Academic journal article Chicago Journal of International Law

The Persecution of Stones: War Crimes, Law's Autonomy and the Co-Optation of Cultural Heritage

Academic journal article Chicago Journal of International Law

The Persecution of Stones: War Crimes, Law's Autonomy and the Co-Optation of Cultural Heritage

Article excerpt

I. Introduction: The Puzzle of an Obvious Path Not Taken

The destruction of Stari Most, the Old Bridge of Mostar, in Bosnia, was just one event in a complex, violent war, and just one issue in the long, complex trial called Prosecutor v. Prlić et al That trial-whose appeals judgment, in November 2017, was the last case decided at the International Criminal Tribunal for the Former Yugoslavia (ICTY)-was enormous: the trial judgment runs to six volumes, the appeals judgment four more, and one dissent exceeds five hundred pages.1 The passages dealing with the bridge are only a small part of those texts, which were mostly concerned with other matters-rape, murder, imprisonment, siege-and of course with the complex legal tests and proofs applied to those events, all of which constitute the business of a war crimes court.

Still, the bridge was an important part of the proceedings, which is no surprise if we view its destruction in that broader context. The wars of the former Yugoslavia2 proved seminal in shaping many parts of the post-Cold War international order, among them international criminal law and cultural heritage protection. Modern international criminal law (ICL) was founded in response to the violence and criminality of Yugoslavia's dissolution.3 Cultural heritage norms were an important part of that response. The ethnic cleansing so characteristic of Yugoslavia's wars expressed itself not only in biological destruction but in the erasure of material culture: "Cultural cleansing often went alongside ethnic cleansing, seeking to wipe out the links that unite communities around their culture."4

It was almost inevitable, therefore, that the ICTY-the premier institution designed to respond to the challenge of the Yugoslav wars, and itself one of the great normative and institutional shifts after the Cold War-would have to address the cultural heritage issues implicated by ethnic cleansing, the signal crime of that conflict.5 Indeed, a number of its judgments include convictions for acts that involved or included destruction of cultural heritage.6

Of all the acts affecting cultural heritage in those conflicts, the destruction of the bridge at Mostar was perhaps the most iconic. There were other prominent incidents-the burning of the library in Sarajevo, for example, or the shelling of Dubrovnik-and the destruction of hundreds of mosques across Serb-held areas was a far more comprehensive cleansing-but the destruction of Stari Most was an event of immediately recognized significance.7

But what did it signify, exactly? What would, or should, law say about it? One might suppose the answer obvious, that the crime was obvious, because it's right there in the Tribunal's statute: The ICTY has jurisdiction for the war crime of "destruction or wilful damage done to. . . historic monuments [.]"8 But as it turned out, that wasn't the crime the court considered; instead, it entertained a bewildering variety of different offenses, including persecution and infliction of terror. To reach these conclusions, the court relied on the cultural value of the bridge-the very thing protected elsewhere under the ICTY's statute-but in very particular ways.

Looking at how and why this happened brings us to the first conclusion this Article makes: ICL's autonomous logic instrumentalizes other values. In this case, those values concerned cultural heritage. ICL turned the bridge, and its destruction, from one thing into something else. The bridge's cultural value did end up playing an important role in the trial, just not the one that one might have expected.

The reason the crime turned out to be something entirely different is fairly simple, but to show why turns out to be complicated. And that leads to the second conclusion this Article makes: war crimes trials create complexity. One might suppose this trial was complex because it was grappling with complex events, and that law has taken the forms it has to capture the manifold ways in which evil is done. …

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