Measuring the Protection of Cultural Property Under International Humanitarian Laws: Analysis of Russia-Ukraine Conflict

The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention) remains the leading treaty on the treatment of cultural heritage during armed conflict and occupation. After several decades of relative dormancy, eleven States have joined the 1954 Hague Convention in the last decade, including two major military powers: the United States and the United Kingdom. In addition to the 1954 Hague Convention, a host of laws touch on the protection of cultural property in armed conflict, as well as those under customary international law. Nonetheless, there are disagreements in interpretations of States’ obligations toward cultural property during armed conflict stemming from a variety of factors. These factors can include: whether States are Parties to the instrument that conveys the obligation or if the obligation is one of customary international law, which itself is often contested; the individual State’s interpretation; interpretation by tribunals; and a plethora of other factors. Given these discrepancies in interpretation, a review of States’ military manuals is useful to see if they shed any light on the State’s interpretation of their obligations toward cultural property under the law of armed conflict (LOAC) and international obligations in LOAC more generally. This chapter will analyze and compare the military manuals of the United States and the United Kingdom to determine how they elucidate several key issues in the protection of cultural property during armed conflict, such as the definition of ‘cultural property’, requirements for ‘respect’, the doctrine of military necessity, and laws applicable in non-international armed conflicts.

This article considers whether there are any gaps within the legal framework protecting cultural heritage from attacks conducted by non-state armed groups. It first looks at the existing obligations of states vis-a-vis non-state armed groups with regard to the protection of such heritage, in particular their obligations stemming from the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. It also examines the obligations of non-state armed groups with regard to cultural heritage, clarifying their obligations under international humanitarian law, including customary international norms, and other sources of international law. Finally, this article discusses accountability mechanisms, in particular with the application of international criminal law to prosecute the members of non-state armed groups who have conducted attacks against cultural property.

Armed conflict is perhaps as old as humankind itself. Although the rules regulating the protection of persons are far more important than protection to property, it does not mean that the protection of property is of only modest significance. This chapter considers international law pertaining to the protection of cultural property in armed conflict. It first surveys the development of rules relevant to wartime protection of cultural property. In order to determine exactly which law, and how much of it, is relevant to the Old Bridge, the chapter then examines the nature of the Bosnian and Herzegovinian Croat-Muslim conflict in Mostar at the time of the destruction of the Old Bridge. This examination highlights the direct intervention and overall control tests. Finally, the chapter outlines the law applicable to the destruction of the Old Bridge, specifying the applicability of both customary and treaty international humanitarian law (IHL). Keywords:armed conflict; Croat-Muslim conflict; cultural property; international law; Mostar; Old Bridge; wartime protection

The protection of cultural property has long been recognised under international humanitarian law. Article 5 of the 1954 Hague Convention on Cultural Property embodies three-pronged affirmative obligations specifically relating to occupied territory. With specific regard to occupied territory, Article 56 of the Hague Regulations of 1907 accord special protections to the property of institutions dedicated to religion, charity, education, the arts and sciences. The occupying powers are absolutely prohibited from seizing, destroying or causing wilful damage to institutions of this character, historic monuments, and works of art and science. In occupied territory, the occupying power must prohibit, prevent and stop any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, the cultural property as defined in Article 1 of the 1954 Convention. The application of rules on the conduct of hostilities in turn necessitates the occupying power to undertake careful appraisal of the applicable rules.Keywords: cultural property; Hague Regulations; international humanitarian law; occupied territory

This book brings together leading feminist international criminal and humanitarian law academics and practitioners to examine the place of gender in international criminal law (ICL). It identifies and analyses prevailing misconceptions and narrow understandings of gender, before turning to a consideration of the impact a limited conceptualization has on accountability efforts and the protection of rights. It includes specific examples from national and international jurisprudence from which it is clear that the term ‘gender’ has not been well understood and that gender ‘blind spots’ prevail. These manifest starkly, for example, with respect to sexual violence against men and boys, gender-based crimes affecting children, and the gendered dimensions of slavery, forced marriage, and reproductive crimes. The authors consider how best to implement a deeper and more accurate understanding of gender in the practice of international criminal law by identifying possible responses, including embedding a sophisticated gender strategy into the practice of ICL, the gender-sensitive application of international human rights and international humanitarian law, and feminist reconstruction of judging in ICL. Other authors examine efforts to ensure that gender is expansively interpreted in ICL, for example in a new treaty on crimes against humanity, and that victims’ reparation awards are gender-inclusive. The objective of this book is to promote a more nuanced and expanded understanding of the concept of ‘gender’ in the field ICL in order to strengthen efforts for accountability for war crimes, crimes against humanity, genocide, and aggression.

Refugee status determination is difficult by its very nature but it becomes even more complex when the issue of exclusion under article 1F(a) is raised and it is alleged that there are ‘serious reasons for considering’ that the applicant is ‘guilty of having committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments that have been drawn to make provision for such crimes’. The ‘War Crimes and Refugee Status’ Research Project’s Canadian jurisprudence dataset, consisting of 98 article 1F(a) cases, reveals that more than 91 per cent of these cases cite international humanitarian law (IHL) or international criminal law (ICL), but only 13 per cent of the cases cite UNHCR guidelines or directives. Interestingly, nearly two-thirds, 65.8 per cent, of these appeal cases are denied. Five of the most frequently cited judgments in this sample of cases were Ramirez , Moreno , Sivakumar , Harb , and Pushpanathan , in that order. After analyzing these five appeal court judgments in depth, seven legal principles were identified respecting the application and interpretation of IHL and ICL in Canada: (1) violations of international law can be committed by private individuals as well as states, or public officials acting on behalf of states; (2) the standard of proof for ‘serious reasons for considering’ under article 1F is lower than a balance of probabilities, the civil law standard; (3) two fundamental tenets on which complicity and culpability are established in international crimes are: (i) no one can commit an international crime without personal and knowing participation; (ii) complicity rests on the existence of a shared common purpose and the knowledge of all the parties involved; (4) Mere membership or passive acquiescence in a group or organization that commits international crimes can never be sufficient to exclude a refugee applicant under article 1F(a); (5) ‘Voluntary, significant and knowing contribution’ does not require formal membership in a group or organization that is engaged in crimes against peace, war crimes or crimes against humanity. An accomplice contributes knowingly to those activities of a group or organization that makes them possible. (6) the offence of ‘aiding and abetting’ cannot be made out by mere presence on the scene where an international crime has taken place. What is required is voluntary, significant and knowing contribution in persecutory acts. (7) there is a close affinity between article 1F(a), which deals with those activities that take place in situations of armed conflict, and article 1F(c), which deals with activities irrespective of whether or not they take place in a situation of armed conflict. Article 1F(a) and (c) can overlap in various ways, such as where the sales of illicit narcotics are used to finance the purchase of weapons that are used in armed conflicts and/or for terrorist activities. The new test for exclusion under article 1F(a) in Canada, ‘voluntary, significant and knowing contribution,’ leaves a broad area of discretion for refugee law decision makers. This will cause, undoubtedly, legal contention in the appellate courts as the article 1F(a) cases make their way through the judicial process in Canada. The application and interpretation of international refugee law under article 1F(a) in Canada will continue to evolve with national court judgments as well as the development of international humanitarian and criminal law.

55 on the protection of cultural property.The challenges and threats to Ukraine's cultural heritage in the context of russia's aggression against Ukraine and the existing mechanisms for the protection of cultural property that can be used are analyzed.It is proposed to apply the mechanisms of enhanced protection under the Protocols of 1954 and 1999 to protect the cultural property of Ukraine.The content of the provisions of international humanitarian and international criminal law on criminal liability for crimes against cultural property is characterized.The peculiarities of qualification of crimes against cultural property of Ukraine under the Criminal Code of Ukraine are indicated.Amendments to the legislation of Ukraine on the protection of cultural property are recommended.

Cultural property can be damaged to varying degrees during armed conflicts, such as the devastating blows inflicted on cultural property during WWII. In reality, when a country is at war, its cultural property is exposed to unintended or purposeful damage. Cultural property has been protected by laws and regulations since the early twentieth century, and humanitarian law provides specific measures on the issue. This article will examine the causes of attacks on cultural property in the context of today's armed conflicts and analyze the inadequacies of the protection of cultural property in today's international humanitarian law. Despite the growing concern of the international community for cultural heritage, there is still a lack of clear procedures and penalties for crimes against cultural heritage in the context of regional armed conflicts, and the international legal system needs to be further improved.

The article reveals the criminal law characteristics of war crimes in the International Criminal Law, International Humanitarian Law and under the National Criminal Law. The category of “war crimes” is analysed and its Criminal Law description is made in terms of substantive, international and national components in the context of combining theoretical and applied aspects of war crimes research. A comparative analysis of war crimes in both International Criminal Law and National Criminal Law has been made, with the examples of application of Article 438 of the CC of Ukraine from judicial practice provided, and the legislative regulation of the term “war crimes” in the CC of Ukraine has been proposed, given the trend of clear separation of the category of war crimes which has been observed since the beginning of the armed conflict in Ukraine in the National Criminal Law science and in law application which remains doctrinal. The range of problematic issues of interpretation and enforcement of Art. 438 of the Criminal Code of Ukraine arising in court practice in the course of implementation of this provision has been outlined, such as the “international legal” blanket nature of the disposition of Art. 438 of the CC of Ukraine, the need for ratification of the Rome Statute and implementation of its provisions into national legislation, low sanctions for war crimes, distinguishing war crimes from other international crimes, as well as war crimes from “general criminal” offences provided for in other articles of the Special Part of the CC of Ukraine. It has been proved that courts in criminal proceedings should establish a contextual element when qualifying violations of the laws and customs of war under Article 438 of the CC of Ukraine as an independent element of war crimes, which makes it possible to distinguish them from "general criminal" offences provided for in other sections of the CC of Ukraine. The low sanction of Part 1 of Art. 438 of the CC of Ukraine has been stated and proposals have been made to strengthen it in order to establish in the Criminal Law a relevant punishment for persons who committed war crimes during the armed conflict in Ukraine, which is a requirement of today.

This paper deals with the use of military or militarized experts for cultural property protection (CPP) during times of conflict. CPP activities generally take place within a juridical framework that gives obligations for all parties involved, primarily the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and attention is paid to various implications and challenges that occur when implementing military CPP obligations within this framework. To illustrate matters, the paper details a specific case study from the author’s own field experience in the safeguarding of the archaeological site of Uruk in Iraq. Aspects, including economic, legal, financial, and educational implications, are presented and these are especially relevant since they apply (to an extent) to other situations, such as the recent cultural disasters in Egypt, Libya, and Syria. The Uruk case study is used to suggest a number of key elements that are vital for the implementation of an effective CPP strategy in the context of military operations. Overall, the importance of international cooperation, training, and education, along with the assistance of civil reach-back capabilities, is emphasized. The paper argues that an effective way to protect Cultural Property during armed conflicts is through military channels and with military logistics and tools. To fulfil CPP in agreement with International Humanitarian Law (IHL) joint preparations in peacetime are necessary. The handover of military initiated CPP projects to civil authorities has to take place as soon as the situation permits. The paper concludes with a set of recommendations.

All military involvement in the protection of cultural property in the Netherlands is a direct consequence of legal obligations laid down in international humanitarian law (IHL). The 1954 Hague Convention was supplemented by Protocol I, which imposed further obligations on occupying forces in control of hostile territory and on other High Contracting Parties to take into custody and to return cultural property coming from occupied territories at the close of the hostilities. However, the eruption of armed conflict in former Yugoslavia in the 1990s demonstrated the very limited effect of IHL protection. As a result of this, Protocol II to the 1954 Convention sought to impose even tighter restrictions on the impact of military operations on cultural property. This chapter discusses the role of the Dutch armed forces in protecting cultural property. Keywords: armed conflict; cultural property; Dutch armed forces; Dutch Ministry of Defence; Hague Convention; international humanitarian law (IHL); military operations; protection

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

Before the 1940's, trends in international human rights, international criminal law and humanitarian law helped develop a rudimentary set of norms, particularly in Europe. These early trends sprang from populist social justice movements and evolving intellectual, religious and social mores. The 1940's saw the landmark intersection of preexisting trends in international human rights, humanitarian and criminal law and provided the bedrock intellectual, legal and historical bases that would incorporate those disparate trends into a collective and vital modern legal rights regime. These advances helped articulate and refine the substantive and procedural guidelines for subsequent international criminal bodies and help drive the revival of the principles of Nuremberg during the 1990's and into the 21st century. The modern international human rights treaty regime has affected international law in more ways than just by growing a sophisticated international jurisprudence, generating more exacting substantive definitions of human rights, and general principles of law.Keywords: International Criminal Law; international human rights; international humanitarian law; international jurisprudence

The ongoing armed conflict in Syria has severely impacted human lives. More than 250,000 Syrians have lost their lives and more than 11 million were displaced from their homes. The impact of the conflict has been extended to the invaluable cultural property of Syria. The Syrian exceptional rich and unique cultural property was in the middle of hostilities, which took various forms including bombing; fighting in or near the archaeological sites; looting and illicit trafficking of invaluable objects and artefacts. As per Public International Law rules, cultural property is protected against unlawful acts, further, these unlawful acts are prosecutable before international tribunals as war crimes. Though, with regard to the conflict in Syria, the legal regime for the protection seems unfit for its purpose and the prosecution seems to be unattainable at least for the current time. To this end, this Article aims to examine the application of the international law rules with respect to the protection of cultural property and their effectiveness in protection and prosecution with regard to the armed conflict in Syria. Therefore, this Article is divided into four parts. Part I introduces an overview on the current conflict in Syria and its implication on the cultural property. Part II exposes to the protection of cultural property in international law with relation to the conflict in Syria. Part III examines the criminalization of the unlawful acts against cultural property as per International Criminal Law. Part IV suggests possible venues for prosecuting unlawful acts against cultural property in Syria. The Article concludes with remarks on the effectiveness of current provisions of international law with respect to the protection of cultural property and suggests possible ways for enhancement.

Wilful destruction of cultural property in an armed conflict is justifiable only in cases of imperative military necessity. This chapter deals with the legal nature of the destruction of the Old Bridge, and aims to apply the specific provisions of the relevant International Humanitarian Law (IHL) to the destruction of the Old Bridge, with an emphasis on the question of targeting cultural property in armed conflict. The first part of the chapter examines whether the destruction of the Old Bridge was lawful, focusing on two major questions: (i) whether the Old Bridge was a protected object and (ii) whether the Bridge was a legitimate military target. The application of IHL to the Old Bridge case exposes certain weaknesses in IHL instruments concerned with protection of cultural property in armed conflict and raises a number of issues, which are the subject of the discussion in the second part of the chapter. Keywords:armed conflict; Internaltional Humanitarian Law (IHL); legitimate military target; Old Bridge; protected object