II. THE ORIGINS OF THE NEUTRAL STATUS OF CULTURAL HERITAGE DURING WARFARE

The earliest known court decision to rely on the principle of neutrality of “arts and sciences” during warfare was rendered in 1813, concerning the return of cultural objects captured on board the Marquis de Somerueles by a British warship during the Anglo-American war of 1812.^{Footnote 1} The Marquis was on its return voyage to Philadelphia from Italy, carrying twenty-one paintings and fifty-two prints to the newly established Pennsylvania Academy of Fine Arts. The claimant sought the return of that property “knowing that even war does not leave science and art unprotected.”^{Footnote 2} The judge at the Court of Vice-Admiralty in Halifax, Nova Scotia, Dr. Alexander Croke, ordered that the objects be returned to their owner.

However, the significance of this decision lies not so much in its particular outcome. More importantly, in the words of judge Croke:

The crucial point of his reasoning was that arts and sciences are exempt from the laws of war, which is particularly striking in this case, as the “law of nations” would otherwise prescribe “that all property belonging to the enemy shall be liable to confiscation.”^{Footnote 4} That is because, as stated by Emer de Vattel, the arts and sciences “do not contribute to increase the enemy’s strength”, and “do honour to human society.”^{Footnote 5} Indeed, as Dr. Croke contended:

The case of the Marquis de Somerueles demonstrates that the special treatment of arts and sciences predates even the early rules prohibiting the seizure of enemy civilian property,^{Footnote 7} extending back to when the law of nations was seen as allowing the seizure of any and all enemy property as prize.

In writing a note to this case, John Merryman set out to investigate the exact basis of the decision, rendered, following Stewart’s report on the case, “in conformity to the law of nations, as practiced by all civilized countries.”^{Footnote 8} He found no mention of any such rules or judicial precedents; the most likely inspiration for Dr. Croke appears to have been the work of the French scholar Quatremère de Quincy, first published in 1796, critical of the French plans to seize works of art from Rome and bring them to France.^{Footnote 9} Quatremère de Quincy’s thought was premised on the universal community of interests with regard to works of arts and science in Europe^{Footnote 10} and on the principle of neutrality of such objects.^{Footnote 11} This principle was later enunciated in the 1863 Instructions for the Government of Armies of the United States in the Field (The Lieber Code)^{Footnote 12} which, while still allowing the victor to seize and sequester all property of the enemy,^{Footnote 13} made an exception to “property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character.”^{Footnote 14} Moreover, classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals had to be protected from “all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.”^{Footnote 15} Finally, according to Article 36 of the Lieber Code:

Considering that the Lieber Code was enacted in the context of a non-international armed conflict, the abovementioned provisions, mandating respect for cultural heritage, make for an especially meaningful expression of state practice as early as the 1860s, and moreover remain in force until the present day.^{Footnote 16}

In Article 13(g), the Brussels Declaration of 1874 prohibited “[a]ny destruction or seizure of the enemy’s property that is not imperatively demanded by the necessity of war. Moreover, Article 17 of the Declaration required that, during sieges and bombardments, the officer in command of the attacking forces was to take all necessary steps “to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes,” if they were not used for military purposes. The Declaration also included a provision on the protection of cultural property in occupied territories.^{Footnote 17} Thus, respect of such property in the occupied territory was an absolute duty (irrespective of existence of any military necessity) even back in the early days of international law of armed conflict.

Likewise, the 1880 Oxford Manual of the Institute of International Law prohibited pillage of enemy property and also included provisions prohibiting destruction of cultural objects.^{Footnote 18} Although neither the Brussels Declaration nor the Oxford Manual came into force as binding law, they influenced to a large extent the subsequent regulations annexed to the Hague Convention II of 1899 and to the Hague Convention IV of 1907 (the Hague Rules), considered customary international law.

The Hague Rules of 1899 and 1907 also prohibited unnecessary seizure and pillage.^{Footnote 19} During sieges and bombardments, all necessary steps had to be taken to spare, as far as possible, buildings and monuments of cultural, historic, artistic or religious value, provided they were not being used at the time for military purposes.^{Footnote 20} Additionally, the Hague Rules were premised on the idea that a particular group among cultural property in occupied territory—the property of municipalities, that of institutions dedicated to religion, charity, education, and the arts and sciences—regardless of matters of ownership, ought to be protected from intentional destruction or damage in an absolute manner.^{Footnote 21} Rules on the protection of cultural objects were also incorporated in the Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare adopted by the Commission of Jurists, 1922–1923. Article 25 drew on Article 27 of the 1907 Hague Rules inasmuch as it provided that in aerial bombardments buildings dedicated to public worship, art, science, charitable purposes and historic monuments, were to be saved, “as far as possible,” unless they were being used for military purposes. Article 26 by contrast provided for immunity of important historical monuments located in zones of protection, again on condition that they were not used for military purposes. However, also this project never became a binding international convention.

III. THE ROAD TO A CULTURAL HERITAGE-SPECIFIC TREATY REGIME

After the First World War, a draft international treaty on the protection of cultural monuments was prepared by Nikolai Roerich in cooperation with the Institut des Hautes Études Internationales in Geneva. The ambition was to enable protection of cultural objects based on their intrinsic value rather than their utility to persons. The preamble to the draft pact, as presented to the International Office of Museums, stated that “[i]nstitutions dedicated…to the Arts and Sciences constitute a treasure common to all Nations of the World.”^{Footnote 22} As the development of a convention specifically geared to protecting cultural property was not high on the international agenda in the early 1930s, the draft was adopted as the Roerich Pact under the auspices of the Pan-American Union in 1935, although in a slightly changed form; the reference to the common treasure of all nations of the world did not fit in a regional treaty.

The Roerich Pact sets forth a requirement of equal protection, in peacetime and wartime, of all nationally and privately owned immovable monuments which form the cultural treasure of peoples, defined as historic monuments, museums, and scientific, artistic, educational and cultural institutions.^{Footnote 23} The Pact does not address the situation of movable cultural property, which will presumably only benefit from the protection if housed in an institution protected by the Pact, such as a museum or gallery.^{Footnote 24} Remarkably, the Pact makes no mention of military necessity; the protection is lost if the cultural monument is used for military purposes (Article 5). Today, the Pact is in force between less than a dozen states in the American continent, including the United States.

With the outbreak of the Spanish Civil War and the heavy toll of cultural destruction it brought, the international community again became concerned about the fate of cultural objects during armed conflicts. Work on an international treaty regulating this matter, commenced in the first decade of the interwar period, was resumed under the aegis of the International Office of Museums, which, in 1938, prepared the Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Times of War. In line with the proposals made by states during the interwar period, the draft proposed to maintain the refuges at an appropriate distance from the zone of hostilities, industrial centers and communication lines to ensure immunity and neutrality which would be verified by international inspections.^{Footnote 25} The Preliminary Draft shaped the duty of respect for the property located on one’s own territory as an obligation towards all other states, as the territorial states are mere “holders” of the cultural riches and remain responsible for it to the international community.^{Footnote 26} Accordingly, the fundamental duties in wartime included refraining from any act of hostility directed against any refuge designated by any state party in its territory to shelter works of art or of historic interest in time of war (Article 4) and all monuments of artistic or historic interest and ensuring that they are not exposed to attack (Article 5).

In September 1938, the Preliminary Draft was submitted to the General Assembly and the Council of the League of Nations, but due to the outbreak of World War II, a convention was not adopted. Considering the urgency of the situation and not willing to abandon the project entirely, the International Museums Office proposed to adopt a Declaration Concerning the Protection of Historic Buildings and Works of Art in Armed Conflict, consisting of just 10 articles.^{Footnote 27} The declaration, too, was premised on the idea that a loss of a work of cultural importance is a spiritual impoverishment for the entire international community. It provided that refuges containing cultural property and buildings of cultural importance were to be held immune from attack as long as they were at a distance from any military objectives and were not used for military purposes, with no exceptions or limitations on account of military necessity (Article 4 and 6). Nonetheless, not even this short version of the earlier work could be successfully adopted as, in the face of the Nazi invasion of France, Belgium, and the Netherlands in 1940, the project shared the fate of its predecessor.

In the immediate aftermath of World War II, many states felt less inclined to limit their potential war-waging capacity through making concessions to cultural heritage protection. When UNESCO resumed the work on an international convention, the draft it circulated among all states in 1953 to be discussed at the Intergovernmental Conference the following year was much less idealistic than its pre-war predecessor. The draft contained a reference to military necessity in the preamble,^{Footnote 28} and made a number of obligations conditional upon it. These included not only the prohibition to remove or requisition movable cultural property and to expose it to destruction or damage but also the obligation to prevent or put a stop to theft and any acts of damage not justified by military necessity.^{Footnote 29} As a result of a compromise between the idealist and military realist attitudes represented at the Intergovernmental Conference, the 1954 Hague Convention^{Footnote 30} contains fewer references to military necessities than the UNESCO draft of 1953.^{Footnote 31} Nevertheless, the fundamental duty of respect for cultural property both under general and special protection as enshrined in Articles 4 and 11 of the 1954 Hague Convention is still limited through the existence of this exception.

The 1954 Hague Convention protects a wide range of movable and immovable objects,^{Footnote 32} and is applicable in international armed conflicts and occupation, with the provisions which relate to respect for cultural property being applicable, as a minimum standard, in internal armed conflicts as well.^{Footnote 33} In light of the preamble to the Convention, “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world,” and “the preservation of the cultural heritage is of great importance for all peoples of the world and … it is important that this heritage should receive international protection.”^{Footnote 34} Together with the 1954 Hague Convention, a protocol on the exportation and importation of cultural property from occupied territory and the restitution of cultural property deposited abroad for safety for the duration of hostilities was adopted.^{Footnote 35} The significance of the fight against illicit trafficking of cultural property, subject-matter of the 1970 UNESCO Convention,^{Footnote 36} has recently been recognized as an indirect means through which the destruction of other cultural objects in conflict areas can be limited.^{Footnote 37}

Underlying the special protection regime under the 1954 Hague Convention was an idea introduced in the 1938 Draft that hostilities could be confined to a delimited area, far from the protected monuments and sites. Thus, the special regime seemingly offered better protection to cultural property eligible for it pursuant to Article 8. However, it may be argued that in the event of a particular military necessity, the protection of the general and the special regime would equally cease, which accentuated the need for a decision at an appropriate military level.^{Footnote 38} Later, Article 53 of the 1977 Additional Protocol I and Article 16 of Additional Protocol II to the Geneva Conventions of 1949 also sought to provide a higher standard of protection to historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, prohibiting acts of hostility and reprisals toward such heritage and outlawing its use in support of the military effort.^{Footnote 39}

In drafting the Second Protocol in 1999,^{Footnote 40} account could be taken both of the development of international humanitarian law since 1954 and the technological advances which allowed to hope that cultural property located in close proximity or within the combat zone could be saved. Consequently, the exception of military necessity in this instrument could be significantly narrowed down. Only when cultural property has been turned into a military objective by its function and, additionally, there is no feasible alternative available to obtain a similar military advantage, may it be attacked.^{Footnote 41} Similarly, a case of genuine imperative military necessity to use cultural property for purposes which are likely to expose it to destruction or damage pursuant to Article 4(2) of the 1954 Hague Convention arises only if no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage.^{Footnote 42} In any case, the decision is taken by a high ranking officer^{Footnote 43} and an advance warning is given if possible.^{Footnote 44} The Second Protocol replaced the unpopular regime of special protection with a new enhanced protection regime meant for cultural property of greatest importance to humanity, which continues for as long as the property in question is protected by adequate domestic legal and administrative measures ensuring the highest level of protection and is not used for military purposes or to shield military sites.^{Footnote 45}

It is also worthwhile mentioning the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, adopted on 23 October 2003 in reaction to the deliberate destruction of the Buddhas of Bamiyan by the Taliban in 2001 (2003 UNESCO Declaration).^{Footnote 46} The Declaration addresses the issue of intentional destruction of cultural heritage both in time of peace and in times of armed conflict, be it international or non-international,^{Footnote 47} and regardless of whether the cultural heritage in question is listed in a special register (for example, under the World Heritage Convention^{Footnote 48} or the 1999 Second Protocol). Importantly, the 2003 UNESCO Declaration affirms state responsibility and individual criminal responsibility for destruction of cultural heritage of great importance to humanity. It should be emphasized that as a soft law instrument, it does not constitute binding law.^{Footnote 49} However, it is not without importance as it was adopted by consensus by the General Conference of the UNESCO, which at that time was already composed of the overwhelming majority of states of the world, and as such it is not without relevance from the point of view of potential crystallization of international custom.^{Footnote 50}

IV. THE ABSOLUTE DUTY TO PROTECT CULTURAL HERITAGE: “LEAVING” THE OCCUPIED ZONE?

The applicability of the customary rule prohibiting the seizure, destruction or willful damage to cultural property as mandated by the 1954 Hague Convention and Article 56 of the 1907 Hague Rules has been repeatedly confirmed by international and national judicial practice.^{Footnote 51} This is evidenced, for instance, in the important ruling of the Eritrea-Ethiopia Claims Commission regarding the responsibility of Ethiopia for not having prevented the destruction of the ancient obelisk, Stela of Matara, by Ethiopian soldiers stationed in the occupied zone of Senafe Sub-Zoba.^{Footnote 52} This is particularly important as at that time neither Ethiopia nor Eritrea were parties to the 1954 Hague Convention.

In the case Halil Iscander Shahin Candu v. Minister of Defense, the Israeli Supreme Court, in rejecting the claim of a land owner in Bethlehem challenging an order issued by an Israeli Antiquities Authority field officer in Judea and Samaria to restrict construction works due to the need to protect archaeological property found on the claimant's plot, confirmed that the Israeli Antiquities Authority Field Officer was bound by customary international law to protect and safeguard the cultural treasures in an occupied territory, including archaeological artifacts. Interestingly, the Court also rejected the claimant’s submission that the archaeological finds be moved from his plot.

In the case Muhamad Hussein Suliman Shachrur v. Military Commander of Judea and Samaria, the Israeli Supreme Court decided that a civilian charged with a breach of the Jordanian Antiquities Law may be tried by a military court, if trying him in a local court would not have warranted fulfilling the obligation to ensure protection of cultural property in occupied zones as mandated by Article 56 of the 1907 Hague Rules and the 1954 Hague Convention due to excessive case load and poor enforcement mechanisms of the local courts.^{Footnote 53}

Article 3(d) of the ICTY Statute^{Footnote 54} goes a step further than Article 56 of the Hague Rules it was modeled after. In light of that provision, the obligation to protect cultural heritage rests on the belligerent regardless of whether or not they exercise control over the territory where it is located. The absolute character of this prohibition, i.e. without the military necessity exception, was logical considering that it originated as a regulation of behavior in the occupied zone.^{Footnote 55} Its application without this territorial limitation, dependent only on the existence of an international or non-international armed conflict, may help to bridge the gap in the protection of cultural heritage between the occupied zone and the zone of active hostilities in that it sheds the notorious exception of military necessity plaguing the latter.^{Footnote 56}

This extension of the scope of application of the rule in question beyond occupied zones is particularly interesting if we consider that pursuant to the nullum crimen sine lege principle, the ICTY Statute had to be based on rules whose customary character is undisputable. Lack of the military necessity exception not only offers better prospects of repression of offenses against cultural heritage, but also brings to mind the absolute prohibition of targeting civilians under customary international law.^{Footnote 57} As follows from the jurisprudence of the ICTY discussed in the following section, while the objects protected under Article 3(d) of the Statute were not treated as entirely immune from acts of hostility, there is a discrete tendency to reduce the impact of military necessity on their protection.

V. TRENDS IN INTERNATIONAL JURISPRUDENCE IN THE TREATMENT OF CULTURAL HERITAGE DESTRUCTION

The statutes of permanent, mixed, and ad hoc international criminal tribunals offer the opportunity to prosecute individuals for crimes of destruction of cultural property to various extents.^{Footnote 58} As the scope of destruction of cultural and religious heritage in the form of the “ethnic cleansing” during the war in former Yugoslavia was extensive,^{Footnote 59} the case law of the ICTY provides particularly rich research material. The ethnic hatred prominent in the conflict in the former Yugoslavia translated itself into destruction of two categories of cultural objects. The first one included cultural, educational, and particularly religious buildings and monuments (mosques, churches, Jewish and Muslim cemeteries etc.) of “the others”. For example, in an attempt to eradicate all traces of the Bosnian populace and heritage in the Bosnian town of Foca, all the Muslim population was either killed or expelled, while all mosques were systematically leveled. The town was subsequently renamed to “Srbinje” (meaning “the Serbian place”).^{Footnote 60} In addition to the destruction of all historic mosques in Banja Luka, the main mosque Ferhadija, razed to the ground, was removed from pictures portraying the town in the 1920s and 1930s.^{Footnote 61}

The other category of targets included symbols of peaceful co-existence between the ethnicities pitted against each other during the conflict, such as the Sarajevo Library (Vijećnica) or the Old Bridge in Mostar. Both the Bridge and the Library were singled out for destruction, with no possible military necessity supporting those decisions. A diagnosis of this constituting an assault on memory and culture is almost automatic. Before it was shelled in August 1992, the Sarajevo Library had housed collections of Croatian, Russian and German libraries destroyed during World War I, later supplemented with rich material from Muslim, Croatian and Serbian cultures; in particular, it had stored the archives and holdings of the University of Sarajevo.^{Footnote 62} According to Andràs Riedlmayer, the Vijećnica contained evidence that non-Serbs had historical roots in that area.^{Footnote 63} In his view, the attack on the library was the worst case of deliberate book-burning in history.^{Footnote 64} Firemen who tried to extinguish the fires during the attack were shot at.^{Footnote 65}

Three distinct evolutionary trends can be identified in the prosecution of crimes against cultural property by the ICTY. The first has to do with the emergence of crimes against cultural property and concerns the terminology applied by the ICTY in addressing offenses against cultural objects; the second one concerns immunity of the cultural object as a function of its location on the battlefield; and the last one pertains to the connection between cultural property and crimes against humanity and genocide.

Initially, the Tribunal relied on enumerations of categories of such property as known to the ICTY Statute in line with the 1907 Hague Rules. It was only in 2001, in the Kordić and Cerkez trial judgment, that the Trial Chamber first used the comprehensive legal category of “cultural property” in the meaning of the 1954 Hague Convention.^{Footnote 66} This change in terminology marked a passage from “subsidiary violations” of humanitarian law to the legal status of international crimes.^{Footnote 67} That judgment was also the first to mention a treaty concerned only with the protection of cultural heritage—the Roerich Pact.^{Footnote 68} This trend was continued in the significant Dubrovnik trial, which referred to the 1972 World Heritage Convention as both defendants, Miodrag Jokić and Pavle Strugar, were convicted in relation to the bombardment of the Old Town of Dubrovnik, a World Heritage Site.^{Footnote 69} In the trial of Strugar, the Trial Chamber ascertained the customary character of Article 3(d) of the ICTY Statute as a rule applicable both in international and non-international armed conflicts.^{Footnote 70} Jokić pleaded guilty to the crime which, as the Tribunal stated, “represent[ed] a violation of values especially protected by the international community.”^{Footnote 71} The Trial Chamber pointed out that an attack on Old Town of Dubrovnik was prohibited under the 1907 Hague Rules, the Hague Convention concerning Bombardment by Naval Forces in Time of War of 18 October 1907, the 1954 Hague Convention, the 1972 World Heritage Convention, and, moreover, the 1977 Additional Protocols, whose Article 53 (Additional Protocol I) and Article 16 (Additional Protocol II) clearly prohibit such attacks “whether or not the attacks result in actual damage.”^{Footnote 72} As the Tribunal added, “[t]his immunity is clearly additional to the protection attached to civilian objects” and later elaborated on this notion, stating that “since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town, constituted of civilian buildings and resulting in extensive destruction within the site.”^{Footnote 73}

In an important passage the Trial Chamber thus expounded on the importance of the Old Town of Dubrovnik for the entire humanity:

The second important evolution in the case-law of the ICTY pertains to the question of whether the duty to respect cultural heritage may depend on its location during armed strife. In the Blaskić trial judgment, the Court declared that in order to enjoy protection, the institutions under Article 3(d) of the ICTY Statute, must not be, firstly, used for military purposes at the time, and secondly, located in the immediate vicinity of military objectives.^{Footnote 75} Thus, the Trial Chamber in that case seemed to indicate that such proximity would result in the withdrawal of their immunity from attack. However, three years later, in the Naletilić-Martinović case, the Trial Chamber distanced itself from that contention, emphasizing that “[t]he Chamber does not concur with the view that the mere fact that an institution is in the ‘immediate vicinity of military objective’ justifies its destruction.”^{Footnote 76} The Chamber upheld however the other criterion identified in the Blaskić judgment, relating to the use of cultural property for military purposes.^{Footnote 77} The Trial Chamber reiterated this view in the Martić case in 2007, further specifying that “[t]he protection of institutions dedicated to religion or education is lost if such institutions are used for a military purpose,” adding that this exception applies regardless of whether or not such objects protected under Article 3(d) of the ICTY Statute constitute the cultural or spiritual heritage of peoples. The Trial Chamber then restated and reinforced its view from the Naletilić-Martinović trial judgment, insisting that ‘the protection is not lost simply because military activities or military installations are situated in the immediate vicinity of the institution. It is the use of an institution and not its location which is the decisive factor.’^{Footnote 78}

This evolutionary trend found an unprecedented and much awaited conclusion in the recent trial judgment in the case Prlić et al. in the part which pertains to the destruction of the Stari Most (Old Bridge) in Mostar on 9 November 1993.^{Footnote 79} The Trial Chamber noted that although the Old Bridge was not only used by the Army of Bosnia and Herzegovina (ABiH), but was even essential to its activities^{Footnote 80} at the time of its destruction by the Croatian Defence Council (HVO), it was also a monument of immense historic, cultural, and symbolic value^{Footnote 81} and the principal means of crossing the Neretva river for the Muslim community living in Mostar to cater for their basic humanitarian needs.^{Footnote 82} The Trial Chamber noted the particular psychological impact the destruction had on the Muslim population of Mostar, recalling the symbolic importance of the Old Bridge and statements according to which the destruction of the Old Bridge had a bigger political impact than a military one.^{Footnote 83} As a result, in spite of its qualification as a military objective, whose destruction would have allowed the HVO to secure an important military advantage, the destruction of the Old Bridge was deemed disproportionate and hence, unlawful.^{Footnote 84}

In other words, according to the ICTY, even if a cultural object qualifies as a military objective, it does not automatically lose immunity from attack. Remarkably, the fact of the Old Bridge being a dual-use object^{Footnote 85} was regarded by the Trial Chamber as a circumstance which precluded its destruction rather than authorized it. This offers new insights into the construct of military necessity and its relationship with proportionality in relation to the question when wartime destruction of such objects can be lawful. It is important to note that although following a reconstruction in 2004 the Old Bridge is currently a World Heritage Site, it was not so at the time of the attack, when the bridge was de iure only protected by the general regime under the 1954 Hague Convention.

Although the connection between cultural property destruction, crimes against humanity, and genocide had already been made in the trials following World War II,^{Footnote 86} the ICTY Statute is silent on the cultural dimension, let alone any relevance of property as such to these crimes against persons par excellence.^{Footnote 87} As third development, the ICTY jurisprudence has reinstated the connection between destruction of cultural property, especially that of religious character, and genocide as well as persecution on political, racial and religious grounds. In 2000, in the Blaskić judgment, the Trial Chamber sustained the contention of the Prosecution that the crime of persecution may inter alia take the form of destruction of symbolic buildings.^{Footnote 88} In the Kordić and Cerkez trial judgment, the Trial Chamber contended that destruction and damage of religious or educational institutions “when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of the people. As such it manifests a nearly pure expression of the notion of ‘crimes against humanity,’ for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects.” Therefore, as the Chamber concluded, “destruction and wilful[sic] damage of institutions dedicated to Muslim religion or education, coupled with the requisite discriminatory intent, may amount to an act of persecution.”^{Footnote 89}

In Kordić, the Trial Chamber stated that whereas the offense of willful damage or destruction to institutions dedicated to religion overlaps to a certain extent with the offense of unlawful attacks on civilian objects, the object of the latter offense “is more specific: the cultural heritage of a certain population.” Accordingly, the relevant prohibition “is the lex specialis as far as acts against cultural heritage are concerned” and “[t]he Trial Chamber intends to apply this more specialised offense to the facts of this case.”^{Footnote 90} As Lenzerini explains, as in the case of such an offense the cultural heritage of a community is targeted, “such an act acquires an especially qualified degree of gravity, which transcends the element of the physical and economic value of the property concerned and acquires a spiritual connotation.”^{Footnote 91}

A year after the Blaskić trial judgment, the Trial Chamber stated that in the presence of parallel evidence of criminal intent of physical destruction of a group, cases of cultural destruction not justified by military necessity could be considered as evidence of mens rea (the criminal intent) of genocide. The circumstances of the Krstić case^{Footnote 92} required an interpretation of the Genocide Convention of 1948, whose approach to the mens rea element hinges on biological and physical extermination only, as the reference to “cultural genocide” as a variety of genocide was removed from Article 2 of the Convention in the course of the preparatory work. Nonetheless, referring to the destruction of the principal mosque in Srebrenica and of houses of Bosnian Muslims in Srebrenica and Potočari committed in the wake of the physical extermination of the Bosnian Muslim men, the Trial Chamber considered that “where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.”^{Footnote 93} In doing so, it referred to a judgment of the Federal Constitutional Court of Germany from 2000, where the Court stated that the prohibition of genocide in international law protects the social, not merely biological existence of a group, and so the culprit’s intent does not have to be discerned only from the fact of physical extermination of a substantial number of members of the group.^{Footnote 94}

This approach has been upheld by the International Court of Justice in the Genocide Cases^{Footnote 95} and seems to equally have impacted the consideration of Case 002 by the mixed tribunal called to try serious crimes committed during the Khmer Rouge regime between 1975 and 1979.^{Footnote 96} In that case, the defendants were inter alia charged with the destruction of pagodas, sanctuaries, and Buddhist statues, and the conversion of monasteries, pagodas, and sanctuaries for other purposes (meeting halls, detention centers, dining halls, warehouses, and pig farms), seizing and burning Qurans, closing or destroying mosques or using them for other purposes (including as pigsties), forcing the Cham Muslim population to eat pork and cut their hair, and prohibiting them from praying, covering their heads, speaking the Cham language, and dressing according to their tradition.^{Footnote 97} The indictment characterized such behavior as falling into the purview of grave breaches of the Geneva Conventions and religious persecution against the Chams and Buddhists.^{Footnote 98} That the progressive approach should be followed, even though the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia offers the possibility of a more elaborate scheme of liability for cultural property destruction than the ICTY statute, is a promising perspective.^{Footnote 99} Prosecution of destruction of cultural heritage in the framework of crimes against humanity and genocide is not limited to war-related destruction, but allows response to instances taking places in times of peace, too.^{Footnote 100} The bridging of the gap between wartime and peacetime protection, manifested also in the adoption of the 2003 UNESCO Declaration, is a step towards a comprehensive regulation of the prohibition of intentional destruction of cultural property.^{Footnote 101} The connection between destruction of cultural heritage and crimes against humanity and genocide has also been underscored by the independent expert in the field of cultural rights Farida Shaheed.^{Footnote 102} This approach to cultural destruction results in the blurring of the traditional distinction between crimes against property and crimes against persons.^{Footnote 103}

VI. SHIELDING MILITARY OBJECTIVES WITH CULTURAL HERITAGE

While as outlined above, one of the evolutive tendencies in jurisprudence of the ICTY asserts that cultural property may become a military objective primarily due to its use, not location,^{Footnote 104} in the Prlić decision the Tribunal goes even further. In light of that judgment, even such an object is not to be automatically earmarked for destruction. In particular, as in that case, its cultural, historical, or symbolic importance and humanitarian utility would have to be outweighed by military advantage gained through its destruction. This highlight of the Prlić decision can also provide insight into what should be the general standard of conduct in situations where monuments and sites of cultural or historical significance are used by the enemy in support of military effort, for instance to shield important targets or military vehicles. Among the many examples, one could point to how during the 1991 Gulf War, anti-aircraft defenses were placed on top of the fortification of Ninevah for the coalition forces to choose between considerations of morality and operational security. Another much-publicized case featured a decision not to attack two fighter planes which were deliberately placed near the ancient Temple of Ur, using it as a shield.^{Footnote 105} On another occasion, Iraqi military vehicles were stationed precisely between a museum complex and the ancient Arch of Ctesiphon. Such tactics, strikingly resembling the unlawful use of civilian “human shields” in armed conflict situations, were not uncommon during the 2003–2011 war in Iraq either.^{Footnote 106} While the 1954 Hague Convention prohibits such practices as violating the duty of respect of cultural property, ^{Footnote 107} it does not allow the waiver of that duty to the benefit of the potential attacker. It is an edifying observation that in these cases the protected sites were not attacked even though not all states which made such a decision were at that time parties to the 1954 Hague Convention (notably, the United States and the United Kingdom were not). In such cases, it is not only the side refraining from attack that shows knowledge and compliance with international legal obligations. As in the examples mentioned above, the belligerents shielding military objectives with cultural heritage are often aware of the existence of the rule of respect, although they choose to exploit it for their own purposes.

To point to just one more instance of refusal to attack a cultural site, when in April and May 2002 around fifty Palestinian fighters sought refuge inside the Church of the Nativity in Bethlehem, the Israeli armed forces decided against storming this site of enormous importance to the entire humanity.^{Footnote 108} Yoram Dinstein’s comment that “[t]his case underscores how some extraordinary cultural and spiritual places cannot be automatically subjected to the application of the ordinary rules of the ius in bello” clearly echoes the point made by Dr. Croke in 1812.^{Footnote 109} Although two hundred years have passed since the Marquis de Somerueles decision, and the techniques of warfare and the law of war itself have developed a great deal in this time, the postulate that “the arts and sciences” do not conform to the ordinary rules of warfare has maintained its currency and validity.

VII. DESTRUCTION OF CULTURAL HERITAGE AND INTERNATIONAL PEACE AND SECURITY

Today, the cultural heritage of the “cradle of civilization” is facing another kind of threat, deadlier than military necessity or collateral damage in military operations. In the Middle East, important cultural heritage collections and sites, some of which have or having recognized world heritage status, are targeted with discrete discriminatory intent as markers of religious and cultural diversity and in parallel with other violations of basic human rights. In the context of the wave of these barbaric devastations by Islamist armed groups in the framework of recent and ongoing conflicts in Mali, Iraq, and Syria, the prohibition of intentional destruction of cultural heritage has repeatedly been affirmed. Addressing the situation in Mali in 2012, the African Commission on Human and Peoples’ Rights condemned the destruction and desecration of the mausoleums of Muslim saints and other ancient sites of the mythical city of Timbuktu as “barbaric and unspeakable acts which it considers as war crimes and crimes against humanity and which are inconsistent with the African Charter on Human and Peoples’ Rights and other African and international legal instruments on human rights and international humanitarian law.”^{Footnote 110} The UN Security Council characterized “attacks against buildings dedicated to religion or historic monuments” as violations of international law and “urged all parties in Mali to immediately take appropriate steps to ensure the protection of Mali’s World Heritage sites.”^{Footnote 111} In Resolution 2085, the Security Council condemned destruction of cultural and religious sites among other abuses of human rights and reminded that “some of such acts may amount to crimes under the Rome Statute and that their perpetrators must be held accountable.”^{Footnote 112} In Iraq and Syria, the appalling iconoclastic practices of the Islamic State involving, inter alia, the devastation of the collection of the Mosul Museum by sledgehammers and drills,^{Footnote 113} the bulldozing of sites in Nimrud^{Footnote 114} and Hatra,^{Footnote 115} further highlight its contempt for human life and dignity, emanating already from gruesome scenes of beheadings and people being burned alive, all cynically recorded and published on the Internet. Accordingly, resolution 2139 called on all parties “to immediately end all violence which has led to human suffering in Syria, save Syria’s rich societal mosaic and cultural heritage, and take appropriate steps to ensure the protection of Syria’s World Heritage Sites.”^{Footnote 116} The UN Secretary-General also condemned the deliberate destruction of cultural heritage as a war crime and an attack on humanity as a whole, joining in with the Director-General of UNESCO in the call on the entire international community to ensure that these attacks will not continue.^{Footnote 117} Resolution 2199 of the Security Council, adopted pursuant to chapter VII of the UN Charter, “[c]ondemns the destruction of cultural heritage in Iraq and Syria particularly by ISIL and ANF, whether such destruction is incidental or deliberate, including targeted destruction of religious sites and objects.”^{Footnote 118} Similar to the resolution for Iraq in 2003,^{Footnote 119} this important resolution also tackles the problem of another connection between cultural heritage, international terrorism, and armed conflict: the illicit trafficking of Syrian antiquities.^{Footnote 120} Resolution 2199 entrusts UNESCO and Interpol with the responsibility to fight this phenomenon, reportedly an important source of revenue for the Islamic State, and thus fueling acts of terrorism and the devastating armed conflict in the region.

These resolutions of the Security Council prove that the protection of cultural heritage in conflict areas can no longer be viewed merely in terms of prevention and minimization of property destruction, but as a matter of international peace and security. In this respect, the acts of barbaric devastation of ancient heritage in the Middle East perpetrated by the Islamic State may well represent another turning point in the evolution of the law and practice in this area.

VIII. FINAL REMARKS

To conclude, it is worth recalling that Article 4 of the 1972 World Heritage Convention establishes the protection of cultural heritage so that it may pass on to future generations, as the basic duty of the states’ parties. As this convention has enjoyed an almost universal endorsement so far,^{Footnote 121} it can be seen as the ultimate recognition of the erga omnes character of this duty, i.e. one that is owed not in a state-to-state scheme, but to the entire international community, which has a valid interest in the preservation of cultural heritage of all peoples.^{Footnote 122}

The realization that the protection of cultural heritage fosters human rights rather than claiming their primacy in the hierarchy of values is important for ensuring a comprehensive protection of both these categories during armed conflicts. If we think of cultural heritage as the “living language of the dead” through which the past generations speak to the present and future ones,^{Footnote 123} the ancient sites destroyed in Mali, Syria, and Iraq connecting us to the very roots of human civilization surely still would have had fascinating stories to tell. The “eternal silence” left in their stead is particularly deafening.^{Footnote 124}