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Protection of Places Holding Cultural Significance from War: Pedagogy of International Mechanisms

INTROducTION

The attacks on places holding cultural significance and the depredation of heritages have their existence in the history of the war from the time of World War I.[1] Cultural property of any state is reserved from any sort of damage or attack during any war under the 1899 and 1907 Hague Conventions.[2] Cultural place or property or object can be defined as ‘any moveable or immovable property that holds the significance of culture or is a cultural heritage of a state such as any monument, building, educational and religious institution, art or history of any state’.[3] As per the Additional Protocol I to the Geneva Conventions, such places are referred to as civilian objectives which mean objectives, not of the military in nature.[4] The ICTY has been the most concerned forum regarding the protection of cultural objectives or cultural property during any armed conflict.[5] The attacks on the cultural property can be thought of as a source to destroy a state as culture is the root of existence for every citizen.

Instances of Attacks on Cultural Objectives during War

The thought of protecting cultural property from the hands of war attacks has been prevailing since the time of the first Caliph Abu Bakr Siddiq.[6] He instructed his troops not to harm the Christian or Jewish worshippers or their religious places.[7] In 1975, Khmer Rouge announced the year as ‘Year Zero’ where they wanted to destroy any connection with the outside world hence destroying a great number of Buddhist temples in Cambodia.[8] One of the remarkable instances of attacking a cultural object is the attack at the Mostar Bridge by a Bosnian Croat tank.[9] As per them the attack on the bridge was the success of their military power as it stopped the supplies to the Bosnian Army.[10] In 2004 this bridge was again repaired and it has been recognized by UNESCO as a World Heritage Site.[11]  

In 2001, the Buddhas of Bamiyan were destroyed by bombing which was carried out by the Taliban. Buddhas of Bamiyan were considered as the tallest monuments of Buddha and a Holy site in the world.[12] The destruction of such a remarkable historical object was done by a command of a Taliban leader to destruct the Ethnic statues in Afghanistan.[13] This destruction is a crude symbol of the obliteration of cultural heritages. To make it remarkable, UNESCO had declared it as a World Heritage Site in 2003.[14]

Protection of Cultural Heritage during Peacetime

It is a matter of thought that though the IHL conventions and other statutes of the international tribunals have express provisions for the individual criminal responsibility against the attacks to any cultural heritage, which are civilian objects and not a military object, during any armed conflict, international or non-international, there is still no international convention or treaty protecting cultural heritage during peacetime.[15] Only two conventions,[16] which apply at the time of peace, mention a general provision of sanctions for the violation of these conventions but no convention details the offences to be incorporated in the national laws. It is necessary to adopt such a mechanism that will criminalize the same acts of attacking the cultural heritage outside the armed conflict, as this may lead to armed conflict. In 2017, the ‘Council of Europe Convention on Offences relating to Cultural Property’ tried to address this gap by providing a list of such offences to be entered into the national legislations. But this convention is yet to enter into force.[17]

Rulings of International Courts

The first effective international instrument to protect cultural objectives during armed conflict was the Nuremberg Charter where German Nazis were convicted for attacking cultural objectives.[18] The International Military Tribunal held that the illegal destruction and plunder of cultural objectives during armed conflicts considered war crimes as well as crimes against humanity.[19]   The first-ever conviction for the intentional destruction of cultural objectives was the sentence of former Yugoslav naval officer, Miodrag Jokić.[20] As per his command, in 1991, the JNA forces shelled the Old Town of Dubrovnik where six buildings of that Town were destroyed along with many institutions which were used for religion, education, charitable purposes, and also many historic monuments, historical arts were damaged and destroyed.[21] This town was protected under the 1954 Hague Convention and it was also protected as the UNESCO World Cultural Heritage site.[22] The ICTY sentenced him to imprisonment for 7 years in 2004 for unlawful devastation and unlawful attack on civilian objects, which was possible because of the cooperation of UNESCO.[23] He has also been convicted for the intentional damage to the institutions which were used for religious, educational, and charitable purposes and also for intentional destruction of historical monuments and arts.[24]

In Kordic and Cerkez,[25] the Trial Chamber assured that Article 3 of the ICTY Statute which covers the laws and customs during the war is customary international law. This article provides prohibitions against the attack against civilian objects, historical monuments.[26] In this case, the accused were convicted for the deliberate attack on the historic mosque of Bosnia-Herzegovina.[27] The trial chamber of ICTY held that the acts which are specifically against the cultural objects of a population will be considered as a violation of international humanitarian law.[28] The case Prosecution v Al-Mahdi[29] is the first case of non-international armed conflict where charges for the war crime against cultural property in Timbuktu, Mali, were brought by the Prosecutor before the ICC. He was charged and acquitted for joint contribution in destroying ten historic and religious monuments which were not of military objectives.[30] Moreover, all these buildings were recognized as World Heritage Sites by UNESCO.[31] The Chamber of ICC while pronouncing its judgment took into consideration the Preamble of the ICC Statute which states that such crime must not go unpunished.[32] As per the Chamber, Timbuktu is known as “the heart of Mali” that plays a significant role in expanding Islam in those regions.[33] Hence the Chamber convicted Al-Mahdi as a co-perpetrator of war crime against cultural heritage and objectives and sentenced him to 9 years of imprisonment.[34]

CONCLUSION

In international law, places holding cultural significance are protected from the attacks during the war under Articles 27 and 56 of the Hague Regulations, 1907.[35] Where the international instruments and communities are aware and conscious of protecting the cultural heritage to respect the roots of every community, they are being the target of war attacks again and again. Cultural heritage is considered as a prerequisite that would build a social connection and also help to develop an identity for an individual also a group of people.[36] It represents the wealth of experience and the skills of a particular nation which continued for decades. They are precious, unique and help others to define a region’s sense of identity.[37] Despite that, is it mentionable that the changing approach of the international mechanisms towards considering the gravity of such attacks as serious in nature and sentencing the culprits accordingly can lead to a situation where people will be more aware and refrain from destroying the cultural properties and heritage? National legislation should also incorporate provisions in order to save their own cultural heritage as well as prohibit their citizens from destroying such places of other states, during a war or peacetime.

Author(s) Name: Nusrat Jahan Nishat (East West University, Dhaka, Bangladesh)

References:

[1] Luke Moffett, ‘A Bridge Too Far? Attacks against Cultural Property used as Military Objectives as War Crimes: The Prlic et al. Case and the Mostar Bridge’ [2020] 20 International Criminal Law Review 214-250.

[2] Convention II with Respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, the Hague, 29 July 1899, Articles 27, 56; Convention IV respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Articles 27, 56.

[3] The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, Article 1.

[4] Additional Protocol I to the Geneva Conventions of 12 August 1949, Article 52.

[5] Marina Lostal Becerril, ‘The Meaning and Protection of Cultural Objects and Places of Worship under the 1977 Additional Protocols’ [2012] 59(3) Netherlands International Law Review 455-472.

[6] François Bugnion, ‘The origins and development of the legal protection of cultural property in the event of armed conflict’ (INTERNATIONAL COMMITTEE OF THE RED CROSS, 14 November 2004)  <https://www.icrc.org/en/doc/resources/documents/article/other/65shtj.htm> accessed 21 January 2022

[7] Ibid.

[8] Khmer Rouge: Cambodia’s years of brutality (BBC News, 16 November2018) <https://www.bbc.com/news/world-asia-pacific-10684399> accessed 21 January 2022

[9] Prosecutor v Jadranko Prilic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Corlic and Berislav Pusic, Case No. IT-04-74-T, Judgment, 29 May 2013.

[10] Ibid.

[11] Moffett (n 1).

[12] Becky Little, ‘7 Cultural Sites Damaged or Destroyed by War: Violence in Eastern Europe, the Middle East and West Africa has taken a toll on historic buildings and monuments’ (HISTORY, 9 January 2020) <https://www.history.com/news/cultural-sites-heritage-wars> accessed 21 January 2022

[13] Ibid.

[14] Jinit Jain, ‘The destruction of Bamiyan Buddhas: How the Taliban obliterated the 6th-century monuments to deny their own past’ (OpIndia, 16 August 2021) <https://www.opindia.com/2021/08/the-destruction-of-bamiyan-buddhas-how-the-taliban-obliterated-the-6th-century-monuments-to-deny-their-own-past/> accessed 22 January 2022

[15] Yaron Gottlieb, ‘Attacks Against Cultural Heritage as a Crime Against Humanity’ (2020) 52 Case Western Reserve Journal of International Law 287, 294

[16] Convention on the Means Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 14 November 1970, Art. 8, 10; Convention of the Protection of the Underwater Cultural Heritage, 2 November 2001, Art 17

[17] Gottlieb (n 15) 287, 295.

[18] M. Cherif Bassiouni & James A. R. Nafziger, ‘Protection of Cultural Property’, (International Criminal Law I, 2nd ed. 1999) 949, 954

[19] Roger O’Keefe, ‘Protection of Cultural Property Under International Criminal Law’, [11 MELBOURNE J. International Law, 2010] 339, 341

[20] Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-S, 18 March 2004.

[21] Catherine Fiankan-Bokonga, ‘A historic resolution to protect cultural heritage’ (UNESCO, 2017) <https://en.unesco.org/courier/2017nian-di-3qi/historic-resolution-protect-cultural-heritage> accessed 19 January 2022

[22] Press Release, ‘Judgement in the Case the Prosecutor v. Miodrag Jokic: Miodrag Jokic Sentenced to 7 Years’ Imprisonment’ (United Nations International Criminal Tribunal for the former Yugoslovia, 2004) <https://www.icty.org/en/press/judgement-case-prosecutor-v-miodrag-jokic-miodrag-jokic-sentenced-7-years-imprisonment> accessed 19 January 2022

[23] Ibid.

[24] Case Information Sheet, “DUBROVNIK” (IT-01-42/1) Miodrag Jokic (United Nations International Criminal Tribunal for the former Yugoslovia, 2004) p 5

[25] Prosecutor v. Dario Kordic, Mario Cerkez, Case No. IT-95-14/2-A, 17 December 2004

[26] Updated Statute of the International Criminal Tribunal for the former Yugoslavia 2009, Article 3

[27] The International Justice Resource Center, Kordić & Čerkez (IT-95-14/2) “Lašva Valley” <https://ijrcenter.org/international-criminal-law/icty/case-summaries/kordic/> accessed 22 January 2022

[28] Ibid.

[29] The Prosecutor v Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, Judgment and Sentence (TC), 27 September 2016.

[30] Ibid.

[31] Ibid, para 39.

[32] Ibid, para 66.

[33] Ibid, para 78.

[34] Ibid, para 110.

[35] Convention (IV) respecting the laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Articles 27, 56.

[36] Diversity of Cultural Expressions, ‘The Protection of Cultural Heritage’ (UNESCO, 2016) <https://en.unesco.org/creativity/policy-monitoring-platform/protection-cultural-heritage>  accessed 22 January 2022

[37] Julio Rojas, ‘8 things to consider when protecting cultural heritage’ (IDB, 7 June 2021) <https://blogs.iadb.org/sostenibilidad/en/espf-cultural-heritage/#:~:text=Cultural%20heritage%20helps%20define%20a,asset%20that%20drives%20sustainable%20development> accessed 22 January 2022

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