武力紛争における文化財保護のための国際的取組と実効性の確保

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.

This article discusses how the protection of cultural property in armed conflicts is far from being complete, and how the enforcement of existing international law rules is ineffective. Although it is certainly unavoidable that not every cultural property can be protected, one category is missing, namely, the property which constitutes the cultural heritage of a particular population or even a minority group. The protection of cultural property in non-international conflicts is particularly unsatisfactory. Not only is it questionable whether the 1954 Hague Convention is binding upon rebels; it is even more problematic to ensure its enforcement. Another weakness of the existing international regime on the protection of cultural property in armed conflict stems from its lack of coherency. The possibility to waive the protection of cultural property under the 1954 Hague Convention on the basis of military necessity makes the respective objects a prey of military considerations. Keywords:armed conflict; cultural property; Hague Convention; international instruments; military necessity; obligation; protection

The author stresses the importance of protecting cultural property from the effects of armed conflict as its damage or destruction destroys a community’s identity and its links with its past, present and future, as well as diminishes the cultural heritage of humankind. The author draws attention to the recent destruction of cultural property in the civil war in Syria and the activities of the so-called Islamic State (ISIL) in Iraq. This chapter analyses the provisions of the principal legal instruments dealing with the protection of cultural property in armed conflict, namely the Convention on the Protection of Cultural Property in the Event of Armed Conflict (The 1954 Hague Convention), the 1954 Protocol for the Protection of Cultural Property in the Event of Armed Conflict and the 1999 Second Protocol to The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, as well as other relevant instruments of international law. While the existing legal instruments may be adequate, the problem, as with international law generally, lies in their effective enforcement, particularly in situations of non-international armed conflict where the parties to the conflict have no regard for the dictates of international humanitarian law. But once hostilities have come to an end, it will be possible to bring offenders to justice, if necessary before the International Criminal Court. In the meantime, it is important that there should be widespread adherence to The 1954 Hague Convention and its two Protocols.

Since armed conflicts are based increasingly on politics of identity, the protection of cultural property is likely to become continuously more important during peace operations. The extent to which peace operations are obligated to protect cultural property is, however, not always clear. This article explains why and to what extent peace operations ought to be required to protect cultural property. It first explores the way that the protection of cultural property can contribute to the overall aim of an operation. Second, the extent, from a legal standpoint, to which peace operations must respect cultural property is elaborated – and whether peace operations must refrain from damaging cultural property. Finally, the article analyses whether peace forces are obligated by international law to actively protect cultural property. Thus, whether they are responsible for the protection of cultural property from the depredations of others is questioned. The study contends that, on the one hand, the protection of cultural property is needed because it contributes to the overall aim of a peace mission, but that, on the other hand, a coherent legal framework is lacking.

This chapter looks at the protection of cultural property in non-international armed conflicts in the light of the adoption of Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in Event of Armed Conflict. The preamble to the 1999 Second Protocol indicates the intention of Protocol that the rules governing the protection of cultural property in the event of armed conflict should reflect developments in international law. These developments include the increasing regulation of non-international armed conflicts, both in treaty law and in customary law. The chapter focuses on three elements of this historic development: 1. the extension of the application of rules protecting cultural property to non-international armed conflicts; 2. the extension of the rules on conduct of hostilities to non-international armed conflicts and their application to cultural property; and 3. the enforcement of the rules applicable to cultural property in non-international armed conflicts. Keywords: cultural property; customary law; Hague Convention; international law; non-international armed conflicts; protection; second protocol; treaty law

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.

This chapter provides a commentary on the protection of cultural property in armed conflicts, which covers recent developments in treaty law and international practice. The Second World War spurred the eventual conclusion of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and the Regulations for its execution, along with a separate optional Protocol, now known as the First Protocol. The preamble to the former declares that ‘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’. While the 1954 Convention applies during international armed conflict (whether or not a legal state of war exists between the belligerents, as well as to all cases of partial or total occupation of the territory of a party), its provisions relating to respect for cultural property also apply to non-international armed conflict occurring within the territory of one of the parties. Meanwhile, the 1977 Additional Protocols to the Geneva Conventions, too, embody brief provisions specifically relating to respect for cultural property. In parallel with these treaty regimes, a body of customary international law has developed over the years to protect cultural property in armed conflict.

This chapter provides an overview on the development of the international legal framework protecting cultural property from destruction during armed conflict and peacetime. First, a short overview on the historical development is presented. Then, the main treaties of international humanitarian law and international cultural property law are discussed. The focus of the analysis lies on the scope of application, the definition of cultural property, the protection of cultural property as well as violations or breaches of the respective treaty. The chapter discusses the 1899 and 1907 Hague Conventions, the 1948 Genocide Convention, the 1949 Geneva Conventions, the 1954 Hague Convention, 1972 World Heritage Convention, 1977 Additional Protocols, the 1999 Second Hague Protocol, and the 2003 UNESCO Declaration. Keywords:1948 Genocide Convention; 1949 Geneva Conventions; 1977 Additional Protocols; 2003 UNESCO Declaration; cultural property; Hague Conventions; international cultural property law; international humanitarian law; World Heritage Convention

Cultural Properties holds the rich heritage and is a matter of pride for the entire mankind and is considered as property of mankind and does not belong specifically to any religion, group or state. Despite this the cultural property has been attacked and destroyed a lot of times either deliberately or unintentionally during war. The instances of destruction of cultural property has been there in past also and such cases are still increasing. The destruction of cultural property of course creates a sense of divide among people from different communities and nations and not just make chances of compromise between communities and nations impossible but it also lead to long term discrimination and hatred.The legal system related to protection of cultural property is mostly a soft law mechanism in which the implementation body and implementation system is missing and there are many laws which show the importance of cultural property during peacetime and also during war. This paper will discuss in detail about the significance of cultural property, long term effect of destroying of cultural property, Iconoclasm, laws regulating the protection of cultural property during war and peacetime, international criminalization of wrongs against cultural property and suggestions of the authors for protection of cultural property.

Almost half a century after the adoption of the 1954 Hague Convention, those committed to the protection of cultural heritage, who viewed this instrument with a mixture of satisfaction and resignation, found renewed hope in negotiations held once more in The Hague that led in 1999 to the Second Protocol to the Convention. One major source of hope was the regime of enhanced protection for cultural property whose destruction would be a loss to humanity, a loss that the international community by then seemed simply unwilling to accept. As we commemorate the tenth anniversary of the Second Protocols adoption, this chapter addresses this uneasiness by advancing some ideas on how to set the regime of enhanced protection to work and thus reach another milestone on the long and winding road towards protecting cultural property in the event of armed conflict. Keywords: armed conflict; Hague Convention; protection of cultural property; second protocol

"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.

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.

Syrian Cultural Property in the Crossfire:

This article analyzes the contribution of the Guidelines for the Implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (the Guidelines) to better protection of cultural property in peacetime and in times of armed conflict. The first part of the article introduces the Guidelines within the context of the implementation of the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999 Second Protocol) and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and provides examples of UNESCO's other standard-setting instruments such as the 1972 Convention Concerning the Protection of the World Cultural or Natural Heritage, the 2001 Convention on the Protection of the Underwater Cultural Heritage and the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, as well as bodies providing for guidelines for these instruments. The second part underscores the most important advances of the Guidelines in the implementation of the 1999 Second Protocol. The third part focuses on the contribution of the Guidelines as subsequent practice in the application of the 1999 Second Protocol establishing the agreement of the parties regarding its interpretation in the framework of Article 31(3)(b) of the 1969 Vienna Convention on the Law of Treaties. Finally, the fourth part concludes by highlighting the main advantages of the Guidelines in providing better protection for cultural property.

The paper notes the attempts that are being made to doctrinally substantiate a broad approach, according to which the «international law of cultural property» was formed as a special (autonomous) legal framework. Without sharing such views, the author justifies the existence of an intersectoral institute for the international legal protection of cultural property, and also notes that the protection of cultural property in the actual situation of armed conflict is a branch institute of international humanitarian law (IHL), characterized by the presence of special principles and established scope of application (ratione materiae and ratione temporis). For the purposes of IHL, the definition of «cultural property» is formulated. It implies movable and immovable objects of the material world (objects) that are subject to identification and have no military purpose. They are of fundamental importance for the cultural heritage of not only a single people, but also the entire international community, included in the relevant register/list and under common, special or enhanced international legal protection, including their storage sites or concentration centers.A reasonable proposal has been made to introduce the concept of the «1954 Hague Convention system» into scientific circulation. The central part of it is formed by the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, including the Executive Regulations as an integral part of it, and additional Protocols to it (Optional Protocol I and the Second Protocol of 1999), as well as three resolutions attached to the Final Act of the 1954 Conference. It is emphasized that the Second Protocol of 1999, which Russia has not ratified, provided for the creation of institutional structures designed to complement the system of implementation of the Hague Convention of 1954. Based on the analysis of the «1954 Hague Convention system», three conventional regimes for the protection of cultural property in the actual situation of armed conflict (general, special and enhanced) have been established and their features have been analyzed.