International Criminal Law and the Protection of Cultural Heritage

Objectives: This article examines the protection of cultural property in times of armed conflict, arguing that the absence of a unified legal framework contributes to the failure of international law in protecting such property. Methodology: Using analytical and critical approach, this Article analyzes relevant legal provisions and assesses their impact on cultural property protection. Results: The article proposes three key approaches to enhance the understanding and implementation of international law in this context. First, it suggests that cultural property protection should be viewed from a humanitarian perspective rather than solely as a matter of regulating armed conflicts. Second, it advocates for the use of existing international legal mechanisms that have proven effective and widely accepted. Third, the article calls for a reassessment of the military necessity exception. Given recent developments, it argues that this exception should be refined, and a new legal concept for “crimes against cultural property” should be introduced to deter violations. Conclusion: Ultimately, the article concludes that the failure to protect cultural property stems not from a lack of legal provisions but from inadequate understanding and application of existing laws. Instead of drafting new laws, improving comprehension and interpretation of current regulations would enhance compliance and effectiveness. Implementing the proposed approaches would contribute to a more coherent and practical legal framework, ensuring better protection of cultural heritage during armed conflict.

This article undertakes a comparative analysis of the two main international legal instruments providing for offences against cultural property and cultural heritage in times of armed conflict in order to assess existing gaps and lacunas, and to make suggestions on how better to advance the protection of cultural property through international criminal law. The International Criminal Court Statute takes a very retrograde attitude to this kind of crime – which the author calls the civilian-use approach – whereas the Second Protocol to the 1954 Hague Convention on the Protection of Cultural Property in Times of Armed Conflict seems far more innovative, preferring a cultural-value oriented approach. The author concludes that the latter approach is more appropriate and that, at present, the most effective tool for pursuing war crimes against cultural property is Protocol II to the 1954 Hague Convention. It is thus crucial to promote ratification by a large number of states and to encourage states to adopt implementing legislation that may allow domestic judges to prosecute the most serious crimes against cultural heritage on the basis of jurisdictional criteria provided for in Protocol II to the 1954 Hague Convention.

Cultural values are part of human dignity and civilian life. Cultural property must be primarily protected during armed conflicts as well as during peacetime. Unfortunately, in armed conflicts, culture has often been one of the primary victims of conflict. As a matter of fact, the parties to the conflict usually target the cultural heritage militarily or politically in order to demoralize the targeted society and show their superiority. During the armed conflicts, many cultural heritages, many of them world heritage, have been destroyed or damaged. The destruction of cultural heritage fuels violence, hatred and revenge among people and undermines the foundations of peace by impeding reconciliation even when conflicts are over. The protection of cultural property in international law is regulated in many international documents. However, the first international regulation prepared by UNESCO on the protection of cultural property in times of armed conflict, “The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict” has a special importance. International law requires the protection of cultural heritage in armed conflicts. Recent history, however, provides numerous examples of the deliberate destruction or its use to secure a military objective. This leads to questioning whether international law provides adequate protection to cultural heritage in times of armed conflict. The study aims to examine what should be understood from the concept of cultural property in terms of international law, what the international regulations are in this regard and whether these regulations are sufficient, on the basis of the 1954 Hague Convention on the Protection of Cultural Properties during Armed Conflicts, and to make some observations and comments.

"Chapter 6. Enhancing Individual Criminal Responsibility For Offences Involving Cultural Property – The Road To The Rome Statute And The 1999 Second Protocol" published on 01 Jan 2010 by Brill | Nijhoff.

On 22 January 2025, an international conference titled “Patrimoine en péril?” was held at the Museum of Art and History in Geneva. It was organized by the UNESCO Chair in the International Law of the Protection of Cultural Heritage (University of Geneva), the Museum of Art and History (MAH), and the International Alliance for the Protection of Heritage (ALIPH) Foundation. This event was part of the eponymous exhibition at MAH,1 commemorating the seventieth anniversary of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and coinciding with the twentieth anniversary of the entry into force of the Swiss Cultural Property Transfer Act. The conference explored these two themes, bringing together international experts from academia, law, and heritage conservation and management, reflecting a cross-disciplinary perspective on the protection of cultural property in times of crisis. In his opening remarks, Marc-Olivier Wahler (Director of the MAH) highlighted the evolving role of museums in contemporary society. The conference was split into five sessions, each addressing various critical issues related to cultural property, and were moderated by Béatrice Blandin (MAH), Antoinette Maget Dominicé (University of Geneva), and Marc-André Renold (University of Geneva).

Deterring a crisis or war requires the commitment of large forces and resources that may include armed forces, security services or other non-military defense elements. The entire crisis management system is organized by the public administration. A crisis and the threat of war necessitate the implementation of a wide range of tasks aimed at securing life, health and property. Cultural property is a special category of property protected under the Polish legal system. The Republic of Poland undertook to protect it upon accession to the Hague Convention of 1954 on the Protection of Cultural Property in the Time of an Armed Conflict. This international agreement, along with the Polish experiences of the Second World War, laid the foundations for building an efficiently functioning system for the protection of cultural property during an armed conflict. Recent years have brought an increase in global interest in this area. Asymmetric threats against cultural heritage objects forced the involvement of military entities in developing security mechanisms. The author will provide an overview of national institutions tasked with the protection of cultural property in times of peace, assess the quality of these institutions as well as propose de lege ferenda postulates that could improve their functioning.

Since the 1990s, situations in which culturally significant heritage sites serve as symbolic targets for intentional attacks, leading to the 'destruction of enemy communities,' have frequently occurred. The International Criminal Tribunal for the former Yugoslavia (ICTY), established to prosecute serious violations of international humanitarian law within the former Yugoslav territories, addresses prominent cases of intentional attacks and destruction of cultural property during the armed conflict, specifically targeting the annihilation of ethnic identity. This article examines the implications and limitations of international legal norms regarding the protection of cultural heritage during armed conflicts, focusing on the Dubrovnik Old Town shelling incident, a representative case of cultural property destruction prosecuted by the ICTY. Firstly, the intentional destruction of cultural heritage is undeniably a significant violation of values that the international community must protect. The pursuit of individual criminal responsibility for the destruction of cultural heritage within the international criminal tribunal signifies a substantial advancement in international efforts to protect cultural heritage during armed conflicts. The negative impact of the intentional destruction of cultural property on human dignity and universal human values is undeniable. However, ensuring effective protection of cultural property in the current normative context, where attacks on cultural property for military purposes may be justified, remains challenging. Secondly, military necessity, rooted in customary international law, limits attacks on enemy forces to military objectives, focusing on the centralization of enemy forces, balancing the military necessity of concentrated attacks on enemy forces with humanitarian considerations to protect civilian objects. However, determining what qualifies as a military objective can be challenging, as it depends on the circumstances of combat and operations. Regardless of whether the principle of proportionality is applicable, evaluating the military necessity from the perspective of cultural heritage protection is crucial. ICTY recognizes that even when military necessity justifies attacks on civilian objects, the intentional destruction of cultural heritage can have a significant impact on the psychological well-being of civilians and may upset the balance with military superiority. Thus, careful consideration is necessary when assessing the military necessity in cases where the protection of cultural property, with a higher need for protection than general civilian objects, is involved. Moreover, even if a target has dual-use, being considered a military objective, evaluating proportionality in the attack is essential to prevent harm to civilians, in accordance with the principle of proportionality. In conclusion, the intentional destruction of cultural heritage should be treated as a threat to the common values of the international community, necessitating appropriate legal and policy responses in line with the actual circumstances of the armed coflict. Military commanders should not only view attacks on cultural heritage as inevitable collateral damage but also recognize the gravity of such acts as war crimes and consider them strategically within military operations.

International Legal Protection of Cultural Heritage in Armed Conflict: Achievements and Developments

The relevance of studying the legal foundations of the organization of the protection of cultural property in the context of armed conflict is increasing against the background of recent international events, as well as the aggravation of relations between the Russia and a number of foreign states, including the Baltic states. These circumstances require not only theoretical understanding, but also practical application of the norms of international law. The object of the study is the protection of cultural heritage in the event of an armed conflict. The subject of the study is the regulation and implementation of international legal protection of cultural heritage in the event of an armed conflict. The purpose of the article is to develop proposals for improving the international legal mechanism for the protection of cultural property in the event of an armed conflict, enshrined in the law of the Russian Federation. The methodological basis of the research presented in the article is a systematic approach and a doctrinal method. The following methods were used in the research: analysis, synthesis, generalization, deduction, formal legal analysis, and others. The paper examines the legislative, institutional and practical aspects of the legal framework for the protection of cultural property in the event of an armed conflict. The main international and regulatory legal acts of the Russian Federation regulating these issues are given. The author suggests possible ways to improve the national legislation of the Russian Federation on the protection of cultural property in the event of armed conflict and ensuring compliance with international humanitarian law. The position is argued on the need not only to inform, but also to test military personnel of the Armed Forces of the Russian Federation on the protection of cultural property and responsibility for violations of international law (including the destruction, misappropriation and vandalism of cultural heritage). The novelty of the research lies in a comprehensive approach to analyzing the protection of cultural property in the event of armed conflict, identifying shortcomings in existing norms and offering specific recommendations for their improvement.

Cultural heritage rests on imaginings of a shared humanity transcending national dividing lines. However, cultural heritage sites are frequently targeted in war. In this article I show that the politics of cultural protection is marked by tensions and contestations. A key argument is that the protection of cultural heritage in armed conflict is a militarised practice that is informed by notions of protection that are broadly western-centred and masculinised. Therefore, I suggest that they are insensitive to the gendered and colonial power relations that undergird the protection of cultural property. Informed by critical heritage studies, cosmopolitanism, and feminist IR scholarship, I elucidate the claims of this article through a feminist narrative analysis of protection. I identify what is said and what is silenced in heritage protection narratives. First, I focus on the wider storytelling that surrounds heritage protection, unpacking the ethical, gendered, and colonial assumptions employed. Second, I turn to the narration of military protection in the UNESCO military manual, attending to its ethical underpinnings, protection logics, and privileging of distinctively western military knowledge. I conclude by calling for a more nuanced approach to cultural protection.

With the enactment of ʻthe Basic Law on National Heritageʼ in Korea, The ʻCultural Property Protection Actʼ will be renamed ʻthe Act on the Preservation and Utilization of Cultural Heritageʼ(acronym: the Cultural Heritage Act) from May 17, 2024. The Cultural Heritage Act shall serve as the basic law related to the cultural heritage legislation. The Cultural Heritage Act includes such as contents; the establishment and promotion of the protection of cultural heritage as defined in the Basic Law on National Heritage, the creation of a foundation for cultural heritage protection, and the nationally designated cultural heritage, general movable cultural heritage, and municipal-designated cultural heritage. In the Basic Law on National Heritage, cultural heritage refers only to tangible cultural heritage and intangible cultural heritage is separately classified as intangible cultural heritage. But both tangible and intangible cultural heritage should be considered as the subject of the cultural heritage legislation. Korea had a representative comprehensive cultural property protection legal system in the past, but government recently divided the Intangible Cultural Property Act, the Buried Cultural Property Act, and the Cultural Property Repair Act from the previous Cultural Property Protection Act. Furthermore, Matters related to the preservation and management of natural monuments and scenic spots will be stipulated in newly enacted the “Act on the Preservation and Utilization of Natural Heritage” (acronym: Natural Heritage Act). Although the laws was divided from previous Cultural Property Protection Act, the jurisdiction of the Cultural Heritage Administration remains the same. In order for an effective cultural heritage policy to be activated under the changed legal environment, it is necessary to analyze and examine international agreements related to the globalization of cultural heritage and related legal systems of major countries. And these analysis and examination will be contributed to make legislative and policy improvements to the issues that have been problematic domestically. In this regard, this paper aims to draw implications by examining the German cultural heritage legal system which the federal and state cooperate while maintaining a dual system. In Germany, the protection and management of domestic cultural heritage is protected by the State(Land) in the form of monument protection laws, and the federal government operates the cultural property protection law, which aims to prevent cultural property from being lost by controlling the export, import, and distribution of cultural property. I think it will be a great reference for improving legislation for the globalization of cultural heritage in Korea. In particular, the regulations related to the return of cultural properties illegally leaked abroad and the international exchange of cultural properties are worth referring to. Germany's Cultural Property Protection Act as a federal law has detailed regulations that control the export, import, and distribution of cultural properties, so I think it will be a great reference for improving legislation to globalize Korea's cultural heritage. In particular, regulations related to the return of illegally leaked cultural properties overseas, the guarantee of return of international loans, and the international exchange of cultural properties are worth referencing in Korea's legislative improvement.

Contents: Introduction Bibliography and further reading. Part I Foundations: The Concept of Cultural Heritage: Cultural property internationalism, John Henry Merryman On defining the cultural heritage, Janet Blake The Politics of Cultural Heritage Rights: The expanding purview of cultural properties and their politics, Rosemary J. Coombe The politics of preservation: privileging one heritage over another, Jonathan S. Bell. Part II Types of Cultural Heritage Rights: Natural Heritage as Cultural Heritage: Nature and culture: a new World Heritage context, Shabnam Inanloo Dailoo and Frits Pannekoek World Heritage and rights-based approaches to nature conservation, Gonzalo Oviedo and Tatjana Puschkarsky Urban Landscapes as Cultural Heritage: Informal settlements and urban heritage landscapes in South Africa, Lindsay M. Weiss Artefactual Cultural Heritage Rights: Sir, how much is that Ming vase in the window? Protecting cultural relics in the People's Republic of China, Michael L. Dutra Underwater Cultural Heritage Rights: 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, Sarah Dromgoole Intangible Cultural Heritage Rights: Heritage trouble: recent work on the protection of intangible cultural property, Michael F. Brown The UNESCO concept of safeguarding intangible cultural heritage: its background and Marrakchi roots, Thomas M. Schmitt Indigenous Cultural Heritage Rights: Indigenous cultural heritage in development and trade: perspectives from the dynamics of cultural heritage law and policy, Rosemary J. Coombe with Joseph F. Turcotte Indigenous cultural landscapes and the politics of heritage, Melissa F. Baird. Part III Contemporary Issues in Cultural Heritage Rights Law: Repatriation of Cultural Heritage: Resolving material culture disputes: human rights, property rights and crimes against humanity, Robert K. Paterson Illicit Trade in Cultural Heritage: Controlling the international market in antiquities: reducing the harm, preserving the past, Patty Gerstenblith Armed Conflict and Cultural Heritage Protection: The protection of cultural property in times of armed conflict: the practice of the International Criminal Tribunal for the former Yugoslavia, Hirad Abtahi The obligation to prevent and avoid destruction of cultural heritage: from Bamiyan to Iraq, Francesco Francioni and Federico Lenzerini Tourism, Economic Development and Cultural Heritage Protection: Posta Econflict heritage and tourism in Cambodia: the burden of Angkor, Tim Winter. Part IV Future Directions in Cultural Heritage Rights Law: Cultural Heritage Protection and the Challenge of Climate Change: Changing climate, changing culture: adding the climate change dimension to the protection of intangible cultural heritage, Hee-Eun Kim Cultural Expressions as Cultural Heritage: The UNESCO Convention on the Protection and Promotion of Cultural Expressions: building a new world information and communication order?, Rachael Craufurd Smith The Human Genome and Cultural Heritage: The human genome as common heritage: common sense or legal nonsense?, Pilar N. Ossorio Beyond Rights? Rethinking the Cultural Heritage Protection Paradigm: Cultural heritage rights: from ownership and descent to justice and well-being, Ian Hodder. Name index.

Excavations in Search of Cultural Artifacts During Armed Conflict: A War Crime Under Customary International Law

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.

Objective. The aim of the study is to analyze the state of implementation of the Council of Europe Convention on Offences relating to Cultural Property in national criminal legislation. Methodology. The methodology includes the analysis of individual scientific works, provisions of the Criminal Code of Ukraine, the draft law and the Nicosia Convention, synthesis of scientific knowledge and drawing of reasonable conclusions on the subject of the study. The following methods of scientific cognition were used in the study: analysis, synthesis, formal and dogmatic, comparative legal, systemic, logical and semantic, and systemic and structural. Results. In the course of the study, it was recognized that the improvement of legislation on the protection of cultural property should be guided by the provisions of the Nicosia Convention. The analysis of the draft law «On Amendments to the Code of Ukraine on Administrative Offenses and the Criminal Code of Ukraine in connection with the ratification of the Council of Europe Convention on Offenses relating to Cultural Property» of December 12, 2024, No. 12310, allowed to establish its constructive and terminological flaws and inconsistency with the provisions of the Nicosia Convention. It is proposed to use the universal term «cultural property» in the process of improving Ukrainian criminal legislation. The author substantiates the need to harmonise the content of the term ‘cultural property’ with the Nicosia Convention and suggests that the term «cultural heritage object» should be clarified in the Law of Ukraine «On Protection of Cultural Heritage» of 8 June 2000. Originality. The study established that when updating criminal legislation on the protection of cultural property, one should be guided not only by the provisions of the Nicosia Convention, but also by the ongoing developments in the doctrine of criminal law. It is established that the draft law № 12310 and the Nicosia Convention do not take into account the current Russian aggression against Ukraine. Practical significance. The results of the study can be used in law-making activities in the course of improving national legislation in the field of protection of cultural property.