Protection of Cultural Property under International Criminal Law
O'Keefe, Roger, Melbourne Journal of International Law
One means by which states seek to protect both immovable and movable cultural property is through international criminal law. A detailed corpus of war crimes exists to safeguard such property from destruction and plunder in armed conflict. Some acts of this sort, whether in armed conflict or peacetime, will similarly constitute crimes against humanity. So-called 'cultural genocide', however, is not an international crime. The following article elaborates on the relevant rules of customary international law and treaty.
CONTENTS I Introduction II The Relevant Crimes A War Crimes 1 Customary International Law (a) Background (b) Unlawful Attacks against Cultural Property (c) Unlawful Incidental Damage to Cultural Property (d) Unlawful Acts of Hostility against Cultural Property Other than Attacks (e) Unlawful Appropriation of Cultural Property 2 Treaty Law (a) 1954 Hague Convention: Article 28 (b) Additional Protocol I: Article 85(4)(d) (c) Second Protocol to the 1954 Hague Convention: Chapter 4 (i) Serious Violations (ii) Other Violations B Crimes against Humanity C Genocide III Sentencing IV Conclusion
Writing on the natural and positive law of war in the eighteenth century, Emer de Vattel deplored the 'wilful destruction of public monuments, temples, tombs, statues, paintings, etc', which was 'absolutely condemned, even by the voluntary law of nations, as never being conducive to the rightful object of war'. (1) 'For whatever reason a country be ravaged', he wrote, 'those buildings must be spared which do honour to humanity and which do not contribute to the enemy's strength, such as temples, tombs, public buildings and all works of remarkable beauty'. (2) Deploying an expression traditionally used in relation to the crime of piracy jure gentium, Vattel declared it an 'act of a sworn enemy of the human race to deprive it lightly of such monuments of the arts and models of taste'. (3) Two and a half centuries later, several months after the premeditated demolition in March 2001 of the great statues of the Buddha at Bamiyan in Afghanistan by the country's then-Taliban government, the General Assembly of the states parties to the World Heritage Convention, (4) in the preamble to a resolution on the protection of the cultural heritage of Afghanistan, (5) '[c]ondemn[ed] the wilful destruction of the cultural heritage of Afghanistan by the Taliban forces, particularly the statues of Bamiyan, as [a] "crime against the common heritage of humanity"'. (6) Similarly, the United States Secretary of State, Colin Powell, decried the demolition of the Buddhas as 'a crime against humankind'. (7)
The rhetorical invocation of global outlawry is a typical reaction to the intentional destruction and damage of cultural property in peace or war and, it might be added, to its plunder. The feeling seems to be, as posited in the preamble to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (8) that 'damage to cultural property belonging to any people
whatsoever means damage to the cultural heritage of all mankind' and that the most adequate response to such lese-humanite is to punish those responsible by means of international law. Nor has this proved just impotent rage. On the contrary, states, aided by international criminal tribunals, have developed a body of international criminal law precisely to hold accountable those who destroy or damage and those who misappropriate cultural property. Such accountability is chiefly (9) provided for under the respective rubrics of war crimes and crimes against humanity. Although journalistic and speculative academic reference is not infrequently made to 'cultural genocide', the crime of genocide, as will be seen below, does not extend under positive international law to acts of hostility against and plunder of cultural property. …