The Legal Nature of the Destruction of the Old Bridge

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.

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 cultural property becomes objects of destruction in armed conflicts, such as Syria and Iraq, which were carried out by ISIS squads (Islamic State of Iraq and Syria). For ISIS’s actions, the ICC should judge ISIS. However, new problems will arise regarding the jurisdiction of the ICC to judge ISIS. Based on the explanation of this background, the question will arise: How are humanitarian law regulations related to protecting cultural property during armed conflict? And what is the regulation of the ICC’s jurisdiction over the protection of cultural property in armed conflict by ISIS? The research in this article is normative legal research with the statue approach. According to humanitarian law, the research results show that the regulations relating to the protection of cultural property during armed conflict are contained in the 1954 Hague Convention, Additional Protocol I and Additional Protocol II of the Geneva Conventions of 1977. The destruction of cultural property carried out by ISIS is included in war crimes, one of the Rome Statute material jurisdictions. In this case, the Rome Statute applied by the ICC has juridical power to uphold justice and punish, including war crimes committed by ISIS. For the destruction of various cultural property in Iraq and Syria, ISIS can be judge by the ICC through a referral by the UN Security Council based on the provisions stipulated in the 1998 Rome Statute.

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

The phrase "direct participation in hostilities" has a very specific meaning in international humanitarian law (IHL). Those individuals who are clothed with combatant status are authorised to participate directly in hostilities without fear of prosecution, while civilians lose their civilian immunity against direct targeting whilst they participate directly in hostilities. Any civilian activity which amounts to "direct participation in hostilities" temporarily suspends their presumptive civilian protection and exposes them to both direct targeting as a legitimate military target and prosecution for their unauthorised participation in hostilities. Since existing treaty sources of IHL do not provide a definition of what activities amount to "direct participation in hostilities", the ICRC in 2009 released an Interpretive Guide on the Notion of Direct Participation in Hostilities - in the hope of providing a neutral, impartial and balanced interpretation of the longstanding IHL principle of direct participation in hostilities. While not without criticism, the Interpretive Guide aims to respect the customary IHL distinction between "direct participation in hostilities" and mere involvement in the general war effort. The Guide proposes a three-pronged test which establishes a threshold of harm, and requires direct causation together with a belligerent nexus. Collectively, these criteria limit overly-broad targeting policies, while distinguishing occasions of legitimate military targeting from common, criminal activities. Together with these three criteria, the Guide introduces the notion of the revolving door of protection, together with the concept of a "continuous combat function". Both these new concepts have been the subject of criticism, as too the idea that a presumption of non-participation status should apply in cases of doubt. Nevertheless "nothing indicates that the ICRC's interpretive guidance is substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational practice"[1] in a way which will ensure that the fundamental principles of distinction and civilian immunity upon which all of IHL is built are observed.

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

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.

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

The Advisory Service on International Humanitarian Law of the International Committee of the Red Cross (ICRC) organized a Regional Expert Meeting for Latin American Countries on 13 and 14 May 2002 in Lima (Peru) on the subject “To protect cultural property in the event of armed conflict: implementation of international regulations in this field at national level”. The meeting was held with the support of the Peruvian authorities, the National Institute of Culture and the National Commission for the Study and Application of International Humanitarian Law. After a previous expert meeting on the protection of cultural property during hostilities, which took place in Chavannes-de-Bogis (Geneva) on 5 and 6 October 2000, this was the first decentralized meeting.

The Kundus Incidentt of 4 September 2009: Was the Aerial Attack Ordered by German Colonel Klein Lawful Under International Humanitarian Law?

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.

The images of the destroyed Buddha statues of Bamiyan, of the ancient city of Palmyra lying in ruins, and of destroyed World Heritage sites in Timbuktu have received much attention from the international public. At the same time, these cases also reflect a new dimension in the conduct of armed hostilities today, which is increasingly aimed at destroying cultural identities or heritage. Therefore, in addition to the issue of preserving the world's cultural heritage, especially in the context of human rights protection and international humanitarian law, the protection of cultural property is seen as an increasingly important task for the United Nations and its institutions. Pieces of Art, significant written documents, memorials, and places of worship are deliberately destroyed in conflicts by armed or terrorist groups, such as the so-called Islamic State, as they represent core elements of cultural identity. The increasing number of reports on the loss of priceless cultural assets in Syria, Iraq and Mali exemplify this. Increasingly, violent non-state actors are deliberately using the destruction of cultural property as a means of warfare and even "ethnic cleansing." For the international community, this makes the protection of cultural property in armed conflicts and in the field of restoring statehood at the same time increasingly significant. The preservation of this global human memory is one of the greatest challenges of modern social, political, and legal discourses. Although the use of the destruction of cultural property to divide societies, even to erase a collective memory or destroy social structures, has long been part of warfare, this aspect has been insufficiently considered by the media public and especially in academic discourse. With contributions by Frederik Becker, Dr. Manuel Brunner, Paul Fabel, Dr. Martin Gerner, Dario Haux, Ruth Lechner, Prof. Dr. Antionette Maget Dominicé and Vincent Widdig.

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.

The phrase participation in has a very specific meaning in international humanitarian law (IHL). Those individuals who are clothed with combatant status are authorised to participate directly in hostilities without fear of prosecution, while civilians lose their civilian immunity against direct targeting whilst they participate directly in hostilities. Any civilian activity which amounts to participation in temporarily suspends their presumptive civilian protection and exposes them to both direct targeting as a legitimate military target and prosecution for their unauthorised participation in hostilities. Since existing treaty sources of IHL do not provide a definition of what activities amount to participation in hostilities, the ICRC in 2009 released an Interpretive Guide on the Notion of Direct Participation in Hostilities - in the hope of providing a neutral, impartial and balanced interpretation of the longstanding IHL principle of direct participation in hostilities. While not without criticism, the Interpretive Guide aims to respect the customary IHL distinction between participation in and mere involvement in the general war effort. The Guide proposes a three-pronged test which establishes a threshold of harm, and requires direct causation together with a belligerent nexus. Collectively, these criteria limit overly-broad targeting policies, while distinguishing occasions of legitimate military targeting from common, criminal activities. Together with these three criteria, the Guide introduces the notion of the revolving door of protection, together with the concept of a continuous combat function. Both these new concepts have been the subject of criticism, as too the idea that a presumption of non-participation status should apply in cases of doubt. Nevertheless nothing indicates that the ICRC's interpretive guidance is substantively inaccurate, unbalanced, or otherwise inappropriate, or that its recommendations cannot be realistically translated into operational practice[1] in a way which will ensure that the fundamental principles of distinction and civilian immunity upon which all of IHL is built are observed.

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