무력충돌시 문화재 파괴 행위에 대한 국제형사책임의 과제

This chapter focuses on the practice of deliberate destruction of cultural heritage, which has represented a plague accompanying humanity throughout all phases of its history and has involved many different human communities either as perpetrators or victims. In most instances of deliberate destruction of cultural heritage, the target of perpetrators is not the heritage in itself but, rather, the communities and persons for whom the heritage is of special significance. This reveals a clear discriminatory and persecutory intent against the targeted cultural groups, or even against the international community as a whole. As such, intentional destruction of cultural heritage, in addition of being qualified as a war crime, is actually to be considered as a crime against humanity. Furthermore, it also produces notable implications in terms of human rights protection. Protection of cultural heritage against destruction is today a moral and legal imperative representing one of the priorities of the international community. In this respect, two rules of customary international law exist prohibiting intentional destruction of cultural heritage in time of war and in peacetime.

The Aftermath of Destruction of Cultural Heritage: Factoring In Cultural Rights in Post-Conflict Recovery Processes

Al Mahdi was the first case before the International Criminal Court (icc), which focused on the destruction of cultural property, and indeed, the first case before an international criminal tribunal which had the destruction of cultural property as the sole charge against a jihadist. This case note first addresses the international legal framework on the protection of cultural property in Section 2. Section 3 then assesses the concept of hisbah and its operation, including the reasons why the Hisbah in Mali destroyed cultural property. The next section considers the facts of the Al Mahdi case. Section 5 highlights the shortfalls in the Trial Chamber’s consideration of the rationales for the protection and destruction of cultural property, before the note concludes in Section 6.

The Intentional Destruction of Cultural Heritage as a Genocidal Act and a Crime Against Humanity

Throughout history, destruction and loss of cultural heritage have frequently occurred as a consequence of fanatic iconoclasm or as 'collateral' effects of armed conflicts. The devastation of the great rock sculptures of the Buddhas of Bamiyan by military and para-military forces of the Taliban Government of Afghanistan in March 2001 presents some unprecedented features. The discriminatory intent, reflected in the sheer will to eradicate any cultural manifestation foreign to the Taliban ideology, and the deliberate defiance of the United Nations and international public opinion make this destruction a very dangerous precedent. The authors try to assess the adequacy of international law in dealing with acts of this kind, and to identify gaps as well as relevant principles and rules applicable in the context of the deliberate destruction of cultural heritage. They conclude that extreme and discriminatory forms of intentional destruction of cultural heritage of significant value for humankind constitutes a breach of general international law applicable both in peacetime and in the event of armed conflicts, entailing international responsibility of the acting state and the possibility to make recourse to international sanctions against it, as well as criminal liability of the individuals who materially order and/or perform the acts of destruction.

Intentional destruction of cultural heritage by extremist non-State actors—be it by the Taliban in Afghanistan, the Islamic State (ISIS or ISIL) in Syria, Iraq, and Libya, or Boko Haram in Nigeria—is on the rise. Using the destruction of cultural heritage in Mali in 2012–13 as a case study, this chapter argues that the creation of the self-proclaimed independent State of ‘Azawad’ in Mali became a ‘test case’ for the United Nations’ will and capacity to prevent further destruction of world cultural heritage, and it also analyzes the legal foundation of the 2013 French military Operation Serval in Mali. It also discusses the responsibility to protect as applied to cultural heritage, evaluates the subsequent deployment of the United Nations MINUSMA, and evaluates the mandate given by UN Security Council Resolution 2100 (2013), the first in UN history that included comprehensive protection of cultural and historical sites as a task of a UN peacekeeping operation. Therefore, the chapter reviews critically not only the mandate of MINUSMA, but also its potential relevance concerning future culture-embedded UN peace missions, and also contributes to the debate of the usefulness of more ‘robust’ cultural protection action by the United Nations.

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The present article deals with the phenomenon of willful destruction of cultural heritage during armed conflicts: more particularly, the article focuses on the Balkan region, a zone that many conflicts ravaged along the centuries, and more specifically, during the Balkan wars, using two iconic cases of destruction of cultural heritage during the above-mentioned conflict: on one hand, the destruction of the Vijecnica in Sarajevo; on the other, the shelling of Dubrovnik, a case that gave rise to the prosecution and judgments of Pavle Strugar and Miodrag Jokic, among others, by the International Criminal Tribunal for the former Yugoslavia (ICTY). Using official reports, journalistic accounts, and documents from the ICTY and the Global Heritage Fund, the article assesses how even though there is no shortage of instruments (international tribunals) and policies (both local, national and international) to prevent cultural destruction during war times, in the case of the Balkans, these fall short of reaching their objective, and lack of funding and other motives block effective restoration of the damaged cultural heritage. Also, there is no effective law enforcement and punishment for these crimes, denying thus a deterring effect for the perpetrators. All these problems are further enhanced due to the lack of consensus and research on the criminal categorization of the destruction of cultural property during wartimes.

BackgroundThe relationship between military necessity and the protection of cultural heritage under international humanitarian law has been and continues to be governed by a constant tension that has shaped both doctrine and practice. While the principle of military necessity, rooted in and derived from the 1863 Lieber Code and codified in later instruments such as the 1907 Hague Conventions, remains one of the most fundamental principles permitting the adoption of measures necessary to achieve legitimate military objectives, it has also been used to justify the destruction of cultural property. Conversely, cultural heritage, deserving special protection under instruments such as the 1954 Hague Convention and its Protocols, represents the collective memory and identity of societies.MethodsTo evaluate the role of military necessity in the prosecution of crimes against cultural heritage, this paper uses a critical doctrinal and analytical approach, looking at both treaty law and international jurisprudence. It asks whether military necessity is a valid practical safeguard or a legal pretext for destruction.ResultsThe paper contends that the incorporation of “imperative military necessity” has engendered critical legal loopholes resulting from warring parties’ exploitation of the prioritization of military interests over the preservation of cultural heritage, rendering cultural heritage vulnerable in armed conflicts. International tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC), have endeavoured to restrict these justifications by criminalizing deliberate attacks and applying standards of necessity and proportionality.ConclusionsThe paper concludes that, despite treaties and jurisprudence limiting the scope of military necessity, the ongoing recognition of the necessity exception reveals structural weaknesses in international humanitarian law, thereby rendering cultural heritage vulnerable in armed conflict. Accordingly, it advocates for the strict limitation of the ‘imperative military necessity’ exception to provide better protection for cultural heritage during armed conflict.

Background The relationship between military necessity and the protection of cultural heritage under international humanitarian law has been and continues to be governed by a constant tension that has shaped both doctrine and practice. While the principle of military necessity, rooted in and derived from the 1863 Lieber Code and codified in later instruments such as the 1907 Hague Conventions, remains one of the most fundamental principles permitting the adoption of measures necessary to achieve legitimate military objectives, it has also been used to justify the destruction of cultural property. Conversely, cultural heritage, deserving special protection under instruments such as the 1954 Hague Convention and its Protocols, represents the collective memory and identity of societies. Methods To evaluate the role of military necessity in the prosecution of crimes against cultural heritage, this paper uses a critical doctrinal and analytical approach, looking at both treaty law and international jurisprudence. It asks whether military necessity is a valid practical safeguard or a legal pretext for destruction. Results The paper contends that the incorporation of “imperative military necessity” has engendered critical legal loopholes resulting from warring parties’ exploitation of the prioritization of military interests over the preservation of cultural heritage, rendering cultural heritage vulnerable in armed conflicts. International tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC), have endeavoured to restrict these justifications by criminalizing deliberate attacks and applying standards of necessity and proportionality. Conclusions The paper concludes that, despite treaties and jurisprudence limiting the scope of military necessity, the ongoing recognition of the necessity exception reveals structural weaknesses in international humanitarian law, thereby rendering cultural heritage vulnerable in armed conflict. Accordingly, it advocates for the strict limitation of the ‘imperative military necessity’ exception to provide better protection for cultural heritage during armed conflict.

Background The relationship between military necessity and the protection of cultural heritage under international humanitarian law has been and continues to be governed by a constant tension that has shaped both doctrine and practice. While the principle of military necessity, rooted in and derived from the 1863 Lieber Code and codified in later instruments such as the 1907 Hague Conventions, remains one of the most fundamental principles permitting the adoption of measures necessary to achieve legitimate military objectives, it has also been used to justify the destruction of cultural property. Conversely, cultural heritage, deserving special protection under instruments such as the 1954 Hague Convention and its Protocols, represents the collective memory and identity of societies. Methods To evaluate the role of military necessity in the prosecution of crimes against cultural heritage, this paper uses a critical doctrinal and analytical approach, looking at both treaty law and international jurisprudence. It asks whether military necessity is a valid practical safeguard or a legal pretext for destruction. Results The paper contends that the incorporation of “imperative military necessity” has engendered critical legal loopholes resulting from warring parties’ exploitation of the prioritization of military interests over the preservation of cultural heritage, rendering cultural heritage vulnerable in armed conflicts. International tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC), have endeavoured to restrict these justifications by criminalizing deliberate attacks and applying standards of necessity and proportionality. Conclusions The paper concludes that, despite treaties and jurisprudence limiting the scope of military necessity, the ongoing recognition of the necessity exception reveals structural weaknesses in international humanitarian law, thereby rendering cultural heritage vulnerable in armed conflict. Accordingly, it advocates for the strict limitation of the ‘imperative military necessity’ exception to provide better protection for cultural heritage during armed conflict.

Background The relationship between military necessity and the protection of cultural heritage under international humanitarian law has been and continues to be governed by a constant tension that has shaped both doctrine and practice. While the principle of military necessity, rooted in and derived from the 1863 Lieber Code and codified in later instruments such as the 1907 Hague Conventions, remains one of the most fundamental principles permitting the adoption of measures necessary to achieve legitimate military objectives, it has also been used to justify the destruction of cultural property. Conversely, cultural heritage, deserving special protection under instruments such as the 1954 Hague Convention and its Protocols, represents the collective memory and identity of societies. Methods To evaluate the role of military necessity in the prosecution of crimes against cultural heritage, this paper uses a critical doctrinal and analytical approach, looking at both treaty law and international jurisprudence. It asks whether military necessity is a valid practical safeguard or a legal pretext for destruction. Results The paper contends that the incorporation of “imperative military necessity” has engendered critical legal loopholes resulting from warring parties’ exploitation of the prioritization of military interests over the preservation of cultural heritage, rendering cultural heritage vulnerable in armed conflicts. International tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC), have endeavoured to restrict these justifications by criminalizing deliberate attacks and applying standards of necessity and proportionality. Conclusions The paper concludes that, despite treaties and jurisprudence limiting the scope of military necessity, the ongoing recognition of the necessity exception reveals structural weaknesses in international humanitarian law, thereby rendering cultural heritage vulnerable in armed conflict. Accordingly, it advocates for the strict limitation of the ‘imperative military necessity’ exception to provide better protection for cultural heritage during armed conflict.

Intentional destruction of cultural heritage is a well-known phenomenon which has been particularly exacerbated in recent times. Its common denominator is represented by the intent to persecute the communities for which that heritage represents an essential element of their cultural identity and distinctiveness. In legal terms, it produces different implications, to the point that – depending on the circumstances in which it is perpetrated – it may be qualified as a war crime, crime against humanity, violation of internationally recognised human rights, or evidence of the existence of the intent to commit genocide. Since the whole international community is seriously affected by the destruction of cultural heritage, it is indispensable that the doctrine of responsibility to protect (R2P) be put into practice seriously and effectively with the purpose of protecting humanity against the irreplaceable loss of its heritage.

ABSTRACTRecently, the UN Special Rapporteur in the field of cultural rights has stated that the intentional destruction of cultural heritage is a violation of cultural rights. The Rapporteur examines a timely issue but bases her statement on narrow understandings ‘heritage’ as irreplaceable and ‘destruction’ as ideologically motivated and aggressive. This reinforces hegemonic ideas about heritage and what constitutes its destruction. In this article, I discuss the case of Bagan in Myanmar to illustrate the limitations of the Rapporteur’s statement. In Bagan, whether and how ‘heritage’ should be protected has been the topic of controversy. By implication what is – or is not – considered intentional destruction is contested. Ambiguity about the meaning of cultural rights, the dissonant nature of heritage, the subjectivity of destruction, and complex multi-layered motivations behind ‘destructive’ practices make overarching statement about the destruction of cultural heritage and cultural rights violations too bold and call for more nuance and contextualised research.

Perishing Heritage: