clear prohibitions on the conduct of states in war: parties "undertake to respect cultural property located in their territory and in the territory of other High Contracting Parties ... by refraining from any act of hostility directed against such property." There is also the usual disclaimer: "Obligations. . . may be waived only in cases where military necessity requires such waiver."
The 1954 Convention "reveals a change in philosophy" from the past, in which destruction was "traditionally a sign of triumph bestowed on the victor". But the Convention is also a classic intergovernmental treaty, the provisions of which are for, for, and about states; it does not contain any individual criminal sanctions. Instead, states “undertake to take all necessary steps within their ordinary criminal jurisdiction to prosecute and impose criminal or disciplinary sanctions on those persons, regardless of nationality, who commit or order violations of this Convention. " In 1999, a protocol was added to the 1954 Convention – the Second Protocol – which specifies criminal penalties for a defined set of five violations as criminal offenses, with states agreeing to take jurisdiction, prosecute or extradite. The protocol was a response to the devastation of the Balkan wars. Likewise, just after the ratification of the Rome Statute, it proposed a convergence: a new reliance on ICL – itself a body of law revived in the 1990s – as the mechanism by which cultural heritage will henceforth be protected in times of conflict.
The earlier World Heritage Convention of 1972 (the 1972 Convention) does not deal with armed conflict – the term appears only once and only on the provisions for maintaining a list of threats to endangered sites, not as part of any specific prohibitions or restrictions. However, the 1972 Convention does establish the standards for UNESCO's formal system for identifying cultural and natural heritage which serve as a benchmark for claims about a common, universal heritage, even in the context of war and adjudication of its crimes.
Military Necessity
These two great tracks of development, the first in ICL and the second in cultural heritage norms lay down the foundation for the protection of Cultural Heritage. And under both treaty and customary international humanitarian law (IHL) cultural property is not a legitimate target in military operations. However, this principle is not an absolute one, but can be waived, in consequence of a ‘military necessity’.
Military Necessity and the principle of the legitimate target run in parallel, separate circles with equal overlaps and points of connection.
In a general sense, civilian objects used for military purposes are viewed as military objects but it is still a matter of incertitude whether objects that uphold cultural significance and value can be termed the same or not. A recent case law adjourned on a similar topic but has been up for discussion on the sheer complexity and cooptation it is surrounded by. In the Prlic et al. case, finally adjudicated by the International Criminal Tribunal for the former Yugoslavia (ICTY) on 29 November 2017, the destruction of the Old Bridge of Mostar – which had been recognized by the Trial Chamber as of “undeniable cultural, historic and symbolic value” – was reasoned by the ICTY Appeals Chamber to be that because the bridge was used also for military purposes and was, therefore, a military target at the time of the attack and its destruction offered a definite military advantage and could not be considered as not justified by military necessity. Herein, the Appeals Chamber conflated the notion of a military target with that of military necessity and did not discuss the possible impact of the principles of proportionality and precaution, disregarding in the process, any impact of Article 53(a) of AP I as well as of the 1954 Hague Convention, under which a waiver from the obligation to refrain from acts of hostilities against cultural property may only be justified in cases where military necessity imperatively requires such a waiver.
The imperative nature of the military necessity required under the Convention obliges States to assess it more stringently than usual in the case of directing an act of hostility at cultural property. A strict interpretation of the military necessity, in this case, is not only suggested by the meaning of the word “imperative” employed in the Convention, but also by its construction under international law, which refers to necessity as a situation where the necessity is overwhelming and leaves no choice of means. Without going back to the famous Caroline case (1837), where the notion of necessity was first elaborated to qualify necessity in self-defense, it may be argued that if only such a necessity may justify the use of force in self-defense, a fortiori should apply when necessity is explicitly defined as imperative, and a justification is needed for an attack on cultural property, which enjoys enhanced protection under international humanitarian law. Therefore, it appears correct to conclude that it is legitimate to commit an act of hostility against a cultural object that has become a military objective only when there is no feasible alternative available for obtaining a similar military advantage.
This conclusion conforms with the Second Protocol to the 1954 Hague Convention, whose Article 6 provides for a similar strict interpretation of imperative military necessity. However, irrespective of the limited and increasing number of ratifications of the Second Protocol, it is a conclusion also warranted under customary international humanitarian law.
This is not to say the alternative is simpler or would be better if it were even more true. Stari Most's UNESCO status-its status as a symbol of shared humanity, of coming together across differences and divides-is itself an act of characterization, and a highly politicized one, as many of UNESCO's decisions are. It is no more objectively true, no less constructed than the interpretations of the ICTY. They are quite different acts, for different purposes but we need not decide which is right to note the difference, or those purposes, and the choices they imply.
In the ultimate, all these provisions vouch to protect this shared culture and hence integrate its preservation.
Conclusion
There is no doubt that cultural property enjoys during conflict, a higher level of protection compared to general civilian property both under customary law and existing conventions but the enhanced protection does not equate to effective protection. Moreover, military necessity as an exception for different categories of property are present which undermines this significance.
In recent years, the term "cultural property" has been replaced by "cultural heritage," signifying a shift away from viewing objects as mere property towards recognizing their significance in terms of cultural rights and human dignity. This also ties cultural heritage preservation with the protection of human rights and provides a more humane dimension to it which was evidenced in the Prlić et al. case as observed by the Trial Chamber, where the excessive destruction of Stari Most in Mostar was deemed disproportionate despite its military significance. The International Criminal Tribunal for the former Yugoslavia (ICTY) concluded that the psychological impact of the action outweighed any military advantage gained. The recognition of the special value inherent in cultural heritage and its connection to human experience is something that must be considered in future assessments of military necessity. Additionally, the case highlighted the challenge of dual-use objects, for which neither customary nor conventional law provides adequate guidance on evaluating military necessity. There is hence, a glaring need for more importance to be given to cultural heritage because it reflects the identity of people and its destruction, used as a weapon of psychological warfare to counter humanitarian exigencies. A balance between the two needs to be maintained as the complexity of such matters, as demonstrated by the Stari Most case, underscores the need for individual evaluation in each instance.
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