Prosecuting the Destruction of Cultural Property in International Criminal Law : With a Case Study on the Khmer Rouge's Destruction of Cambodia's Heritage [1 ed.] 9789004257634, 9789004257627

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Prosecuting the Destruction of Cultural Property in International Criminal Law

International Criminal Law Series Editorial Board Series Editor

M. Cherif Bassiouni (USA/EGYPT)

Distinguished Research Professor of Law Emeritus, President Emeritus, International Human Rights Law Institute, DePaul University College of Law; President, International Institute of Higher Studies in Criminal Sciences; Honorary President, Association Internationale de Droit Pénal; Chicago, USA Philippe Kirsch (Belgium/Canada) Michael Scharf (USA) Kai Ambos (Germany) Ad hoc Judge, International Court of John Deaver Drinko-Baker & Judge, District Court, Göttingen; Justice; former President, International Hostetlier Professor of Law, Director, Professor of Law and Head, Criminal Court; Ambassador (Ret.) Frederick K. Cox International Department for Foreign and and former Legal Advisor, Ministry of Law Center, Case Western Reserve International Criminal Law, Georg Foreign Affairs of Canada University School of Law August Universität André Klip (The Netherlands) Ulrich Sieber (Germany) Mahnoush Arsanjani (Iran) Professor of Law, Department of Professor of Criminal Law, Director, Member, Institut de Droit Criminal Law and Criminology, Faculty Max Plank Institute for Foreign International; former Director, of Law, Maastricht University and International Criminal Law, Codification Division, United Erkki Kourula (Finland) University of Freiburg Nations Office of Legal Affairs Göran Sluiter (The Netherlands) Mohamed Chande Othman (Tanzania) Judge and President of the Appeals Division, International Criminal Court Professor of Law, Department Chief Justice, Court of Appeal of Motoo Noguchi (Japan) of Criminal Law and Criminal Tanzania Legal Adviser, Ministry of Justice Procedure, Faculty of Law, Eric David (Belgium) of Japan; Visiting Professor of University of Amsterdam Professor of Law, Faculty of Law, Law, University of Tokyo; former Otto Triffterer (Austria) Free University of Brussels International Judge, Supreme Court Professor of International Criminal Mireille Delmas-Marty (France) Chamber, Extraordinary Chambers in Law and Procedure, Faculty of Law, Professor of Comparative Legal the Courts of Cambodia University of Salzburg Studies and Internationalisation Diane Orentlicher (USA) Françoise Tulkens (Belgium) of Law, Collège de France Professor of International Law, Vice-President, European Court of Adama Dieng (Senegal) Co-Director, Center for Human Rights Human Rights UN Secretary-General’s Special and Humanitarian Law, Washington Xuimei Wang (China) Adviser on the Prevention of College of Law, American University Professor of International Criminal Genocide; former Registrar, Law, College for Criminal Law International Criminal Tribunal for Fausto Pocar (Italy) Science, Beijing Normal University; Judge and former President, Rwanda; former Secretary General, Executive Director, ICC Project Office International Criminal Tribunal for International Commission of Jurists Christine van den Wyngaert the Former Yugoslavia; President, Mark Drumbl (Canada/USA) International Institute of Humanitarian (Belgium) Class of 1975 Alumni Professor of Judge, Trial Division, International Law; Professor of International Law Law, Director, Transnational Law Criminal Court; former Judge, Emeritus, University of Milan Institute, Washington and Lee International Criminal Tribunal Leila Nadya Sadat (France/USA) University School of Law for the Former Yugoslavia; former Henry H. Oberschelp Professor of Law, Chile Eboe-Osuji (Nigeria) Ad hoc Judge, International Court Director, Whitney R. Harris World Judge, Trial Division, International of Justice Law Institute, Washington University Criminal Court; former Legal Gert Vermeulen (Belgium) School of Law Adviser to the High Commissioner Professor of Criminal Law, Director, for Human Rights, Office of the High William Schabas (Canada/Ireland) Institute for International Research Professor of International Law, Commissioner for Human Rights on Criminal Policy, Ghent University; Department of Law, Middlesex Geoff Gilbert (UK) Extraordinary Professor of Evidence University; Chairman, Irish Centre for Professor of Law and Head, School Law, Maastricht University Human Rights, National University of of Law, University of Essex Giuliana Ziccardi Capaldo (Italy) Ireland Professor of International Law, Faculty of Law, University of Salerno

VOLUME 4 The titles published in this series are listed at brill.com/icls

Prosecuting the Destruction of Cultural Property in International Criminal Law With a Case Study on the Khmer Rouge’s Destruction of Cambodia’s Heritage

By

Caroline Ehlert

LEIDEN • BOSTON 2014

The present book constitutes an updated version of the author’s doctoral thesis, which was accepted by the Faculty of Law of the University of Zurich, Switzerland, on 14 December 2011 (summa cum laude). Library of Congress Cataloging-in-Publication Data Ehlert, Caroline. Prosecuting the destruction of cultural property in international criminal law : with a case study on the Khmer Rouge’s destruction of Cambodia’s heritage / By Caroline Ehlert. pages cm. -- (International criminal law ; 4) Includes bibliographical references and index. ISBN 978-90-04-25762-7 (hardback : alk. paper) -- ISBN 978-90-04-25763-4 (e-book) 1. Cultural property--Protection (International law)--Criminal provisions. 2. International criminal law. 3. Cultural property--Protection--Law and legislation--Cambodia--Criminal provisions. I. Title. K3791.E35 2013 344’.094--dc23 2013034729

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 2213-2724 ISBN 978-90-04-25762-7 (hardback) ISBN 978-90-04-25763-4 (e-book) Copyright 2014 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. Brill has made all reasonable efforts to trace all rights holders to any copyrighted material used in this work. In cases where these efforts have not been successful the publisher welcomes communications from copyright holders, so that the appropriate acknowledgements can be made in future editions, and to settle other permission matters. This book is printed on acid-free paper.

TABLE OF CONTENTS Acknowledgments������������������������������������������������������������������������������������������������������xi Abbreviations������������������������������������������������������������������������������������������������������������ xiii Introduction������������������������������������������������������������������������������������������������������������������1 Preliminary Remarks��������������������������������������������������������������������������������������������������7  § 1. Concept of International Criminal Law��������������������������������������������������7  § 2. Sources of International Criminal Law���������������������������������������������������7 I. International Treaties���������������������������������������������������������������������������8 II. Customary International Law��������������������������������������������������������� 11 III. General Principles of Law���������������������������������������������������������������� 11 IV. Judicial Decisions and Teachings��������������������������������������������������� 12   V. Others���������������������������������������������������������������������������������������������������� 13 Chapter 1. Prohibition of the Destruction of Cultural Property in International Treaty Law������������������������������������������������������������������ 15 § 1. Historical Development���������������������������������������������������������� 15 I. The Classical Law�������������������������������������������������������������� 15    II. Renaissance������������������������������������������������������������������������ 16 III. The Lieber Code���������������������������������������������������������������� 19 IV. The 1874 Brussels Declaration and the 1880 Oxford Manual������������������������������������������������������������������� 20 V. Developments between the two World Wars������������� 23 § 2. The 1899 and 1907 Hague Conventions���������������������������� 26 I. Scope of Application�������������������������������������������������������� 27 II. Definition of Cultural Property������������������������������������ 28 III. Protection of Cultural Property������������������������������������� 29 IV. Violations of the Treaty���������������������������������������������������� 32 § 3. The Genocide Convention������������������������������������������������������ 33 § 4. The Geneva Conventions�������������������������������������������������������� 37 I. Scope of Application�������������������������������������������������������� 38 1. International Armed Conflict���������������������������������� 38 2. Non-International Armed Conflict������������������������ 39 3. Belligerent Occupation���������������������������������������������� 40

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table of contents  II. Definition of Cultural Property������������������������������������� 40 III. Protection of Cultural Property������������������������������������� 41 IV. Violations of the Treaty���������������������������������������������������� 41 § 5. The 1954 Hague Convention������������������������������������������������� 42 I. Scope of Application�������������������������������������������������������� 44 1. International Armed Conflict���������������������������������� 44 2. Non-International Armed Conflict������������������������� 45 3. Belligerent Occupation���������������������������������������������� 47 II.  Definition of Cultural Property������������������������������������� 48 III.  Protection of Cultural Property������������������������������������ 50 1. General Protection������������������������������������������������������ 51 2. Special Protection������������������������������������������������������� 55 IV.  Violations of the Treaty��������������������������������������������������� 59 § 6. The 1972 Convention for the Protection of the World Cultural and Natural Heritage���������������������������������� 60 I. Scope of Application�������������������������������������������������������� 61 II. Definition of Cultural Property������������������������������������� 61 III. Protection of Cultural Property������������������������������������� 63 1. General Protection������������������������������������������������������ 63 2. Special Protection������������������������������������������������������� 64 IV. Violations of the Treaty���������������������������������������������������� 66 § 7. The 1977 Additional Protocols to the Geneva Conventions of 1949������������������������������������������������ 66 I. Scope of Application�������������������������������������������������������� 67 1. International Armed Conflict���������������������������������� 67 2. Non-International Armed Conflict������������������������� 68 3. Belligerent Occupation���������������������������������������������� 69 II. Definition of Cultural Property������������������������������������� 70 III. Protection of Cultural Property������������������������������������� 72 1. General Protection������������������������������������������������������ 72 2. Special Protection������������������������������������������������������� 74 IV. Violations of the Treaty���������������������������������������������������� 78 § 8. The 1999 Second Hague Protocol���������������������������������������� 81 I. Scope of Application�������������������������������������������������������� 82 II. Definition of Cultural Property������������������������������������� 83 III. Protection of Cultural Property������������������������������������� 84 1. General Protection������������������������������������������������������ 84 2. Enhanced Protection�������������������������������������������������� 88 IV. Violations of the Treaty���������������������������������������������������� 92



table of contentsvii § 9. The 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage������������������� 96 I. Scope of Application�������������������������������������������������������� 98 II. Definition of Cultural Property������������������������������������� 98 III. Protection of Cultural Property������������������������������������ 99 IV. Violations of the Declaration ��������������������������������������100 § 10. Interim Conclusion��������������������������������������������������������������101

Chapter 2. The Prosecution of the Destruction of Cultural Property in the Practice of the International Criminal Tribunals���������������������������������������������������������������������������107 § 1. Structures of Crimes under International Criminal Law����������������������������������������������������������������������������������������������107 § 2. War Crimes�������������������������������������������������������������������������������108 I. Evolution and Definition����������������������������������������������108 II. General Requirements���������������������������������������������������111 1. Serious Violation of International Humanitarian Law����������������������������������������������������111 2. Existence of an Armed Conflict or Belligerent Occupation������������������������������������������������������������������113 a. International or Internal Armed Conflict������114 b. Applicability, ratione temporis and loci����������116 c. Belligerent Occupation���������������������������������������117 3. Nexus between the Underlying Offence and the Armed Conflict�������������������������������������������117 4. Mens Rea����������������������������������������������������������������������119 a. Mens Rea in General��������������������������������������������119 b. Mens Rea for War Crimes�����������������������������������120 III. Underlying Offences with regard to Destruction of Cultural Property��������������������������������120 1. Lex Generalis���������������������������������������������������������������120 2. Lex Specialis�����������������������������������������������������������������121 3. Object of the Offence������������������������������������������������125 4. Nature of the Offence�����������������������������������������������129 5. Level of Gravity of the Offence������������������������������132 6. Not justified by Military Necessity������������������������135 7. Mens Rea����������������������������������������������������������������������139 § 3. Crimes against Humanity�����������������������������������������������������141 I. Evolution and Definition����������������������������������������������141

viii

table of contents II. General Requirements��������������������������������������������������144 1. Part of a Widespread or Systematic Attack��������144 a. Attack����������������������������������������������������������������������144 b. Widespread or Systematic���������������������������������148 2. Directed against any Civilian Population�����������150 3. On National, Political, Ethnical, Racial or Religious Grounds�����������������������������������������������������153 4. Mens Rea����������������������������������������������������������������������155 III. Underlying Offence with regard to the Destruction of Cultural Property: Persecution�������156 1. Deprivation of a Fundamental Right������������������158 2. Nature of the Offence����������������������������������������������159 3. Level of Gravity of the Offence�����������������������������164 4. Mens Rea����������������������������������������������������������������������167 a. Political, Racial, or Religious Grounds for Persecution������������������������������������������������������������168 b. Other Grounds for Persecution�����������������������170 § 4. Interim Conclusion�����������������������������������������������������������������171 I. War Crimes�����������������������������������������������������������������������171 II. Crimes against Humanity���������������������������������������������173

Chapter 3: Case Study Cambodia���������������������������������������������������������������������175 § 1. Background to the Khmer Rouge Regime������������������������175 I. Democratic Kampuchea�����������������������������������������������175 II. 1978 Rebellions in the Eastern Zone������������������������178 III. Armed Conflict with Vietnam�������������������������������������179 IV. Destruction of Cultural Property��������������������������������180 1. The Monkhood����������������������������������������������������������180 2. Buddhist Places of Worship�����������������������������������181 3. Buddha Images and Buddhist Books�������������������184 4. Temple Complex of Angkor�����������������������������������185 5. Orders concerning the Destruction���������������������186 V. Cambodia after 1979�����������������������������������������������������187 § 2. The Extraordinary Chambers in the Courts of Cambodia (ECCC)�������������������������������������������������������������������189 I. Establishment of the ECCC�����������������������������������������189 II. Nature of the ECCC��������������������������������������������������������191 III. Jurisdiction of the ECCC�����������������������������������������������192 IV. Structure of the ECCC����������������������������������������������������194 V. Procedural Law of the ECCC����������������������������������������196 VI. The Cases��������������������������������������������������������������������������197



table of contentsix § 3. Direct Applicability of the 1954 Hague Convention by the Extraordinary Chambers in the Courts of Cambodia���������������������������������������������������198 I. Preliminary Observations���������������������������������������������200 1. Principle of Legality�������������������������������������������������200 2. Serious Violation of International Humanitarian Law����������������������������������������������������202 II. Elements of the Crime���������������������������������������������������203 1. Existence of an Armed Conflict����������������������������203 a. International Armed Conflict��������������������������203 b. Non-International Armed Conflict����������������204 c. Belligerent Occupation��������������������������������������205 2. Nexus between the Destruction of Cultural Property and the Armed Conflict�������������������������206 3. Object of the Offence�����������������������������������������������206 4. Nature of the Offence����������������������������������������������209 5. Level of Gravity of the Offence�����������������������������211 6. Not justified by Military Necessity�����������������������211 7. Mens Rea����������������������������������������������������������������������212 § 4. Alternative Provisions for the Prosecution of the Destruction of Cultural Property at the Extraordinary Chambers in the Courts of Cambodia����������������������������������������������������������������������������������213 I. Grave Breaches of the 1949 Geneva Convention�����������������������������������������������������������������������213 II. 1956 Penal Code�������������������������������������������������������������214 III. Crimes against Humanity���������������������������������������������216 1. General Requirements���������������������������������������������217 a. Existence of an Armed Conflict?��������������������217 b. Part of a Widespread or Systematic Attack���������������������������������������������������������������������220 c. On National, Political, Ethnical, Racial or Religious Grounds�����������������������������������������������222 d. Nexus between the Acts of the Accused and the Attack������������������������������������������������������223 e. Mens Rea����������������������������������������������������������������223 2. Underlying Offence with regard to Destruction of Cultural Property: Persecution�����������������������������������������������������������������224 a. Deprivation of Fundamental Right����������������224 b. Nature of the Offence����������������������������������������225

x

table of contents c. Level of Gravity of the Offence������������������������225 d. Mens Rea����������������������������������������������������������������226 § 5. Interim Conclusion�����������������������������������������������������������������227

Conclusion����������������������������������������������������������������������������������������������������������������229 § 1. Prosecuting the Destruction of Cultural Property during Armed Conflicts���������������������������������������229 § 2. Prosecuting the Destruction of Cultural Property during Peacetime���������������������������������������������������230 Bibliography�������������������������������������������������������������������������������������������������������������235 Index���������������������������������������������������������������������������������������������������������������������������247

ACKNOWLEDGMENTS This book was aproved as a doctoral thesis by the Law Faculty of the University of Zurich. It was developed during my engagement as a research assistant to Professor Christine Kaufmann at the University of Zurich. I would like to express my gratitude to Professor Christine Kaufmann for her support as a thesis supervisor and for giving me the opportunity to spend six months in Cambodia as a trial monitor at the Extraordinary Chambers in the Courts of Cambodia for the Asian International Justice Intitiative (AIJI). I also owe special thanks to Professor David Cohen, Director of the War Crimes Studies Center at the University of Berkeley, for welcoming me as part of the trial monitoring team. In that context I would like to particularly thank the AIJI trial monitors with whom I have spent lots of long hours at the ECCC’s public gallery and press room or on the bus during Phnom Penh’s infamous traffic jams. I am deeply grateful to Emiko Alexejew and Kris Baleva for their superb assistance with the manuscript editing. I am most obliged for their linguistic input and for their efficiency and kindness. I would also like to thank my supportive colleagues and friends at the Law Faculty of the University of Zurich, among them, Sibylle Dischler, Miriam Frisenda, Natalia Graf, Dr. Eva Hostettler, Dr. Karin Lorez, Laura Marschner, Susanne Tobler and Florian Utz. I am very grateful to Martinus Nijhoff and the Editorial Board of the International Criminal Law Series for publishing this book. A special thank you goes to Lindy Melman and Bea Timmer for their support. Finally, I warmly thank those who have supported and encouraged me throughout this project. A very special thank you is directed to Dr. Patrick Götze. Above all, my deepest gratitude goes to my family and especially my mother, Professor Ulrike Ehlert, for her continuous support, her patience and encouragement, to whom I dedicate this book. Caroline Ehlert

ABBREVIATIONS AD Anno Domini AIJI Asian International Justice Initiative APARIUZ  Analysen und Perspektiven von Assistierenden des Rechtswissenschaftlichen Instituts der Universität Zürich art article ASEAN Association of Southeast Asian Nations BC Before Christ CCL Control Council Law CDDH Diplomatic Conference on the Reaffirmation and Devel­ opment of International Humanitarian Law applicable in Armed Conflicts CHR Commission of Human Rights (of the United Nations) cit. cited as Co. Company CPK Communist Party of Kampuchea CPC Cambodian Court of Criminal Procedure Doc. Document ECCC Extraordinary Chambers in the Courts of Cambodia ECOSOC Economic and Social Council (of the United Nations) ECOSOCOR  Economic and Social Council (of the United Nations) Official Records ed(s). editor(s) edn. edition e.g. exempli gratia et al. et alii etc. et cetera et seq. et sequentia fn. footnote GA General Assembly (of the United Nations) GAOR General Assembly (of the United Nations) Official Records ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICRC International Committee for the Red Cross ICTR International Criminal Tribunal for Rwanda

xiv

abbreviations 

ICTY International Criminal Tribunal for the Former Yugoslavia i.e. id est ILC International Law Commission ILM International Legal Materials IMT International Military Tribunal IMTFE International Military Tribunal for the Far East Inc. Incorporation ISIL Indian Society of International Law IUCN International Union for Conservation of Nature LNTS League of Nations Treaty Series Mtg. Meeting no. number p./pp. page(s) para(s). paragraph(s) PRK People’s Republic of Kampuchea RAK Revolutionary Army of (Democratic) Kampuchea Res. Resolution SC Security Council (of the United Nations) SCOR Security Council (of the United Nations) Official Records SCSL Special Court for Sierra Leone Sess. Session SPSC Special Penal for Serious Crimes of the District Court of Dili (East Timor) SR Systematische Sammlung des Bundesrechts (Schweiz) Supp. Supplement TIAS Treaties and Other International Acts Series (published by the United States Department of State) UCLA University of California, Los Angeles UN United Nations UNESCO  United Nations Educational, Scientific and Cultural Organisation UNIDROIT International Institute for the Unification of Private Law UNGA United Nations General Assembly UNTAC United Nations Transitional Authority in Cambodia UNTAET United Nations Transitional Administration in East Timor UNTS United Nations Treaty Series UNWCC United Nations War Crimes Commission US United States USSR Union of Soviet Socialist Republics v. versus Vol. Volume

INTRODUCTION The wanton destruction of valuable cultural property during armed conflict is omnipresent. The alarming pictures of the shelling of the Mostar Bridge in Bosnia and Herzegovina are still in our minds as is the agitating memorial of the Kaiser Wilhelm Church in Berlin, which preserved the destroyed church as it was after World War II. Also the very recent pictures of Timbuktu are still present when Islamic rebel forces destroyed the precious mausoleums, landmarks of the region and set fire to a library containing thousands of priceless historic manuscripts.1 The reasons to destroy cultural property during armed conflicts are manifold. Sometimes there is symbolic value behind the act as was the case when the US wanted to send Iraqis and the whole world a clear message by toppling the statute of Saddam Hussein in Paradise Square, Baghdad, on 9 April 2003.2 In other cases, like in the former Yugoslavia, the perpetrators aimed at erasing whole ethnicities by destroying their cultural heritage and thereby taking their identity.3 Among others, thousands of mosques were destroyed in Bosnia and Herzegovina in order to harm the Moslem population.4 During the Third Reich, similar motivations prompted the Nazis to destroy synagogues and other Jewish places of worship.5 The destruction of cultural property by the Allies’ area bombing of German cities is also a reminder of that time and the Allies’ attempt to break down German resistance.6 Vice versa Hitler’s armed forces were ordered to raid British historic civilian centres leading to massive destruction of cultural property.7 Those pictures stay in our minds and are clearly associated with the aftermath of armed conflicts. But there are also other examples of destruction of cultural property, which did not occur during an armed conflict. The al-Qaida attack on the World Trade Center in New York on 11 September 2001 also manifested the destruction of cultural property, as did the Taliban’s 1 UNESCO, Damage to Timbuktu’s cultural heritage worse than first estimated reports UNESCO mission, Press Release of 7 June 2013. See also, Kersten, p. 1. 2 Bevan, p. 91. 3 Bevan, pp. 46–47. 4 Riedlmayer, pp. 9–20. 5 Bevan, pp. 29–31. 6 Bevan, pp. 73–75. 7 Bevan, pp. 75–76.

2

introduction

deliberate destruction of the Buddhas of Bamyian in Afghanistan. Also the Khmer Rouge’s wanton destruction of Buddhist and Moslem places in Cambodia was an attack against the country’s rich cultural heritage and will therefore be the subject of a case study in the last part of this thesis. How can such acts of deliberate destruction be prosecuted under international law? The aim of this book is to analyse a number of issues, which emerge from this question. Beforehand, though, it is vital to define the main terminology. Cultural property is vulnerable to many different crimes during armed conflict and during peacetime, i.e. theft, illicit transport.8 The subject-matter of this study, however, is the destruction of cultural property. According to the Dictionary of the International Law of Armed Conflict, destruction means “demolishing manufactured products, installations and materials, or interrupting them or putting them out of order, for offensive or defensive purposes in the course of military operations”.9 Marginally, the following assessment also deals with the damage, seizure and any form of misappropriation of cultural property. The thesis at hand, however, does not address the question of pillage, illicit trafficking and the restitution of cultural property, which is a vast topic on its own and can therefore not be included in the following assessment. Consequently, inter alia, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property10 and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,11 which are major treaties concerning the protection of cultural property from theft and illicit transfer, are not considered in the following.12 Nor will the restitution arrangements after Waterloo, World War I and II, the first Gulf War as well as after the invasion of Iraq in 2003 be addressed in this writing. According to Black’s Law Dictionary, cultural property is “movable or immovable property that has cultural significance, whether in the nature of antiquities and monuments of classical age or important modern items of fine arts, decorative arts, and architecture. Some writers prefer the term cultural heritage, which more broadly includes intangible cultural things such as folklore, crafts, and skills”.13 However, it has to be held that the    8 See, Wyss, pp. 84–86; see also, O’Keefe, Protection of Cultural Property, p. 3.    9 Verri, Dictionary, pp. 40–41. 10 14 November 1970, 823 UNTS 231. 11 24 June 1995, 34 ILM 1322. 12 For a short overview on these two treaties, see, Francioni, Cultural Heritage, paras. 10–11. 13 Garner et al., p. 436.

introduction3 meaning of ‘cultural property’, as used in the thesis at hand, depends on the context. The definition of cultural property in the international treaties dealing with the protection of cultural property as well as in the provisions concerning individual criminal responsibility for the destruction of cultural property varies broadly.14 Furthermore, as previously indicated, the expression ‘cultural heritage’ appears quite often in the context of cultural property. According to Jirí Toman, “cultural heritage includes movable property (artistic works) as well as immovable property (monuments, buildings, sites), works of expression (music, dance, theatre), intangible cultural property (folklore, talents, rituals, religious beliefs, intellectual traditions) and so on. It implies respect for and a resolve to protect the values that form part of that heritage”.15 However, even this definition depends on the context since the definition varies broadly depending on the respective treaty. For this writing only tangible cultural heritage is relevant. Since the issue at stake in part concerns acts perpetrated during armed conflict one of the focuses of this writing lies on international humanitarian law. With regard to the prosecution of the destruction of cultural property, furthermore, international criminal law will be highly relevant in order to make a suitable assessment of the question at hand. Although international humanitarian law shares some of the goals and methods of international criminal law, they only overlap in some parts. International humanitarian law focuses on the prescription of norms for the protection of the individual – and cultural property – during armed conflict. Those norms are usually obligations upon States either to refrain from certain conduct or to provide for legislations concerning individual criminal responsibility in the case of violations of international humanitarian law. In the latter function international humanitarian law overlaps with international criminal law.16 In the following the interface between international humanitarian law and international criminal law in terms of the destruction of cultural property and its prosecution will be analysed. With respect to the interrelation of international humanitarian law and international criminal law a war crime is a violation of a rule of international humanitarian law that creates direct individual criminal

14 See, Francioni, Cultural Heritage, para. 1. For a detailed enumeration of all the definitions of cultural property used by the UNESCO in its conventions, see, Boylan, Appendix IV. 15 Toman, 1954 Hague Convention, p. 40. 16 Cassese, Punishment of Breaches of International Humanitarian Law, p. 5; Ratner/ Abrams/Bischoff, pp. 12–13; Thürer, pp. 160–161.

4

introduction

responsibility under international law.17 Hence, the rules, which constitute individual criminal responsibility under international humanitarian law, that is rules, which deal with violations or breaches of the respective treaty will need to by analysed in the thesis at hand. The principle of individual criminal responsibility for violations of international humanitarian law arising directly under international criminal law was established in Nuremberg and Tokyo after World War II.18 It has since been endorsed by the ad hoc tribunals and the International Criminal Court.19 The rules of international humanitarian law also influence national criminal law insofar as certain provisions obligate the State Parties to incorporate penal norms for the respective violations of international humanitarian law in their domestic legislation.20 It has to be held that international humanitarian law contains a significant number of quite technical rules, not every violation of which is criminal. Determining which violations of international humanitarian law create individual criminal responsibility is one of the principal challenges of international criminal law.21 This study is divided into three parts. Part I analyses the protection of cultural property as well as individual criminal responsibility for its destruction in international treaty law. The focus here lies on treaties dealing with international humanitarian law, and therefore the protection of cultural property from destruction during armed conflict. In addition, the few treaties, which protect cultural property from destruction during peacetime, will be discussed. The analysis of existing treaty law aims at evaluating the respective treaty’s scope of application. Furthermore, it seeks to crystallise the definitions of cultural property provided by the different treaties. Moreover, an assessment will be made of the State Parties’ obligations with respect to protection of cultural property. Most importantly, the analysis of the treaties dealing with cultural property aims at crystallising the provisions concerning violations and breaches of the respective treaty. Those provisions might be the basis for the crimes dealing with the destruction of cultural property under international criminal law and which will further be developed upon in part II. Furthermore, part II will examine the prosecution of the destruction of cultural property by the international criminal

17 Werle, para. 929. For a more detailed definition of war crimes see, infra, pp. 108 et seq. 18 See, Bassiouni, Crimes against Humanity, p. 473. 19 For an in-depth analysis of the evolution of individual criminal responsibility for core international crimes, see, Damgaard, pp. 85–123. 20 Werle, paras. 951–955. 21 Werle, para. 959.

introduction5 tribunals by analysing existing case law. The focus will there lie on the destruction of cultural property as war crimes and as crimes against humanity. In part III then, the situation in Cambodia concerning the destruction of cultural property during the Khmer Rouge Regime will be assessed in form of a case study, which means that the findings gained beforehand will be applied to this concrete case. Hence, part III will give an overview on the practical application of the provisions, which entail individual criminal responsibility for the destruction of cultural property.

PRELIMINARY REMARKS The main objective of this study is an assessment of the relevant provisions for prosecuting the destruction of cultural property in international criminal law. Therefore, it is necessary to give a short introduction on international criminal law and its sources. § 1 Concept of International Criminal Law While international law typically governs the rights and responsibilities of States, international criminal law comprises norms, which establish individual criminal responsibility. Violations of these norms are subject to prosecution and punishment.1 An offence falls under international criminal law if it meets three conditions: “First, it must entail individual responsibility and be subject to punishment. Second, the norm must be part of the body of international law. Third, the offense must be punishable regardless of whether it has been incorporated into domestic law.”2 The so-called core crimes of international criminal law, war crimes, crimes against humanity, genocide, and the crime of aggression,3 are the “most serious crimes of concern to the international community as a whole”4 and are subject to the jurisdiction of the International Criminal Court (ICC). § 2 Sources of International Criminal Law Since international criminal law is part of the international legal order, it originates from the same legal rules.5 Therefore, the sources of international law as established by Article 38(1) of the Statute of the International

1 Cassese, Punishment of Breaches of International Humanitarian Law, p. 4. 2 Werle, para. 84. 3 Cassese, International Criminal Law, p. 3; Schabas, Atrocities, p. 32; Werle, para. 85. 4 Rome Statute of the International Criminal Court, 1 July 2002, 2187 UNTS 90, 37 ILM 999, [hereinafter “Rome Statute”], Preamble (4) and (9) and Article 5. 5 Cassese, International Criminal Law, pp. 4, 14.

8

preliminary remarks

Court of Justice (ICJ)6 are relevant for the assessment of sources of international criminal law. Article 38(1) of the ICJ Statute states: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Similarly, the Rome Statute of the International Criminal Court states in its Article 21, concerning sources of international criminal law, that the Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

It has to be held, though, that Article 21 of the Rome Statute only describes the sources of international criminal law relevant to adjudication before the ICC and therefore, it does not provide a precise description of the general sources of international criminal law.7 I. International Treaties Treaties are referred to as one of the primary sources of international law. Concerning the interpretation of those treaties, the rules provided by Article 31 and 32 of the Vienna Convention on the Law of Treaties8 should

6 Statute of the International Court of Justice, 26 June 1945, 33 UNTS 993, [hereinafter “ICJ Statute”]. 7 Damgaard, p. 28; See also, Bantekas, pp. 129–133. 8 23 May 1969, 1155 UNTS, [hereinafter “Vienna Convention”], Article 31: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was



preliminary remarks9

be applied.9 Generally, treaties are to be interpreted in accordance with the ordinary meaning given to their terms in their context and in light of the treaty’s object and purpose.10 Where the general rule leaves the treaty’s meaning unclear or leads to an absurd or unreasonable result, decisionmakers may resort to certain supplementary means of interpretation, in particular any subsequent agreement or practice between the Parties. Furthermore, the travaux préparatoires have to be taken into account.11 International criminal law has two additional specific rules of interpretation: First, treaty provisions are to be interpreted according to a corresponding norm of customary international law (provided there exists a corresponding norm).12 Second, regarding international criminal law, the prohibitions in international law to which a penal norm can be ascribed have to be taken into account.13 Accordingly, international treaties relevant to international criminal law define substantive rules of international humanitarian law and expound on which serious violations of international humanitarian law constitute war crimes.14 Therefore, the treaties of international humanitarian law concerning the protection of cultural property and the serious violations of those obligations will be analysed in detail in part I of this study. The most important international treaty, which exclusively deals with international criminal law, is the Rome Statute of the International Criminal made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty […].” Article 32: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”   9 Werle, para. 173; see also, Cassese, International Criminal Law, pp. 16, 17; Ratner/ Abrams/Bischoff, p. 19. 10 Vienna Convention, Article 31(1).    11 Vienna Convention, Article 32. See also, Ratner/Abrams/Bischoff, p. 19; Werle, para. 174. 12 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Judgement of 15 July 1999, para. 287: “In case of doubt and whenever the contrary is not apparent from the text of a statutory or treaty provision, such a provision must be interpreted in light of, and in conformity with, customary international law.” 13 Werle, para. 176: “International humanitarian law and its prohibitions are relevant in interpreting war crimes law. Other aspects of international law, such as human rights law, may be relevant to other crimes.” 14 Cassese, International Criminal Law, p. 17: “[F]or instance, the Regulations annexed to the Fourth Hague Convention of 1907, the four Geneva Conventions of 1949, the two Geneva Additional Protocols of 1977 […].”

10

preliminary remarks

Court.15 Therefore, the focus of the exemplifications concerning the provisions on the prosecution of the destruction of cultural property in part II of this writing will be based on the Rome Statute. In addition, also the statutes of international courts and tribunals constitute international treaties relevant for international criminal law.16 The Charter for the International Military Tribunal (IMT)17 as well as the Charter of the International Military Tribunal for the Far East (IMTFE)18 were seminal international instruments for international criminal law and are, therefore, major sources. The statutes of the ad hoc tribunals – the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY)19 and the Statute of the International Criminal Tribunal for Rwanda (ICTR)20 – are also relevant in this context. Even though these tribunals are the result of resolutions of the UN Security Council, they may be equated with international treaties since they are legally binding to all Member States of the United Nations according to Article 25 of the Charter of the United Nations.21 Notably, they constitute secondary international legislation due to the fact that they were adopted by virtue of provisions contained in a treaty, namely the UN Charter.22 Also, the statutes of the so-called “internationalised” or “hybrid” tribunals amount to sources of international criminal law. Internationalised tribunals are the results of agreements between the UN and a particular state. In some cases, these tribunals apply not only international but also national law and are composed of international as well as national judicial personnel.23 This writing focuses on the Statute of the Special Panel for

15 See, Damgaard, p. 31. 16 Cassese, International Criminal Law, pp. 15–17; Damgaard, pp. 31–32. 17 Charter of the International Military Tribunal (IMT), annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), 8 August 1945, 82 UNTS 279, [hereinafter “IMT Charter”]. 18 Charter of the International Military Tribunal for the Far East, on the basis of a directive from the Commander-in-Chief of the Allied Forces, 19 January 1946, TIAS No. 1589, [hereinafter “IMTFE Charter”]. 19 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by UN Security Council Resolution 827, UN SCOR, 48th Sess., 3217th Mtg., UN Doc. S/RES/827 (1993), 32 ILM 1203 (1993), [hereinafter “ICTY Statute”]. 20 Statute of the International Criminal Tribunal for Rwanda, adopted by UN Security Council Resolution 955, UN SCOR, 49th Sess., 3453rd Mtg., UN Doc. S/RES/955 (1994), 33 ILM 1598, [hereinafter “ICTR Statute”]. 21 Charter of the United Nations, 24 October 1945, 1 UNTS 16, [hereinafter “UN Charter”]. 22 Cassese, International Criminal Law, pp. 15–16. 23 See, Cassese, Internationalized Courts and Tribunals, pp. 3–14; Cohen, pp. 1–3; Sharga, p. 15–38; Thürer, pp. 178–185.



preliminary remarks11

Serious Crimes of the District Court of Dili, East Timor (SPSC),24 the Statute for the Special Court for Sierra Leone (SCSL)25 and the Statute for the Extraordinary Chambers in the Courts of Cambodia (ECCC).26 II. Customary International Law Even with the Rome Statute’s entry into force in 2002, customary international law continues to play an essential role in international criminal law.27 According to the International Court of Justice, two basic requirements have to be met in order for a norm to fulfil customary international law: (i) the act concerned has to be reflected in consistent State practice; and (ii) the State practice has to be adhered to out of a sense of legal obligation (opinio juris).28 To thoroughly evaluate State practice and opinio juris, legislative measures, decisions of courts and official acts must be considered.29 Further, decisions of international courts also provide indirect evidence of practices of the States involved, and thus contribute to the formation of customary international law.30 III. General Principles of Law The “general principles of law recognised by civilised nations” are also a source of international law and therefore international criminal law. In his dissenting opinion in the Erdemović case Judge Stephen of the ICTY Appeals

24 UNTAET Regulation 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UNTAET/REG/2000/15, 6 June 2000, [hereinafter “SPSC Statute”]. 25 Statute for the Special Court for Sierra Leone, as established by an Agreement between the United Nations and the Government of Sierra Leone pursuant to UN Security Council Resolution 1315, UN SCOR, 55th Sess., 4186th Mtg., UN Doc. S/RES/1315 (2000), [hereinafter “SCSL Statute”]. 26 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of the Crimes committed during the Period of Democratic Kampuchea, as established by an Agreement between the United Nations and the Royal Government of Cambodia welcomed by the UN General Assembly in UN GAOR, 57th Sess., Supp. No. 109, Annex, UN Doc. A/RES/57/228 B (2003), [hereinafter “ECCC Statute”]. 27 Werle, para. 141; see also, Cassese, International Criminal Law, p. 17; Damgaard, pp. 32–33. 28 Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands, North Sea Continental Shelf Cases, ICJ, Judgement of 20 February 1969, para. 77. 29 Werle, para. 142. 30 Werle, para. 142. For an in-depth analysis of the role of customary international law for international criminal law, see, Bantekas, pp. 124–125.

12

preliminary remarks

Chamber held concerning the general principles of law as a source of international criminal law: I accordingly turn to those ‘general principles of law recognised by civilised nations’, referred to in Article 38(1)(c) of the Statute of the International Court of Justice as a further source of international law […] no universal acceptance of a particular principle by every nation within the main systems of law is necessary before lacunae can be filled; it is enough that the ‘prevailing number of nations within each of the main families of laws’ recognize such a principle. As was said in the Hostage case, if a principle ‘is found to have been accepted generally as a fundamental rule of justice by most nations in their municipal law, its declaration as a rule of international law would seem to be fully justified’.31

Some examples of general principles of law recognised by civilised nations, which are of relevance in the context of international criminal law are: the principle of legality, the presumption of innocence and the principle of equality of arms.32 IV. Judicial Decisions and Teachings As stated by Article 38(1)(d) of the ICJ Statute, judicial decisions do not constitute per se a source of international law and consequently they do not constitute a source of international criminal law. Nevertheless, it has to be held that judicial decisions – especially those of international criminal courts and tribunals – may prove of crucial importance, not only in order to identify customary international law, but also in order to establish the most appropriate interpretation to be placed on a treaty rule.33 In particular, the judicial decisions of the ICC, the ad hoc tribunals, the ICJ, the IMT and IMTFE as well as the other post-World War II military tribunals are relevant for this writing. Furthermore, Article 38(1)(d) makes a reference to the teachings of the most highly qualified publicists, which are not sources of international law per se, but they can be referred to in order to determine interpretations of treaty rules, customary international law or general principles of law. According to Antonio Cassese, those teachings, “may significantly contribute to the elucidation of international rules”.34 31 Prosecutor v. Erdemović, ICTY (Appeals Chamber), Judgment of 7 October 1997, Seperate and Dissenting Opinion of Judge Stephen, para. 25. See, Damgaard, p. 34. 32 Cassese, International Criminal Law, p. 20; see also, Bantekas, pp. 126–129; Damgaard, pp. 34–35. 33 Cassese, International Criminal Law, pp. 26–27. 34 Cassese, International Criminal Law, p. 27; see also, Damgaard, p. 42.



preliminary remarks13

V. Others In relation to international criminal law the Control Council Law No. 1035 is also relevant. The Allies developed this law after World War II “in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders other than those dealt with by the International Military Tribunal”.36 Hence, Control Council Law No. 10 is a domestic law and therefore not a binding source of international criminal law. Nevertheless, it is of persuasive authority since it was modelled on the IMT Charter.37 Finally, the work of the International Law Commission (ILC) is essential in relation to international criminal law. Especially the Draft Codes of Crimes against Peace and Security as established by the ILC in 199138 and 199639 have proved particularly influential for substantive international criminal law and have an esteemed status.40 The ICTY Trial Chamber described the importance of the ILC Draft Code 1996 in the following terms: The Draft Code was adopted in 1996 by the United Nations International Law Commission, a body consisting of outstanding experts in international law, including governmental advisers, elected by the United Nations General Assembly. The Draft Code was taken into account by the General Assembly: in its resolution 51 (160) of 30 January 1997 it expressed its ‘appreciation’ for the completion of the Draft Code and among other things drew the attention of the States participating in the Preparatory Committee on the Establishment of an International Criminal Court to the relevance of the Draft Code to their work. In the light of the above the Trial Chamber considers that the Draft Code is an authoritative international instrument which, depending upon the specific question at issue, may (i) constitute evidence of customary law, or (ii) shed light on customary rules which are of uncertain contents or are in the process of formation, or, at the very least, (iii) be indicative of the legal

35 Control Council Law No. 10, Punishment of Persons guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945, Official Gazette Control Council for Germany, Vol. 3, pp. 50–55 (1946), [hereinafter “Control Council Law No. 10”]. 36 Control Council Law No. 10, Preamble. 37 Damgaard, p. 49. Different opinion, Werle, para. 161: “Control Council Law No. 10 was occupation law. Nevertheless, its provisions, to the extent they involve substantive international criminal law, are recognized as an expression of customary law.” 38 Report of the International Law Commission on the work of its forty-third session, 29 April - 19 July 1991, GAOR, 46th Sess., Supp. No. 10, UN Doc. A/46/10, pp. 98–107, [hereinafter “ILC Draft Code 1991”]. 39 Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, GAOR, 51st Sess., Supp. No.10, UN Doc. A/51/10, pp. 15–54, [hereinafter “ILC Draft Code 1996”]. 40 Damgaard, p. 49.

14

preliminary remarks views of eminently qualified publicists representing the major legal systems of the world.41

In the following all these sources of international criminal law will be analysed in order to ascertain how the deliberate destruction of cultural property during armed conflicts as well as during peacetime can be prosecuted under international criminal law.

41 Prosecutor v. Furundžija, ICTY (Trial Chamber), Judgement of 10 December 1998, para. 227. See, Damgaard, p. 49; Werle, para. 167.

CHAPTER ONE

PROHIBITION OF THE DESTRUCTION OF CULTURAL PROPERTY IN INTERNATIONAL TREATY LAW In the following an overview on the development of the international legal framework protecting cultural property from destruction during armed conflict as well as during peacetime will be given. First, there is going to be a short overview on the historical development. Then the main treaties of international humanitarian law and international cultural property law will be 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. § 1 Historical Development I. The Classical Law In antiquity, no provisions existed in international humanitarian law, which protected cultural property from being plundered, pillaged or destroyed. On the contrary, one of the aims of war was booty and occupied countries’ property was regarded as spoils that belong to the conqueror. Furthermore, the destruction of cultural property was considered an inevitable consequence of war.1 The Romans and the Goths perceived the aim of warfare to be conquest, which was achieved by massacres, destruction and pillage.2 The famous quote of Marcus Porcius Cato, a Roman statesman, “ceterum censeo Carthaginem esse delendam” is emblematic for this period.3 An 1 See, Cunning, pp. 212–213; Nahlik, International Law and the Protection of Cultural Property, pp. 1070–1071; Poulos, pp. 6–7; Toman, 1954 Hague Convention, pp. 3–4. 2 One notable example is the conquest of the Roman Emperor Vespasian’s son, Titus, who sacked Herold’s Temple in Jerusalem in 70 ad, and celebrated the conquest in a triumphal procession depicted in a relief on The Arch of Titus in Rome. See, Greenfield, p. 35. See also, Kastenberg, pp. 281–282. 3 Marcus Porcius Cato called “ceterum censeo Carthaginem esse delendam” (“Carthage must be destroyed”) at the end of all his political speeches. In 146 bc, when Rome captured Carthage, they destroyed temples, the city walls and houses. Finally, they set the whole town on fire and therewith, not only destroyed the town but also Carthage’s language, culture and religion. See, Bevan, pp. 18–19.

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opposition to the destruction of property and especially cultural property was unusual. Nevertheless, some Greek philosophers drew attention to this issue and denounced, in particular, the destruction of temples and other sacred sites and places of worship.4 Also members of the armed forces perceived the importance of certain cultural heritage.5 The deliberate looting and destruction of cultural treasures, however, remained widespread in the Middle Ages. Nevertheless, some regard was shown for sacred objects and places and a certain sense for the importance of cultural heritage started to evolve.6 But also throughout the Crusades towns, villages, castles and religious institutions were destroyed during the conquest of the Middle East, which led to the attempt of the Catholic Church to mitigate the consequences of war in particular for sacred places. In 989 bc, the Synod of Charrox proclaimed that places of worship and property were protected due to their sacred nature.7 However, the Catholic Church’s attempts were not very successful, in view of the many accounts of the destruction of monuments, churches, palaces, treasuries, and other structures and objects of historical and archaeological value described in history books.8 II. Renaissance The first attempts to protect works of art can be seen in the ideology of the Renaissance. In the 16th and 17th centuries, various writers on the then emerging international law engendered a dialogue in the protection of cultural property. Inter alia Hugo Grotius, who lived during the devastating European Thirty Years War and is widely known as the father of international law, believed that religious property like churches needed to be spared from destruction during armed conflict. However, he emphasised 4 Toman, 1954 Hague Convention, p. 4: “The Greek historian Polybius (202–120 bc) wrote: ‘The laws and the right of war oblige the victor to ruin and destroy fortresses, forts, towns, people, ships, resources and all other such like things belonging to the enemy in order to undermine his strength while increasing the victor’s own. But although some advantage may be derived from that, no one can deny that to abandon oneself from the pointless destruction of temples, statues and other sacred objects is the action of a madman’.” See also, Kastenberg, pp. 280–281. 5 Verri gives the example of the Goth ruler Totila who laid siege on Rome and was about to set Rome on fire when Belisarius, one of the Generals of Justinian wrote to Totila, that he should preserve the most precious of all artistic heritage, Verri, biens culturels, p. 75. 6 See, Kastenberg, p. 282; Poulos, p. 7; Toman, 1954 Hague Convention, p. 4; Verri, biens culturels, pp. 71–72. 7 Toman, 1954 Hague Convention, p. 4. 8 See, Bhat, pp. 2–3.



prohibition of the destruction of cultural property17

that they should only be spared if they do not impose any threat to the belligerent party.9 Furthermore, he made reference to memorials, which should be spared from destruction and damage as well.10 Similarly, in his famous work entitled The Law of Nations or the Principles of Natural Law, Emmerich de Vattel wrote: For whatever cause a country be devastated, these buildings should be spared which are an honour to the human race and which do not add to the strength of the enemy, such as temples, tombs, public buildings and all edifices of remarkable beauty. What is gained by destroying them? It is one’s self an enemy to mankind, thus wantonly to deprive them of these monuments of art and models of taste […].11

For De Vattel, the “wilful destruction of public monuments, places of worship, tombs, statutes, paintings, etc.” was “absolutely condemned, even by voluntary law of nations, as never being the rightful object of war”.12 Yet, if it were “necessary to destroy buildings of this sort to pursue military operations or to erect siegeworks”, a belligerent “no doubt had the right to do so”.13 Therewith, De Vattel introduced the system of military necessity.14 One of the first definitions in international law for military necessity can be found in Lassa Oppenheim’s International Law: All destruction and damage to enemy property for the purpose of offence and defence is necessary destruction and damage, and therefore lawful. It is not only permissible to destroy and damage all kinds of property on the battlefield during battle, but also in preparation for battle or siege. To strengthen a defensive position a house may be destroyed or damaged. To cover the retreat of an army a village on the battlefield may be fired. The district around an enemy fortress held by a belligerent may be razed, and, therefore, all private and public buildings […] may be destroyed, and all bridges blown up within a certain area. If a farm, a village, or even a town is not to be abandoned but prepared for defence, it may be necessary to damage in many ways or entirely destroy private or public property.15

Similarly, the Dictionary of the International Law of Armed Conflict defines military necessity as, 9 Grotius, Book 3, Chapter 12, para. 6. 10 Grotius, Book 3, Chapter 12, para. 7. 11 De Vattel, p. 571, Chapter IX, para. 168. See, Toman, 1954 Hague Convention, p. 5. 12 De Vattel, p. 575, Chapter IX, para. 173. See, O’Keefe, Protection of Cultural Property, pp. 10–11. 13 De Vattel, p. 575, Chapter IX, para. 173. See, O’Keefe, Protection of Cultural Property, pp. 10–11. 14 See, Thürer, p. 69. 15 Oppenheim, Vol. II., para. 150.

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chapter one doing what is necessary to achieve war aims. It is the justification of any recourse to violence, within the limits of the general principle of proportionality. In its narrow sense, military necessity is recognized by the rules of international law and intended to be applied in the context of those rules and as derogations thereto, within the limits and conditions of those derogations. In brief, military necessity in its narrow sense may not be invoked unless positive law expressly allows an exception to be made on the grounds of military necessity to a particular prohibition or restriction of the violence of war. […] Military necessity generally runs counter to humanitarian exigencies. Con­ sequently the purpose of humanitarian law is to strike a balance between military necessity and humanitarian exigencies.16

Hence, military necessity allows the opposing party in a conflict to destroy cultural property in order to pursue its military goal. De Vattel’s novel and seminal discourse brought about progress, which was reflected in the conduct of most wars during the 18th century.17 Warring parties began to show due regard for religious institutions such as temples and churches, educational institutions such as schools and libraries as well as scientific collections and laboratories.18 It was around that time that the concept that cultural property was the property of humanity, rather than a prize of plunder, emerged in international law.19 Accordingly, in the 19th century the opinion was already settled that, “the arts and sciences are admitted amongst all civilized nations to form an exception to the severe rights of war, and to be entitled to favour and protection”.20 Stanislaw Nahlik even asserts that by the end of the 19th century, the protection of cultural property during war was established in practice and doctrine, and therefore had emerged into customary international law.21

16 Verri, Dictionary, p. 75; see also, Garner et al., p. 1083: “military necessity. A principle of warfare allowing coercive force to achieve a desired end, as long as the force used it for no more than is called for the situation.” 17 Nahlik, International Law and the Protection of Cultural Property, p. 1071: “It thus came as a shock when the French, in the course of the Napoleonic wars, systematically pillaged the most valuable works of art wherever they went to enrich the newly-created Musée Napoléon or the Louvre. Another shock came in 1814 when the English […] mercilessly bombarded several American towns, including Washington.” See also, Kastenberg, pp. 283–284; O’Keefe, Protection of Cultural Property, pp. 13–16; Poulos, p. 9; Sandholtz, pp. 47–70. 18 According to Toman, “such an approach was not foreign to other religions and civilizations in the world. The protection of cultural property is in fact universal in nature. It is not the product of one single civilization; quite the reverse. We find striking examples in all cultures, all religions and all political systems”. Toman, 1954 Hague Convention, p. 5. 19 Kastenberg, p. 284. 20 Moore, p. 460. 21 Nahlik, International Law and the Protection of Cultural Property, p. 1072. See also, Birov, p. 206.



prohibition of the destruction of cultural property19

III. The Lieber Code It was Francis Lieber22 who spearheaded the beginnings of the ratification of the laws of war with his Manual for the Laws and Customs of War,23 which was written in 1863 during the American Civil War. Although the Code was binding only to the forces of the United States, it corresponds to a great extent to the laws and customs of war existing at that time. Additionally, the Lieber Code formed the origin of the project of an international convention on the laws of war presented to the Brussels Conferences in 1874 and stimulated the adoption of the Hague Conventions on land warfare of 1899 and 1907.24 Concerning the protection of cultural property, the Lieber Code states in Article 35 that “classical works of art, libraries, scientific collections or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded”. Through this provision, the Lieber Code obliges both parties to the conflict to protect cultural property from destruction or damage. The party on whose territory the respective cultural property is situated, is obliged to secure the respective cultural property during armed conflict. The opposing party is obliged to not to bombard such property. Furthermore, the Lieber Code contained the first attempt to include penal norms for the destruction of cultural property during war. Article 44 of the Code declares that the destruction or damage of property not commanded by the authorised officer was “prohibited under penalty of death or other severe penalty adequate for the gravity of the offense”. It is important to note that even though the Lieber Code was one of the first codifications of international humanitarian law that entailed a definition of the concept of military necessity,25 the Code did not include the waiver of military necessity for the protection of cultural property. Hence,

22 For more information on Francis Lieber, see, Sandholtz, pp. 75–77. 23 Instructions for the Government of Armies of the United States in the Field prepared by Francis Lieber and promulgated as General Orders No. 100 by President Lincoln on 24 April 1863, reprinted in Schindler/Toman, pp. 3–20, [hereinafter “Lieber Code”]. 24 Schindler/Toman, p. 3. 25 Lieber Code, Article 14: “Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.” See, Forrest, Military Necessity, p. 184: “Military necessity is here firstly defined in a ius ad bellum context, applying the principle to measures that are indispensable, and not simply convenient or expedient, to achieve the aim of the actual conflict.” See also, Gardam, p. 7; Thürer, p. 70.

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the Lieber Code protects cultural property at all times; even if its destruction were required by military necessity. Following the lead of the Lieber Code, the English, Italian, Spanish, German and Japanese codes on the laws of war stipulated that movable and immovable properties dedicated to science or art, churches, museums, libraries, collections of art and archives shall be treated as private property and therefore be spared from bombardment.26 IV. The 1874 Brussels Declaration and the 1880 Oxford Manual Henry Dunant, one of the founders of the International Red Cross, showed considerable concern over the dangers threatening cultural property during wartime. Dunant stated in one of his treatises: Détruisez comme à l’envi les plus beaux chefs-d’œuvre dont s’enorgueillit la civilisation: palais, châteaux, quais, ports, aqueducs, viaducs, édifices et monuments de toutes sortes; mais, rappelez-vous que cette civilisation qui fait actuellement votre orgueil ne peut manquer de devenir par votre militarisme, la proie du caporalisme stupide, cette variété très inférieure dans l’espèce césarienne, en d’autres termes de l’absolutisme omnipotent et tyrannique qui saura vous broyer à son tour, vous et vos libertés nationales, avec votre prospérité, votre commerce, votre industrie, votre agriculture, avec vos libres institutions, avec votre bonheur domestique. C’est là où nous marchons, lentement mais inévitablement, sans le vouloir mais à coup sûr. Et nous ajouterons: encore un peu de temps, et l’homme aura, grâce à la science, des moyens si prodigieux des faire mal qu’il ne pourra être sauvé de lui-même, au milieu d’épouvantables désastres que par une intervention divine.27

Inter alia on the initiative of Henry Dunant, a few years after he had written down his concerns, the Brussels Conference convened in 1874.28 At the conference the Project of an International Declaration concerning the Laws 26 Verri, biens culturels, pp. 128–129; see also, Bhat, p. 3. 27 Dunant, p. 188. For an English translation, see, Toman, 1954 Hague Convention, pp. 8–9: “Outdo each other in destroying the most beautiful masterpieces of which civilization is proud: palaces, castles, ports, docks, aqueducts, bridges, buildings, and monuments of all kinds. But remember that this civilization which is now your pride will inevitably become, through your militarism, the prey to military blockheads, that very inferior part of the warrior caste, or in other words, prey to omnipotent and tyrannical absolutism which will crush you in its turn, you and your national liberties, and with you your prosperity, your trade, your industry, your agriculture, your free institutions and your happiness. This is where we are heading, slowly but inevitably, without wishing it, but inexorably. And we should add that, given just a little more time, man, thanks to science, will have such prodigious means of doing evil that it will not be possible to save him from himself, amidst frightful disasters, other than by divine intervention.” 28 Toman, 1954 Hague Convention, p. 9.



prohibition of the destruction of cultural property21

and Customs of War29 was drafted to deal with the laws and customs of war. While the 1874 Brussels Declaration was not binding since not all governments ratified it, it nevertheless, marked an important step in the movement for the codification of the laws of war.30 Concerning the protection of cultural property, the 1874 Brussels Declaration reiterated more or less the principles of the Lieber Code. In Article 17, the Declaration states: “[…] all necessary steps must be taken to spare as far as possible, buildings dedicated to art, science or charitable purposes, hospitals, and places where the sick and wounded are collected provided they are not being used for military purposes.” Different from the Lieber Code’s provisions with regard to the protection of cultural property, the 1874 Brussels Declaration therewith included a waiver for the protection of cultural property in cases of military necessity.31 This means that in cases in which one party to the conflict uses cultural property for military purposes, the opposing party is not obliged to spare the respective cultural property anymore. The Declaration also imposes in Paragraph 2 of the same Article a duty on the besieged “to indicate the presence of such buildings by distinctive and visible signs to be communicated to the enemy beforehand”.32 Furthermore, Article 8 of the Declaration states: “The property of parishes, or establishments devoted to religion, charity, education, arts and sciences, although belonging to a State, shall be treated as private property. Every seizure, destruction of, or wilful damage to, such establishments, historical monuments or works of art or science, shall be prosecuted by the competent authorities.” This demonstrates that also the drafters of the 1874 Brussels Declaration saw the necessity of including provisions that deal with the criminalisation of the destruction of cultural property. Around the same time, Johann Caspar Bluntschli published his work Das moderne Völkerrecht der civilisierten Staten,33 in which he summarised 29 Brussels Conference of 1874, Project of an International Declaration concerning the Laws and Customs of War, 27 August 1874, reprinted in Schindler/Toman, pp. 21–28, [hereinafter “1874 Brussels Declaration”]. 30 Schindler/Toman, p. 21. 31 The 1874 Brussels Declaration does not provide for a definition of military necessity. The definition can be derived from the Lieber Code, which states in Article 14: “Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.” 32 1874 Brussels Declaration, Article 17. 33 It is interesting to note that instead of an introduction or prologue Bluntschli chose to write a letter to his friend, Francis Lieber, in the beginning of his book, Bluntschli, p. III–VIII.

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the evolution of legal awareness towards the need to protect cultural property. He moreover presents commentaries on both the Lieber Code and the 1874 Brussels Declaration.34 Bluntschli stated: Indessen sogar innerhalb des öffentlichen Vermögens beginnt die civilisirte Welt feiner zu empfinden und wichtige Unterscheidungen zu machen. Nicht alles öffentliche Gut dient in gleicher Weise dem State […]. […] Die Kirchen sind den religiösen Bedürfnissen der Bewohner geweiht. Die Spitäler sind für Kranke bestimmt. Die Schulen, die Bibliotheken, die Laboratorien, die Sammlungen sind für die Zwecke der Bildung und der Wissenschaft gegründet. Eben deshalb sind sie […] nicht im Sinne des Kriegsrechts als öffentliches Vermögen zu betrachten und sollen ihren Zwecken nicht entfremdet werden. Der Raub von Kunstschätzen und Denkmälern, noch in den Revolutionskrie­ gen zu Anfang dieses Jahrhunderts oft geübt, erscheint dem öffentlichen Gewissen bereits anstössig und widerrechtlich, weil diese Dinge keinen nahen Bezug auf den Staat und den Krieg haben, sondern der friedlichen Cultur der bleibenden Nation dienen.35

In Article 649 of his treatise, Bluntschli further stated: “Die muthwillige Zerstörung oder Schädigung wissenschaftlicher Instrumente oder Sam­ mlungen, der Denkmäler und Kunstwerke in dem eingenommenen Gebiete wird durch das civilisirte Kriegsrecht nicht entschuldigt, sondern ist offenbar Barbarei.”36 By referring to Article 35 of the Lieber Code and Article 8 of the 1874 Brussels Declaration, Bluntschli further explained that it is the duty of the military leader to forbid these acts of barbarism and to prevent the destruction, which is not justified due to military necessity.37 Hence, also Blunschtli saw the need for norms, which penalise the destruction of cultural property.

34 See, Toman, 1954 Hague Convention, p. 7. 35 Bluntschli, pp. 41–42. Translation by the author: Meanwhile the civilised world starts to care more precisely and to make important distinctions concerning public property. Not every public property serves the State in the same way. The churches are devoted to the religious needs of the inhabitants. The hospitals are designated for the sick and wounded. The schools, libraries, laboratories, the collections are founded for the purpose of education and the sciences. Therefore they are not to be understood as public property in terms of law of wars and should not be denaturalised. The deprivation of art treasures and memorials, although it was still the custom during the revolutionary wars at the start of this century, is already considered by public opinion to be offensive and unlawful because those objects have no direct connection with the State and the war but serve the peaceful culture of the nation. 36 Bluntschli, p. 363. Translation by the author: The intentional destruction or damage done to scientific instruments or collections, memorials and works of art in the occupied territories is not exculpated from the civilised law of war but is obviously barbarism. See also, Garner, p. 108. 37 Bluntschli, p. 363.



prohibition of the destruction of cultural property23

Shortly after the 1874 Brussels Declaration was adopted, the Institute of International Law appointed a committee to study the Declaration and to submit to the Institute its opinion and supplementary proposals on the subject. The efforts of the Institute’s committee led to the adoption of the Manual of the Laws and Customs of War in Oxford in 1880.38 The 1880 Oxford Manual repeats almost every article of the 1874 Brussels Declaration and the Lieber Code.39 Concerning the destruction of cultural property, Article 32 of the 1880 Oxford Manual forbids, in general, the destruction of “public or private property, if this destruction is not demanded by an imperative necessity of war”. Article 34 of the 1880 Oxford Manual thereof repeats Article 35 of the Lieber Code and therewith obliges the owners of cultural property to protect it from any destruction or damage. Moreover, the Manual stipulates that offenders against the rules contained in it were liable to the punishments specified in the national penal law. Thereby it includes provisions criminalising the destruction of cultural property.40 Even though the 1880 Oxford Manual and its predecessor the 1874 Brussels Declaration were not binding,41 both texts formed the basis of the 1899 Hague Conventions. V. Developments between the two World Wars Before turning to the Hague Conventions, which are now considered customary international law and should therefore be analysed more precisely, the developments in the protection of cultural property after World War I are highlighted in the following. In 1922, shortly after World War I, an international commission introduced The Hague Rules Concerning the Control of Radio in Time of War and Air Fare.42,43 Even though, the 1922 Hague Rules were simply 38 The Laws of War on Land, Manual published by the Institute of International Law, adopted by the Institute of International Law at Oxford, 9 September 1880, reprinted in Schindler/Toman, pp. 29–40, [hereinafter “1880 Oxford Manual”]. 39 For a detailed comparison of the provisions of the Lieber Code, the 1874 Brussels Declaration and the 1880 Oxford Manual, see, Sandhorst, pp. 90–93. 40 1880 Oxford Manual, Article 84. 41 Birov, p. 207. 42 Hague Rules on Air Warfare, Drafted by a Commission of Jurists at The Hague, December 1922-February 1923, reprinted in Schindler/Toman, pp. 315–328, [hereinafter “1922 Hague Rules”]. 43 Toman, pp. 14–15: “The Washington Conference of 1922 on the Limitations of Armaments adopted a resolution (4 February 1922) recommending the appointment of a Commission of Jurists charged with the preparation of rules relating to the use of radio in

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r­ ecommendations, which never came into force, they exerted a great influence on future developments relating to the law of wars as well as the protection of cultural property.44 Concerning the protection of cultural property in wartime, the drafters of the 1922 Hague Rules made, for the first time, a distinction between “general protection” and “special protection”. General protection is described in Article 25, which states: “In bombardment by aircraft, all necessary steps must be taken by the commander to spare as far as possible buildings dedicated to public worship, art, science, or charitable purposes, historic monuments, hospital ships, hospitals and other places where the sick and wounded are collected, provided such buildings, objects or places are not at the time used for military purposes.” Again, a waiver concerning military necessity was included. Article 24(1) further elaborates on military necessity by stating: “Aerial bombardment is legitimate only when directed at a military objective, that is to say, an object of which the destruction or injury would constitute a distinct military advantage.” Hence, the requirements for a waiver of military necessity under the 1922 Hague Rules are much stricter than previous provisions dealing with this issue because the opposing party has to prove that the respective cultural property has been turned into a military objective and that its destruction resulted in a military advantage.45 The 1922 Hague Rules provide furthermore for special protection for “important historic monuments”.46 According to Article 26, States shall be entitled “to establish a zone of protection round such monument. Such zones shall in time of war enjoy immunity from bombardment”. Consequently, the “state adopting the provisions of this article must abstain from using the monument and the surrounding zone for military purposes”.47 Significantly, the first treaty exclusively dealing with the protection of cultural property in wartime was the Treaty on the Protection of Artistic and time of war and to air warfare. The Commission was to examine whether the existing principles of international law were still sufficient, having regard to the methods of attack of defence introduced and developed since the second International Peace Conference in 1907. The Commission, presided over by John Bassett Moore, was composed of representatives of France, Italy, Japan, the Netherlands, the United Kingdom and the United States of America.” 44 Toman, p. 15. 45 Gardam, p. 100: “The major factor of determining the military advantage of a particular attack in the context of the proportionality equation is the importance of the target for achieving a particular military objective. The more integral the proposed target is to the military strategy, the higher the level of likely civilian casualties [or destruction of cultural property] and damage to civilian objects that will be acceptable.” 46 1922 Hague Rules, Article 26(1). 47 Ibid.



prohibition of the destruction of cultural property25

Scientific Institutions and Historic Monuments (Roerich Pact)48 from 1935.49 The treaty is binding to 11 States mainly from North and South America, including but not limited to Brazil, Cuba, Mexico and the United States of America.50 Article 1 of the Roerich Pact defines cultural property as, “historic monuments, museums, scientific, artistic, educational and cultural institutions”. The definition of cultural property covers only immovable property, so that movable cultural property is only protected if it is located inside immovable cultural property.51 The respective cultural property “shall be considered as neutral and as such respected and protected by belligerents”.52 Thereby, the pact introduced the concept of treating cultural property with respect, which was later adopted by the 1954 Hague Convention.53 According to Article 1(3) of the Roerich Pact, this obligation applies not only during wartime, but also in peacetime. The Roerich Pact, however, does not specify which concrete obligations the Parties have to comply with in order to fulfil the obligation to respect and protect cultural property. According to Article 2, the Parties only “agree to adopt measures of internal legislation necessary to insure said protection and respect”. Furthermore, Article 3 obliges States to mark the respective cultural property located on their territory with a distinctive flag. It is noteworthy that, in the whole treaty no condition at all is mentioned, not even the condition of military necessity.54 Accordingly, compared to preceding provisions concerning the protection of cultural property, the protection of cultural property provided by the Roerich Pact is rather comprehensive. Nevertheless, the drafters of the Roerich Pact did not envisage the criminalisation of the destruction of cultural property.

48 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact), Signed at Washington, 15 April 1935, LNTS Vol. CLXVII 1936, pp. 290–294, No. 3874, reprinted in Schindler/Toman, pp. 991–994, [hereinafter “Roerich Pact”]. 49 Schindler/Toman, p. 991: “Following a suggestion made in 1929 by Professor Nicholas Roerich of New York, the present Treaty was prepared, at the request of the Roerich Museum in New York, by Mr. Georges Chklaver and was thereupon discussed by the International Museums Office of the League of Nations. […] In 1933, the Seventh International Conference of American States recommended the signature of the Roerich Pact. The treaty was then drawn up by the Governing Board of the Pan-American Union and signed on 15 April 1935.” See also, Boylan, pp. 28–29; Dörmann, Roerich Pact, p. 230. 50 Toman, 1954 Hague Convention, p. 18. 51 Dörmann, Roerich Pact, p. 230; von Schorlemer, p. 67; Solf, p. 65. 52 Roerich Pact, Article 1. 53 Nahlik, International Law and the Protection of Cultural Property, p. 1057. 54 Toman, 1954 Hague Convention, p. 18.

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chapter one § 2 The 1899 and 1907 Hague Conventions

The First Hague Peace Conference of 1899 was convened on the initiative of the Czar of Russia, Nicholas II, who foremost wanted to limit the progressive development of armaments.55 The Conference, at which the governments of 26 States were represented, adopted four conventions and the other acts mentioned in the Final Protocol, all dealing with the laws of war.56 Furthermore, provision was made for convening of a second conference, which took place in The Hague in 1907.57 The follow-up conference, at which the governments of 44 States were represented, revised the conventions adopted in 1899 and adopted ten new conventions as well as a number of other acts mentioned in the Final Act of 1907.58 They all deal with issues concerning the laws of war. The conference, likewise, recommended holding a third international peace conference, which was thwarted by the ­outbreak of World War I.59 The 1899 Hague Convention (II) respecting the Laws and Customs of War on Land and the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land (hereinafter “IV Hague Convention of 1907”) are the most significant of the Hague Conventions. Both Conventions are annexed by the Regulations respecting the Laws and Customs of War on Land (hereinafter “1907 Hague Regulations”), which have formed until then the most important basis for the law of armed conflict and are still in force. 55 Brown Scott, pp. v-vii; Sandholtz, pp. 93–97; Schindler/Toman, p. 41. 56 Convention (I) on the Pacific Settlement of International Disputes, Convention (II) respecting the Laws and Customs of War on Land, Convention (III) on the Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864, Convention (IV) on the Prohibiting Launching of Projectiles and Explosives from Balloons, Final Act of the International Peace Conference, all signed at The Hague on 29 July 1899, reprinted in Brown Scott, pp. 1–30, 41–79, 100–128, 163–177, 220–221. 57 Schindler/Toman, p. 41. 58 Convention (I) on the Pacific Settlement of International Disputes, Convention (II) on the Limitation of Employment of Force for Recovery of Contract Debts, Convention (III) on the Opening of Hostilities, Convention (IV) respecting the Laws and Customs of War on Land, Convention (V) on the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Convention (VI) on the Status of Enemy Merchant Ships at the Outbreak of Hostilities, Convention (VII) on the Conversion of Merchant Ships into War-Ships, Convention (VIII) on the Laying of Automatic Submarine Contact Mines, Convention (IX) on the Bombardment by Naval Forces in Time of War, Convention (X) on the Adaptation to Maritime War of the Principles of the Geneva Convention, Convention (XI) on Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, Convention (XIII) on the Rights and Duties of Neutral Powers in Naval War, all signed at The Hague on 18 October 1907, reprinted in Brown Scott, pp. 1–30, 41–80, 89–90, 96–97, 100–128, 133– 138, 141–143, 146–148, 151–154, 157–160, 163–177, 182–185, 188–203, 209–216, 220–221. 59 Schindler/Toman, p. 41.



prohibition of the destruction of cultural property27

In 1946, the importance of the 1907 Hague Regulations was reinforced by the International Military Tribunal in Nuremberg, which stated that these rules were “recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war […]”.60 The emergence of the 1907 Hague Regulations as part of customary international law, applicable in principle to the entire international community, was thus recognised.61 Also the International Court of Justice confirmed the application of the 1907 Hague Conventions as customary international law in the Case concerning Armed Activities on the Territory of the Congo.62 The 1899 Hague Convention (II) respecting the Laws and Customs of War on Land and the IV Hague Convention of 1907 deal with the issue of the protection of cultural property during war and belligerent occupation. Since the IV Hague Convention of 1907 and its Regulations are redrafts of the 1899 version, the following remarks will only refer to the 1907 version. I. Scope of Application The 1907 Hague Regulations do not include any definition of the cases to which they applied. The title “respecting the laws and customs of war on land” (italics supplied), though, makes it clear that the Regulations are intended for the use during wartime.63 The Hague Convention (III) on the Opening of Hostilities provides in Article 1: “The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form of a declaration of war, giving reasons, or of an ultimatum with conditional declaration of war.” Hence, the 1907 Hague Conventions are only applicable in declared war between two or more States and therefore, do not provide for any rules concerning non-international armed conflicts. On the other hand, on the applicability of the 1907 Hague Regulations in non-international armed conflicts JeanMarie Henckearts states: “While these rules [the 1907 Hague Regulations] have long been considered customary in international armed conflicts, they are now also accepted as customary in non-international armed conflicts.”64 60 France et al. v. Göring et al., IMT, Judgement of 30 September and 1 October 1946, p. 254. 61 Nahlik, International Law and the Protection of Cultural Property, p. 1072; Toman, 1954 Hague Convention, p. 10. 62 Democratic Republic of Congo v. Uganda, Case concerning Armed Activities on the Territory of the Congo, ICJ, Judgement of 19 December 2005, para. 217. 63 Pictet, IV Geneva Convention, p. 17. 64 Henckearts, Study on customary international humanitarian law, p. 195.

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The 1907 Hague Convention also applies to cases of belligerent occupation. Article 42 of the 1907 Hague Regulations provides that territory is considered occupied “when it is actually placed under the authority of the hostile army”, adding that the occupation “extends only to the territory where such authority has been established and can be exercised”. It has to be noted, that the 1907 Hague Regulations are not only applicable in cases of belligerent occupation but also in cases of forcible peacetime occupation, which is the occupation of all or part of the territory of a State without the previous consent of its government, but also without causing an armed conflict with that State.65 II. Definition of Cultural Property The term ‘cultural property’ does not appear in any of the 1907 Hague Conventions or in the 1907 Hague Regulations. The Regulations contain only a very general definition of cultural property with their Article 27 referring to “buildings dedicated to religion, art, science, or charitable purposes, historic monuments”. Similarly, the Hague Convention (IX) on Bombardment by Naval Forces in Time of War refers in Article 5 to “sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments”. Article 56 of the 1907 Regulations states that “institutions dedicated to religion, charity and education, the arts and sciences” are protected.66 It is important to note that in the 1907 Hague Regulations “buildings dedicated to religion” do not only comprise Christian churches, as protected by former treaties, but also mosques, synagogues and other buildings which represent religious views.67 The notion of “buildings dedicated to charitable purpose” probably also needs further clarification. Those include orphanages, retirement homes, homes for those with disabilities, and also kindergartens, schools and universities.68 “Historic monuments” were added to the definition by the 1907 Hague Conference. Neither did 65 A. Roberts, p. 274. 66 Those Articles also cover “hospitals, and places where the sick and wounded are collected”. This category of protected property is not considered here, since the concept of ‘cultural property’, which is covered in this assessment, does not extend to hospitals and other medical places as such. According to O’Keefe, however, “[s]ome specific hospitals […] such as (formerly) Santa Maria della Scala in Siena or the Hassadah Hospital in Jerusalem, with its windows by Chagall, may qualify as historic monuments and hence, in generic terms, as cultural property.” O’Keefe, Protection of Cultural Property, Chapter 1, fn. 130. 67 Dinstein, p. 1909; Toman, 1954 Hague Convention, p. 47. 68 O’Keefe, Protection of Cultural Property, p. 29.



prohibition of the destruction of cultural property29

they appear in the Lieber Code, the 1874 Brussels Declaration nor the 1880 Oxford Manual. Also, the 1899 Hague Conventions did not include “historic monuments” in their definition of cultural property. The term “historic monuments” refers to immovable property, whether in public or private possession, which is protected because of its own historical, artistic or architectural value, and not due to its contents or purpose.69 The definition of cultural property in Article 27, hence, covers only immovable cultural property. Article 56(2) of the 1907 Hague Regulations adds further to the definition of cultural property by referring to “works of art and science”. Consequently, the 1907 Hague Regulations expanded the breadth of legal protection to include movable cultural property in its definition of cultural property. This new broadened coverage still falls short, however, in that movable cultural property only seems to be protected during belligerent occupation and not in times of war. To conclude, the 1907 Hague Conventions do not provide for a precise definition of the protected cultural property and are fragmentary on this issue. Nevertheless, it can be said that there are three criteria under which an institution enjoys the protection of the 1907 Hague Regulations: “Certain objects are protected by virtue of their intrinsic qualities, others by virtue of the institution to which they belong and still others by virtue of the purpose they are intended to serve.”70 Hence, despite its shortcomings, the definition of cultural property in the 1907 Hague Regulations covers different kinds of cultural property and more significantly, the Regulations do not require the respective cultural property to be of a certain value or importance. III. Protection of Cultural Property The 1907 Hague Regulations went further in protecting cultural property than any of the 19th century codes. Provisions concerning the protection of cultural property appear in Section II on hostilities, and in Section III on occupation of enemy territory. The provisions concerning the protection of cultural property in the 1907 Hague Regulations are twofold: cultural property is protected under the general provisions concerning the enemy’s property (Article 23(g)) and special provisions concerning the protection of cultural property (Articles 27 and 56). 69 O’Keefe, Protection of Cultural Property, p. 27. 70 Nahlik, Protection of Cultural Property, p. 205.

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Article 23(g) prohibits the destruction or seizure “of the enemy’s property, unless it is imperatively demanded by the necessities of war”. This rule aims to protect property in general and therefore necessarily includes the protection of cultural property. Unfortunately, the 1907 Hague Regulations incorporated in Article 23(g) the concept of exceptions to the protection of property during armed conflicts on the basis of military necessity.71 As such, it allows the adversary party to destroy cultural property if it deems the destruction necessary in order to achieve its military goal. Thus, the military necessity as defined by the adversary party dictates which cultural property is protected and which is not. Naturally, the destruction of property, which is used for military purposes by one party, is necessary for the adversary party in order to achieve its military goal. Furthermore, it has to be held that the notion of “unless it is imperatively demanded by the necessities of war” does not automatically protect property, which is not used for military purposes. It might be, that a certain cultural property is not used for military purposes but its seizure or destruction nevertheless is imperatively demanded by the necessities of war.72 Hence, the protection of cultural property provided for by Article 23(g) of the 1907 Hague Regulations is limited. The 1907 Hague Regulations also provide for provisions, which expressly refer to the protection of cultural property. Article 27 states: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purpose, historic monuments, […], provided they are not being used at the time for military purposes.” The meaning of “to spare” encompasses both direct damage or destruction and avoidable incidental damage, which stems from a bombardment directed at a nearby aim. The caveat “as far as possible”, however, elaborates that the damage to cultural property, as an unavoidable incident to the bombardment of other targets, is not prohibited by the 1907 Hague Regulations.73 Furthermore, Article 27 of the 1907 Hague 71 The concept of military necessity was introduced to the 1899 and then also the 1907 Hague Conventions under pressure from the German delegation, which incorporated the principle Kriegsräson geht vor Kriegsmanier in the General Staff of the Prussian Army. The delegates of most States opposed the inclusion of this principle. They had to accept it, however, because the German delegation put it as a conditio sine qua non of its signing the Convention. See, Merryman, p. 838; Nahlik, Deficiencies of the Hague Convention, p. 103. See also, on this principle, Forrest, Military Necessity, pp. 186–187. 72 See, O’Keefe, Protection of Cultural Property, Chapter 1, fn. 109. See also, Wolfrum, Protection of Cultural Property, pp. 320–321. 73 Edmonds/Oppenheim, para. 123 note (c). See also, O’Keefe, Protection of Cultural Property, p. 24.



prohibition of the destruction of cultural property31

Regulations only protects the respective cultural property, if it is “not being used at the time for military purposes”. What ‘military purposes’ encompasses is not specified by the 1907 Hague Regulations, but according to James Edward Edmonds and Lassa Oppenheim, for instance, the use of cultural property as offices and quarters for soldiers, or as signalling stations or observation posts to hold target artillery is usage for military purposes.74 As such, if the besieged party uses cultural property in a likewise way for military purposes, the other party is under no further obligation to spare such property. It is not even necessary to weigh the military advantage by destroying such cultural property against the military advantage the adversary party derives from it.75 Consequently, the protection of the respective cultural property is the responsibility of the party, which is in its control, since the respective State is obliged not to use cultural property on its territory for military purposes. Article 27 of the 1907 Hague Regulations further states, that “[i]t is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand”.76 This approach, that the protection of cultural property requires respective conduct from both parties to the conflict, which means not only from the adversary party but also from the party in whose territory the respective cultural property is situated, was later further elaborated upon in the 1954 Hague Convention and subsequent treaties dealing with the protection of cultural property.77 Section III of the 1907 Hague Regulations, which establishes the rights and duties of the occupying authorities, provides for expansive protection for cultural property during belligerent occupation in Article 56 which states: “The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property shall be treated as private property”. Private property has to be respected according to Article 46 of the same Section. Unlike Article 27, Article 56 contains no military necessity exemption, which might be due to the fact that during belligerent occupation, military objects may no longer pose an obstacle to military operations, and thus, there is no need for a military necessity exemption to ensure a successful military outcome.78 74 Edmonds/Oppenheim, para. 136. See also, O’Keefe, Protection of Cultural Property, p. 25. 75 Forrest, Military Necessity, p. 198; Wolfrum, Protection of Cultural Property, p. 323. 76 According to Article 5(2) of the 1907 Hague Convention (IX), such signs are to be rectangular slabs, each divided into two triangles, one black and one white. 77 Wolfrum, Protection of Cultural Property, p. 323–324. 78 Forrest, Military Necessity, p. 199.

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The Hague Convention (IX) on Bombardment by Naval Forces in Time of War also contains a provision concerning the protection of cultural property. Article 5 obliges the commander to take all necessary measures “to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, on the understanding that they are not used at the same time for military purposes”. Again, the waiver on the basis of military necessity was included. The 1907 Hague Regulations, hence, provide for a fairly extensive protection of cultural property during armed conflict. Nevertheless, they failed to prevent widespread damage and destruction of cultural property during World War I79 and World War II.80 IV. Violations of the Treaty The IV Hague Convention of 1907 stipulates in Article 3, that a belligerent party, which violated the provisions of the 1907 Hague Regulations would, if the case demanded, be liable to pay compensation and would be responsible for all acts committed by persons forming part of its armed forces. Section III of the 1907 Hague Regulations, which establishes the rights and duties of the occupying authorities, provides in Article 56 for the criminalisation of the destruction of cultural property during belligerent occupation: “All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science is forbidden and should be made the subject of legal proceedings.” Therewith, the 1907 Hague Regulations surpassed the Lieber Code by mandating penal norms 79 For examples on the destruction of cultural property during World War I, see Sandholtz, pp. 102–107. See also, Bassiouni, Protection of Cultural Property, 291; Garner, pp. 101–108. Garner gives an excellent example for the destruction of cultural property due to military necessity during World War I: “The bombardment of the cathedral at Rheims was, if the German version is correct, more excusable. The city was clearly defended, and was therefore liable to bombardment. If, as the Germans claim, the French were using the tower for purposes of observation to direct their artillery fire, the enemy was justified in trying to remove the observation post […]; and if, as they claim, the bombardment ceased as soon as the steeple had been cut away and they inflicted no more damage than was necessary to accomplish this object, the French and not they must bear the responsibility. If, on the other hand, as the London Times asserts, the cathedral was not being used by the French for military purposes, and that a Red Cross flag floated over the tower and protected German wounded within its walls, the destruction was wholly unjustifiable, for such architectural landmarks as this noble cathedral belong not to France but the World.” 80 For examples on the destruction of cultural property during World War II, see, Boylan, pp. 35–37. See also, Lippman, pp. 5–28. In general, see, Francioni, Cultural Heritage, para. 5.



prohibition of the destruction of cultural property33

specifically for the destruction of cultural property.81 However, the provision is rather general, as it fails to stipulate clear prohibitions and sanctions. Furthermore, the liability of the belligerent States was purely pecuniary and Parties to the 1907 Hague Conventions were left with unfettered discretion to punish acts committed by their own or the enemy’s troops, especially since the 1907 Hague Regulations do not stipulate any obligation for State Parties to incorporate this prohibition in their domestic legislation.82 Consequently, it can be held that the 1899 and 1907 Hague Conventions did not have a clear international criminal character at the time adopted. Rather it was the drafters’ intention not to impose individual criminal responsibility at the international level, but instead to oblige State Parties to wage armed conflicts in conformity with humanitarian law and as a corollary to punish perpetrators on the basis of domestic law.83 § 3 The Genocide Convention For the purpose of providing a broad and complete précis of the development of legal norms on the protection of cultural property, it is inevitable to touch briefly on the Convention on the Prevention and Punishment of the Crime of Genocide.84 By adopting the Genocide Convention in 1948, the UN General Assembly affirmed that genocide was a crime under international law. Article II of the Genocide Convention defines the crime of genocide as, any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Even though the final version of the Genocide Convention did not include the crime of destruction of cultural property, draft versions of the 81 Nahlik, International Law and the Protection of Cultural Property, p. 1074. 82 Pictet, IV Geneva Convention, pp. 583–584; see also, Hector, p. 70. 83 Bantekas, p. 121. 84 Convention on the Prevention and Punishment of the Crime of Genocide, adopted in GA Res. 260 A (III) of 9 December 1948, entered into force 12 January 1951, 78 UNTS 277, [hereinafter “Genocide Convention”].

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Convention had comprised this idea. One of the first drafts included as an act of genocide, among others, the “systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship”.85 The rationale behind this idea was expressed by a member of the drafting committee, who stated that it was “possible to wipe out a human group […] by destroying its cultural heritage, while allowing the individual members to survive”.86 In a later draft version of the Convention, the drafters included “[d]estroying […] libraries, museums, schools, historical monuments, places of worship and other cultural institutions and objects of the group” with the intent to destroy the culture of that group as an act of genocide.87 Members of the drafting committee recognised that the prohibition of genocide was intended to not only protect a group’s physical existence but also its culture. In fact, as one member of the drafting committee announced, the destruction of culture was one of the main characteristics of the Nazi’s genocidal policies during World War II.88 However, the so-called concept of ‘cultural genocide’ was rejected by the Sixth Committee of the UN General Assembly, which prepared the final text of the Convention as adopted by the General Assembly in plenary.89 The opposition to the inclusion of the concept of ‘cultural genocide’ in the Genocide Convention derived mainly from the following considerations: [T]hat the concept was not susceptible to adequate definition, thereby potentially giving rise to abusive and illegitimate claims of genocide; that it might interfere with legitimate efforts by states to foster a national community and

85 Draft Convention for the Prevention and Punishment of Genocide, UN Doc. E/477 annexed to ECOSOC Res. 77 (V) of 6 August 1947, Article II(2)(e). For a detailed description of the drafting process in relation to cultural genocide, see, Lippman, pp. 60–63. 86 ECOSOC, Ad Hoc Commission of Genocide, 3rd Year, 6th Sess., 5th Mtg., p. 2, UN Doc. E/AC.25/SR.5 (1948). See also, Lippman, p. 61. 87 Draft Convention for the Prevention and Punishment of Genocide, UN Doc. E/794, annexed to ECOSOCOR, 3rd Year, 7th Sess., Supp. No. 6, 5 April to 10 March 1948, Article III(2). 88 UN General Assembly, UNGAOR, 3rd Sess., Part I, 6th Committee, 83rd Meeting, 25 October 1948, p. 205. Lippman, p. 59: “The notion that the Nazi’s destruction […] of cultural property was a component of genocide was most fully articulated in the prosecution of Artur Greiser, former Governor and National Socialist leader in Poznan in the annexed Polish territories.” Referring to Trial of Gauleiter Artur Greiser, reprinted in United Nations War Crimes Commission, XIII Law Reports of Trials of War Criminals, pp. 70–117. See also, Frulli, Case-Law of the ICTY, p. 211. 89 UN General Assembly, UNGAOR, 3rd Sess., Part I, 6th Committee, Summary Records of Meetings 21 September – 10 December 1948, p. 202.



prohibition of the destruction of cultural property35 civilize so-called ‘primitive’ (generally colonial or indigenous) peoples; that the destruction of a group’s cultural attributes did not rise to the level of physical destruction, the main concern of the Convention; that the subject was more appropriately left to the realm of human rights; and that its inclusion might prevent states from joining the Convention.90

The notion of genocide – excluding the concept of cultural genocide – which was agreed upon, was incorporated in the domestic legislations of the States that ratified the 1948 Genocide Convention. As a result, most provisions concerning genocide in national penal codes did not include the concept of cultural genocide. It is worth mentioning one exception, though: the Nazi and Nazi Collaborators (punishment) Law, an Israeli statute adopted in 1950 together with the national law implementing the 1948 Genocide Convention.91 The Nazi and Nazi Collaborators (punishment) Law provides for a specific category of crimes, so-called “crimes against Jewish People”. This category, which was clearly inspired by the 1948 Genocide Convention, prohibits in Article 1(b)(6) acts of “destroying or desecrating Jewish religious or cultural assets and values”. It was decided to include a cultural property dimension in the definition of the crime to emphasise the unique nature of the Jewish Genocide, which encompassed not only the physical, but also the cultural existence of the Jewish people.92 More recently, the ICTY Trial Chamber also rejected in the Krstić case the idea of ‘cultural genocide’. Recalling the drafting of the Genocide Convention and the view of the International Law Commission,93 the Trial Chamber concluded that “customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group”, with the consequence that “an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity

90 Ratner/Abrams/Bischoff, p. 33; see also, Frulli, Case-Law of the ICTY, p. 211. 91 Passed by the Knesset on 18 Av 5710 (1 August 1950); See, Ben-Naftali/Tuval, pp. 128–178. 92 Ben-Naftali/Tuval, p. 133; See also, Frulli, Case-Law of the ICTY, p. 212. 93 Also the 1996 ILC Draft Code dismissed the concept of ‘cultural genocide’. ILC Draft Code 1996, pp. 90–91: “As clearly shown by the preparatory work for the [Genocide] Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group. The national or religious element and the racial or ethnic element are not taken into consideration in the definition of the word ‘destruction’, which must be taken only in its material sense, its physical or biological sense.”

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d­ istinct from the rest of the community would not fall under the definition of genocide”.94 However, the ICTY Trial Chamber remarked: Where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group. In this case, the Trial Chamber will thus take into account as evidence of intent to destroy the group the deliberate destruction of mosques and houses belonging to members of the group.95

Hence, the ICTY Trial Chamber acknowledged the fact that the attempted physical elimination of a specific group is inseparable from the attempt of destroying the cultural and religious symbols of the same group.96 The ICTY Appeals Chamber confirmed the Trial Chamber’s holding.97 In his partial dissenting opinion, ICTY Appeals Chamber Judge Shahabuddeen accepted that the notion of ‘cultural property’ fell outside the actus reus of genocide as defined by customary international law. Nonetheless, he emphasised the Trial Chamber’s ruling that “[t]he destruction of culture may serve evidentially to confirm an intent, to be gathered from other circumstances, to destroy the group as such”.98 Concerning the accused Krstić, the Judge stated “the razing of the principal mosque confirm[ed] an intent to destroy the Srebrenica part of the Bosnian Muslim group”.99 Hence, even though, the destruction of cultural property is not an act of genocide in itself, the destruction of cultural property in the respective case can be considered as evidence, which “places a new emphasis on the social existence of a group, as opposed to its purely biological existence”.100 The International Court of Justice (ICJ) endorsed the rejection of the concept of ‘cultural genocide’ in the Case concerning Application of the Genocide Convention: [I]n the Court’s view, the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group.

  94 Prosecutor v. Krstić, ICTY (Trial Chamber), Judgement of 2 August 2001, para. 580.    95 Ibid.   96 Frulli, Case-Law of the ICTY, p. 213.   97 Prosecutor v. Krstić, ICTY (Appeals Chamber), Judgement of 19 April 2004, paras. 25–26.    98 Prosecutor v. Krstić, ICTY (Appeals Chamber), Judgement of 19 April 2004, partial dissenting opinion of Judge Shahabuddeen, para. 53. See, O’Keefe, p. 356.   99 Ibid. 100 Francioni, Protection of Cultural Heritage, p. 10.



prohibition of the destruction of cultural property37 Although such destruction may be highly significant inasmuch as it is directed to the elimination of all traces of the cultural or religious presence of a group, and contrary to other legal norms, it does not fall within the categories of acts of genocide set out in Article II of the Convention. In this regard, the Court observes that, during its consideration of the draft text of the Convention, the Sixth Committee of the General Assembly decided not to include cultural genocide in the list of punishable acts. Moreover, the ILC subsequently confirmed this approach […]. Furthermore, the ICTY took a similar view in the Krstić case, finding that even in customary law, – despite recent developments – the definition of acts of genocide are limited to those seeking the physical or biological destruction of a group. The Court concludes that the destruction of historical, religious and cultural heritage cannot be considered to be a genocidal act within the meaning of Article II of the Genocide Convention.101

The ICJ added, however: “At the same time, [the Court] also endorses the observation made in the Krstić case that ‘where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group’.”102 Nevertheless, there are several voices wishing the concept of ‘cultural genocide’ to be introduced to international law as it became evident in the last years, that cultural property becomes more and more one of the objectives of genocides.103 § 4 The Geneva Conventions After the end of World War II, drafts concerning the laws of armed con­ flict  were set up, which took account of the experience gained during the war. With the assistance of a conference of government experts, the

101 Bosnia and Herzegovina v. Serbia and Montenegro, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Judgement of 26 February 2007, para. 344 (citations omitted). 102 Ibid. 103 See, Boylan, p. 121; Frulli, Case-Law of the ICTY, p. 214; Lippman, pp. 60–63; Neserssian, pp. 7–9. Interestingly, also Slobodan Milošević, the former Serbian president, who was accused by the ICTY inter alia for the destruction or wilful damage done to institutions dedicated to education and religion, stated during his trial: “[The] destruction of monuments of culture would be tantamount to genocide.” Prosecutor v. Slobodan Milošević, ICTY (Trial Chamber), Transcripts of 8 July 2003, p. 23839. See also, Sandholtz, pp. 206–207.

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International Committee of the Red Cross prepared four draft conventions, which were submitted to the International Red Cross Conference held in Stockholm in 1948. The Diplomatic Conference, which adopted them in their final form, took place 1949 in Geneva and assembled representatives of 63 governments.104 Four conventions were adopted: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,105 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,106 Convention (III) relative to the Treatment of Prisoners of War,107 Conven­ tion (IV) relative to the Protection of Civilian Persons in Time of War.108 The 1949 Geneva Conventions have, due to the fact that all States ratified them, reached universal participation. Therefore, they are applicable in almost any international armed conflict and have achieved the status of customary international law.109 In particular, the IV Geneva Convention of 1949, which mainly deals with the protection of a strictly defined category of civilians from arbitrary actions in enemy and in occupied territory, is relevant for the protection of cultural property.110 Hence, the following remarks focus on this Convention. I. Scope of Application 1. International Armed Conflict According to Article 2 of the IV Geneva Convention of 1949, which is common to all the 1949 Geneva Conventions, “the Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. Thereby, the 1949 Geneva Conven­ tions substituted the word ‘war’ as formerly used by most conventions dealing with the laws of war with the word ‘armed conflict’. The reason was that “a State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a 104 Pictet, IV Geneva Convention, pp. 6–9. 105 12 August 1949, 75 UNTS 31, [hereinafter “I Geneva Convention of 1949”]. 106 12 August 1949, 75 UNTS 85, [hereinafter “II Geneva Convention of 1949”]. 107 12 August 1949, 75 UNTS 135, [hereinafter “III Geneva Convention of 1949”]. 108 12 August 1949, 75 UNTS 287, [hereinafter “IV Geneva Convention of 1949”]. 109 Greenwood, Historical Development, pp. 27–28. 110 Pictet, IV Geneva Convention, p. 10.



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police action, or acting in legitimate self-defence”.111 The expression ‘armed conflicts’ makes such arguments more difficult. The definition of ‘armed conflict’ can be derived from the Commentary on the I Geneva Convention, which holds that “[a]ny difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict […], even if one of the parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place”.112 Hence, even a minor frontier dispute is sufficient to constitute an armed conflict.113 2. Non-International Armed Conflict It is important to note that the Convention in general applies only between two States and is therefore not applicable to situations of internal armed conflicts. An exception can be found, though. Common Article 3 of the Geneva Conventions binds the parties to a non-international armed conflict to a minimum of provisions. The definition of a non-international armed conflict can be derived from the Commentary on the I Geneva Convention: Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities – conflicts, in short which are in many respects similar to an international war, but take place within the confines of a single country. In many cases, each of the Parties is in possession of a portion of national territory, and there is often some sort of front.

It has to be noted that the requirements set forth by the 1949 Geneva Conventions for a non-international armed conflict are considerably low. Pursuant to common Article 3, it is neither necessary that the insurgents exercise control over a part of the State territory, nor must they embody the attributes of a government, which means, for instance, that the insurgents  do not need to be organised in a certain way.114 Even though the Commentary on the I Geneva Convention sets up a list with criteria to distinguish a genuine armed conflict from a mere act of banditry of unorganised

111 Pictet, I Geneva Convention, p. 32. 112 Ibid. 113 Schindler, p. 131. 114 Schindler, p. 146.

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and short-lived insurrection,115 the Article should be applied as widely as possible.116 It has to be held, though, that common Article 3 of the 1949 Geneva Conventions does not provide for a provision concerning the protection of cultural property or even of property in general. Therefore, for this assessment, common Article 3 of the 1949 Geneva Conventions is irrelevant. 3. Belligerent Occupation Furthermore, the “Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if said occupation meets with no armed resistance”.117 Hence, whenever a State intervenes with its armed forces in another State the 1949 Geneva Conventions are applicable.118 Furthermore, the 1949 Geneva Conventions are applicable during so-called occupations in peacetime. Article 6 of the IV Geneva Convention of 1949 specifically refers to occupations, which continue after the end of military operations.119 II. Definition of Cultural Property The IV Geneva Convention of 1949 does not deal specifically with the protection of cultural property. It solely refers to the protection of property in

115 Pictet, I Geneva Convention, p. 49: “1. That the Party in revolt against the de jure government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention. 2. That the legal government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory. 3. (a) That the de jure government has recognized the insurgents as belligerents; or (b) that it has claimed for itself the rights of a belligerent; or (c) that it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or (d) that the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression. 4. (a) That the insurgents have an organization purporting to have the characteristics of a State; (b) that the insurgent civil authority exercises de facto authority over persons within a determinate portion of a national territory; (c) that the armed forces act under the direction of an organized authority and are prepared to observe the ordinary laws of war; (d) that the insurgent’s civil authority agrees to be bound by the provisions of the Convention.” 116 Pictet, I Geneva Convention, p. 49. 117 IV Geneva Convention, Article 2(2). See, Schindler, p. 132: “This rule has its origin in the occupation of Denmark by Germany in the Second World War. In 1940 Denmark renounced any resistance in view of German superiority. Although, in such a case there is neither an armed conflict nor a state of war, the rules concerning occupied territories have to be applied.” 118 Schindler, p. 132. 119 A. Robert, pp. 253–254.



prohibition of the destruction of cultural property41

general. Therefore, the Convention does not provide for a definition of the notion of cultural property. III. Protection of Cultural Property The IV Geneva Convention of 1949 states in Article 33(3) curtly, that “[r]eprisals against protected persons and their property are prohibited”. Article 53, furthermore, provides for a provision concerning the protection of property during belligerent occupation. “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” The protection of property in general in Article 53 also includes the protection of cultural property. The Convention, however, fails to incorporate the specific provisions contained in previous instruments regarding the protection of cultural property, even though during the drafting process reference was made to the protection of cultural property in the 1907 Hague Regulations. Also, again the reservation of military necessity was included, which weakens the provision considerably.120 Nevertheless, the IV Geneva Convention broke new ground with one specific new provision, which might be called in aid of the protection of cultural property, in so far as the property in question is an expression of religious or cultural values.121 Article 27 states: “Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs […].” Jean Pictet elaborates in the Commentary to the IV Geneva Convention: “Protected persons in the territory of a Party to the conflict or in occupied territory must be able to practise their religion freely, without any restrictions other than those necessary for the maintenance of public law and morals.”122 Hence, protected persons have to be able to access churches and other buildings dedicated to religion, which indirectly protects these institutions from being destroyed. IV. Violations of the Treaty The need for penal provisions for violations of the law of armed conflicts was felt at the 1949 Geneva Conference. Therefore, Articles 146 and 147 of 120 Pictet, IV Geneva Convention, pp. 300–301. 121 Boylan, p. 39. 122 Pictet, IV Geneva Convention, p. 203.

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the IV Geneva Convention provide for provisions concerning grave breaches of the Convention. Grave breaches are defined in Article 147 as inter alia “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”. According to the provision, to constitute a grave breach, such destruction and appropriation must be extensive. Hence, an isolated incident would not be enough.123 Furthermore, the destruction must not be justifiable with military necessity. Concerning the mental element of the crime, Article 147 holds that the act must have been carried out “unlawfully and wantonly”. Article 146(1) obliges the Parties to the IV Geneva Convention then to “enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention”. Furthermore, grave breaches of the 1949 Geneva Conventions are subject to universal jurisdiction since according to Article 146(2), each Party to the Convention must search for persons alleged to have committed, or to have ordered to be committed, any such grave breach.124 It has to be held, though, that also concerning grave breaches the 1949 Geneva Conventions do not refer specifically to cultural property and its destruction. Hence, for the following analysis the 1949 Geneva Conventions are not relevant. § 5 The 1954 Hague Convention After the tremendous destruction of cultural property during World War II, the idea of drafting a comprehensive convention dealing specifically with the protection of cultural property was taken up again and the lead responsibility was passed to the newly founded United Nations Educational, Scientific and Cultural Organisation (UNESCO).125 In 1946, UNESCO was established as a specialised agency of the new United Nations Organisation. According to its Constitution, UNESCO’s mandate is to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal 123 Pictet, IV Geneva Convention, p. 601. 124 Zimmermann, Part V Section II, para. 3403. 125 Nahlik, International Law and the Protection of Cultural Property, pp. 1076–1077; see also, Cunning, pp. 217–221; O’Keefe, Protection of Cultural Property, pp. 92–94; Poulos, pp. 20–33.



prohibition of the destruction of cultural property43 respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations.126

To realise this mandate, the Organisation inter alia will maintain, increase and diffuse knowledge [b]y assuring the conservation and protection of the world’s inheritance of books, works of art and monuments of history and science, and recommending to the nations concerned the necessary international conventions.127

In accordance with this mandate, UNESCO arranged for several meetings of experts to prepare a draft convention on the protection of cultural property in the event of armed conflict.128 Finally, in 1954, a diplomatic conference was convened at The Hague, which resulted in the adoption of the Convention for the Protection of Cultural Property in the Event of Armed Conflict on 14 May 1954 as well as the Regulations for the Execution of the Convention and the Protocol for the Protection of Cultural Property in the Event of an Armed Conflict.129 Furthermore, the diplomatic conference adopted a Protocol for the Protection of Cultural Property in the Event of Armed Conflict, which mainly deals with the exportation of cultural property from occupied territories and is therefore not relevant for this analysis.130 The 1954 Hague Convention is the first international convention exclusively dealing with the protection of cultural property. Therefore, Nahlik even suggests: “May 14th, 1954, the day of the signature, at the Hague, of the Convention […] is certainly one of the most important, the most important perhaps, dates in the whole history of legal protection of works of art and indeed of cultural property of any kind.”131 The main idea behind the Convention was the cosmopolitan notion of a general interest in cultural property, which is laid down in the preamble of the 1954 Hague Convention: Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of mankind, since each people makes its contribution to the culture of the world; Considering that the preservation of the cultural heritage is of great importance for all peoples

126 UNESCO Constitution, 4 November 1946, 4 UNTS 275, Article I(1). 127 UNESCO Constitution, Article I(2)(c). 128 O’Keefe, Protection of Cultural Property, pp. 92–93. 129 14 May 1954, 249 UNTS 258, [hereinafter “1954 Hague Convention”]. 130 For further information on the Protocol to the 1954 Hague Convention, see, Prott, pp. 191–194; see also, Nahlik, Deficiencies of the Hague Convention, pp. 105–107. 131 Nahlik, Deficiencies of the Hague Convention, p. 100.

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chapter one in the world and that it is important that this heritage should receive international protection.132

Today, the Convention has 123 signatories and certain authors even suggest that the 1954 Hague Convention has crystallised into customary international law.133 Others, however, do not support this view and conclude that the 1954 Hague Convention does not reflect customary international law.134 In any case, while the 1954 Hague Convention may not have reached the status of customary international law as a whole, according to the ICRC’s study on customary international humanitarian law, some of its principles have.135 Concerning the relationship of the 1907 Hague Regulations and the 1954 Hague Convention, it can be held that the latter extends protection to several objects not mentioned in the definition of cultural property of the 1907 Hague Regulations.136 Accordingly, Article 36(1) of the 1954 Hague Convention holds that the Convention shall be supplementary to the 1907 Hague Conventions. Concerning the relationship of the 1954 Hague Convention with the Roerich Pact, Article 36(2) of the Convention states: “In the relations between Powers which are bound by the Washington Pact of 15 April, 1935 for the Protection of Artistic and Scientific Institutions and of Historic Monuments (Roerich Pact) and which are Parties to the present Convention, the latter Convention shall be supplementary to the Roerich Pact”. I. Scope of Application 1. International Armed Conflict Article 18 of the Convention refers to the applicability of the Convention during international armed conflict and adopts common Article 2 of the 1949 Geneva Conventions. It provides that, “[a]part from the provisions 132 See, Merryman, pp. 836–837, 841; Nahlik, Des drimes contre les biens culturels, p. 17. 133 Boylan, p. 7: “[…] the 1954 Convention is so well established that it is now regarded as an integral part of Customary International Law.” von Schorlemer, p. 45: “Some of its [the 1954 Hague Convention] basic principles have become part of customary international law.” Toman, 1954 Hague Convention, p. 203: “Many of the general provisions of the Hague Convention form part of customary international law.” See also, Francioni/Lenzerini, Destruction of the Buddhas, p. 635; Meyer, pp. 386–389; O’Keefe, Protection of Cultural Property, pp. 317–343. 134 Haunton, p. 202; Kastenberg, p. 297. 135 Henckaerts/Doswald-Beck, p. 131. 136 Partsch, p. 380.



prohibition of the destruction of cultural property45

which shall take effect in times of peace, the present Convention shall apply in the event of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one or more of them”. Hence, a formal declaration of war is not necessary for the Convention to be applicable. The existence of armed conflict between two or more Contracting Parties brings it automatically into operation. Furthermore, it has to be noted, that the Convention becomes applicable from the moment of the actual opening of hostilities on.137 Concerning the definition of ‘international armed conflict’ reference can be made to the above made explanations for the 1949 Geneva Conventions.138 Furthermore, Article 18(1) states that there must be at least one Party to the Convention on each side of the conflict before the Convention binds any of the parties involved. However, Paragraph 3 of the same Article clarifies that “[i]f one of the Powers in conflict is not a Party to the present Convention, the Powers which are Parties thereto shall nevertheless remain bound by it in their mutual relations”. Additionally, those Parties involved in the conflict shall be bound by the Convention in relation to any nonParty involved in the conflict “if the latter has declared that it accepts the provisions thereof and so long as it applies them”.139 2. Non-International Armed Conflict Concerning the applicability of the 1954 Hague Convention in non-international armed conflict Article 19(1), modelled on common Article 3 of the 1949 Geneva Conventions,140 holds that, “in the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property”. Paragraph 2 adds that the parties to the non-international armed conflict “shall endeavour to bring into force, by means of special agreements, all or part of the other provisions”. The notion of ‘non-international armed conflict’ is not defined by the 1954 Hague Convention. Neither does the Convention define the level of gravity the conflict has to exhibit in order to amount to a non-international armed conflict. Reference can be made to the assessment of common 137 Pictet, I Geneva Convention, p. 32. 138 Supra, p. 38. 139 See, O’Keefe, Protection of Cultural Property, pp. 96–97. 140 See, Henckaerts, Non-international Armed Conflicts, pp. 82–83.

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Article 3 of the 1949 Geneva Conventions.141 This definition, however, is very broad and does not provide for any requirements concerning the parties to the non-international armed conflict inter alia their organisation. Hence, even though Article 19 refers to “each party to the conflict” and therewith also refers to a non-signatory party to the conflict, that is, not only States but also all other entities, respect for cultural property is difficult to achieve during non-international armed conflicts.142 Nevertheless, Article 19 encourages special agreements between the opposing parties in a non-international armed conflict and holds that the application of the Convention’s provisions “shall not effect the legal status of the parties to the conflict”. Thus, by entering an agreement concerning the protection of cultural property, one belligerent group will not, for example, be regarded as accepting the validity of the opposing group’s status existence, much less its status. Furthermore, Article 19 of the 1954 Hague Convention specifically empowers UNESCO to offer its assistance to the opposing belligerents in order to achieve the implementation of the Convention during noninternational armed conflicts.143 It is unclear though, whether all the provisions of the 1954 Hague Convention are applicable during non-international armed conflicts since Article 19(1) of the 1954 Hague Convention obliges the parties to the conflict merely “to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property” (italics supplied).144 Article 4 is the only provision of the Convention, which relates to respect for cultural property. This leads to the assumption that inter alia Article 28, which deals with violations of the Convention, does not apply in the event of non-international armed conflict. However, Roger O’Keefe suggests that, [Article] 28 is indeed a provision which relates to respect for cultural property, albeit in an adjectival sense: where art 4 of the Convention lays down the primary rules relevant to respect, art 28 provides for a special secondary rule in the event of the breach of one of these primary rules – namely, that such a breach is to give rise under the domestic law of the respective parties to the individual criminal responsibility of the perpetrator. Putting it another way, the legal consequence of Article 19 is that failure to observe Article 4 in the course of a non-international armed conflict is a breach of the 1954 Hague 141 Supra, p. 39. 142 Toman, 1954 Hague Convention, pp. 212–213; Wolfrum, Protection of Cultural Property, pp. 312–313. 143 Forrest, Protection of Cultural Heritage, p. 84. 144 Fischer, p. 189.



prohibition of the destruction of cultural property47 Convention, and Article 28 obliges the parties to prosecute and impose penal or disciplinary sanctions on those persons who commit or who order to be committed a breach of the Convention.145

Following this approach, Article 28 of the 1954 Hague Convention is also applicable in non-international armed conflicts. Whether the other provisions in the 1954 Hague Convention, inter alia, those dealing with safeguarding measures, are applicable in non-international armed conflicts remains unclear, though. Certain authors suggest that the other provisions are not applicable in situations of non-international armed conflict.146 Nevertheless, expanding the respect for cultural property to all armed conflicts – not only international armed conflicts – is one of the major achievements of the 1954 Hague Convention.147 Especially, since the ICTY Appeals Chamber held in the Duško Tadić case that Article 19 of the 1954 Hague Convention has become customary international law.148 Therefore, Article 19 of the Convention also binds States and other insurgent forces, which are not Parties to the 1954 Hague Convention. 3. Belligerent Occupation Pursuant to Article 18(2), the 1954 Hague Convention “shall also apply in cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”. Hence, the Convention is not only applicable to active hostilities but also to belligerent occupation. Paragraph 2 of Article 18 does not define the notion of ‘occupation’. Instead, the definition can be derived from the 1907 Hague Regulations.149 Remarkably, the Convention as a whole is applicable to situations of belligerent occupation, which distinguishes the 1954 Hague Convention from the provisions provided by the 1907 Hague Regulations concerning protection of cultural property. Only some of those provisions are applicable during belligerent occupation. Therefore, the 1954 Hague Convention has to be widely applied and no actual armed conflict needs to exist.150

145 O’Keefe, Protection under International Criminal Law, p. 22. 146 Detling, pp. 69–70; Toman, 1954 Hague Convention, pp. 213–215; Wolfrum, Protection of Cultural Property, p. 334. 147 Kastenberg, p. 291; Nahlik, International Law and the Protection of Cultural Property, p. 1077. 148 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, para. 98. See also, Henckaerts/Doswald-Beck, p. 129. 149 Supra, p. 28. 150 Forrest, Protection of Cultural Heritage, pp. 82, 93.

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II. Definition of Cultural Property One of the main goals of the 1954 Hague Convention was to provide for a universally accepted definition of cultural property. Compared to the 1907 Hague Regulations, the definition should be narrower, so far as to render feasible a higher standard of protection.151 The 1954 Hague Convention defines cultural property in Article 1 by stating: For the purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the pro­ perty  defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a); (c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as ‘centres containing monuments’.

As the chapeau of the provision states, the definition is strictly for the purposes of the 1954 Hague Convention.152 Furthermore, to stress that the property concerned is protected by the Convention because of its importance and not its origin, the chapeau adds that protection is granted “irrespective of origin or ownership” of the cultural property concerned.153 The first subparagraph of Article 1 refers to movable and immovable property, which is of “great importance to the cultural heritage of peoples”. The definition is thus restricted to property of ‘great importance’ only. It must be observed here that the reference is to the importance and not the value of the property in question. The reason for this distinction is the fact that certain objects are, even if they are of limited value, important for the national culture while other objects, even if they are of great value, can be easily replaced and are therefore less important for the respective people.154 Nevertheless, cultural property, which is not considered as being 151 O’Keefe, Protection of Cultural Property, p. 101. 152 O’Keefe, Protection of Cultural Property, p. 102. 153 Nahlik, International Law and the Protection of Cultural Property, p. 1079. 154 Toman, 1954 Hague Convention, p. 50.



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of ‘great importance’ might be protected within the framework of other international treaties, in particular by the 1907 Hague Regulations as well as the 1949 Geneva Conventions. Concerning the notion “cultural heritage of every people”, certain authors suggest that, the protection does not extend to every object regarded as of cultural significance or part of the national heritage by the State in whose territory the respective cultural property is situated but only to those objects which are of importance to the whole international community.155 According to Leslie Green, therefore, the 1954 Hague Conven­ tion “protects those items, such as the Colosseum, the Sphinx, the Taj Mahal, the ‘Mona Lisa’, Picasso’s ‘Guernica’, the Chagall windows at the Hadassah Hospital in Jerusalem, and the like, considered part of the cultural heritage of the entire world”. Others imply that the 1954 Hague Convention applies to all movable and immovable property considered by each respective State to form part of its national cultural heritage.156 For example, Judge Weeramantry, in his dissenting opinion to the ICJ’s advisory opinion on the Legality of the Threat of Use of Nuclear Weapons, referred to the cultural property protected by the 1954 Hague Convention with the following example: Cologne alone ha[s] around 9,000 [according to domestic cultural heritage law] listed buildings. A nuclear attack on a city such as Cologne would thus deprive Germany, in particular, and the world community in general, of a considerable segment of their cultural inheritance.157

According to this view, all property listed by a High Contracting Party under its domestic cultural heritage law is entitled to be considered cultural property for the purpose of the 1954 Hague Convention.158 Hence, the 1954 Hague Convention can apply to as few or as many buildings, sites and objects situated on the territory of each High Contracting Party as that Party itself sees fit.159 Taking into account the preamble of the 1954 Hague Convention, which refers to “cultural property belonging to any people whatsoever”, the second suggestion seems to be more what the drafters of the 1954 Hague Convention had in mind. Furthermore, cultural

155 Green, Chapter 7, fn. 208; see also, Partsch, p. 382. 156 O’Keefe, Meaning of Cultural Property, p. 36; Solf, p. 895. 157 Legality of the Threat of Use of Nuclear Weapons, ICJ, Advisory Opinion of 8 July 1996, Dissenting Opinion of Judge Weeramantry, p. 467. 158 O’Keefe, Meaning of Cultural Property, p. 30. 159 O’Keefe, Meaning of Cultural Property, p. 36; see also, Dinstein, p. 1913.

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property as enlisted by Green would rather fall under the regime of special protection or under the protection provided for by the World Heritage List.160 It is striking that the list of protected buildings does not include religious buildings, as did the 1907 Hague Regulations. Those places are only protected by the 1954 Hague Convention if they are monuments of architecture, history or art.161 In Paragraph (b) the drafters of the 1954 Hague Convention highlighted the importance of museums and libraries as well as other “buildings whose main and effective purpose is to preserve or exhibit the movable cultural property”. If those buildings themselves have cultural value they are already protected under Paragraph (a). If not, they remain protected under Paragraph (b) not because of their own historical value but on account of their purpose and their content. In such cases, they must in fact contain, conserve or exhibit movable cultural property.162 Paragraph (c) introduces special protection for “centres containing monuments”, which means larger areas containing a considerable amount of cultural property protected by Paragraphs (a) and (b). Therewith, Paragraph (c) protects major groups of buildings, which include both movable and immovable property.163 Examples for such centres are towns, which exhibit in their entirety a certain value like Florence or Ghent.164 In fine, the definition of cultural property given by the 1954 Hague Convention is the most detailed to be found in all the conventions dealing with cultural property. Cultural property, which is not covered by Article 1 of the 1954 Hague Convention might still be protected by the 1907 Hague Regulations, which have – as previously discussed – emerged into customary international law, or they are to be treated as civilian objects and protected under the respective provisions.165 III. Protection of Cultural Property The 1954 Hague Convention provides for two regimes of protection: general protection in Chapter I and special protection in Chapter II.

160 Infra, pp. 61 et seq. 161 Dinstein, p. 1913. 162 Toman, 1954 Hague Convention, p. 54. 163 Ibid. 164 Nahlik, Des crimes contre les biens culturels, p. 18. 165 Wolfrum, Protection of Cultural Property, p. 318.



prohibition of the destruction of cultural property51

1. General Protection Chapter I of the 1954 Hague Convention relates to “general provisions regarding protection”. According to Article 2 of the 1954 Hague Convention, “the protection of cultural property shall comprise the safeguarding of and respect for such property”. Safeguarding of cultural property is further defined in Article 3 of the Convention which obliges the High Contracting Parties to prepare in time of peace for the safeguarding of cultural property situated within their territory “against the foreseeable effects of an armed conflict, by taking such measures as they consider appropriate”. Accordingly, such measures are of a preventive nature and the Parties to the Convention are free to choose whichever measures they deem appropriate for the protection of their respective cultural property.166 Such measures include the distinctive marking of cultural property to facilitate its recognition167 and the introduction of the provisions of the Convention into the Parties’ military regulations “to foster in the members of their armed forces a spirit of respect for the culture and cultural property of all peoples”.168 Furthermore, the Parties agree to plan or establish in peacetime services or specialist personnel within their armed forces, whose purpose will be to secure cultural property from damage and destruction and to co-operate with the civilian authorities responsible for safeguarding it.169 Article 4 of the 1954 Hague Convention further elaborates on the Parties obligations concerning “respect for cultural property”, which is the most fundamental obligation for the High Contracting Parties.170 Paragraph 1 166 For examples see, Toman, 1954 Hague Convention, pp. 62–65. 167 1954 Hague Convention, Article 6. Article 16 of the 1954 Hague Convention states concerning the emblem: “The distinctive emblem of the Convention shall take the form of a shield, pointed below, per saltire blue and white (a shield consisting of a royal-blue square, one of the angles of which forms the point of the shield, and of a royal-blue triangle above the square, the space on either side being taken up by a white triangle). 2. The emblem shall be used alone, or repeated three times in a triangular formation (one shield below), under the conditions provided for in Article 17.” 168 1954 Hague Convention, Article 7(1). See, O’Keefe, Protection of Cultural Property, pp. 118–120. 169 1954 Hague Convention, Article 7(2). 170 1954 Hague Convention, Article 4: “1. The High Contracting Parties undertake to respect cultural property situated within their own territory as well as within the territory of other High Contracting Parties by refraining from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property. 2. The obligations mentioned in paragraph I of the present Article may be waived only in cases where military necessity imperatively requires such a waiver. 3. The High Contracting Parties further undertake to prohibit,

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obliges the Parties to respect cultural property situated within their own territory as well as within the territory of other Parties. They are obligated to refrain “from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict”. The inclusion of this obligation fills a lacuna, which had led in both World Wars to the destruction and damage of various important cultural properties.171 The obligation is directed at the Party in whose territory the respective cultural property is situated. The respective Party is precluded from using ­cultural property inter alia by incorporating it in the line of fire or by using as a field headquarters.172 Furthermore, Parties are obliged not to use the immediate surroundings of the respective cultural property for military purposes. Namely, they should refrain from, for instance, parking military vehicles close to cultural property or building a military airport in the immediate surroundings of a cultural property. Parties to the 1954 Hague Convention are also committed by Article 4(1) to refrain “from any act of hostility directed against such property”. This obligation is directed at the opposing party in a conflict. Neither the 1954 Hague Convention itself, nor the travaux préparatoires give information about the exact meaning of “acts of hostility”. It has to be assumed that acts of hostility constitute the whole range of actions and operations of war in the broad sense, regardless of whether they are committed by the opposing party or by the party to the conflict, in whose territory the cultural property is located.173 Similarly, the Dictionary of the International Law of Armed Conflict defines hostilities as “acts of violence by a belligerent against an enemy in order to put an end to his resistance and impose obedience”.174 Hence, the 1954 Hague Convention protects cultural property against destruction committed by all the parties to the conflict, which might be the main reason why the drafters of the Convention chose the notion ‘acts of prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall, refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party. 4. They shall refrain from any act directed by way of reprisals against cultural property. 5. No High Contracting Party may evade the obligations incumbent upon it under the present Article, in respect of another High Contracting Party, by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3.” 171 O’Keefe, Protection of Cultural Property, p. 123. 172 Forrest, Protection of Cultural Heritage, p. 89; O’Keefe, Protection of Cultural Property, p. 124–125. 173 Toman, 1954 Hague Convention, p. 139. 174 Verri, Dictionary, p. 113.



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hostility’ instead of ‘attack’ since the notion of attack is usually associated with an act by the offensive party to the conflict.175 According to Article 4(1), Parties are obliged to refrain from acts of hostilities directed against cultural property. Hence, no actual damage needs to be imposed on the respective cultural property and already the directing of an act of hostility, which does not lead to a result, is prohibited under the 1954 Hague Convention. According to O’Keefe, furthermore, Parties are bound to refrain from acts of hostility against other objects, which may be expected to cause incidental damage to nearby cultural property.176 Article 4(2) enables the Parties to waive the obligations of Paragraph 1 in cases in which “military necessity imperatively requires such a waiver”. The waiver of military necessity was adopted from the 1907 Hague Regulations even though the inclusion of the waiver was strongly debated during the drafting process of the 1954 Hague Convention. Some States wished to exclude the option of military necessity, claiming that it would diminish the scope of protection and open the door to abuse.177 Furthermore, it was argued that the concept of military necessity “is so indefinite and the circumstances of its use in the field so fluid that ‘necessity’ too quickly and easily shades into ‘convenience’”.178 Other States involved in the drafting of the Convention favoured for the inclusion of this option, which was finally given way.179 The waiver of military necessity covers three different situations. First, it opens to the State, which is in control of the territory in which the respective cultural property is located, the possibility of using such an object for military purposes, if military necessity imperatively so requires. Second, the provision allows the belligerent party, if military necessity imperatively so requires, waiving the obligation not to destroy or damage 175 Toman, 1954 Hague Convention, p. 139: “The authors of Protocol I to the Geneva Conventions of 1977 preferred the term ‘attack’, which is defined in the military instructions of many countries as an offensive act whose purpose is to destroy enemy forces and gain ground. The definition adopted by the Protocol is wider since it also covers defensive acts (particularly, ‘counter-attacks’) and offensive acts since both of them may affect the protected objectives, in this case cultural property.” In Contrary, O’Keefe, Protection of Cultural Property, p. 126: “The term ‘any act of hostility’ is significant in forbidding not just attacks against cultural property but also its demolition, whether by way of explosives or bulldozers or other wrecking equipment.” 176 O’Keefe, Protection of Cultural Property, pp. 131–132. 177 Hladík, Review Process, p. 315; Nahlik, Protection of Cultural Property, p. 208; O’Keefe, Protection of Cultural Property, pp. 121–122; Toman, 1954 Hague Convention, pp. 74–81. 178 Merryman, p. 838. 179 Hladík, Review Process, p. 315; Nahlik, Protection of Cultural Property, p. 208; O’Keefe, Protection of Cultural Property, pp. 121–122; Toman, 1954 Hague Convention, pp. 74–81.

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cultural property. Third and finally, a party to the conflict may make use of this provision if the other side has violated its obligations by having used the respective cultural property for military purposes.180 It has to be noted, though, that “imperative” necessity requires a careful evaluation of the military objective and alternatives for reaching such objective and the cultural property, which could be affected. A party would only make use of the possibility to wave its obligation to protect cultural property if the attack on the respective cultural property offers a definite military advantage.181 Hence, whether an act is mandated by military necessity will require the application of the principle of proportionality.182 Nevertheless, the inclusion of the military necessity waiver in Article 4(2) considerably weakens the protection of cultural property of the 1954 Hague Convention, especially since the Convention does not provide for a definition of military necessity.183 Finally, Article 4(5) states, “no High Contracting Party may evade the obligations incumbent upon it under the present article in respect of another High Contracting Party by reason of the fact that the latter has not applied the measures of safeguard referred to in Article 3”.184 Thereby, the paragraph refers to a situation in which, by reason of internal circumstances (for example because a conflict broke out shortly after the ratifi­ cation of the 1954 Hague Convention), the organisation of the safeguard­ing of cultural property in a particular State Party has not been completed. In such a situation, the adversary party cannot use that fact as a pretext to refrain from respecting the cultural property of this Party to the Convention.185

180 Wolfrum, Protection of Cultural Property, p. 325. 181 O’Keefe, Protection of Cultural Property, p. 128. 182 Forrest, Military Necessity, pp. 206–207; Wolfrum, Protection of Cultural Property, p. 325; see also, Birov, p. 234, referring to the Gulf War when the US chose not to attack Iraqi Fighter aircraft positioned adjacent to the ancient temple of Ur; but in that case the aircraft (left without servicing equipment or a runway nearby) were deemed out of action and therefore not worth the risk of damaging the temple. 183 Fischer, p. 189; Hladík, Comparison, p. 7; Nahlik, International Law and the Protection of Cultural Property, p. 1085; Toman, 1954 Hague Convention, p. 70. 184 Article 4(3) of the 1954 Hague Convention further obliges the Parties “to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property”. In Article 4(4) the 1954 Hague Convention adopted Article 33 of the 1949 Geneva Convention in stating, that Parties to the Convention “shall refrain from any act directed by way of reprisals against cultural property”. These obligations are, however, not relevant for this analysis. 185 Forrest, Protection of Cultural Property, pp. 92–92; Toman, 1954 Hague Convention, p. 72.



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The provisions of Article 4 of the 1954 Hague Convention were endorsed by the ICRC study on customary international humanitarian law. Rule 38 states: “Each party to the conflict must respect cultural property: A. Special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are military objectives. B. Property of great importance to the cultural heritage of every people must not be the object of attack unless imperatively required by military necessity.”186 Signifi­ cantly, according to Rule 39: “The use of property of great importance to the cultural heritage of every people for purposes which are likely to expose it to destruction or damage is prohibited, unless imperatively required by military necessity.”187 Finally, Rule 40 stipulates: “Each party to the conflict must protect cultural property: A. All seizure of or destruction or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science is prohibited.”188 Hence, the provisions to respect cultural property have definitely emerged into customary international law. Some authors even suggest that the prohibition of the destruction of cultural heritage of great importance for humanity falls in the category of erga omnes obligations.189 Moreover, Article 5 of 1954 Hague Convention imposes the duties to safeguard and respect cultural property as described in Article 4 on those Parties to the Convention “in occupation of the whole or part of the territory of another High Contracting Party”.190 With the regime of safeguarding and respect, the 1954 Hague Convention exceeds the protection provided for cultural property by previous instruments – especially the 1907 Hague Regulations – immensely. Nevertheless, the inclusion of the ‘military necessity’ exception has raised much criticism concerning the 1954 Hague Convention’s regime of general protection.191 2. Special Protection Chapter II of the 1954 Hague Convention deals with the special protec­ tion  of cultural property, which was modelled on Article 26 of the 186 Henckaerts/Doswald-Beck, p. 127. 187 Henckaerts/Doswald-Beck, p. 131. 188 Henckaerts/Doswald-Beck, p. 132. 189 Francioni/Lenzerini, pp. 633–634; Galindo, pp. 446–450. 190 1954 Hague Convention, Article 5(1). For further information on the obligations of occupying powers concerning the protection of cultural property, see, Forrest, Protection of Cultural Heritage, pp. 93–97; Johnson, pp. 145–148. 191 Boylan, p. 57. .

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1922 Hague Rules. This supplementary regime of special protection was included by the drafters of the 1954 Hague Convention to provide for a higher standard of protection in respect of a more selective choice of cultural property.192 A restrictive definition is provided for such property in Article 8 of the Convention, which states that a limited number of refuges intended to shelter movable cultural property in cases of armed conflict could be placed under special protection. The number of such refuges depends inter alia on the size of the territory and the quantity of cultural property to be protected in the territories of the respective Parties to the Convention.193 In addition, centres containing monuments and other immovable cultural property of “very great importance” can be placed under such special protection.194 Accordingly, the respective property – refuges, centres containing monuments and other property – benefits from special protection only when it is of very great importance as opposed to only great importance as is required by Article 1 of the Convention for the respective property to be granted general protection. The difference between cultural property of great importance and of very great importance is not easily ascertainable.195 According to Article 8(1), the following requirements have to be fulfilled for refuges, centres containing monuments and other immovable cultural property of very great importance to be granted the status of special protection: First, they have to be “situated at an adequate distance from any large industrial centre or from any important military objective constituting a vulnerable point, such as, for example, an aerodrome, broadcasting station, establishment engaged upon work of national defence, a port or railway station of relative importance or a main line of communication”. Second, they “are not used for military purposes”. Particularly, the requirement of “adequate distance” has effectively rendered this provision unworkable, since almost all cultural property that could fall under the definition of Article 8 are near some industrial area or conceivable military objective and it remains uncertain what exactly accounts for an “adequate distance”.196 192 Forrest, Protection of Cultural Heritage, p. 98; O’Keefe, Protection of Cultural Property, p. 140. 193 Toman, 1954 Hague Convention, p. 100. 194 1954 Hague Convention, Article 8(1). 195 Wolfrum, Protection of Cultural Property, p. 316. 196 Cunning, p. 222; Forrest, Protection of Cultural Heritage, p. 98; Francioni, Cultural Heritage, para. 7; Henckaerts, New Rules, pp. 31–32; Toman, The Road to the 1999 Second Protocol, p. 5.



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Pursuant to Paragraph 6 of Article 8, cultural property placed under special protection shall be listed in the International Register for Cultural Property under Special Protection.197 Entry in this Register, therefore, is the third requirement for the respective property to be granted special protection. Unfortunately, only one centre containing monuments and eight refuges are currently listed in the Register.198 This might foremost be due to the above-mentioned difficult satisfiable “adequate distance”requirement. Since the cultural property granted special protection is of very great importance and its registration in the International Register is made public to all Parties to the 1954 Hague Convention, the cultural property under special protection is immune.199 The Parties to the 1954 Hague Convention are obliged by Article 9 to ensure the immunity of cultural property under special protection by refraining, from the time of entry in the International Registry, “from any act of hostility directed against such property and […] from any use of such property or its surroundings for military purposes”. Nahlik suggests, that the term ‘immunity’ was perhaps borrowed from diplomatic law and may, therefore, imply that property of this kind is to be considered as ‘extraterritorial’ and, hence, untouchable.200 Furthermore, the respective cultural property does not have to be actually damaged in order to breach the Convention. Article 9 of the Convention already prohibits 197 According to Article 12 of the Regulations for the Execution of the Convention, “1. [a]n International Register of Cultural Property under Special Protection shall be prepared. 2. The Director-General of the United Nations Educational, Scientific and Cultural Organization shall maintain the Register. He shall furnish copies to the Sectretary-General of the United Nations and to the High Contracting Parties. […]”. Article 13 of the Regulations further explains, that “1. [a]ny High Contracting Party may submit to the Director-General of the United Nations Educational, Scientific and Cultural Organization an application for the entry in the Register of certain refuges, centres containing monuments or other immovable cultural property situated within its territory. Such application shall contain a description of the location of such property and shall certify that the property complies with the provisions of Article 8 of the Convention”. According to Article 14 of the Regulations, “[a]ny High Contracting Party may, by letter addressed to the Director-General of the United Nations Educational, Scientific and Cultural Organization, lodge an objection to the registration of cultural property. […]. Such objection shall state the reasons giving rise to it, the only valid grounds being that: (a) the property is not cultural property; (b) the property does not comply with the conditions mentioned in Article 8 of the Convention”. 198 These are: Vatican City (18 January 1960), a refuge at Alt-Aussee in Austria (17 November 1967), six refuges in the Netherlands (Zandvoort (2), Heemskerk (2, cancelled on 22 September 1994), Steenwijerkerwold (cancelled on 22 September 1994), Maastricht (12 May 1969)) and the central Oberrieder Stollen refuge in Germany (22 April 1978). International Register of Cultural Property under Special Protection, UNESCO Doc. CLT-97/ WS/12, August 1997. See also, Henckaerts, New Rules, fn. 35. 199 Toman, 1954 Hague Convention, p. 139. 200 Nahlik, International Law and the Protection of Cultural Property, p. 1081.

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the directing of an act of hostility against the respective object. Like under the regime of general protection, the Party on whose territory the respective cultural property is situated is obliged to refrain from using the respective cultural property and its surroundings for military purposes. Concerning the possibility to waive the obligations of Article 9 of the 1954 Hague Convention, Article 11 holds, that if one of the Parties “commits, in respect of any item of cultural property under special protection, a violation of the obligations under Article 9, the opposing Party shall, so long as this violation persists, be released from the obligation to ensure the immunity of the property concerned”.201 However, even if the special protection is withdrawn for any cultural property, the cultural property in question is still protected under the provisions concerning general protection.202 Hence, as established for cultural property under general pro­ tection, the principle of proportionality has to be applied. Furthermore, the respective cultural property loses its special protection according to Article 11(2) of the 1954 Hague Convention only in “exceptional cases of unavoidable military necessity” (italics supplied), and only for such time as that necessity continues, which presents a higher threshold than the threshold of Article 4(2), which only requires imperative military necessity.203 This is corroborated by the obligation that such military necessity can only be established by the officer commanding a force the equivalent of a division in size or larger, which means that only a high-ranking member of the armed forces can make such a decision. Furthermore, whenever the circumstances permit, the opposing party shall be notified, a reasonable time in advance, of the decision to withdraw immunity.204 Hence, the discretion in withdrawing the immunity provided for cultural property under special protection is narrower than that of waiving the obligations provided under general protection.205 However, according to Nahlik, this provision seems to be extremely dangerous. He asks whether there is essentially much difference, except in words, between an imperative necessity according to Article 4(2) and an unavoidable necessity? “Let us hope that at least the commander of a division will know enough about art history not to destroy an object of major importance.”206 201 1954 Hague Convention, Article 11(1). 202 O’Keefe, Protection of Cultural Property, p. 100. 203 Forrest, Protection of Cultural Heritage, p. 101. 204 1954 Hague Convention, Article 11(2). 205 Forrest, Military Necessity, p. 208; Wolfrum, Protection of Cultural Property, p. 325. 206 Nahlik, International Law and the Protection of Cultural Property, p. 1081.



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IV. Violations of the Treaty One of the rationales of the 1954 Hague Convention was to provide for clauses concerning the individual criminal responsibility for the destruction or damage of cultural property during armed conflict.207 This could already be derived from the UNESCO Secretariat’s first report to the Organisation’s General Conference on the drafting of the Convention, which was entitled “Report on the International Protection of Cultural Property, by Penal Measures, in the Event of Armed Conflict” (italics supplied).208 The drafters of the Convention included Article 28, which requires the High Contracting Parties to take, within the framework of their ordinary criminal jurisdiction, all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach of the […] Convention.

The language of the text is modelled on Paragraph 1 of Article 146 of the IV Geneva Convention of 1949.209 Accordingly, States are requested to enact the necessary legislation and the respective provisions must already be implemented in time of peace.210 During the drafting process of Article 28, some delegates proposed to include a more detailed article on the violations of the Convention.211 According to the ICRC Advisory Service on International Humanitarian Law, “a list of violations, which require criminal sanctions, is essential if a coherent and complete system of criminal repression of war crimes is to be instituted universally”.212 Article 28 of the 1954 Hague Convention, however, does not stipulate the breaches, which are punishable under the Convention, nor does it constitute the required mental element. The intention was to have a broad text, which would leave the Parties to the

207 O’Keefe, Protection under International Criminal Law, p. 21. 208 Ibid., referring to UNESCO, Measures for Ensuring the Co-operation of Interested States in the Protection, Preservation and Restoration of Antiquities, Monuments and Historical Sites; and Possibility of Establishing an International Fund to Subsidize Such Preservation and Restoration, UNESCO Doc. 5 C/PRG/6, 27 March 1950, annex I. 209 On the drafting process of Article 28 of the 1954 Hague Convention, see, O’Keefe, Protection under International Criminal Law, pp. 23–25. 210 Toman, 1954 Hague Convention, p. 293. 211 Nahlik, Deficiencies of the Hague Convention, p. 105; Toman, 1999 Second Protocol, p. 253. 212 Henckaerts, New Rules, p. 36.

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Convention free to decide on the nature of the crime and the sanctions to be adopted.213 Hence, Article 28 of the 1954 Hague Convention does not go much beyond previous provisions concerning the penalisation of the destruction of cultural property as provided by the 1907 Hague Regulations or the Roerich Pact.214 Unfortunately, this led to a reluctance of the Parties to the 1954 Hague Convention to adopt Article 28 in their domestic penal codes or military penal codes, which is why the provision remained a dead letter.215 Nevertheless, the inclusion of Article 28 in the 1954 Hague Convention was an important step in the development of a regime of individual criminal responsibility for the destruction of cultural property. § 6 The 1972 Convention for the Protection of the World Cultural and Natural Heritage The Convention Concerning the Protection of World Cultural and Natural Heritage,216 which was adopted 1972, was the result of combined efforts of the International Union for Conservation of Nature (IUCN) and UNESCO.217 The 1972 World Heritage Convention was established to provide for a framework concerning the protection of cultural and natural heritage of “outstanding interest”.218 Furthermore, the purpose of the Convention is to create a system of international cooperation designed to support Parties in their efforts to conserve and identify their cultural and natural heritage.219 Presently, as of September 2012, 190 States are Parties to the 1972 World Heritage Con­ven­tion,220 which leads to the conclusion that the Convention 213 O’Keefe, Protection of Cultural Property, p. 189. 214 Toman, 1999 Second Protocol, p. 254. 215 Henckaerts, New Rules, p. 49; Toman, 1954 Hague Convention, pp. 294–295. See also, Boylan, p. 93; Hector, p. 71. It has to be held, though, that some State Parties to the 1954 Hague Convention adopted Article 28 in their domestic legislation. Inter alia Switzerland adopted Article 28 of the Convention in Article 112(e) of his military penal code (Militärstrafgesetz, SR 321.0): “Mit Freiheitsstrafe nicht unter drei Jahren wird bestraft, wer im Zusammenhang mit einem bewaffneten Konflikt einen Angriff richtet: […] e. gegen Kulturgut oder mit seinem Schutz betraute Personen oder seinem Transport dienende Fahrzeuge, gegen Gebäude, die religiösen Handlungen, der Kunst, Erziehung, Wissenschaft oder Wohltätigkeit dienen, solange sie vom humanitären Völkerrecht geschützt sind.” 216 17 December 1975, 1037 UNTS 151, 155, [hereinafter “1972 World Heritage Convention”]. 217 For more information on the drafting process of the 1972 World Heritage Convention, see, Francioni, 1972 World Heritage Convention, pp. 13–15; Simmonds, pp. 252–253. 218 1972 World Heritage Convention, Preamble. 219 1972 World Heritage Convention, Article 7. 220 See, http://whc.unesco.org/en/statesparties [visited on 2 September 2013].



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is universally accepted and therefore, at least some of its principles have emerged into customary international law.221 I. Scope of Application The 1972 World Heritage Convention’s scope of application is mainly in peacetime. No provision, however, states that the Convention is inapplicable in situations of armed conflict. Toman suggests that the 1972 World Heritage Convention continues to apply in armed conflict.222 In such circumstances the applicable rules of international humanitarian law constitute lex specialis to the lex generalis represented by the 1972 World Heritage Convention.223 In general, a distinction between wartime and peacetime conventions protecting cultural property does not seem to be useful because the “question concerns not the context, but the object of the protection” and the 1954 Hague Convention and the 1972 World Heritage Convention share a similar goal.224 II. Definition of Cultural Property The 1972 World Heritage Convention does not use the term cultural property but the term cultural heritage. The use of the word ‘heritage’ implies the historical value of the respective property and its value for future generations and therefore, the special need to preserve such property.225

221 Francioni/Lenzerini, Destruction of the Buddhas, p. 635; O’Keefe, World Cultural Heritage, pp. 207–208. 222 Toman, 1954 Hague Convention, p. 369. This is also the suggestion in the Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 279, where the ICTY Trial Chamber, referring to Dubrovnik and the attack against it on 6 January 1991, stated: “The Old Town is also legally distinct from the rest of the wider city because the Old Town, in its entirety including the medieval walls, enjoys a World Heritage listing and the protections and immunities that are consequent on that listing.” See also, Carducci, UNESCO Conventions on Cultural Heritage, p. 365. 223 O’Keefe, Protection of Cultural Property, pp. 312–313. 224 Bassiouni, Protection of Cultural Property, p. 287: “Since archaeological, national, historical, and other property of national and cultural heritage are the intended objects of international protection, there is no conceptual difference in the legal nature of the protection. The differences concern the types of protective measures which should apply, such as those measures applicable to individuals acting in their private and personal capacity, and those applicable to states and individuals acting in their official capacity or pursuant to state-sponsored policy. The applicable conventions do not make such distinctions, but reflect the very questionable historical division of the international law of war and peace.” See also, Gottlieb, p. 859. 225 Yusuf, p. 27.

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Moreover, as opposed to ‘property’, the notion of ‘heritage’ implies that the respective monuments or the like might be of interest to humanity as a whole and not only to the State in which it is situated.226 Hence, the threshold for property to qualify as cultural heritage is considerably high. According to Article 1 of the 1972 World Heritage Convention, monuments,227 groups of buildings228 and sites229 are eligible for cultural heritage.230 Those institutions have to be of “outstanding universal value”, which is the key to defining the cultural heritage, which, in turn, falls under the protection of the 1972 World Heritage Convention. Presumably, the notion of ‘universal value’ excludes cultural property, which is only of outstanding value for one nation or for one region of the world. The word ‘outstanding’ further narrows the number of property, which could be counted as cultural heritage.231 Even though the definition of cultural heritage adopted by the 1972 World Heritage Convention is similar to the definition of cultural property adopted by the 1954 Hague Convention, it still differs. The definition of the 1972 World Heritage Convention covers only monuments, groups of buildings and sites, which are of “outstanding universal value”. The 1954 Hague Convention on the other hand refers to movable or immovable property of “great importance to the cultural heritage of every people”, which is not a 226 O’Keefe, Meaning of Cultural Property, p. 30; Yusuf, p. 27. 227 1972 World Heritage Convention, Article 1, defines monuments as “architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science”. 228 1972 World Heritage Convention, Article 1, defines groups of buildings as “groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science”. 229 1972 World Heritage Convention, Article 1, defines sites as “works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view”. 230 Furthermore the 1972 World Heritage Convention also covers ‘natural heritage’ which is defined by Article 2: “For the purposes of this Convention, the following shall be considered as ‘natural heritage’: natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.” For the purpose of this writing, though, the definition of natural heritage is not relevant. For further information on the definition of natural heritage, see, Redgwell, pp. 63–84. 231 Simmonds, p. 256.



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synonym to “outstanding universal value”.232 Thus, not every cultural property, which falls under the definition of the 1954 Hague Convention, also falls under the definition of cultural heritage of the 1972 World Heritage Convention. Furthermore, the drafters of the 1972 World Heritage Convention did not include movable cultural property in its definition, as did the drafters of the 1954 Hague Convention. III. Protection of Cultural Property Like the 1954 Hague Convention the 1972 World Heritage Convention differentiates between general and special protection of cultural property. Chapter II of the Convention deals with the protection of cultural heritage of outstanding value as defined under Article 1 of the Convention and as identified by the States Parties according to Article 3 of the Convention.233 Chapter III then deals with the protection of cultural heritage on the World Heritage List, which is subject to additional obligations.234 1. General Protection Article 3 of the 1972 World Heritage Convention obliges States Parties to “identify and delineate” those properties, which fall under the definition of cultural heritage as provided for in Article 1 of the Convention situated on its territory. According to Article 4 of the Convention, States Parties then have the duty of “ensuring the identification, protection, conservation, presentation and transmission to future generations” of the cultural heritage as identified pursuant to Article 3. Notably, the content and implications of the term ‘protection’ of cultural heritage are not defined by the provision. Article 5, though, provides for measures, which should be taken by the respective State Party, in order to protect its cultural heritage.235 232 Carducci, National and International Protection, p. 367. 233 1972 World Heritage Convention, Article 3: “It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above.” 234 Carducci, National and International Protection, pp. 106–110. 235 1972 World Heritage Convention, Article 5: “To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavor, in so far as possible, and as appropriate for each country: (a) to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; (b) to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; (c) to develop scientific and

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Article 6 of the Convention further complements Article 4 by stating in Paragraph 1: Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, […] the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.

Thus, the cultural heritage as mentioned by the previous Articles becomes ‘world heritage’ for which protection is the duty of the international community as a whole.236 Article 7 of the 1972 World Heritage Convention clarifies that what is meant by “international protection” is the establishment of a system of international cooperation and assistance designed to support States Parties in their efforts to conserve and identify world heritage. Although, as established above, the 1972 World Heritage Convention is not primarily intended for the protection of the cultural heritage in armed conflict, such protection is included. For example, Article 6(3) of the Convention states: Each States Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage […] situated on the territory of other State Parties to the Convention.

Those damages might also be caused during armed conflict, for instance, by directing an act of hostility against cultural heritage of the opposing party. 2. Special Protection The Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (the World Heritage Committee), established under Article 8 of the 1972 World Heritage Convention, is authorised by Article 11(2) of the Convention to select certain property, which forms part of the cultural and natural heritage for inclusion on the World Heritage List.237

technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; (d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and (e) to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.” 236 Carducci, National and International Protection, pp. 120–121. 237 As of September 2013, 759 cultural, 193 natural and 29 mixed properties in 160 States Parties to the 1972 World Heritage Convention are included in the World Heritage List. See, http://whc.unesco.org/en/list/ [visited on 2 September 2013].



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The Parties to the Convention can submit proposals for property to be included in the list. Pursuant to Article 11(5) of the 1972 World Heritage Convention, the “Committee shall define the criteria on the basis of which a property belonging to the cultural and natural heritage” may be eligible for entrance on the World Heritage List.238 Cultural heritage inscribed on the World Heritage List is eligible for international assistance in accordance with Articles 19–20 of the Convention. Furthermore, the World Heritage Committee maintains according to Article 11(4) of the 1972 World Heritage Convention, a List of World Heritage in Danger. The list includes cultural heritage which is threatened by “serious and specific dangers” inter alia “the outbreak or the threat of an armed conflict”.239 However, whilst cultural heritage on this list gets priority funding and technical assistance, the Convention does not provide for provisions for their physical protection during armed conflict.240 Article 6(2) of the 1972 World Heritage Convention deals with the protection of cultural heritage inscribed on one of the two lists. It obliges State Parties to “undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in 238 The respective property has to fulfil one or more of the following criteria: “(i) represent a masterpiece of human creative genius; (ii) exhibit an important interchange of human values, over a span of time or within a cultural area of the world, on developments in architecture or technology, monumental arts, town-planning or landscape design; (iii) bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared; (iv) be an outstanding example of a type of building, architectural or technological ensemble of landscape which illustrates (a) significant stage(s) in human history; (v) be an outstanding example of a traditional human settlement, land-use, or sea-use which is representative of a culture (or cultures), or human interaction with the environment especially when it has become vulnerable under the impact of irreversible change; (vi) be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance.” See, http://whc.unesco.org/en/criteria/ [visited on 28 May 2013]. 239 1972 World Heritage Convention, Article 11(4): “[…] The list may include only such property forming part of the cultural and natural heritage as is threatened by serious and specific dangers, such as the threat of disappearance caused by accelerated deterioration, large-scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations due to unknown causes; abandonment for any reason whatsoever; the outbreak or the threat of an armed conflict; calamities and cataclysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods and tidal waves.” As of September 2013 inter alia several cultural heritage sites in the Syrian Arab Republic are on the List of World Heritage in Danger, see, http://whc.unesco.org/en/criteria [visited on 2 September 2013]. 240 Boylan, p. 112; Simmonds, p. 274. Inter alia the Old Town of Dubrovnik (Croatia) was included on the List of World Heritage in Danger when it became threatened by the armed conflict in the former Yugoslavia. Nevertheless, the Old Town was attacked by the Yugoslav National Army and severely damaged. See, Prosecutor v. Strugar (IT-01-42-PT), Third Amended Indictment, 10 December 2003, para. 29.

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paragraphs 2 and 4 of Article 11 if the States on whose territory it is situated so request”. It is important to note, though, that the fact that property forming part of the cultural heritage has not been included in the World Heritage List “shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion” in the List.241 Hence, the respective cultural property is still protected under Chapter II of the Convention. IV. Violations of the Treaty The 1972 World Heritage Convention does not provide for any provisions regarding criminalisation of violations of the Convention. Nevertheless, as will be observed in the previous chapter, the ICTY chambers made several references to the 1972 World Heritage Convention while assessing the ­individual criminal responsibility of the accused. § 7 The 1977 Additional Protocols to the Geneva Conventions of 1949 The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, which took place from 1974–77 in Geneva, adopted two Additional Protocols to the 1949 Geneva Conventions: Additional Protocol I,242 dealing with international armed conflicts, and Additional Protocol II,243 dealing with noninternational armed conflicts and hence developing the more general provisions of common Article 3 of the 1949 Geneva Conventions. The 1977 Additional Protocols have not yet reached the universal acceptance achieved by the 1949 Geneva Conventions. Nevertheless, many provisions of Additional Protocol I codify customary international law and are thus applicable in all international armed conflicts.244 241 1970 World Heritage Convention, Article 12. 242 Protocol I Additional to the Geneva Convention of Humanitarian Law Applicable in Armed Conflicts of 12 August 1949, 8 June 1977, 1125 UNTS 3, [hereinafter “Additional Protocol I”]. 243 Protocol II Additional to the Geneva Convention of Humanitarian Law Applicable in Armed Conflicts of 12 August 1949, 8 June 1977, 1125 UNTS 609, [hereinafter “Additional Protocol II”]. 244 Greenwood, Historical Development, p. 30.



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Concerning the protection of cultural property, the Diplomatic Conference at which the Additional Protocols were adopted, declared that the 1954 Hague Convention was “of paramount importance for the international protection of the cultural heritage of mankind” and adopted a resolution “urging” States, which had not yet done so to become a Party to the 1954 Convention.245 Furthermore, both Additional Protocols contain provisions relating to cultural property and its protection. Article 53 of Additional Protocol I and Article 16 of Additional Protocol II explicitly deal with the protection of cultural property. Article 52 of the Additional Protocol I deals with the general protection of civilian objects. Regarding their relationship with the 1954 Hague Convention, Article 53 of Additional Protocol I and Article 16 of Additional Protocol II state that their protection of cultural property is “[w]ithout prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954”. The expression “without ­prejudice to” means that the conditions of application of the Convention are not modified by the Protocol, only insofar as a Party is bound by the Convention. Naturally, if a Party is not bound by the 1954 Hague Conven­ tion, only the Additional Protocols are applicable.246 I. Scope of Application 1. International Armed Conflict Pursuant to Article 1(3) of the Additional Protocol I, the Protocol shall apply to situations referred to in common Article 2 of the 1949 Geneva Conventions. Common Article 2(1) of the 1949 Geneva Conventions reads:

245 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977), Federal Political Department, Berne, 1978, Vol. I, p. 213, reprinted in: International Committee of the Red Cross, pp. 312–313: “Welcoming the adoption of Article 53 relating to the protection of cultural objects and places of worship as defined in the said Article, contained in the Protocol Additional to the Geneva Conventions of 12 August 1949, and retaking to the Protection of Victims of International Armed Conflicts (Protocol I), Acknowledging that the Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Additional Protocol, signed at The Hague on 14 May 1954, constitutes an instrument of paramount importance for the international protection of the cultural heritage of all mankind against the effects of armed conflict and that the application of this Convention will in no way be prejudiced by the adoption of the Article referred to in the preceding paragraph, Urges States which have not yet done so to become Parties to the aforementioned Convention.” 246 Wenger, para. 4832; see also, Toman, 1954 Hague Convention, pp. 385–386.

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Reference can therefore be made to the definition of international armed conflict as established for the 1949 Geneva Conventions.247 2. Non-International Armed Conflict Additional Protocol II, which was meant to supplement common Article 3 of the 1949 Geneva Conventions, is applicable to non-international armed conflicts. During the drafting process of the Additional Protocols three concerns were to be met in the new definition of non-international armed ­conflict provided for by the Additional Protocol II: “1) to establish the upper and lower thresholds of non-international armed conflict; 2) to provide the elements of a definition; 3) to ensure that the achievements of common Article 3 would remain intact.”248 Article 1(1) of the Additional Protocol II then defines non-international armed conflicts as armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Hence, the scope of application of the Additional Protocol II is narrower than the scope of the 1954 Hague Convention since the 1954 Hague Convention’s definition of non-international armed conflict is modelled on common Article 3 of the 1949 Geneva Conventions. Additional Protocol II applies only to conflicts between armed forces of the government of a High Contracting Party and dissident armed forces or other organised groups, whereas Common Article 3 of the 1949 Geneva Conventions can apply to internal armed conflicts between or among non-governmental forces or other groups. Furthermore, different from Article 3 to the 1949 Geneva Conventions, Article 1(1) of the Additional Protocol I requires the dissident armed forces to exhibit a responsible command, which implies some degree of organisation and they have to have control over a part of the territory of the respective State.249 Consequently, if the requirements of 247 Supra, p. 38. 248 Junod, para. 4451. 249 Junod, paras. 4463–4467; see also, Schindler, p. 148: “Therewith, the applicability of the Protocol is not only made dependent on the control over a part of the territory but also on the ability of the dissidents to apply the Protocol. Should it become evident in the



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Article 1 of the Additional Protocol II are not fulfilled, common Article 3 of the 1949 Geneva Conventions is still applicable to the non-international armed conflict because it operates independently from Article 1 of the Additional Protocol I.250 Since the 1954 Hague Convention defines noninternational armed conflicts similar to the definition given by the 1949 Geneva Conventions, the former likewise applies in such situations. Article 1(2) of the Additional Protocol II adds in order to define the lower threshold of non-international armed conflict: “This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts”.251 According to the Dictionary of the International Law of Armed Conflict, internal disturbances cover situations in which, although there is strictly speaking no armed conflict, there is serious or lasting internal confrontation which includes acts of ­violence, from spontaneous isolated acts of revolt to a struggle by groups in various stages of organization against the authorities in power. These situations do not necessarily escalate into open struggle, but the authorities use large police forces, and even the armed forces, to restore order within the country.252

Thus, in order to fulfil the requirements of a non-international armed conflict actual fighting between the two parties has to take place. 3. Belligerent Occupation Since Article 1(3) of the Additional Protocol I refers to common Article 2 of the 1949 Geneva Conventions, Additional Protocol I is also applicable to cases of belligerent occupation as stated in common Article 2(2) of the 1949 Geneva Conventions. For a definition of belligerent occupation reference can be made to the above-established definition of occupation according to common Article 2(2) of the 1949 Geneva Conventions.253

course of the armed conflict that the dissidents lose this ability, the Protocol would become inapplicable.” 250 Junod, para. 4454. 251 Junod, para. 4474: examples of such internal disturbances and tensions are, “riots, such as demonstrations without a concerted plan from the outset; isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups; other acts of similar nature, including, in particular, large scale arrests of people for their activities or opinions”. 252 Verri, Dictionary, p. 43. 253 Supra, p. 40.

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II. Definition of Cultural Property Article 53(a) of the Additional Protocol I and Article 16 of the Additional Protocol II define cultural property as “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples”. The Additional Protocols’ definition of cultural property is similar to the 1907 Hague Regulations’ definition and has less common ground with the 1954 Hague Convention’s definition of cultural property. Foremost, in contrast to the definition of cultural property in Article 1 of the 1954 Hague Convention, the definition of the Additional Protocols includes “places of worship”. The inclusion of those objects in the definition of cultural property led to lengthy discussions during the drafting process of the Additional Protocols. Some delegates considered that all places of worship should be protected without exception while others considered that the protection of Article 53 should apply only to some important places, which constitute the “heritage of peoples”, because Article 52(3) of the Additional Protocol I already protects all places of worship as civilian objects. In addition, places of worship which fall under historic monuments or works of art covered by Article 53 already benefit from this protection. Nevertheless, the Conference drafting the Additional Protocols considered that it was useful to include places of worship in the definition, specifying that the provision is only applicable to those places, which constitute the “spiritual heritage of peoples”.254 Thereby, the definition of cultural property in the Additional Protocols goes further than the definition of the 1954 Hague Convention. Furthermore, it is noticeable that Article 53 of the Additional Protocol I and Article 16 of the Additional Protocol II refer to “cultural or spiritual heritage of peoples” (italics supplied), whereas the 1954 Hague Convention refers in Article 1 to “the cultural heritage of every people” (italics supplied). The opinions concerning this discrepancy are diverse. O’Keefe analyses the French and Spanish texts of Additional Protocol I and the 1954 Hague Convention and comes to the conclusion that the respective wordings are 254 Wenger, paras. 2042–2045, 2064. See also, Bothe/Partsch/Solf, p. 332; O’Keefe, Protection of Cultural Property, p. 213, citing CDDH/SR.42, Annex, Records 1874–77, Vol. VI, p. 227: “In the opinion of the delegation of the Holy See, the addition of the words ‘spiritual’ and ‘places of worship’ to the original text […] shows a better understanding of what is most mysterious and most precious in man’s heritage […] If all one sees in the stained glass at Chartres, in the frescoes at Assisi, in the pure lines of the mosques at Fez, are artistic creations, no matter how admirable – one is missing the essential. Truly to comprehend these objects of sacred art, to grasp their uniqueness, one had to discover and comprehend their spirit, the spiritual motives which inspired the artist’s hand.”



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identical in these languages and therefore, suggests that the two provisions protect the same cultural property.255 Jean-Marie Henckaerts and Louise Doswald-Beck on the other hand interpret the statements given by the States Parties to the Additional Protocols during the drafting process and come to the conclusion that Articles 53 of Additional Protocol I and 16 of Additional Protocol II were meant to protect only a limited amount of very important cultural property, namely the cultural property which forms part of the cultural or spiritual heritage of ‘peoples’ (i.e. mankind), while the scope of the 1954 Hague Convention is broader and covers property which forms part of the cultural heritage of ‘every people’.256 Hence, the cultural property covered by Articles 53 and 16 of the Additional Protocols must be of such importance that everyone will recognise it, even without being marked. All other objects are protected as civilian objects according to Article 52 of the Additional Protocol I. The latter approach seems more what the drafters of the Additional Protocols had in mind. Apart from these minor rhetorical differences the definition of cultural property in the Additional Protocols is not different from the 1954 Hague Convention’s definition of cultural property and it was clearly not the drafter’s idea to create a new category of cultural objects.257 The definition is not as detailed though and according to Claude Wenger in the Commentary on the Additional Protocols, reference should be made “to the detailed definition given in the 1954 Hague Convention” when deciding on the status of a certain object.258 Compared to the definition of cultural property provided for in the 1907 Hague Regulations, which have emerged into customary international law, the definition given by the Additional Protocols is narrower since the respective cultural objects have to “constitute the cultural and spiritual heritage of peoples”. The 1907 Hague Regulations do not require such a confinement. This indicates that the rules of the two Additional Protocols are to be regarded as special rules designed to protect a limited class of 255 O’Keefe, Protection of Cultural Property, p. 212. 256 Henckaerts/Doswald-Beck, pp. 130 and 132; see also, Wolfrum, Protection of Cultural Property, p. 316; Solf, p. 895. 257 Wenger, para. 2064 fn. 23. See also, Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber) Judgement of 17 December 2004, para. 91: “The Commentary on the Additional Protocols states that despite this difference in terminology, the basic idea is the same, and that the cultural or spiritual heritage covers objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people.” See, also, O’Keefe, Protection of Cultural Property, pp. 209–213. 258 Wenger, para. 2068.

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objects but which do not intend to replace the existing customary international law provisions.259 This was also acknowledged during the drafting of the Additional Protocols. Several State Parties declared when accepting Article 53 of Additional Protocol I that its provisions establish a regime of special protection as lex specialis without replacing customary international law rules.260 III. Protection of Cultural Property The protection of cultural property in the Additional Protocols is twofold: Cultural property is protected under the lex generalis concerning civilian property (Article 52 Additional Protocol I) and under the lex specialis concerning cultural property (Article 53 of Additional Protocol I and Article 16 of Additional Protocol II).261 Notably, there is no provision concerning the protection of property in general in the Additional Protocol II. Hence, civilian property is only protected in international armed conflicts. It has to be held that the ICTY chambers have determined that Article 52 of the Additional Protocol I has achieved the status of customary international law.262 Accordingly, it is also applicable to States, which are not Party to the Additional Protocols. 1. General Protection Pursuant to Article 52(1) of Additional Protocol I, “[c]ivilian objects shall not be the object of attack or of reprisals”. The second sentence of the provision clarifies that civilian objects are all objects, which are not “military objectives”. The distinction should be made between ‘military objectives’ and ‘military objects’. A military object is military by definition, and an attack can be directed against it. A civilian object is protected by its very nature, but it can become a military objective if it is used in a way that deprives it of its civilian character.263 Article 52(2) specifies that, military objectives are limited to those objects, (i) which by their

259 Partsch, p. 379. 260 Wolfrum, Protection of Cultural Property, p. 313, referring to the declaratory explanations of Canada, Federal Republic of Germany, United Kingdom, and USA, annexed to, CDDH, Official Records, Vol. IV, CDDH/SR. 42, pp. 224–241. 261 For further information on the drafting process, see, Bothe/Partsch/Solf, pp. 331–333. 262 Prosecutor v. Strugar, ICTY (Appeals Chamber), Decision of 22 November 2002, para. 10. 263 Toman, 1999 Second Protocol, p. 114.



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nature,264 location,265 purpose or use266 make an effective contribution to military action and (ii) whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage. Hence, it is not legitimate to launch an attack, which only offers potential or undetermined advantages.267 Whether a definite military advantage would result from an attack must be viewed in the context of the military advantage anticipated from the specific military operation of which the attack is a part considered as a whole, and not only from isolated or particular parts of that operation. It is not necessary that the military objective’s contribution to the party of the conflict, which is under attack, is related to the military advantage anticipated by the attacking party from the destruction, capture or neutralisation of the respective object.268 According to Article 52(3) of the Additional Protocol I, in case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

This approach is a clear example of how international humanitarian law balances military necessity and humanitarian needs. It allows attacks that are necessary but establishes strict humanitarian limits.269 264 Pilloud/de Preux, Article 52, para. 2020: “This category comprises all objects directly used by the armed forces: weapons, equipment, transports, fortifications, depots, buildings occupied by armed forces, staff headquarters, communications centres etc.” 265 Pilloud/de Preux, Article 52, para. 2021: “This may be, for example, a bridge or other construction, or it could also be […] a site which is of special importance for military operations in view of its location, either because it is a site that must be seized or because it is important to prevent the enemy from seizing it, or otherwise because it is a matter of forcing the enemy to retreat from it.” 266 Pilloud/de Preux, Article 52, para. 2022: “The criterion of purpose is concerned with the intended future use of an object, while that of use is concerned with its present function. Most civilian objects can become useful objects to the armed forces. Thus, for example, a school or a hotel is a civilian object, but if they are used to accommodate troops or headquarters staff, they become military objectives.” 267 See, Bothe/Partsch/Solf, pp. 325–326; Pilloud/de Preux, Article 52, para. 2024; Wolfrum, Cultural Property, para. 17. 268 Bothe/Partsch/Solf, p. 325: “Thus, prior to the 1944 cross channel operation, the Allies attacked a large number of bridges, fuel dumps, airfields and other targets in the Pas de Calais. These targets made an effective contribution to German military action in that area. The primary military advantage of these attacks anticipated by the Allies, however, was not to reduce German military strength in that area, but to deceive the Germans into believing that the Allied amphibious assault would occur in the Pas de Calais instead of the beaches of Normandy. Therefore, the military advantage expected from these air raids was not related to their value to the adverse Party.” 269 Henckaerts, New Rules, p. 26.

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Article 52(1) prohibits attacks against civilian property in order to protect such property. The term ‘attack’ is defined in Article 49(1) of the Additional Protocol I as “acts of violence against the adversary, whether in offence or in defence”. Accordingly, the term ‘attack’ means “combat action”, which is a very broad definition that includes all kinds of physical force.270 Similarly, the Dictionary of the International Law of Armed Conflict defines attack in international law as, “acts of violence against the adversary, whether in offence or defence and in whatever territory conducted”.271 The use of this term for all acts of violence against the adversary has been heavily criticised. Especially because the term attack usually is used to label an offensive operation. In the words of the Additional Protocol I, however, also a purely defensive operation is an attack, which might be incomprehensible for the layman.272 Nevertheless, the combination of defensive and offensive combat action in one single concept has the advantage of emphasising that the defensive character of a certain combat action does not waive the obligation to protect civilian property.273 2. Special Protection According to Article 53(a) of the Additional Protocol I and Article 16 of the Additional Protocol II, it is prohibited “to commit any act of hostility directed against” the above defined cultural property. According to Wenger in the Commentary on the Additional Protocols, “[a]n act of hostility must be understood as any act arising from the conflict which has or can have a substantial detrimental effect on the protected objects”.274 It can be assumed that the drafters of the Additional Protocols chose in Article 53(a) and Article 16 the notion “acts of hostility” instead of “attack” as they used in Article 52 in order to emphasise the close relationship of Article 53 and Article 16 with the 1954 Hague Convention which uses the same expression. The meaning, however, is the same. Furthermore, Article 53(a) of the Additional Protocol I prohibits acts of hostility directed against cultural property. Accordingly, for a violation of Article 53(a) no actual damage is necessary as long as the act of hostility

270 Pilloud/de Preux, Article 49, para. 1880. 271 Verri, Dictionary, p. 23. 272 Pilloud/de Preux, Article 49, para. 1879; see also, Bothe/Partsch/Solf, p. 289; Oeter, p. 176; Verri, Dictionary, pp. 22–23: “In military parlance, the action taken by a unit to make its offensive capacity felt by an enemy unit.” 273 Oeter, p. 176. 274 Wenger, para. 2070.



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was directed against the respective cultural property.275 Yet, in reality this might be difficult to prove. The obligation to protect cultural property under the Additional Protocols is stricter than the respective provision in the 1907 Hague Regulations since according to Article 53(a) of the Additional Protocol I and Article 16 of the Additional Protocol II, “it is prohibited to commit”, whereas Article 27 of the 1907 Hague Regulations requires “to spare, as far as possible”.276 The same applies for the 1954 Hague Convention which obliges its Parties to “refrain” from any act of hostility, whereas the Additional Protocols use a stronger expression; they prohibit the committing of such acts, which is more affirmative than the language of the Convention.277 Furthermore, Article 53 of the Additional Protocol I and Article 16 of the Additional Protocol II demand a higher standard of legal protection in respect to cultural property than does the 1954 Hague Convention. Whereas protection of cultural property under Article 4 of the Convention is subject to a reservation in respect of military necessity, the only restriction to the immunity afforded by Article 53 of Additional Protocol I and Article 16 of Additional Protocol II is that the cultural property in question is not used in support of the military effort.278 Pursuant to Article 53(b) of the Additional Protocol I and Article 16 of the Additional Protocol II, it is prohibited to use cultural property “in support of the military effort”, which is similar to the obligation contained in Article 4(1) of the 1954 Hague Convention. This obligation is primarily directed at the State in which territory the respective property is situated. Since Article 53(b) only refers to the use of the respective cultural property and not its nature or location, the provision is considerably stricter than Article 52 of the Additional Protocol I.279 The “military effort” is a very broad concept, which encompasses “all military activities connected with the conduct of war”.280 This is not to say, however, that, if cultural property were used as objects to support the military effort it would not necessarily justify attacking them. An attack would only be justified if the respective cultural property would fulfil the requirements for a military objective as provided by Article 52(2) of Additional Protocol I. Its destruction must necessarily offer a definite military advantage, which is not 275 Wenger, para. 2070; see also, Toman, 1954 Hague Convention, p. 389. 276 Wenger, para. 2071. 277 Toman, 1954 Hague Convention, p. 388. 278 O’Keefe, Meaning of Cultural Property, p. 31; Wenger, para. 2072. 279 Henckaerts, New Rules, p. 29. 280 Wenger, para. 2078; see also, Toman, 1954 Hague Convention, p. 390.

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always the case with objects that support the military effort.281 Thus, the principles of military necessity and proportionality have to be applied, which means according to Article 52(2) of Additional Protocol I, the objective must make an effective contribution to the military action of the adversary and on that basis the destruction must result in a definite military advantage.282 Pursuant to Wenger in the Commentary on the Additional Protocols, the prohibition on attacking objects which are not military objectives, as well as the definition of the latter given in Article 52, para. 2, also apply when the Hague Convention of 1954 is applicable: thus the effect of Article 52 of Protocol I is to limit the possibilities of derogations allowed by the Hague Convention. This is an important development for the protection of cultural objects.283

Furthermore, the Additional Protocol I provides for specific rules in those cases in which an attack is inevitable. Article 57 of Additional Protocol I lays down which precautions must be taken when attacking civilian objects.284 It is crucial to keep in mind, though, that where parties to a conflict are signatories of the 1954 Hague Convention and to the Additional Protocols, their conduct in respect to cultural property is governed by the Convention. This leads to an undesirable result because those States which are not Parties to the 1954 Hague Convention are bound by the stricter rules concerning military necessity of the Additional Protocols.285 Concerning the interrelation of the 1954 Hague Convention and Articles 52 and 53 of the Additional Protocol I with regard to military necessity, Yoram Dinstein gives a useful example of a bridge, which is the only means of access across a river for enemy forces. Under the 1954 Hague Convention such a bridge can be destroyed, even though it represents 281 Bothe/Partsch/Solf, pp. 332–333; Solf, 896; Wenger, para. 2079. 282 Wolfrum, Protection of Cultural Property, pp. 328–329. 283 Wenger, para. 2079 fn. 30. 284 Additional Protocol I, Article 57(2)(a): “[T]hose who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” 285 Fischer, p. 190; Toman, 1954 Hague Convention, p. 389.



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cultural property, on the ground of imperative military necessity as soon as the enemy uses it because only then imperative military necessity is given. If the bridge is seen as an ordinary civilian object, it may also be destroyed under the Additional Protocol I – even before the enemy uses it – because pursuant to Article 52(2), an ordinary civilian object can become a military objective by mere location. If the bridge, however, is a historic monument or a work of art forming part of the cultural heritage of peoples, it benefits from the special protection of Article 53 of the Additional Protocol I. In that case the bridge cannot be attacked in any case. The bridge only loses its protection in case of actual use by the enemy in support of the military effort.286 Hence, the site cannot be attacked only because the enemy’s combatants have made use of the bridge in the past, if they no longer do so in the present.287 To sum up, compared to the 1954 Hague Convention the protection provided for cultural property by the Additional Protocols is more extensive. The Additional Protocols, however, do not provide for safeguarding measures, which shall be taken in peacetime nor do the Additional Protocols contain any provisions concerning special protection of certain cultural property.288 Even though the 1954 Hague Convention thereby offers a more extensive scheme of protection, the Additional Protocols scheme of protection is stricter than the 1954 Hague Convention’s since it does not provide for derogation due to military necessity as does the 1954 Hague Convention in Article 4.289 However, the exclusion clause of Article 53 of the Additional Protocol I, that its provisions are “without prejudice” to the provisions of the 1954 Hague Convention, preserves the waiver option for Parties to the 1954 Hague Convention.290 It has to be kept in mind, though, that only Article 53 of the Additional Protocol I and Article 16 of the Additional Protocol II exhibit this interrelation with the 1954 Hague Convention. Article 52 of Additional Protocol I does not refer to the Convention and accordingly Article 52 of Additional Protocol I also has to be applied by Parties to the 1954 Hague Convention and the Additional Protocols. 286 Dinstein, p. 1918. 287 Wenger, para. 2079. 288 Part IV, Section I, Chapter V of Additional Protocol I entails provisions for localities and zones under special protection. Though, there do not exist provisions concerning cultural property. See also, Wenger, paras. 4833, 4835. 289 Wenger, paras. 4834; see also, Henckearts/Doswald-Beck, p. 132. 290 Solf, p. 896, suggesting this was considered by the Diplomatic Conference as preserving the waiver option.

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IV. Violations of the Treaty It is important to note that Part V Section II of Additional Protocol I provides for criminal sanctions, which apply to breaches and grave breaches of the Protocol. This means that Parties to the Additional Protocol I are required to enact any legislation necessary to provide for effective penal sanctions for persons committing or ordering to be committed any of the grave breaches of the Additional Protocols.291 Article 86 of the Additional Protocol I covers culpable omissions and recognises the doctrines of command and other superior responsibilities. Article 87 of Additional Protocol I further obliges Parties to impose duties of prevention, suppression and punishment on commanders in respect of breaches of the 1949 Geneva Conventions and of Additional Protocol I. Finally, Article 88 imposes on Parties obligations of mutual assistance in criminal matters related to grave breaches of the 1949 Geneva Conventions and Additional Protocol I. The kind of violations considered grave breaches of Additional Protocol I are spelled out in Article 85 Paragraphs 2–4. Concerning the destruction of cultural property, Article 85(4)(d) holds: [M]aking the clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments, works of art and places of worship are not located in the immediate proximity of military objectives.

In the chapeau of Article 85(4) of the Additional Protocol I it is stated that the acts enumerated must be committed in violation of the 1949 Geneva Conventions or Additional Protocol I.292 Hence, for the purpose of Article 85(4)(d), the attack in question must constitute a breach of Article 53(a) of the Additional Protocol I.293 As established above, that article prohibits committing any acts of hostility against those objects, which constitute the cultural or spiritual heritage of peoples and using them in support of the military effort.294 291 IV Geneva Convention of 1949, Articles 146 and 147. See, supra, pp. 41 et seq. For the drafting history of Article 85 of the Additional Protocol I, see, Bothe/Partsch/Solf, pp. 511–522. 292 Zimmermann, Article 85, Section II, para. 3501. 293 O’Keefe, Protection under International Criminal Law, p. 28. 294 Zimmermann, Article 85, Section II, para. 3516. See, supra, pp. 75 et seq.



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The objects of the offence are “clearly recognized historic monuments, works of art or places of worship”, which have to constitute “the cultural or spiritual heritage of peoples” as defined in Article 53 of Additional Protocol I. Furthermore, they have to been given “special protection by special arrangement”. The meaning of “special protection” in Article 85(4)(d) is not clear. The provision either refers to the 1954 Hague Convention in general which constitutes a lex specialis to the lex generalis of the Additional Protocol I or the provision refers only to those objects which enjoy special protection pursuant to Chapter II of the 1954 Hague Convention. According to O’Keefe, it is more likely that all cultural property covered by the 1954 Hague Convention falls within the provision.295 This, however, would not reflect the same property, which is protected by Article 53 of Additional Protocol I and Article 16 of Additional Protocol II. Hence, one can assume that only property under special protection provided for by the 1954 Hague Convention is the object of Article 85(4)(d) Additional Protocol I. In addition, those objects belonging to the cultural heritage that are inscribed on the World Heritage List in accordance with the provisions of the 1972 World Heritage Convention also satisfy the description in Article 85(4)(d) of the Additional Protocol I.296 Therefore, the special protection of the respective cultural property by some sort of special arrangement is an essential material element of a grave breach under Article 85(4)(d). Accordingly, the protection provided by Article 53 of the Additional Protocol I is not enough for the respective cultural property to become the object of a grave breach of the Additional Protocol I.297 The notion of “clearly recognized” may simply refer to the identification of the object of attack as a historic monument, work of art or place of worship. Alternatively, it may refer to the special protection the respective cultural property has been given by a special arrangement like the 1954 Hague Convention or the 1972 World Heritage Convention. The travaux préparatoires of the Additional Protocols do not give any information on this matter.298 In any case, the fact that the cultural property attacked was marked at the time with the distinctive emblem of the 1954 Hague Convention would serve as evidence from which one could assume that 295 O’Keefe, Protection of Cultural Property, p. 226. In contrary, Henckearts/ DoswaldBeck, p. 580: “In practice [Article 85(4)(d)] refers to the special protection regime created by the Hague Convention for the Protection of Cultural Property.” 296 O’Keefe, Protection of Cultural Property, p. 226. 297 O’Keefe, Protection of Cultural Property, pp. 226–227; Toman, 1954 Hague Convention, p. 392. 298 See, Zimmermann, Article 85, para. 3517, fn. 36.

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the attacker both recognised it as cultural property299 and recognised that it is specially protected by a special agreement.300 The same can be held for the cultural property which is either inscribed in the International Register of Cultural Property under Special Protection according to the 1954 Hague Convention, the List of Cultural Property under Enhanced Protection according to the 1999 Second Protocol301 or the World Heritage List. If the respective register or list were sufficiently publicised, the respective cultural property would fulfil the requirement of being “clearly recognized”.302 The nature of the offence is a direct attack against the above-defined cultural property. According to Article 85(4)(d) of the Additional Protocol I, the respective cultural property not only has to be “the object of attack”, but also the attack has to lead to “extensive destruction” of the respective cultural property. Hence, the directing of an attack against cultural property which only leads to minor damages or no damages at all does not fall under the grave breaches regime of Additional Protocol I. The stipulation that the respective historic monument, work of art or place of worship may not be located in the immediate proximity of military objectives does not imply that objects so located may lawfully be attacked. Rather, the stipulation was included to guarantee that an attacker is convicted under Article 85(4)(d) of the Additional Protocol I only for deliberately making cultural property protected under Article 53 of the Additional Protocol I the object of an attack. Hence, cases of misdirected attacks against legitimate military objectives or a well-directed attack against a military objective, which causes extensive damage to cultural property nearby do not amount to a grave breach of the Additional Protocol I.303 Pursuant to the opening sentence of Article 85(4) of the Additional Protocol I, the attack furthermore has to be committed wilfully, which means that the accused must have acted consciously and with intent.304 Especially the perpetrator has to wilfully commit the offence against a protected cultural property, which can be derived from the requirement that the object of the offence has to be clearly recognised as stated by Article 85(4)(d). 299 Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 329. 300 O’Keefe, Protection of Cultural Property, p. 227. 301 Infra, pp. 88 et seq. 302 O’Keefe, Protection under International Criminal Law, pp. 30–31. 303 O’Keefe, Protection of Cultural Property, p. 228; O’Keefe, Protection under International Criminal Law, p. 31. 304 Zimmermann, Article 85, para. 3474.



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It should also be mentioned that Article 85(3)(f) of the Additional Protocol I also includes among grave breaches and war crimes the perfidious use of the distinctive emblem of the Red Cross, Red Crescent or Red Lion and Sun or of other protective signs recognised by the 1949 Geneva Conventions or Additional Protocol I. Hence, the perfidious use of the protective emblem for cultural property as provided for in Article 16(1) of the 1954 Hague Convention, an internationally recognised protective sign, constitutes a grave breach and a war crime.305 In contrast to Additional Protocol I, Additional Protocol II does not ­contain a grave breaches regime. However, Article 1(1) of the Additional Protocol II declares the Protocol to develop and supplement common Article 3 of the 1949 Geneva Conventions. The Parties to the 1949 Geneva Conventions are under an obligation to take measures necessary for the suppression of all acts contrary to the provisions of the Conventions other than grave breaches.306 Hence, Parties to Additional Protocol II are bound by this provision. Compared to the provision concerning the violations of the Convention in the 1954 Hague Convention, Article 85(4)(d) of the Additional Protocol I is an immense step forward in the enforcement of penal provisions because it clearly outlines the elements of the violation, which entails individual criminal responsibility for the destruction of cultural property. Hence, Article 85(4)(d) provides a solid basis for the exercise of universal jurisdiction over this offence.307 § 8 The 1999 Second Hague Protocol The conflicts in the second half of the last century entailed massive destruction of cultural property. A prime example is the conflict in the former Yugoslavia. During the four years of war, thousands of historic and religious monuments defining the cultural heritage of the region had been destroyed or at least damaged by the opposing parties to the armed conflict.308 In this conflict cultural property had mainly been destroyed with the intention of erasing the manifestation of the religious or ethnic identity of the adversary party.309 305 Zimmermann, Article 85, para. 3495. 306 See e.g., IV Geneva Convention of 1949, Article 146. 307 Hector, p. 73. 308 Riedlmayer, pp. 9–20. See also, Bevan, pp. 32–47; Ehlert, pp. 137–139. 309 Abtahi, ICTY, p. 1; see also, Detling, pp. 66–67; Wolfrum, Protection of Cultural Property, p. 306.

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Those acts revealed the deficits of the 1954 Hague Convention, which led to a review process of the Convention.310 The 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict311 was negotiated and adopted in order to reinforce the rather weak system of the 1954 Hague Convention.312 Furthermore, it was necessary to introduce the concepts concerning cultural property contained in the Additional Protocols I and II especially concerning the grave breaches regime.313 The relationship between the 1999 Second Protocol and the 1954 Hague Convention is settled by Article 2 of the 1999 Second Protocol which states: “This protocol supplements the Convention in relations between the Parties.” Hence, the 1954 Hague Convention remains unaltered and is supplemented by the provisions of the 1999 Second Protocol, but only among the States who are Parties to the Convention and to the Protocol.314 Also, a State can only become a Party to the Protocol if it has ratified the 1954 Hague Convention.315 Until today, only 22 States ratified the 1999 Second Protocol. Around 40 others are in the process of admission.316 I. Scope of Application According to Article 3(1) of the 1999 Second Protocol, the Protocol applies to armed conflict and belligerent occupation as referred to in Article 18(1) and (2) of the 1954 Hague Convention and to armed conflict not of an international character as referred to in Article 22(1) of the 1999 Second Protocol. Concerning the requirements of an international armed conflict set forth by Article 18(1) of the 1954 Hague Convention, reference can be made to the above.317 Also concerning the belligerent occupation as set forth by Article 18(2) of the 1954 Hague Convention, reference can be made to the preceding demonstration.318 310 Boylan, pp. 7–18; O’Keefe, Protection of Cultural Property, p. 236. For examples of the destruction of cultural property during the wars in the 1990s, see, Sandholtz, pp. 191–201. 311 26 March 1999, UNESCO Doc. HC/1999/7, [hereinafter “1999 Second Protocol”]. 312 For an overview on the drafting process of the 1999 Second Protocol, see Henckaerts, New Rules, pp. 22–23; Toman, The road to the 1999 Second Protocol, pp. 7–9, 14–16. 313 Henckaerts, New Rules, p. 41. 314 Toman, 1999 Second Protocol, p. 55. 315 Henckaerts, New Rules, p. 23. 316 See, http://portal.unesco.org/la/convention.asp?KO=15207&language=E [visited on 3 September 2013]. 317 Supra, pp. 44 et seq. 318 Supra, p. 47.



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The definition of non-international armed conflict in the 1954 Hague Convention was insufficiently, which prompted the drafters of the 1999 Second Protocol to adopt a new provision dealing with the applicability of the Protocol during non-international armed conflict. Article 22(1) of the 1999 Second Protocol states that the “Protocol shall apply in the event of an armed conflict not of an international character, occurring within the territory of the Parties”. Unlike the 1954 Hague Convention, the 1999 Second Protocol applies with all provisions to situations of non-international armed conflict. In Paragraph 2 of Article 22 the same restriction as in Article 1(2) of Additional Protocol II was incorporated by the drafters by stating that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature”. Although, Article 22 of the 1999 Second Protocol does not articulate that it applies to all parties to a non-international armed conflict, whether governmental or insurgent forces, it has been held by Henckaerts that the Protocol indeed applies to such situations because non-governmental forces involved in non-international armed conflict within a State Party to the Protocol are bound by the Protocol through the ratification of the State concerned.319 A reference to organisational structures of insurgent forces or the exercise of control over part of a territory is lacking in the 1999 Second Protocol. Hence, the threshold in that respect is considerably lower than under the Additional Protocol II.320 II. Definition of Cultural Property Even though criticism was raised inter alia by Patrick Boylan concerning the “very imprecise” definition of cultural property in the 1954 Hague Convention and its divergence from the definitions used in later UNESCO instruments,321 during the preparatory work of the 1999 Second Protocol, the general opinion about the definition given in Article 1 of the 1954 Hague Convention was that, it “is largely acceptable and broad enough to cover all cultural heritage in need of protection”.322 Therefore, according to Article 1(b) of the 1999 Second Protocol, “‘cultural property’ means cultural property as defined in Article 1 of the Convention”.323 This demonstrates the

319 Henckaerts, New Rules, p. 40. 320 Wolfrum, Protection of Cultural Property, p. 318. 321 Boylan, pp. 16, 143. 322 Toman, 1999 Second Protocol, p. 51. 323 See, supra, pp. 48 et seq.

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close connection between the two treaties and the supplementary nature of the 1999 Second Protocol.324 III. Protection of Cultural Property Similar to the 1954 Hague Convention, the 1999 Second Protocol contains two regimes of protection of cultural property: general protection and enhanced protection. 1. General Protection The 1999 Second Protocol follows very closely the structure of the 1954 Hague Convention. Chapter 2 of the Protocol keeps the title of Chapter I of the Convention: “General provisions regarding protection”. One of the main goals was to improve the safeguarding measures in the 1999 Second Protocol in providing for concrete preparatory peacetime measures.325 Hence, Article 5 of the Protocol lists non-exhaustive examples of safeguarding measures.326 These measures are of great practical importance for the protection of cultural property in the event of armed conflict and require financial resources and know-how.327 Hence, Article 29 of the 1999 Second Protocol provides for the establishment of a fund to provide for financial or other assistance in support of preparatory or other measures, which have to be implemented in peacetime. The fund was set up since particularly developing States might have difficulties in implementing the measures provided in Article 5.328 Concerning the obligation of respect for cultural property as settled by Article 4 of the 1954 Hague Convention, the 1999 Second Protocol maintained in Article 6 the wording of Article 4 of the Convention. Instead of revising the language, it was supplemented by a new definition of military necessity since most of the drafters of the 1999 Second Protocol and also the critics of the 1954 Hague Convention wished to clarify the conditions 324 Toman, 1999 Second Protocol, p. 51. 325 Hladík, Comparison, p. 5; O’Keefe, Protection of Cultural Property, p. 249. 326 1999 Second Protocol, Article 5: “Preparatory measures taken in time of peace for the safeguarding of cultural property against the foreseeable effects of an armed conflict pursuant to Article 3 of the Convention shall include, as appropriate, the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property.” 327 Henckearts, New Rules, p. 24. 328 Forrest, p. 112.



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under which imperative military necessity may be invoked and therewith prevent it from being abused.329 Furthermore, the drafters of the 1999 Second Protocol wished to close the gap between the 1954 Hague Convention and the Additional Protocols in regard to military necessity.330 The aim was to increase the protection of certain cultural property con­ sidering the uncertainties posed by the military necessity test under the 1954 Hague Convention or the military objective test by the Additional Protocol I.331 Accordingly, Article 6(a) provides for much more detailed requirements which have to be fulfilled for a case of military necessity than Article 4 of the 1954 Hague Convention. Paragraph (a) states that a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to direct an act of hostility against cultural property when and for as long as: i. that cultural property has, by its function, been made into a military objective; and ii. there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective.

Significantly, the phrase “when and so long as” in the opening sentence of Article 6(a) of the 1999 Second Protocol implies that both conditions must be present at the time the attack is launched and that the right to invoke the waiver continues only for as long as both conditions are met.332 The definition for acts of hostility can be adopted from the explanations concerning Article 4 of the 1954 Hague Convention.333 As regards the first condition, the cultural property in question must “by its function [have] been made into a military objective”. Therefore it’s the cultural property’s function not its use, nature or location that determines whether it has been made a military objective.334 Furthermore, this implies that the mere location in the vicinity of a military objective would not make the respective cultural property a target.335 In addition, the provision states “have been made into”, which means that the party to the conflict, in whose territory the respective cultural property is situated has to take an 329 Toman, 1999 Second Protocol, p. 103, citing 1999 Hague Conference, Plenary Session, 16 March 1999: e.g. the delegates of Germany, p. 59; Italy, p. 60; Switzerland, p. 62; Indonesia, p. 63; see also, Boylan, p. 57. On the drafting process, see, Henckaerts, New Rules, pp. 27–29. 330 Henckaerts, New Rules, p. 26; Hladík, Military Necessity, pp. 629–630; Wolfrum, Protection of Cultural Property, p. 329. 331 Wolfrum, Cultural Property, para. 18. 332 Chamberlain, p. 45; Toman, 1999 Second Protocol, p. 113. 333 Supra, pp. 52 et seq. 334 Chamberlain, pp. 45–46; Forrest, p. 114; Henckearts, New Rules, p. 30. 335 Wolfrum, Protection of Cultural Property, p. 329.

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active role. The party has to turn the respective cultural property into a military objective intentionally, which can only happen through use.336 The notion of ‘military objective’ is defined in Article 1(f) of the 1999 Second Protocol as an object which by its nature, location, purpose, or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage.

This definition was adopted from Article 52(2) of Additional Protocol I because even States which were not Party to Additional Protocol I confirmed the customary nature of this provision during the drafting process of the 1999 Second Protocol.337 As mentioned above, though, for the purpose of Article 6(a), cultural property can only be a military objective if it has by its function been made such an objective. The second condition requires that “there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that object”. Instead of military necessity, the provision refers here to military advantage, which has an effect on the application of the principle of proportionality so as to weigh humanitarian considerations against military advantage rather than necessity.338 As a result, when there are several military objectives to choose from, the military objective, which is also a cultural property, shall not be attacked. The provision therewith adapts Article 57(3) of Additional Protocol I339 for the purposes of the protection of cultural property.340 According to Article 6(b) of the 1999 Second Protocol, a waiver on the basis of imperative military necessity pursuant to Article 4 paragraph 2 of the Convention may only be invoked to use cultural property for purposes which are likely to expose it to destruction or damage when and

336 Henckaerts, New Rules, p. 30. 337 See, Henckearts, New Rules, pp. 26–27. 338 Forrest, Military Necessity, p. 212; Toman, 1999 Second Protocol, p. 117. 339 Additional Protocol I, Article 57(3): “When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.” 340 Chamberlain, p. 46: “However, neither Article 6, paragraph (a)(ii), nor Article 57(3) of Additional Protocol I, resolve the difficulty of what happens where the choice is between civilian casualties and the destruction of cultural property. The dictates of conscience require that in such cases human life must take precedence over property, however valuable.”



prohibition of the destruction of cultural property87 for as long as no choice is possible between such use of the cultural property and another feasible method for obtaining a similar military advantage.

This second condition refers to the party on whose territory the respective cultural property is situated. Similar considerations apply to this requirement as they do for Paragraph (a). It has to be noted, though, that in connection with this paragraph the use of the term ‘military advantage’ might be argued. The term ‘advantage’ might lead to an interpretation, which allows the use of cultural property when it quite simply achieves a military advantage, rather than when an imperative military necessity requires it.341 Article 6 of the 1999 Second Protocol introduces two further criteria, which are meant to limit the execution of the exception of military necessity. According to Article 6(c), in both cases of Paragraph (a) and (b) “the decision to invoke imperative military necessity shall only be taken by an officer commanding a force” of a certain size. Furthermore, pursuant to Article 6(d), in case of an attack “an effective advance warning shall be given” in order to give the opposing party a chance to clear the respective cultural property. Article 4 of the 1954 Hague Convention exhorts Parties to the Convention “to refrain from any act of hostility directed against such property”. ‘Refraining’ also means taking all appropriate precautions, which is elaborated upon in Articles 7 and 8 of the 1999 Second Protocol.342 Article 7 introduces precautions, which have to be considered by the attacking party and specifies in four paragraphs the choice of precautionary measures.343 The article is modelled after Article 57 of Additional Protocol I.344 Article 8 of the 1999 Second Protocol, on the other hand, introduces precautions,

341 Forrest, Protection of Cultural Heritage, p. 115. 342 Toman, 1999 Second Protocol, p. 122. 343 1999 Second Protocol, Article 7: “Without prejudice to other precautions required by international humanitarian law in the conduct of military operations, each Party to the conflict shall: a. do everything feasible to verify that the objectives to be attacked are not cultural property protected under Article 4 of the Convention; b. take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental damage to cultural property protected under Article 4 of the Convention; c. refrain from deciding to launch any attack which may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated; and d. cancel or suspend an attack if it becomes apparent: i. that the objective is cultural property protected under Article 4 of the Convention ii. that the attack may be expected to cause incidental damage to cultural property protected under Article 4 of the Convention which would be excessive in relation to the concrete and direct military advantage anticipated.” 344 Toman, 1999 Second Protocol, pp. 125–127.

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which have to be considered by the party under attack on whose territory the respective cultural property is situated.345 As was the case for Article 7, the provision is inspired by its respective provision in Additional Protocol I, namely Article 58. The language, however, was adapted to suit the needs of cultural property.346 The last provision concerning general protection of cultural property, Article 9, deals with the protection of cultural property in occupied territory. It imposes on the occupying power several prohibitions and preventive measures, which have to be taken during the state of occupation.347 2. Enhanced Protection The 1999 Second Protocol supplements the ‘special protection’ offered by the 1954 Hague Convention with a system of ‘enhanced protection’.348 The reason was that the Parties could not meet the conditions for eligibility for special protection in the 1954 Hague Convention, mainly because of the practical requirements listed in Article 8 of the Convention, foremost the almost impossible to fulfil distance criterion.349 Enhanced protection under Chapter 3 of the 1999 Second Protocol is afforded to cultural property which meets, pursuant to Article 10 of the Protocol, the following three conditions: a. it is cultural heritage of the greatest importance for humanity; b. it is protected by adequate domestic legal and administrative measures recognizing its exceptional cultural and historic value and ensuring the highest level of protection; c. it is not used for military purposes or to shield military sites and

345 1999 Second Protocol, Article 8: “The Parties to the conflict shall, to the maximum extent feasible: a. remove movable cultural property from the vicinity of military objectives or provide for adequate in situ protection; b. avoid locating military objectives near cultural property.” 346 Toman, 1999 Second Protocol, pp. 143–148. 347 1999 Second Protocol, Article 9: “1. Without prejudice to the provisions of Articles 4 and 5 of the Convention, a Party in occupation of the whole or part of the territory of another Party shall prohibit and prevent in relation to the occupied territory: a. any illicit export, other removal or transfer of ownership of cultural property; b. any archaeological excavation, save where this is strictly required to safeguard, record or preserve cultural property; c. any alteration to, or change of use of, cultural property which is intended to conceal or destroy cultural, historical or scientific evidence. 2. Any archaeological excavation of, alteration to, or change of use of, cultural property in occupied territory shall, unless circumstances do not permit, be carried out in close co-operation with the competent national authorities of the occupied territory.” 348 For an in-depth analysis of the regime of enhanced protection, see Gonzalez, pp. 61–67. 349 Forrest, Protection of Cultural Heritage, p. 117; Henckaerts, New Rules, p. 32; Van Woudenberg, p. 51.



prohibition of the destruction of cultural property89 a declaration has been made by the Party which has control over the cultural property, confirming that it will not be so used.

Hence, the regime of enhanced protection covers not only refuges and centres containing cultural property; instead, every type of cultural property as defined under Article 1 of the 1954 Hague Convention can become cultural property under enhanced protection, if it fulfils the requirements of Article 10 of the 1999 Second Protocol. The cultural property in question has to be “cultural heritage of the greatest importance for humanity” (italics supplied), a terminology used to define world heritage in the 1972 World Heritage Convention and which refers to the unique character of the respective cultural property.350 The term “greatest importance for humanity” was adopted to distinguish the property under enhanced protection from the property under general protection, which is of “great importance” and from the property under special protection provided for by the 1954 Hague Convention, which requires “very great importance”. The wording of Article 10 of the 1999 Second Protocol also suggests that the threshold for cultural property under enhanced protection is higher than for cultural property to be protected by Article 53 of the Additional Protocol I and Article 16 of the Additional Protocol II.351 Again, the respective cultural property cannot be used for military purposes. Importantly, there is no requirement as there is for special protection under the 1954 Hague Convention, that the cultural property be situated an adequate distance from military objectives, which makes the enhanced protection regime a more successful protective measure. It is only forbidden to use the cultural property under enhanced protection to shield military sites. Hence, the Parties to the Protocol are obliged, for instance, not to build a military airport next to a cultural property under enhanced protection.352 Article 11 of the 1999 Second Protocol provides for rules concerning the granting of enhanced protection. Each Party is entitled to submit to the Committee for the Protection of Cultural Property in the Event of Armed Conflict353 requests for the granting of enhanced protection to cultural property under its jurisdiction or control.354 The Committee thereafter decides in each particular case whether the criteria set out in Article 10 of

350 See for further information, Gonzalez, pp. 63–65. See also, Carducci, UNESCO Conventions on Cultural Heritage, p. 369. 351 O’Keefe, Protection of Cultural Property, p. 265; Van Woudenberg, p. 54. 352 Forrest, Protection of Cultural Heritage, p. 118. 353 1999 Second Protocol, Article 24. 354 1999 Second Protocol, Article 11(1) and (2).

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the 1999 Second Protocol have been met.355 Additionally, any Party to the Protocol can make objections to the inclusion of any cultural property on the list on the basis of these criteria.356 Cultural property then receives the status of enhanced protection through inscription on the List of Cultural Property under Enhanced Protection, as provided for in Article 27(1)(b) of the 1999 Second Protocol.357 The advantage of the List is that it is tangible evidence, in particular in favour of the adversary party, that the property bears the status of enhanced protection and that any attack on the property will have far-reaching consequences.358 Cultural property under enhanced protection is given immunity pursuant to Article 12 of the 1999 Second Protocol: The Parties to a conflict shall ensure the immunity of cultural property under enhanced protection by refraining from making such property the object of the attack or from any use of the property or its immediate surroundings in support of military action.

However, the immunity provided by Article 12 is lost according to Article 13(1)(b) “if, and for as long as, the property has, by its use, become a military objective”. Nevertheless, even if the opposing party uses a cultural property as a military objective, Article 13(2) of the 1999 Second Protocol clarifies that the property in question may only be attacked if the following conditions are fulfilled: a. the attack is the only feasible means of terminating the use of the property referred to in sub-paragraph 1(b); b. all feasible precautions are taken in the choice of means and methods of attack, with a view to terminating such use and avoiding, or in any event minimising, damage to the cultural property; c. unless circumstances do not permit, due to requirements of immediate selfdefence: i. the attack is ordered at the highest operational level of command; ii. effective advance warning is issued to the opposing forces requiring the termination of the use referred to in sub-paragraph 1(b); and iii. reasonable time is given to the opposing forces to redress the situation.

Therewith, the 1999 Second Protocol also incorporates the provisions contained in Article 57 of Additional Protocol I for cultural property under enhanced protection and applies them specifically to cultural property.359

355 1999 Second Protocol, Article 27. 356 1999 Second Protocol, Article 11(5). 357 1999 Second Protocol, Article 11(10). 358 Van Woudenberg, p. 55. 359 Henckaerts, New Rules, p. 36.



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The second circumstance under which the immunity provided by the enhanced protection regime might be lost, is if “such protection is suspended or cancelled” in accordance with Article 14 of the 1999 Second Protocol.360 The latter provides that such protection is lost when the “cultural property no longer meets any one of the criteria in Article 10 of this Protocol”, in which case, the Committee may suspend its enhanced protection status or cancel that status by removing the cultural property from the List. The most likely criteria for cultural property to loose its status under enhanced protection are the prohibition of its use for military purposes or the prohibition to shield military sites.361 Furthermore, Article 14(2) provides: In the case of a serious violation of Article 12 in relation to cultural property under enhanced protection arising from its use in support of military action, the Committee may suspend its enhanced protection status. Where such ­violations are continuous, the Committee may exceptionally cancel the enhanced protection status by removing the cultural property from the List.

As a consequence of a cancellation or suspension, the cultural property in question will lose its enhanced protection, and be subject to the provisions concerning general protection: The obligations to respect cultural property and the possibility of waving these rules on the grounds of military necessity as provided for in Article 6 of the 1999 Second Protocol.362 To conclude, the 1954 Hague Convention and the 1999 Second Protocol provide for three forms of protection: general protection, as provided for under the Convention and the Protocol, special protection as provided for under the Convention, and enhanced protection set up under the Protocol. Nevertheless, according to Henckaerts there is no lower or higher level of protection. The basic protection is for all three forms of protection the same. Namely, that the respective cultural object cannot be destroyed, captured or neutralised.363 Even so, there is one important difference between the regimes of general and special or enhanced protection. Parties to the 1999 Second Protocol cannot rely on the ‘imperative military necessity’ in the case of property under enhanced protection. In view of the foregoing, the main difference between cultural property under general protection and cultural property under enhanced protection provided for by the 1999 Second Protocol lies in the obligation of the State 360 1999 Second Protocol, Article 13(1)(a). 361 Forrest, International Protection of Cultural Heritage, p. 121. 362 Ibid. 363 Henckaerts, New Rules, p. 34.

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Party on whose territory the respective cultural property is situated. In the case of general protection, the State Party on whose territory the respective cultural property is situated has the right, if needed, to convert the property into a military objective by using it for military action. In the case of cultural property under enhanced protection, the holder of the respective cultural property has absolutely no right to convert the property into a military objective by using it for military action.364 Notably, the 1999 Second Protocol limits the scope of the notion of “imperative military necessity” to the framework of military objective in the Additional Protocol I. Hence, under the Protocol no cultural property may be attacked unless it has, by its function, been made into a military objective. Additionally, the 1999 Second Protocol requires State Parties to establish that there is no feasible alternative available to obtain a similar military advantage to that offered by directing an act of hostility against that objective.365 Therewith, the 1999 Second Protocol improves the protection of cultural property compared to the protection provided by the 1954 Hague Convention considerably. IV. Violations of the Treaty The provisions on violations and sanctions in the 1999 Second Protocol are much more developed compared to those in the 1954 Hague Convention. During the drafting of the Convention, some States expressed the need for the provisions to reflect the provisions concerning individual criminal responsibility as contained in Additional Protocol I,366 whereas others opted for the adoption of the respective provisions of the Rome Statute.367 In the end, a whole chapter (Chapter 4) – combining both – was adopted to deal with the criminalisation of violations of the Protocol. Article 15 of the 1999 Second Protocol is the basic provision that defines serious violations directed against cultural property. Articles 16–20 deal with jurisdiction, prosecution, extradition, mutual legal assistance and grounds for refusal. Finally, Article 21 deals with less serious violations. According to Article 15(1) of the 1999 Second Protocol, the following acts concerning the destruction of cultural property are serious violations: 364 Henckaerts, New Rules, p. 34. 365 Hector, p. 74. 366 Diplomatic Conference on the Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 15–26 March 1999): Summary Report (UNESCO, Paris, June 1999), para. 7. 367 O’Keefe, Protection under International Criminal Law, p. 33.



prohibition of the destruction of cultural property93 a. making cultural property under enhanced protection the object of attack; b. using cultural property under enhanced protection or its immediate surroundings in support of military action; c. extensive destruction or appropriation of cultural property protected under the Convention and this Protocol; d. making cultural property protected under the Convention and this Protocol the object of attack; e. theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.

The chapeau of Article 15(1) of the 1999 Second Protocol furthermore provides that the offence has to be committed in violation of the 1954 Hague Convention or the 1999 Second Protocol. The list of serious violations includes violations, which are grave breaches under the 1949 Geneva Conventions, Additional Protocol I and the Rome Statute.368 The offences in Article 15 of the 1999 Second Protocol, however, are more precisely defined, which makes a significant contribution to the criminalisation of the destruction of cultural property.369 Article 15(1) of the 1999 Second Protocol makes a distinction between cultural property under enhanced and under general protection. Hence, the 1999 Second Protocol introduces in Article 15(1) a differentiation in gravity for offences against cultural property.370 The first two acts enlisted in Article 15(1) of the 1999 Second Protocol relate solely to cultural property under enhanced protection as established under Chapter 3 of the Protocol. However, the wording of Article 15(1)(a) is repeated in Article 15(1)(d) for “property protected under the Convention and this Protocol”. Therefore solely Article 15(1)(b) of the 1999 Second Protocol is applicable to property under enhanced protection and not to cultural property under general protection. Articles 15(1)(c) and (d) apply to cultural property “protected under the Convention and this Protocol”. Hence, the cultural property in question is covered by the general provisions regarding the protection embodied in Chapter I of the 1954 Hague Convention and Chapter 2 of the 1999 Second Protocol. Introducing a differentiation in gravity between acts perpetrated against the different protective regimes of cultural property and attaching greater seriousness to acts against cultural heritage under enhanced protection “expresses not only the fact of wrong-doing but also the degree of wrong-doing”.371 Just as the previously discussed international treaties, the 1999 Second Protocol does not define the term ‘attack’ as used in Articles 15(1)(a) and 368 Toman, 1999 Second Protocol, p. 295. 369 Toman, 1999 Second Protocol, p. 298; Hector, p. 75. 370 See, Frulli, Offences against Cultural Heritage, p. 211. 371 Frulli, Offences against Cultural Heritage, pp. 211–212.

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15(1)(d). The question one has to ask is whether “making such cultural property the object of attack” is distinct from directing an act of hostility against the cultural property. As already elaborated upon in the previous chapter concerning the Additional Protocols,372 the notion of ‘attack’ is much broader than acts of hostilities and therefore, comprises, for instance, the demolition of cultural property by installing explosives to its walls.373 Since it is established that Articles 15(1)(a) and (d) by using the notion ‘attack’ cover almost all acts of hostility that could be directed against cultural property it remains unclear why the drafters of the 1999 Second Protocol chose to include Article 15(1)(c) as well. O’Keefe suggests, that the reference to ‘destruction’ in Article 15(1)(c) must refer to destruction caused by acts of hostility other than attacks.374 Another possibility might be that the drafters, by including Article 15(1)(c), wanted to emphasise that not only the destruction of cultural property, but also the directing of an attack against cultural property as determined by Articles 15(1)(a) and (d), is a crime under the 1999 Second Protocol. Hence, directing an attack against cultural property under enhanced protection, which does not lead to actual damage, is a crime under Article 15(1) of the 1999 Second Protocol. Concerning cultural property under general protection the attack has to result in actual damage or destruction of the respective cultural property. Similar to the 1954 Hague Convention, the 1999 Second Protocol prohibits in Article 15(1)(b), “using cultural property under enhanced protection or its immediate surroundings in support of military action”. By including this provision, the concept of individual criminal responsibility of the 1999 Second Protocol goes much further than the Rome Statute’s as will be seen in the previous chapter.375 Yet, this provision is only applicable to cultural property under enhanced protection. 372 See, supra, pp. 74 et seq. 373 O’Keefe, Protection under International Criminal Law, p. 35: “[…] the substantive provision establishing the immunity of cultural property under enhanced protection, art 15(1)(a) refers specifically, and inexplicably, to making such property the object of attack, as distinct from directing any act of hostility against it […], with the result that the provision does not, on its face, recognise as a serious violation of the Protocol the demolition of cultural property under enhanced protection or any other act of hostility against it other than an attack. Since the word ‘attack’ is nowhere defined in the Second Protocol, and since the meaning ascribed in Additional Protocol I […] is a special meaning, not the ordinary meaning of the word, there is perhaps room to argue that, as specifically employed in art 15(1)(a), ‘attack’ can encompass demolitions. […] In the end, the best way to fill the lacuna is for parties to legislate in more precise terms when establishing as an offence under their domestic law the offence embodied in art 15(1)(a).” 374 O’Keefe, Protection under International Criminal Law, p. 36. 375 Infra, pp. 130 et seq.



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According to the opening sentence of Article 15(1), the perpetrator has to act “intentionally”. Therefore, unintentional acts, which are directed at other aims but lead to collateral damage of cultural property, will not be regarded as serious violations of the 1999 Second Protocol as was suggested during the drafting process by China.376 It is not clear, however, whether the requirement of intent requires knowledge that the property in question had been placed under enhanced protection or is generally protected by the 1954 Hague Convention and the 1999 Second Protocol.377 Pursuant to Article 15(2) of the 1999 Second Protocol, [e]ach Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties. When doing so, Parties shall comply with general principles of law and international law, including the rules extending individual criminal responsibility to persons other than those who directly commit the act.

Hence, States are requested to enact the necessary legislation and the respective provisions must already be implemented in time of peace. In Article 16(1), the 1999 Second Protocol also obliges Parties to take the necessary legislative measures to establish jurisdiction over the offences and to establish universal jurisdiction for the first three offences, which are only those offences directed against cultural property under enhanced protection and extensive destruction of cultural property under general pro­ tection. Thus, depending on the seriousness of the offence, the 1999 Second Protocol creates three types of enforcement mechanisms.378 Furthermore, Articles 17 to 19 of the 1999 Second Protocol contain detailed obligations for State Parties with regard to prosecution, extradition and mutual legal assistance in relation to these offences. Commendably, the drafters of the 1999 Second Protocol included a detailed – the most detailed – list of violations of the Protocol, which entail individual criminal responsibility.379 This should facilitate State Parties to enact laws concerning individual criminal responsibility for the destruction of cultural property in their domestic legislation. Few State Parties have already adopted Article 15 of the 1999 Second Protocol in their national laws; others will hopefully do so in the near future.380 376 Henckaerts, New Rules, p. 38. 377 O’Keefe, Protection under International Criminal Law, p. 34. 378 Domínguez-Matés, pp. 875–876. 379 Francioni, Protection of Cultural Heritage, pp. 8–9. 380 For an overview of State Parties, which have adopted Article 15 and other provisision of the 1999 Second Protocol concerning individual criminal responsibility, see, UNESCO,

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§ 9 The 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage In 2001, another tragic example of destruction of cultural property reminded the international community of the vulnerability of mankind’s cultural heritage. The Taliban Regime in Afghanistan deliberately destroyed in March 2001, two ancient Buddha statutes, which were carved in sandstone cliffs in the 3rd and 5th centuries ad in Bamiyan.381 The statues were among the most important of Afghan cultural treasures, which is why UNESCO pleaded – unfortunately without success – to stop the destruction.382

Committee for the Protection of Cultural Property in Armed Conflict, 5th Mtg., 22–24 November 2010, Item No. 5 of the Provisional Agenda: Consideration of National Reports on the Implementation of the Second Protocol, pp. 13–22, UNESCO Doc. CLT-10/CONF/204/3 (2010), p. 18: “Apart from the punishment of violations under the military penal code, as detailed in the summary of Swiss comments on Article 28 of the Hague Convention, Switzerland has not provided any provisions in its national legislation for the punishment of violations under the Second Protocol.” See also, Roger O’Keefe, National Implementation of the Penal Provisions of Chapter 4 of the Second Protocol of 26 March 1999 to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Doc. CLT/CIH/MCO/2002/PI/H/1 (2002). 381 The Taliban (‘The Seekers’) is a militant and political group, which was formed in 1994. They were led by Mullah (a village-level religious leader) Mohammed Omar. The Taliban advocated an ‘Islamic Revolution’ in Afghanistan, aimed at the re-establishment of the unity of the country in the framework of the Islamic law Sharia. At the time the Taliban was established a civil war took place in Afghanistan. By 2001, though, the Taliban covered 90–95% of the Afghan territory and had therewith taken effective control of most part of Afghanistan. The Taliban Regime in Afghanistan stands for religious extremism and intolerance part of which was the eradication of ancient Afghan cultural heritage in its entirety. See, Abtahi, ICC, pp. 3–11; Brenner, pp. 248–253; Bevan, pp. 122–126; Francioni/ Lenzerini, pp. 621–627. 382 UNESCO, Director-General exhorts Afghans to prevent Destruction of their Heritage, Press Release of 28 February 2001, No. 2001–28: “‘Carrying out this decision would be a real cultural disaster that will cause irreparable harm to a heritage of exceptional universal value. This heritage is central to Afghanistan’s memory and identity and is a landmark in the history of other civilizations.’ The Director-General added: ‘The blind destruction of statues will not change history, it will merely deprive Afghanistan in the future of one of its treasures. I strongly urge all concerned, primarily the Afghan people themselves, to spare no effort in saving this unique cultural heritage. The loss of the Afghan statues, and of the Buddhas of Bamiyan in particular, would be a loss for humanity as a whole. The perpetrators of such an irreparable act would bear a heavy responsibility before the Afghan people and history,’ he said, and concluded: ‘It is not by behaving in this way that they can hope to gain credibility with public opinion and the international community.’” For a chronology of the events in question, and some of the international reaction to them, see, UNESCO, Acts Constituting “A Crime Against the Common Heritage of Humanity”, World Heritage Committee, 25th Sess., pp. 4–11, UNESCO Doc. WHC-01/CONF.208/23.



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The Taliban’s destruction of the Buddhas of Bamiyan posed a new challenge to the international legal system of the protection of cultural property, since the destruction of the Buddhas occurred in peacetime. As established in the previous chapters, most treaties only deal with the protection of cultural property during armed conflict and the only convention, which deals with the protection of cultural property during peacetime, the 1972 World Heritage Convention, does not provide for any provisions concerning State or individual criminal responsibility.383 Furthermore, the destruction of the Buddhas showed the international community that States could destroy their own cultural heritage and therewith revealed a loophole in the regime of international protection of cultural property.384 In 2003, these observations prompted the General Conference of the UNESCO to adopt the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage.385 The purpose of the 2003 UNESCO Declaration was to clarify and reassert international obligations of States contained in international treaties on the protection of cultural heritage.386 Therefore, the Declaration foremost repeats provisions of existing treaties, which protect cultural property and are enlisted in the previous chapters. Furthermore, the Declaration’s goal was to emphasise that not only the destruction of cultural property during armed conflicts but also its intentional destruction during peacetime is prohibited by international law protecting cultural property. Declarations are instruments, which define norms but are not subject to ratification. Like recommendations, they set forth universal principles to which the international community wished to attribute the greatest possible authority but are not legally binding.387 Hence, the 2003 UNESCO Declaration is not an internationally legally binding instrument as this was not the intention of the UNESCO. The drafters of the Declaration stressed its non-binding character in the vocabulary used in a number of Articles.388 383 The Taliban’s acts constituted flagrant violations of the 1972 World Heritage Convention, which Afghanistan ratified on 20 March 1979. See, O’Keefe, World Cultural Heritage, p. 195. 384 Galindo, pp. 409. 385 UNESCO, Records of the General Conference, 32nd Sess., 29 September – 17 October 2003, 32 C/Resolution 33, Annex [hereinafter “2003 UNESCO Declaration”]. See, Brenner, p. 255–256. On the drafting process of the 2003 UNESCO Declaration, see, Hladík, UNESCO Declaration, pp. 215–230. 386 Galindo, p. 409. 387 Hladík, UNESCO Declaration, p. 217. 388 Galindo, p. 415: “For example, this expression is stated in each paragraph of Article III ‘States should …’.” See also, Carducci, National and International Protection, p. 128.

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However, there are some voices suggesting that the Declaration identified some existing rules of customary international law or that the Declaration can even be considered as the first stage of emerging customary international law.389 Therefore, it is necessary to outline the provisions, which are relevant to this writing, in the following. I. Scope of Application The 2003 UNESCO Declaration applies to both peacetime and wartime situations.390 Thus, the Declaration avoids the traditional dichotomy between international humanitarian law instruments, which are applicable essentially during armed conflicts, and instruments, which mainly protect cultural heritage during peacetime.391 Therewith, the 2003 UNESCO Declaration confirmed an emerging opinio juris as to the unlawful character of destruction of cultural property in peacetime, which had been demonstrated by the worldwide condemnation of the Taliban’s acts.392 According to Article V, during armed conflict, the Declaration is applicable in international and non-international armed conflicts as well as in cases of occupation. Reference can be made to the above-established definitions.393 II. Definition of Cultural Property The 2003 UNESCO Declaration does not provide for a definition of cultural property. In Article I, though, the Declaration refers to “cultural heritage”. The term was chosen in order to give the Declaration a broad meaning without excluding certain kinds of heritage, such as movable or immovable cultural property and tangible or intangible cultural heritage.394 Article I of the Declaration does not provide for the level of importance the respective cultural heritage has to demonstrate. Articles VI and VII, which deal with State and individual responsibility, though, indicate that responsibility is engaged only in cases of intentional destruction of “cultural heritage of great importance for humanity”. Hence, reference can be made to the

389 Galindo, p. 400. 390 Carducci, National and International Protection, p. 129. 391 Hladík, UNESCO Declaration, p. 235. 392 Francioni, Protection of Cultural Property, p. 11. 393 Supra, pp. 38–40. 394 Galindo, p. 422.



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definition of cultural heritage as provided by the 1972 World Heritage Convention.395 III. Protection of Cultural Property Article III of the 2003 UNESCO Declaration urges States to take measures to prevent, avoid, stop and suppress acts of intentional destruction of ­cultural heritage. Such measures include, according to Paragraph 2, the adoption of “the appropriate legislative, administrative, educational and technical measures, within the framework of their economic resources”. Furthermore, Paragraph 3 suggests, States should endeavour, by all appropriate means, to ensure respect for cultural heritage in society, particularly through educational, awareness-raising and information programmes.

Finally, according to Paragraph 4, States should become Parties to the main treaties, which deal with the protection of cultural property, which is probably the most important measure States should take in order to protect their cultural heritage.396 Concerning the protection of cultural property during peacetime, Article IV of the Declaration urges States to conduct their peacetime activities in conformity with the principles and objectives of the 1972 World Heritage Convention and other UNESCO Conventions.397 Hence, Articles 4 and 5 of the 1972 World Heritage Convention shall be applied.398 In the event of armed conflict or occupation, Article V urges States to take all appropriate measures to conduct their activities in such a manner as to protect cultural heritage, in conformity with customary international law and the principles and objectives of international agreements and UNESCO recommendations concerning the protection of such heritage during hostilities.

395 Supra, pp. 61 et seq. 396 The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two 1954 and 1999 Protocols and the Additional Protocols I and II to the four 1949 Geneva Conventions. 397 The 1956 Recommendation on International Principles Applicable to Archaeological Excavations, the 1968 Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, the 1972 Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage and the 1976 Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas. 398 See, supra, pp. 63.

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Accordingly, States should adopt the measures of the 1954 Hague Con­ vention and the 1999 Second Protocol, which deal specifically with the protection of cultural property during armed conflict. Remarkably, the 2003 UNESCO Declaration does not refer at all to the possibility of waiving the obligation to protect cultural property due to military necessity. This is one of the major developments of the Declaration. IV. Violations of the Declaration The 2003 UNESCO Declaration contains provisions concerning State and individual criminal responsibility, which have a similar structure. The article on State responsibility (Article VI) affirms that any State bears responsibility not only in cases when it intentionally destroys certain cultural heritage of great importance, but also when it fails to take appropriate measures to prohibit, prevent, stop and punish acts of intentional destruction of such cultural heritage. Article VII then urges States to take all appropriate measures, in accordance with international law, to establish jurisdiction over, and provide effective criminal sanctions against, those persons who commit, or order to be committed, acts of intentional destruction of cultural heritage of great importance for humanity, whether or not it is inscribed on a list maintained by UNESCO or another international organization.

The Declaration establishes in Article II(2) that intentional destruction means an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case in so far as such acts are not already governed by fundamental principles of international law.

According to Article VII, the respective cultural heritage has to be “of great importance for humanity”. Hence, not every intentional destruction of cultural heritage results in individual criminal responsibility. Article II, though, states an obligation not to destroy cultural heritage in general. This would mean that the intentional destruction of cultural heritage that is not of great importance for humanity is also permitted according to the 2003 UNESCO Declaration. During the drafting process, though, it was made clear that intentional destruction must be directed at cultural heritage of



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great importance for humanity or at cultural heritage “of special interest for the community directly affected by such destruction”.399 Since the 2003 UNESCO Declaration is applicable during armed conflict as well as during peacetime, the Declaration is the first international instrument, which criminalises the destruction of cultural property during peacetime. This was necessary since the Taliban did not destroy the Buddhas of Bamyian during armed conflict or belligerent occupation but during peacetime.400 It has to be trusted that this tendency will find its way into a binding international treaty in the near future. § 10 Interim Conclusion As could be observed in the previous explanations the legal approach to protection of cultural property has developed in two ways: on the one hand mainly at the initiative of the UNESCO, it has followed the path of codifying the rules concerning culture. On the other hand it has addressed cultural property through international humanitarian law more broadly.401 Obviously, due to these two paths the scope of application of the in the above examined instruments varies largely. The instruments dealing with international humanitarian law are only applicable during international armed conflict or belligerent occupation. It has to be held that only few of these provisions are also applicable during non-international armed conflict. The applicability of the UNESCO instruments on the other hand, cannot be categorised that easily. Whereas the 1954 Hague Convention and the 1999 Second Protocol are only applicable during international armed conflict and belligerent occupation (and some provisions during non-international armed conflict), the 1972 World Heritage Convention is mainly applicable during peacetime. It might furthermore be due to these two paths that until today there exists no universally accepted definition of cultural property. The definitions provided by the different international treaties vary broadly. Fore­ most, it has to be noted that the definitions of cultural property provided by UNESCO instruments are much more detailed than the definitions 399 Galindo, p. 442, referring to UNESCO, General Conference, 32nd Sess., Draft UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, 17 July 2003, pp. 13–14, UNESCO Doc. 32 C/25. 400 Abtahi, ICC, p. 17; Brenner, p. 258. 401 Toman, The Road to the 1999 Second Protocol, p. 14.

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provided by the instruments concerning international humanitarian law:402 the 1954 Hague Convention, and therefore also the 1999 Second Protocol, include inter alia immovable cultural property in their definitions of cultural property, whereas the definitions of the 1907 Hague Regulations and the Additional Protocols do not include those. Nevertheless, one can detect certain overlapping contents concerning the institutions, which can qualify as cultural property: all the definitions provided by the above discussed instruments include historic monuments and buildings dedicated to art. The most striking difference between the definitions of the UNESCO instruments and the instruments of international humanitarian law is that the former do not include religious buildings per se. The 1954 Hague Convention and the 1999 Second Protocol only protect religious buildings, if they are of architectural, historic or artistic value. Furthermore, the definitions vary in the importance the respective cultural property has to depict in order to fall under the respective definition. The 1907 Hague Regulations’ definition of cultural property does not include the notion of ‘importance’ at all. The 1954 Hague Convention, and therefore also the 1999 Second Protocol, then include ‘importance’ as one of the requirements for the respective property to meet the definition of cultural property. Hence, the definition of cultural property under the two UNESCO instruments is slightly stricter than the definition of the 1907 Hague Regulations. The definition of cultural property in the 1977 Additional Protocols is even stricter since it covers only a limited amount of very important cultural property for mankind. It appears that the 1972 World Heritage Convention provides the narrowest definition, which requires the respective property to be of outstanding universal value in order to qualify as cultural property or rather cultural heritage. Finally, it has to be held that also the definitions of cultural property under the various regimes of protection provided by the 1954 Hague Convention and the 1999 Second Protocol (i.e. general protection, special protection and enhanced protection) differ broadly. In conclusion, the following gradation may be compiled: (i) cultural property, which does not meet the threshold of the 1954 Hague Convention is protected under the 1907 Hague Regulations; (ii) cultural property which meets the criteria of Article 1 of the 1954 Hague Convention is covered by the regime of general protection; (iii) cultural property which meets the

402 For a detailed enumeration of all the definitions of cultural property used by the UNESCO in its conventions, see, Boylan, Appendix IV.



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requirements of special protection under the 1954 Hague Convention is under special protection; if the parties to an armed conflict are both members to the 1999 Second Protocol, the regime concerning enhanced protection is applied instead; (iv) cultural property within the meaning of Article 53 of Protocol I or Article 16 of Protocol II is eligible, as far as Parties to the two Additional Protocols are concerned, for the protection provided by these provisions; (v) religious buildings, even if they are not protected for their artistic value, may be, nevertheless, protected under the two Additional Protocols.403 It is unclear, though, where the protection provided for cultural property by the 1972 World Heritage Convention is positioned. Most likely, the protection provided by the 1972 World Heritage Convention stands outside of this compilation since the Convention only protects cultural property of the highest importance. During armed conflicts, one or more of the above treaties additionally protect the respective cultural property. It is evident that the protection provided for cultural property by the aforementioned treaties varies considerably. Not only differ the instruments among each other in terms of the protection provided for cultural property, they also vary in the level of protection provided in the instruments themselves due to the different regimes of protection provided by the 1954 Hague Convention and the 1999 Second Protocol. The rationale behind the protection of cultural property is based upon different considerations depending on the respective treaty. Earlier legal rules on warfare protected cultural property mainly because war should only affect military objectives rather than civilian ones. The later rules established by the UNESCO, inter alia the 1954 Hague Convention, follow the idea that cultural property needs to be protected since it constitutes the heritage of humankind or of a particular people.404 The greatest differences, however, can be seen in the requirements, which have to be fulfilled in order to waive the obligation to protect and respect cultural property due to military necessity. While, inter alia, the threshold for military necessity is considerably low under the 1907 Hague Regulations it is exceptionally high for cultural property under the regime of enhanced protection of the 1999 Second Protocol. It has to be held though, that the loss of protection due to military necessity of certain places constituting the cultural or spiritual heritage of mankind may create an insoluble dilemma even if the opposing party in

403 Wolfrum, Protection of Cultural Property, p. 319. 404 Wolfrum, Cultural Property, para. 4.

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the conflict is allowed to attack the respective cultural property due to military necessity. Dinstein gives a good example of such a dilemma. Israel was faced with such a dilemma in April/May 2002, upon the takeover of the famous Church of the Nativity in Bethlehem by approximately fifty Palestinian armed combatants. Although the use of the Church by armed combatants in support of a military effort turned it ipso facto into a military objective, Israel could not ignore the tremendous significance of this particular shrine to Christians the world over. Hence, Israel resorted to siege tactics and refrained from storming the site. There were sporadic exchange fires, but  – although some minor damage was done to outlying buildings – the basilica itself remained unscathed.405

This case demonstrates that there exists some exceptional cultural property that cannot be destroyed irrespective of any military necessity. Concerning the criminalisation of the destruction of cultural property, a constant development in the previously examined international instruments can be observed. The most detailed provision is provided by the 1999 Second Protocol, which not only contains an extensive list of violations directed against cultural property but also provides for detailed provisions concerning jurisdiction, prosecution, extradition and legal assistance. It has to be kept in mind, though, that the 1999 Second Protocol is only applicable during international or non-international armed conflict and belligerent occupation. The 2003 UNESCO Declaration, however, went a step further in criminalising also the destruction of cultural property during peacetime. However, the Declaration is not binding and therefore, has ­relatively little impact. Though, the 2003 UNESCO Declaration highlights a loophole in the law of the protection of cultural property, which will have to be filled in future binding treaties and the analysis of the treaty law c­ oncerning the protection of cultural property has shown that gradually, the concern for the protection of cultural property has extended to peacetime.406 Furthermore, it can be drawn from the above assessment of provisions concerning the violations of the treaties that State Parties to those international treaties are obliged to incorporate those provisions into their national legislation. However, most State Parties have been reluctant to do so, which is why many of these provisions remain a dead letter. Therefore, it is even more important to analyse in the following section of this thesis if and how

405 Dinstein, p. 1919. 406 Bassiouni, International Criminal Law, p. 213.



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the destruction of cultural property can be prosecuted under international criminal law. Given this variety of international instruments protecting cultural property from destruction, it will have to be examined in the following chapters how the international criminal tribunals incorporated those provisions in their statutes and above all how they prosecuted individuals accused of the destruction of cultural property.

CHAPTER TWO

THE PROSECUTION OF THE DESTRUCTION OF CULTURAL PROPERTY IN THE PRACTICE OF THE INTERNATIONAL CRIMINAL TRIBUNALS § 1 Structures of Crimes under International Criminal Law The following is an assessment of the relevant provisions for prosecuting the destruction of cultural property in international criminal law. Therefore, a short introduction to the concept of crimes under international criminal law has to be made first. International criminal law distinguishes between offences that create grounds for criminal liability and defences, which rule out liability. Offences consist of a material element (actus reus) and a mental element (mens rea). The material elements include all conditions that determine the external appearance of the act: the conduct, the consequences and the circumstances.1 The mental elements, on the other hand, include the required state of mind on the part of the perpetrator.2 Further, the offences may be categorised into three sub-elements, for each of which the material and the mental element must be established. With regard to war crimes and crimes against humanity, an assessment of the general requirements has to be made first. As a result, inter alia, the existence of an armed conflict or an attack against the civilian population as well as the knowledge of the perpetrator thereof has to be evaluated. As a second step, it has to be examined whether the elements of one or more underlying offences, i.e. of specific acts as defined by the tribunals’ statute, can be applied and whether the accused also manifests the required mental element. Finally, the individual criminal responsibility of the accused has to be determined.3 For the purpose of this analysis, however, the grounds for individual criminal responsibility are not relevant. The destruction of cultural property can be prosecuted under war crimes and crimes against humanity. Therefore, these two international crimes 1 Werle, paras. 383–389. 2 Werle, para. 391. 3 Rome Statute, Article 25. See also, Werle, paras. 369–371.

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will be the main focus area of the following chapters, which involves an indepth analysis of the crime’s general requirements, as well as the requirements of the respective underlying offences concerning the destruction of cultural property will be necessary. § 2 War Crimes I. Evolution and Definition After World War I, some approaches were made to try individuals for the commission of war crimes.4 Although, the first time major violations of international humanitarian law by individuals were punished, was not until after World War II when the Allied Powers tried German war criminals in the Nuremberg Trial. In Article 6(b) of the IMT Charter, the legal basis for the Nuremberg Trial, the International Military Tribunal was granted jurisdiction over “violations of the laws and customs of war”. The IMT Chamber emphasised in its judgement that the crimes defined by Article 6(b) of the Charter were already recognised as war crimes under international law. They were covered by Articles 46, 50, 52 and 56 of the Hague Convention of 1907, and Articles 2, 3, 4, 46 and 51 of the Geneva Convention of 1929. That violations of these provisions constituted crimes for which the guilty individuals were punishable is too well settled to admit of argument.5

Furthermore, the Chamber recalled that in Article 228 of the Treaty of Versailles, the German Government expressly recognised the right of the Allied Powers to bring persons accused of the commission of violations of the laws and customs of war before military tribunals.6 Out of the 24 defendants tried at the Nuremberg Trials, 19 were found guilty of the violations of the laws and customs of war.7 Also at the IMTFE, individuals were charged with the commission of war crimes, which was part of the tribunal’s jurisdiction.8 4 United Nations War Crimes Commission, Vol. I, pp. 48. After World War I, in accordance with Articles 228–230 of the Treaty of Versailles, ten high-ranking members of the German military were sentenced for the commission of war crimes. 5 France et al. v. Göring et al., IMT, Judgement of 30 September and 1 October 1946, p. 64. 6 France et al. v. Göring et al., IMT, Judgement of 30 September and 1 October 1946, p. 41. 7 France et al. v. Göring et al., IMT, Judgement of 30 September and 1 October 1946, pp. 130–131. 8 IMTFE Statute, Article 5(b).



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The next major development in relation to war crimes was the drafting of the 1949 Geneva Conventions. Even though the term ‘war crimes’ is not used in the Conventions, reference is made to “grave breaches” of the Convention.9 Each of the four 1949 Geneva Conventions determines in common Articles 49, 50, 129, 146 that “High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention”. In Article 50, the I Geneva Convention of 1949 defines the notion of ‘grave breaches’ as those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhumane treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

The inclusion of this definition should guarantee that only serious violations of the 1949 Geneva Conventions could be penalised. Nevertheless, the list is not exhaustive.10 The Additional Protocols of 1977 modify the repression mechanisms provided for in the Geneva Conventions. Unlike the 1949 Geneva Conven­ tions, Additional Protocol I specifically refers to war crimes in Article 85(5) by stating: “Without prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.” Therewith, Additional Protocol I gives a clearer definition of the notion ‘war crime’. In 1993, the ICTY Statute adopted Article 6(b) of the IMT Statute concerning the violations of the laws and customs of war11 and added in 9 See, Pictet, I Geneva Convention, p. 371: During the drafting of the 1949 Geneva Conventions “[t]he actual expression ‘grave breaches’ was discussed at considerable length. The USSR Delegation would have preferred the expression ‘grave crimes’ or ‘war crimes’. The reason why the Conference preferred the words ‘grave breaches’ was that it felt that, though such acts were described as crimes in the penal laws of almost all countries, it was nevertheless true that the word ‘crimes’ had different legal meanings in different countries”. See also, supra, pp. 41 et seq. 10 Pictet, I Geneva Convention, pp. 370–372. 11 ICTY Statute, Article 3 “Violations of the Laws and Customs of War”: “The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion,

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another article pertaining to its jurisdiction over grave breaches of the 1949 Geneva Conventions.12 Since the conflict in Rwanda was of a noninternational nature, the ICTR Statute only included jurisdiction over violations of Article 3 common to the 1949 Geneva Conventions and of Additional Protocol II.13 This constituted a rapid shift of views since until then individuals were not held responsible for the commission of war crimes in non-international armed conflicts.14 In 1996, the ILC Draft Code established a broad definition of war crimes, which includes: grave breaches of the 1949 Geneva Conventions; grave breaches listed in Article 85 of Additional Protocol I; violations of Article 3 common to the 1949 Geneva Conventions and Article 4 of the Additional Protocol II; violations of the laws and customs of war; and also violations of Articles 35 and 55 of Additional Protocol I.15 This broad definition was later on more or less adopted by the Rome Statute. Article 8(2) of the Rome Statute defines ‘war crimes’ as “grave breaches of the Geneva Convention of 12 August 1949” and also considers other acts, which are “serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law”. Further, Article 8 lists the c­ harity and education, the arts and sciences, historic monuments and works of art and ­science; (e) plunder of public or private property.” 12 ICTY Statute, Article 2 “Grave breaches of the Geneva Convention of 1949”: “The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (a) wilful killing; (b) torture or inhuman treatment, including bio­ logical experiments; (c) wilfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages.” 13 ICTR Statute, Article 4 “Violations of Article 3 common to the Geneva Conventions and of Additional Protocol I”: “The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; b) Collective punishments; c) Taking of hostages; d) Acts of terrorism; e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) Pillage; g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples; h) Threats to commit any of the foregoing acts. 14 Cottier, para. 3. 15 ILC Draft Code, p. 54–56.



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core crimes of the law of armed conflict, which also embody customary international law.16 It is important to note that Article 8(2) of the Rome Statute is not exhaustive and that there might be additional crimes, which exist under customary international law or other treaty law.17 The internationalised tribunals adopted different approaches. The Statute of the SPSC transferred the definition of war crimes verbatim from the Rome Statute.18 The drafters of the SCSL Statute chose a definition similar to the one of the ICTY Statute, however, with varying underlying offences,19 whereas the ECCC Statute only included grave breaches of the 1949 Geneva Conventions as war crimes.20 II. General Requirements As previously indicated international crimes consist of general requirements and an underlying offence. In order to assess the underlying offence of the destruction of cultural property, the general requirements for war crimes have to be demonstrated first. 1. Serious Violation of International Humanitarian Law The Rome Statute defines war crimes as, “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”.21 The Statutes of the ICTY and the ICTR as well as of the SCSL and the SPSC also adopted the concept of ‘serious’ violations of international humanitarian law.22 Although progress was made with the list of war crimes in Article 8(2) of the Rome Statute, there exists no definitive international codification, which enlists those violations of international humanitarian law, which constitute ‘serious’ violations. In order to identify serious war crimes under customary international law, Antonio Cassese suggests to examine:

16 Werle, para. 961. 17 See, Rome Statute, Article 10. 18 SPSC Statute, Section 6. 19 SCSL Statute, Articles 3 and 4. 20 ECCC Statute, Article 6. 21 Similarly, Henckaerts/Doswald-Beck, p. 568; see also, ILC Draft Code 1991, p. 104; Pictet, I Geneva Convention, p. 351. 22 ICTY Statute, Article 1; ICTR Statute, Article 1; SCSL Statute, Article 1(1); SPSC Statute, Section 6(1). The ECCC Statute only criminalises the grave breaches of the Geneva Conventions.

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In the List et al. case after World War II, the US military tribunal held: It is not essential that a crime be specifically defined and charged in accordance with a particular ordinance, statute or treaty if it is made a crime by international convention, recognized customs and usages of war, or the general principles of criminal justice common to civilized nations generally.24

Accordingly, acts not enlisted as crimes in the international instruments can also amount to serious violations of international humanitarian law and therefore to war crimes. In one of its first decisions, the ICTY chambers likewise had to deal with the question of how to determine the criminal status of violations of international humanitarian law, which are not included in the ICTY Statute’s list of war crimes.25 According to the Appeals Chamber in the Duško Tadić case, a norm must fulfil the following requirements to be considered as a serious violation of international humanitarian law: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […]; (iii) the violation must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a ‘serious violation of international humanitarian law’ […]; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.26

The fact that a war crime must constitute an infringement of interna­tional humanitarian law according to requirement (i), excludes breaches of international human rights law as well as ius ad bellum as war crimes.27 23 Cassese, International Criminal Law, p. 85. 24 United States of America v. List et al., American Military Tribunal, Judgement of 19 February 1948, in: United Nations War Crimes Commission, Vol. VIII, p. 53. 25 Werle, paras. 962–964. 26 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, para. 94. 27 Mettraux, pp. 48–49.



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Moreover, it is not always easy to determine what constitutes the seriousness of the violations stated in requirement (iii). A significant violation of international humanitarian law must always be assumed, if a person’s bodily integrity is seriously violated or his or her life is endangered. Such cases must always assumed to be a significant violation of international humanitarian law, since the acts are similar in severity to grave breaches of the 1949 Geneva Conventions.28 If an act results in no concrete harm or threat to an individual’s rights, the evaluation of a serious violation of international humanitarian law becomes more difficult. Therefore, this requires decisions on a case-by-case basis, which can be reached by analysing the purpose of the respective norm’s protection.29 With regard to requirement (iv), it is important to note that international humanitarian law originally primarily addressed States. However, the idea of individual criminal responsibility under international humanitarian law has been accepted ever since the IMT Charter and the subsequent Nuremberg Trials. While some rules of international humanitarian law clearly address individuals, others only refer to States and do not include individual criminal responsibility. The acts criminalised by the latter rules, however, may, in certain cases, be committed by individuals, if the individual in question makes decisions which can be attributed to the States which are obligated. To determine whether this is the case for a certain rule the perpetrator’s position and function have to be taken into account.30 Furthermore, the ICTY Appeals Chamber clearly held, that provided the requirements indicated above were met, the notion of serious violations of the laws of war were applicable to all armed conflicts irrespective of their nature. Consequently, serious violations of international humanitarian law are also applicable in internal armed conflicts.31 2. Existence of an Armed Conflict or Belligerent Occupation The key characteristic of war crimes is the existence of an armed conflict or belligerent occupation. While crimes against humanity and genocide may be committed in time of war as well as in peacetime, by nature and definition, war crimes require the existence of an armed conflict. This is confirmed by the ICC Elements of Crimes, all of which require that the alleged

28 Mettraux, pp. 50–51; Werle, para. 965. 29 Henckaerts/Doswald-Beck, pp. 569–573. 30 Mettraux, pp. 51–53; Werle, paras. 965–966. 31 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, para. 94.

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act “took place in the context of and was associated with an […] armed conflict”.32 However, as previously indicated, neither the 1949 Geneva Conventions and the Additional Protocols nor the Rome Statute and the statutes of the international tribunals define the term ‘armed conflict’. Instead, a definition is provided by Pictet in the Commentary on the I Geneva Convention: Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict […], even if one of the parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place.33

In the Duško Tadić case, the ICTY Appeals Chamber defined in a judicial precedent armed conflict as follows: An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.34

The ICC has endorsed this definition in its early decisions.35 a. International or Internal Armed Conflict In war crimes law, a distinction between international and noninternational armed conflict has to be made since international humanita­ rian law in its entirety is only applicable to international armed ­conflicts.36 Accordingly, the ICTY Appeals Chamber noted in the Duško Tadić decision: Two particular limitations may be noted: (i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts;

32 E.g., ICC Elements of Crimes, War Crimes, Article 8(2)(a)(i), War Crime of Wilful Killing, para. 4. 33 Pictet, I Geneva Convention, p. 32. See also, supra, pp. 38 et seq. 34 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, para. 70. This position is firmly established in the ICTY’s and other jurisprudences, see, e.g., Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 56. See also, Prosecutor v. Brima et al., SCSL (Trial Chamber), Judgement of 20 June 2007, para. 243; Prosecutor v. Sesay et al., SCSL (Trial Chamber), Judgement of 2 March 2009, para. 95. 35 See, Prosecutor v. Lubanga Dyilo, ICC (Pre-Trial Chamber), Decision of 19 January 2007, para. 209; Prosecutor v. Katanga and Ngudjolo Chui, ICC (Pre-Trial Chamber), Decision of 30 September 2008, paras. 238–239. 36 See, e.g., Greenwood, Scope of Application, para. 201.



the prosecution of the destruction of cultural property115 rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.37

However, the Appeals Chamber emphasised, “[w]hat is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.”38 The Rome Statute confirms the existence of rules limiting methods and means of combat in non-international armed conflicts in Article 8(2)(e) by enumerating twelve serious violations of the laws and customs of war applicable in armed conflicts not of an international character. According to the aforementioned definition established in the Duško Tadić precedent, “resort to armed forces between States” is an international armed conflict; and “protracted armed violence between governmental authorities and organized groups or between such groups within a State”, describes a non-international, or internal, armed conflict. The notion of “protracted armed violence” was operated to exclude “mere cases of civil unrest or single acts of terrorism”39 and “to distinguish an armed conflict from banditry, unorganized and short-lived insurrections, or terrorist activ­ ities which are not subject to international humanitarian law”.40 The chambers of the ICTY and the ICTR have emphasised that since an armed conflict “suggests the existence of hostilities between armed forces organized to a greater or lesser extent”, it is “necessary to evaluate both the intensity of the conflict and organization of the parties” in order to determine whether the situation qualifies as an internal armed conflict.41 Relevant for establishing the intensity of a conflict are, inter alia, the following criteria: (i) the seriousness of attacks and potential increase in armed clashes; (ii) the attacks spread over a certain territory and over a certain period of time; (iii) the increase in the number of government forces; (iv) the mobilisation and the distribution of weapons among both parties to the conflict; (v) whether the conflict has attracted the attention of the United Nations Security Council, and if so whether any resolutions on the matter have been passed.42 Similarly, the Rome Statute holds in 37 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, para. 126. 38 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, para. 119. 39 Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber), Judgement of 17 December 2004, para. 341. 40 Ibid., citing Pictet, II Geneva Convention, p. 33. 41 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 562. 42 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, paras. 565– 567; Prosecutor v. Delalić et al., ICTY (Trial Chamber), Judgement of 16 November 1998,

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Articles 8(2)(d) and (f), “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” are not armed conflicts. Further, Article 8(2)(f) specifies that a non-­ international armed conflict has to take place “between governmental authorities and organized armed groups or between such groups”. Hence, the Rome Statute adopted Article 1(1) of Additional Protocol II, especially concerning the requirement of some kind of organisation of the armed groups. Furthermore, Article 8(2)(f) of the Rome Statute requires that the con­flict  be “protracted” as well. Hence, the Rome Statute’s definition of non-international armed conflict is stricter than the definition provided by common Article 3 of the 1949 Geneva Conventions. Regarding the qualification of the destruction of cultural property as a war crime in international and non-international armed conflicts, the ICTY Trial Chamber concluded in the Strugar case that Article 3(d) of the ICTY Statute, specifically referring to the protection of cultural property, is a rule of international humanitarian law, which applies to both international and non-international armed conflicts.43 Similarly, the Rome Statute criminalises in its Article 8(2)(e) the destruction of cultural property in internal armed conflicts. b. Applicability, ratione temporis and loci Concerning applicability, the ICTY Appeals Chamber declared in the Duško Tadić decision that international humanitarian law applies from the ini­ tiation of an armed conflict and extends beyond the cessation of hostili­ ties until a general conclusion of peace is reached. In the case of a noninternational armed conflicts until a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of a non-international armed conflict in the whole territory under the control of a party, irrelevant, whether or not actual combat takes place there.44 Accordingly, there is no need for war crimes to be committed during or at the scene of actual fighting. However, the corresponding norm of international humanitarian paras. 188–190; Prosecutor v. Slobodan Milošević, ICTY (Trial Chamber), Decision of 16 June 2004, paras. 28–31; Proscutor v. Limaj et al., ICTY (Trial Chamber), Judgement of 30 November 2005, para. 90; Prosecutor v. Mrkšić et al., ICTY (Trial Chamber), Judgement of 27 September 2007, para. 407. 43 Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 230. 44 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision 2 October 1995, para. 66. See also e.g., Prosecutor v. Akayesu, ICTR (Trial Chamber), Judgement and Sentence of 2 September 1998, paras. 589–590; Prosecutor v. Katanga and Ngudjolo Chui, ICC (Pre-Trial Chamber), Decision of 30 September 2008, para. 381.



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law has to be consulted, as some war crimes can only be committed in direct relation to the place and time of actual fighting.45 c. Belligerent Occupation According to the ICC Elements of Crimes, the term “international armed conflict” includes belligerent occupation.46 Hence, the ICC Pre-Trial Cham­ ber decided in the Lubanga case: The Chamber considers an armed conflict to be international in character if it takes place between two or more States; this extends to the partial or total occupation of the territory of another State, whether or not said occupation meets with armed resistance.47

This definition for belligerent occupation can be derived from the 1907 Hague Regulations, which provide in Article 42 that territory is considered occupied “when it is actually placed under the authority of the hostile army” and that the occupation “extends only to the territory where such authority is established and can be exercised”.48 3. Nexus between the Underlying Offence and the Armed Conflict In war crimes law, the underlying offence must be closely linked to an armed conflict or a belligerent occupation to distinguish a war crime from an ordinary crime, which would fall under the jurisdiction of a domestic criminal court and not under the jurisdiction of an international criminal tribunal.49 This was acknowledged by the ICTY Trial Chamber when it held in the Duško Tadić case, that for a crime to fall within the jurisdiction of the ICTY, “a sufficient nexus must be established between the alleged offences and the armed conflict which gives rise to the applicability of international

45 Werle, para. 1000. 46 ICC Elements of Crimes, War Crimes, Article 8(2)(a)(i), War Crime of Wilful Killing, para. 4, fn. 34. 47 Prosecutor v. Lubanga, ICC (Pre-Trial Chamber), Decision of 29 January 2007, para. 209. Similarly, the ICTY Trial Chamber decided in Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, paras. 148–150: “Article 53 describes the property that is protected under the Conventions in terms if the prohibitions applicable in the case of an occupation […]. The only provisions of Geneva Convention IV which assists with any definition of occupation are Articles 2 and 6. Article 2 states: ‘The Convention shall also apply to all cases of partial or total occupation […] even if said occupation meets with no armed resistance’ while Article 6 provides that Geneva Convention IV ‘shall apply from the outset of any conflict or occupation mentioned in Article 2’.” 48 See, supra, p. 28. 49 ICC Elements of Crimes, War Crimes, Article 8(2)(a)(i), War Crime of Wilful Killing, para. 4. See also, e.g., Prosecutor v. Mrkšić et al., ICTY (Trial Chamber), Judgement of 27 September 2007, para. 423; Mettraux, p. 38–39.

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humanitarian law.”50 Also, the ICC Elements of Crimes require, that “[t]he conduct took place in the context of and was associated with an (international) armed conflict”.51 In its Duško Tadić decision the ICTY Appeals Chamber clarified that the offence has to be “closely related to the hostilities occurring in either parts of the territories controlled by the parties to the conflict”.52 Therefore, war crimes may be committed outside the area of actual combat, as long as they show a close connection to the armed conflict.53 Furthermore, it is necessary to conclude that the act, which could have also been committed in the absence of an armed conflict, was perpetrated against the victim(s) in question because of the respective armed conflict.54 Accordingly, the existence of an armed conflict must play a substantial part in the perpetrator’s ability to commit the violation of international humanitarian law, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.55 The prerequisites developed by the ICTY were adopted by the ICTR in several cases.56 In determining whether the act is sufficiently linked to the armed conflict, the ad hoc and internationalised tribunals as well as the ICC inter alia take the following factors into account for their assessments: (i) the status of the perpetrator (as a soldier or combatant); (ii) the status of the victim or victims (as non-combatant); (iii) the circumstances in which the crime was committed; (iv) the fact that the crime was committed in the context of an ongoing campaign to achieve particular military goals; (v) the fact that the crime coincided with the ultimate purpose of the military campaign; (vi) the fact that the crime was committed with the assistance or with the connivance of the warring parties; (vii) the fact that the crime was c­ ommitted as part of, or in the context of, the perpetrator’s official duties; (viii) the fact that the victim was a member of the forces of the opposing party.57

50 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 572. 51 ICC Elements of Crimes, Introduction to Article 8. 52 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, para. 70. 53 Werle, para. 1003. 54 Prosecutor v. Aleksovski, ICTY (Trial Chamber), Judgement of 25 June 1999, para. 45. 55 See, e.g., Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 58. 56 Prosecutor v. Akayesu, ICTR (Trial Chamber), Judgement of 2 October 1998, paras. 630–634, 638–644; Prosecutor v. Kayishema and Ruzindana, ICTR (Trial Chamber), Judgement of 21 May 1999, paras. 185–189, 590–624; Prosecutor v. Musema, ICTR (Trial Chamber), Judgement of 27 January 2000, paras. 259–262, 275, 974. However, in all these cases the Prosecution failed to prove the nexus between the crime and the armed conflict. 57 Mettraux, p. 46. See also, Prosecutor v. Furundžija, ICTY (Trial Chamber), Judgement of 10 December 1998, paras. 63 and 65; Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 59; Prosecutor v. Limaj et al., ICTY (Trial Chamber),



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4. Mens Rea a. Mens Rea in General The ad hoc tribunals have not developed a uniform rule applicable to all crimes under international criminal law concerning the required mens rea.58 This changed with the adoption of the Rome Statute. The Rome Statute contains in Article 30(1), a provision, which defines the mental element of all crimes under the jurisdiction of the ICC, as “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. According to Article 30(2), two requirements have to be fulfilled in order for a person to have intent: “(a) [i]n relation to conduct, that person means to engage in the conduct; (b) [i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events”. The notion of knowledge is defined in Article 30(3) as “aware­ ness that a circumstance exists or a consequence will occur in the ordinary course of events”. Hence, the intent requirement relates to the conduct of the respective crime and its consequences, while the knowledge requirement relates to the circumstances of the respective crime and its consequences.59 Similarly, the ICTY Appeals Chamber stated in the Naletilić and Martinović case that, the principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante, based on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.60

Judgement of 30 November 2005, para. 91; Prosecutor v. Brima et al., SCSL (Trial Chamber), Judgement of 20 June 2007, para. 247; Prosecutor v. Sesay et al., SCSL (Trial Chamber), Judgement of 2 March 2009, para. 101; Prosecutor v. Katanga and Ngudjolo Chui, ICC (PreTrial Chamber), Decision of 30 September 2008, para. 382. 58 Werle, para. 393. 59 See, Werle, paras. 400–401. 60 Prosecutor v. Naletilić and Martinović, ICTY (Appeals Chamber), Judgement of 3 May 2006, para. 114.

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To recapitulate, the mental elements of an international crime are fulfilled when the perpetrator commits the material elements with intent and knowledge, which means that the perpetrator wants to engage in the conduct and to cause the consequences. Furthermore, the perpetrator needs to know that the circumstance exists. b. Mens Rea for War Crimes Concerning the mental element of war crimes, the ICC Elements of Crime require, in addition to the requirements set out in Article 30 of the Rome Statute, that “the perpetrator was aware of factual circumstances that established the existence of an armed conflict”. While ostensibly sever, this knowledge requirement is tempered by three factors: (i) there is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international; (ii) in that context, there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international; (iii) there is only a requirement for the awareness of the factual circumstances, which established the existence of an armed conflict.61 The ICTY Appeals Chamber corroborated these requirements, stating that, [t]he perpetrator only needs to be aware of factual circumstances on which the judge finally determines the existence of the armed conflict and the international (or internal) character thereof. It is a general principle of criminal law that the correct legal classification of a conduct by the perpetrator is not required. The principle of individual guilt, however, demands sufficient awareness of factual circumstances establishing the armed conflict and its (international or internal) character.62

To sum up, war crimes have to be committed with intent, as well as know­ ledge. Additionally, the perpetrator has to be aware of the factual circumstances that established the existence of an armed conflict. III. Underlying Offences with Regard to Destruction of Cultural Property 1. Lex Generalis Several underlying offences of war crimes concern the destruction of civilian property. Article 8(2)(a)(iv) of the Rome Statute criminalises the “extensive destruction and appropriation of property, not justified by military 61 ICC Elements of Crimes, Introduction to Article 8. 62 Prosecutor v. Naletilić and Martinović, ICTY (Appeals Chamber), Judgement of 3 May 2006, para. 119.



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necessity and carried out unlawfully and wantonly” in international armed conflicts. This provision is based on the grave breaches of the 1949 Geneva Conventions.63 Under the section “other serious violations of the laws and customs applicable in international armed conflict” the Rome Statute covers in Article 8(2)(b)(ii) “[i]ntentionally directing attacks against civilian objects, that is, objects which are not military objectives”. The provision is derived from Article 52 of Additional Protocol I, which explains why no such provision exists for non-international armed conflicts. Yet, in Article 8(2)(e)(xii) the Rome Statute criminalises “destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of war” in non-international armed conflict. Almost the same provision is repeated in Article 8(2)(b)(xiii) for international armed conflict. The language of the Rome Statute derived here from Article 23(g) of the 1907 Hague Regulations and Article 53 of the IV Geneva Convention of 1949. Additionally, Articles 8(2)(b)(xvi) and 8(2)(e)(v) criminalise the pillaging of towns and places in international respectively noninternational armed conflict. The respective provisions of some of the statutes of the ad hoc and internationalised tribunals differ from the Rome Statute’s provisions. While the SPSC Statute again adopted verbatim the respective provisions from the Rome Statute, the SCSL as well as the ICTR Statute only criminalise pillage.64 The respective provisions of the ICTY Statute on the other hand are similar to the ones of the Rome Statute concerning grave breaches of the 1949 Geneva Conventions. Also the drafters of the ECCC Statute included these crimes. Article 3 of the ICTY Statute, which deals with violations of the laws and customs of war, however, does not contain any provisions concerning the penalisation of attacks against civilian property.65 Furthermore, the provision concerning the destruction of the adversary’s property as contained in the Rome Statute cannot be found in the ICTY Statute. Instead, ICTY Statute Article 3(b) criminalises the “wanton destruction of cities, towns or villages”. 2. Lex Specialis To evaluate the relevant provisions for prosecuting the destruction of cultural property, however, the main focus for the following remarks lies on Article 8(2)(b)(ix) of the Rome Statute, which criminalises 63 See, supra, pp. 41 et seq. 64 ICTR Statute, Article 4(f); SCSL Statute, Articles 3(f) and 5(b); SPSC Statute, Sections 6(1)(a)(iv), (b)(ii) and (b)(xiii); ECCC Statute, Article 6. 65 ICTY Statute, Articles 2(d), 3(b) and (e).

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The respective provision of the SPSC reads alike.66 Furthermore, the ICC, as well as the SPSC have jurisdiction over the same crimes committed in a non-international armed conflict.67 Neither the ICTR, nor the SCSL nor the ECCC68 offer similar provisions in their statutes. The provision dealing with the destruction of cultural property in the ICTY Statute varies slightly by criminalising in Article 3(d) the “seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science”.69 It is striking that none of these provisions particularly refer to ‘cultural property’. Instead, they seem to have adopted the traditional language used by international treaties dealing with the laws of war rather then the treaties of the UNESCO, which specifically deal with the protection of cultural property. Namely, the statutes adopted the definitions of the 1907 Hague Regulations and of the 1949 Geneva Conventions and its Additional Protocols but not the definitions of cultural property as provided by the 1954 Hague Convention and its 1999 Second Protocol.70 This might be due to the fact that there exists no universally accepted definition of the concept of ‘cultural property’.71 However, in the Jokić case the ICTY Trial 66 SPSC Statute, Section 6(1)(b)(ix) adopted the text from the Rome Statute for the ICC. Neither the ICTR Statute nor the SCSL Statute and the ECCC Statute contain war crimes provisions specifically for the prosecution of the destruction of cultural property. 67 Rome Statute, Article 8: “(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: […] (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.” With the exact same wording SPSC Statute, Section 6(1)(e)(iv). 68 The ECCC Statute included violations of the 1954 Hague Convention under Article 7 of the ECCC Statute. This will be examined in the next chapter of this writing. 69 Meron, p. 44: “The practice of our Tribunal [the ICTY] has been to use Article 3, Section D as the statutory provision under which to punish destruction of cultural property. None of the cases so far has done so under Section D of Article 2. The reason for this practice is two-fold. First, Article 3, Section D is a more specific provision than Article 2, Section D, because it expressly describes the kind of property whose destruction is punishable under the Statute. […] Secondly, […] under the jurisprudence of the Tribunal, Article 3, which concerns violations of laws or customs of war, applies both to international and internal armed conflicts.” 70 Frulli, Offences against Cultural Heritage, pp. 207–208; Gottlieb, p. 865; Meron, p. 43; Wallenfels, p. 219. 71 Frulli, Case-Law of the ICTY, p. 196.



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Chamber stated that even though Article 3(d) of the ICTY Statute closely follows the 1907 Hague Regulations, especially its Articles 27 and 56, the 1954 Hague Convention provides a more stringent protection for cultural property through its obligations to safeguard and respect.72 Hence, the ICTY Trial Chamber proposed in the Jokić case that ICTY chambers in general should also take the 1954 Hague Convention into account when assessing cases concerning the destruction of cultural property during armed conflict. Nevertheless, the purpose of these provisions is to specifically criminalise the destruction of cultural property as opposed to civilian property and therefore, they constitute a lex specialis to the aforementioned crimes against civilian property.73 As mentioned by the ICTY Trial Chamber, the object of the offence under Article 3(d) of the ICTY Statute is more specific than the general prohibition on civilian property, because it represents “the cultural heritage of a certain population”.74 Accordingly, concerning the destruction of cultural property, Article 8(2)(b)(ix) of the Rome Statute and Article 3(d) of the ICTY Statute are going to be important for the following remarks. Nonetheless, as will be established in the following, Article 8(2)(b)(ix) of the Rome Statute is foremost applicable to situations of ongoing-armed conflict. During belligerent occupation, therefore, Article 8(2)(b)(xiii) shall be applied.75 This can be derived from the travaux préparatoires since the original proposal submitted by the United States had explicitly stated that only the seizure or destruction of such enemy property “within one’s custody or control” was supposed to be covered by that provision.76 72 Prosecutor v. Jokić, ICTY (Trial Chamber), Judgement of 18 March 2004, paras. 47–48. 73 See, Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 302; Prosecutor v. Martić, ICTY (Trial Chamber), Judgement of 12 June 2007, para. 97. 74 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 361. 75 Zimmermann, para. 144: “In that regard, one has to take note of the fact that otherwise the inclusion of the prohibition of seizing the enemy’s property would have, given the realities of modern warfare, not made much sense. To the contrary, situations of seizing frequently arise within the context of belligerent occupation.” 76 Proposal Submitted by the United States, UN Preparatory Committee on the Establishment of an International Criminal Court, Working Group on the definition of crimes, 11–21 February 1997, UN Doc. A/AC.249/1997/WG.1/DP.1, (14 February 1997), part (B), (v). Zimmermann, para. 144: “During informal consultations among a certain number of States, where agreement could be reached to include that provision, it was further agreed to delete the just mentioned words in order for the provision to be completely in line with the original text of the 1907 Hague Convention Respecting the Laws and Customs of War on Land with the understanding, however, that such deletion would not expand the scope of application of that provision. Accordingly this clarification was no longer contained in the text submitted to the Rome Conference for its consideration.”

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As it has been defined by the ICTY chambers, there are four elements to Article 3(d) ICTY Statute: (i) damage to, or destruction of, protected institutions; (ii) protected institutions, which fall within the definition of cultural property, that is dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (iii) where such property has not been used for military purposes, and; (iv) the damage or destruction was carried out intentional, in that the acts resulting in the destruction were directed against the protected cultural property.77 Similarly, pursuant to the ICC Elements of Crime, the following criteria need to be met for Article 8(2)(b)(ix) Rome Statute to be applicable: 1. The perpetrator directed an attack. 2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purpose, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives. 3. The perpetrator intended such building or buildings to be the object of the attack. 4. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.78

Concerning Article 8(2)(b)(xiii) Rome Statute, the ICC Elements of Crimes stipulate the following prerequisites: 1. The perpetrator destroyed or seized certain property. 2. Such property was property of a hostile party. 3. Such property was protected from that destruction or seizure under the international law of armed conflict. 4. The perpetrator was aware of the factual circumstances that established the status of the property. 5. The destruction or seizure was not justified by military necessity. 6. The conduct took place in the context of and was associated with an international armed conflict. 7. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

The prerequisites of Articles 8(2)(b)(ix) and 8(2)(b)(xiii) Rome Statute differ slightly: First, the acts, which are criminalised, are different, and second, the property, which is protected by the respective provisions, is distinct. The other prerequisites concerning military necessity and mens rea are the same. In the following, these prerequisites will be defined by evaluating existing case law. 77 Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, paras. 310–312. See also, Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 184; Prosecutor v. Naletilić and Martinović, ICTY (Trial Chamber), Judgement of 31 March 2003, para. 605; Prosecutor v. Hadžihasanović and Kubura, ICTY (Trial Chamber), Judgement of 15 March 2006, para. 58; Acquaviva, War Crimes, p. 303; Boas/Bischoff/ Reid, p. 268. 78 ICC Elements of Crimes, Article 8(2)(b)(ix), War crime of attacking protected objects.



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3. Object of the Offence As determined above, the respective provisions of the statutes do not mention the term cultural property when referring to the protected institutions. Instead, cultural property is described in Articles 8(2)(b)(ix) and 8(2) (e)(iv) of the Rome Statute as “buildings dedicated to religion, education, art, science or charitable purposes [and] historic monuments”. Similarly, Article 3(d) ICTY Statute defines cultural property as “institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science”. Even though the definitions of cultural property provided by the Rome Statute and the ICTY Statute differ from the definition for cultural property as provided by the 1954 Hague Convention, the two provisions of international criminal law cover a significant part of what has been defined as cultural property in Article 1 of the Convention.79 As opposed to the 1954 Hague Convention, though, the definitions of cultural property of the Rome Statute and the ICTY Statute include religious institutions. Unlike Article 3(d) ICTY Statute, which refers to “works of art and science”, the provisions of the Rome Statute, however, do not include movable cultural property in the definition of the object of the offence. Hence, the contents of the buildings and institutions enlisted in Articles 8(2)(b)(ix) and 8(2)(e)(iv) Rome Statute are not protected by those provisions, which is contrary to customary international law.80 According to Roberta Arnold in the Commentary on the Rome Statute, the institutions mentioned by Article 8(2)(b)(ix) Rome Statute can be classified into four main categories: cultural objects, places for the collection of those in need (e.g. hospitals), institutions dedicated to religion and others dedicated to education.81 For the following assessment, the emphasis will be placed on cultural objects as well as institutions dedicated to religion and education. Analysing the prosecution of the destruction of places of those in need as well would go beyond the scope of this writing. The ICTY chambers defined ‘cultural objects’ by referring to the definition of cultural property in the various international treaties protecting cultural property in armed conflict. In the Strugar case, the ICTY Trial Chamber examined the sources of Article 3(d) ICTY Statute in international customary and treaty law to define the notion of ‘cultural objects’. These sources include: Article 27 of the 1907 Hague Conventions IV, 79 Meron, p. 43. 80 Frulli, Offences against Cultural Heritage, pp. 212; Gottlieb, p. 866. 81 Arnold, para. 99.

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Article 53 of the Additional Protocol I, Article 16 of Additional Protocol II and the 1954 Hague Convention. The Trial Chamber came to the conclusion that all the property enlisted in these instruments is cultural property protected under Article 3(d) ICTY Statute.82 In the cases concerning the destruction of cultural property the ICTY chambers mainly had to deal with the destruction of educational and religious institutions since those were the main targets during the armed conflict in the former Yugoslavia.83 In this regard, it has to be noted that while the drafters of the Rome Statute chose the wording ‘buildings’ the ICTY refers to ‘institutions’. Even though ‘buildings’ is narrower than ‘institutions’, since the latter term also covers monuments and other objects, it can be assumed that the meaning of these two expressions is the same. However, since ‘buildings’ is misleading, for convenience, in the following, reference will be made to ‘institutions’ as an umbrella term for buildings, monuments and other objects. Concerning institutions dedicated to religion, the ICTY Trial Chamber stated in the Brđanin case: Institutions dedicated to religion are protected under the Statute and under customary international law. Articles 27 and 56 of the Hague Regulations provide for the protection in armed conflict of, among others, institutions dedicated to religion. The protection is reiterated in both Additional Protocol I and II to the 1949 Geneva Conventions, in Articles 53 and 16 respectively.84

The Trial Chamber acknowledges though, that religious institutions are only protected under Article 53 of Additional Protocol I and Article 16 of Additional Protocol II if they are part of the cultural or spiritual heritage of peoples. In all the other cases, Article 52 of the Additional Protocol I nevertheless protects them, since pursuant to Article 52, institutions dedicated to religion are civilian objects and should therefore not be attacked.85 In 82 Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 230. See also, Prosecutor v. Jokić, ICTY (Trial Chamber), Judgement of 18 March 2004, paras. 47–50; Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber), Judgement of 17 December 2004, paras. 89–92; Meron, pp. 47–48. 83 Abhati, ICTY, pp. 2–3. See also, Detling, p. 67; Ehlert, pp. 135–138. One case, though, deals explicitly with the destruction of “an international landmark”, namely the Old Bridge of Mostar. Prosecutor v. Prlić et al., ICTY (Prosecutor), Initial Indictment of 2 March 2004, para. 116. The accused were inter alia found guilty for the destruction of the Old Bridge of Mostar. As of September 2013 the appeal is pending. See for details, Petrovic, pp. 251–259. 84 Prosecutor v. Brđanin, ICTY (Trial Chamber), Judgement of 1 September 2004, para. 595. See, Meron, p. 54. 85 Prosecutor v. Brđanin, ICTY (Trial Chamber), Judgement of 1 September 2004, para. 596. See also, supra, pp. 74 et seq.



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the case of Hadžihasanović and Kubura the ICTY Trial Chamber, however, implements that “there is no need to establish whether [the institution dedicated to religion] represented the cultural heritage of a people” in order to prosecute its destruction.86 In contrary and corroborating the conclusions drawn in the Brđanin judgement, the ICTY Trial Chamber decided in a later case – referring to Article 53 of Additional Protocol I – that, “[s]pecial protection is granted to ‘historic monuments, works of art, and places of worship, provided they constitute the cultural or spiritual heritage of peoples’”.87 The ‘cultural or spiritual heritage of peoples’ covers “objects whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people”.88 Thus, the Trial Chamber concludes, “special protection does not encompass all the […] institutions dedicated to education or religion”.89 Hence, only those religious institutions fall under the definition of cultural property provided for in Article 3(d) of the ICTY Statute, which form the cultural or spiritual heritage of peoples. According to the ICTY Trial Chamber in the Kordić and Čerkez case, “educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples in that they are without exception centres of learning, arts, and sciences, with their valuable collections of books and works of arts and science”. To substantiate these assumptions, the Trial Chamber referred to the Roerich Pact, “which requires respect and protection to be accorded to educational institutions in time of peace as well as in war”.90 However, the ICTY Appeals Chamber in the same case dismissed the Trial Chamber’s broad definition of protected educational institutions since customary international law does not criminalise the destruction of educational institutions as cultural pro­ perty.  In order to prove this assumption, the Appeals Chamber refers to Article 52(3) of the Additional Protocol I, which designates schools as civilian property.91 Hence, the act is criminalised by the lex generalis concern­ing the destruction of civilian property. In certain cases, though,

86 Prosecutor v. Hadžihasanović and Kubura, ICTY (Trial Chamber), Judgement of 15 March 2006, para. 60. 87 Prosecutor v. Martić, ICTY (Trial Chamber), Judgement of 12 June 2007, para. 97. 88 Ibid., citing Wenger, paras. 2063–2068. See also, supra, pp. 71 et seq. 89 Prosecutor v. Martić, ICTY (Trial Chamber), Judgement of 12 June 2007, para. 97. 90 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 360. 91 Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber), Judgement of 17 December 2004, para. 92.

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the educational institution can fall under the lex specialis if the institution amounts to a cultural object as defined above. To recapitulate, the objects of the offence under Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute and Article 3(d) of the ICTY Statute are cultural objects as defined by the international treaties. Religious and educational institutions are protected as long as they meet the special requirement of “cultural heritage of a people”. Furthermore, pursuant to the ICTY Trial Chamber in the Blaškić case, these institutions must “clearly be identified as dedicated to religion or education”.92 To conclude, it can be held that the ICTY Trial Chamber adopted the requirements of Article 85(4)(d) of the Additional Protocol I.93 Unlike the above described provisions, Articles 8(2)(b)(xiii) and 8(2)(e) (xii) of the Rome Statute criminalise the destruction of the enemy’s respectively adversary’s property which has to be protected under the international law of an armed conflict.94 Therefore, in order to be protected against destruction or seizure, the property under consideration must possess an enemy character, which is according to the ICC Elements of Crimes, “property of a hostile party”.95 This excludes property belonging to either nationals of the belligerent itself or to nationals of third State parties, not participating in the conflict. Consequently, the nationality of the victim of the destruction or seizure has to be determined.96 It is ambiguous whether the provision also protects public property. The rules of customary international law concerning enemy property enshrined in the 1907 Hague Regulations (Articles 46 and 53) clearly distinguish between private property and public property.97 Furthermore, when consulting the travaux préparatoires, it has to be noted that the United States and Colombia had proposed that the ICC Elements of Crimes refer specifically to “private or public” property.98 Later, though, it was agreed upon not to include this specification and that the term ‘property’ would, in any event, include 92 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 185. See also, Domínguez-Matés, p. 878. 93 See, supra, pp. 80 et seq. 94 ICC Elements of Crimes, “Article 8(2)(b)(xii), War crime of destroying or seizing the enemy’s property”, para. 3. 95 ICC Elements of Crimes, “Article 8(2)(b)(xii), War crime of destroying or seizing the enemy’s property”, para. 2. 96 Zimmermann, para. 147. 97 Zimmermann, para. 148. 98 Proposal Submitted by the United States of America, Draft Elements of Crimes, Second Session of the Preparatory Commission (26 July – 13 August 1999), PCNICC/1999/ DP.4/Add.2 and Proposal submitted by Colombia, Comments on the proposal by the delegations of Costa Rica, Hungary and Switzerland concerning Article 8(2)(b) of the Rome



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both, private and public property.99 Additionally, the respective property has to be protected by international humanitarian law to fall under Articles 8(2)(b)(xiii) and 8(2)(e)(xii). For the purpose of this analysis, the property, which has been defined as cultural property protected under international humanitarian law in the preceding chapter, is relevant and unequivocally falls under Articles 8(2)(b)(xiii) and 8(2)(e)(xii). 4. Nature of the Offence Concerning the nature of the act, Article 3(d) of the ICTY Statute criminalises the “seizure of”, “destruction”, and “wilful damage” done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments, and works of art and science. Similarly, Article 8(2)(b)(xiii) of the Rome Statute penalises the “destroying or seizing of the enemy’s property”. There is not a single case, which was decided by the internationalised or ad hoc tribunals, which deals with the ‘seizure of’ cultural property. Moreover, analysing the prosecution of the seizure of cultural property is not a core objective of the thesis at hand. Therefore, it is not going to be relevant for the following remarks. There exists no formal definition of ‘destruction’ or ‘damage’ under international humanitarian law. Thus, to define these notions, the ICTY Trial Chamber in the Milutinović case consulted the Oxford English Dictionary and stated that “the terms ‘destruction’ and ‘damage’ are given their plain and common meanings, where the former term signifies demolition or reduction to a useless form, and the latter refers to physical injury or harm to an object that impairs its usefulness or value”.100 Furthermore, it has to be noted that ‘attacks’ and ‘destruction’ are clearly interrelated. In active combat, the destruction of property typically takes the form of an attack against that property or an attack against some other objective in its vicinity. Similarly, when particular property becomes the object of an attack, this attack often results in the property being totally or partially destroyed.101 It has to be held at this point, that the ICTY chambers have not clearly stated whether there is any difference between ‘destruction’ and ‘damage’ for the purpose of this provision, particularly to what extend ‘damage’ amounts to the ‘destruction’ of cultural property. Statute, Second Session of the Preparatory Commission (26 July – 13 August 1999), PCNICC/1999/WGEC/DP.16. See also, Zimmermann, para. 148. 99 Hosang, p. 171. 100 Prosecutor v. Milutinović et al., ICTY (Trial Chamber), Judgement of 26 February 2009, para. 207. 101 Hayashi, p. 110.

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The Rome Statute uses in Articles 8(2)(b)(ix) and 8(2)(e)(iv) the broader notion of ‘attacks’ directed against cultural property. The term ‘attack’ is defined in Article 49(1) of the Additional Protocol I and means “acts of violence against the adversary, whether in offence or in defence”.102 Therefore, inter alia also the placing of mines constitutes an attack.103 O’Keefe argues in the contrary by stating that acts of hostility, such as the demolition of cultural property by the planting of explosives or by bulldozers are not attacks in the meaning of Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute. Thus, he suggests that in such cases Articles 8(2)(b)(xiii) and 8(2) (e)(xii) of the Rome Statute be applied.104 However, as established above, the purpose of Articles 8(2)(b)(xiii) and 8(2)(e)(xii) is to cover acts committed during belligerent occupation rather than acts of hostilities not amounting to attacks; especially since the notion of ‘attack’ is extremely broad and almost all acts of hostility fall under this provision. Since the Rome Statute criminalises in Articles 8(2)(b)(ix) and 8(2)(e) (iv) the “directing” of attacks against cultural property, the question is whether actual damage to the protected object is required. The travaux préparatoires clarify that during the drafting of the Rome Statute, a majority of the delegations favoured that actual damage to the respective property should not be required for the act to be criminalised. It should be sufficient that the attack was intentionally directed against the respective institutions.105 Also, the ICC Elements of Crimes do not impose any requirement that there must be a consequence or result of the attack. Even though during the drafting of the ICC Elements, there were proposals on both extremes – one favouring a result and the other explicitly excluding one – but neither was adopted.106 In this respect, the perspective of the Rome Statute is consistent, because no result is required concerning the crimes of attacking civilian objects according to Article 8(2)(b)(ii) of the Rome Statute.107 Therewith, the Rome Statute goes further than the Additional Protocol I did, since it requires in Article 85(4)(d) “extensive destruction” of the respective cultural property for a grave breach of Additional Protocol I.108 102 Pilloud/de Preux, Article 49, para. 1880. See also, supra, pp. 74 et seq. 103 Pilloud/de Preux, Article 49, para. 1881. 104 O’Keefe, Protection under International Criminal Law, p. 17. In contrary, Toman, 1999 Second Protocol, p. 771. 105 Dörmann, Elements of War Crimes, p. 215; Toman, 1999 Second Protocol, p. 770. 106 Pfirter, p. 163. 107 Schabas, ICC, p. 237. 108 Supra, pp. 80 et seq. See also, Hector, p. 74: “The Rome Statute thus makes an important improvement towards widening the category of prohibited conduct that generates individual criminal responsibility.”



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It has to be held, though, that Article 53 of Additional Protocol I and Article 16 of Additional Protocol II, which deal with the protection of cultural property, do not require actual damage. The ICTY chambers came to the same conclusion. In the ICTY’s Jokić case, which prosecuted the destruction of the Old Town of Dubrovnik,109 the Trial Chamber noted in the discussion of aggravating circumstances in its Sentencing Judgement that, under Article 53 of Additional Protocol I and Article 16 of Additional Protocol II, direct attacks against protected cultural heritage were prohibited irrespective of whether they resulted in actual damage.110 Therefore, the mere attack on such institutions, notwithstanding the absence of actual damage done, might lead to a conviction under Article 3(d) ICTY Statute. However, in the Strugar case, which was decided one year later, the ICTY Trial Chamber held that actual damage was necessary for a criminalisation of the act.111 Subsequent case law of the ICTY confirmed this requirement.112 The provision of the Rome Statute went a step further by, as previously indicated, not requiring actual damage, as an attack, regardless of the result, constitutes an offence. Therefore, O’Keefe suggests that the ICC position is the better, since the underlying substantive rule of customary international law, namely Article 51(5)(b) of the Additional Protocol I prohibits directing attacks against cultural property.113 It is peculiar that the Rome Statute as well as the statutes of the ad hoc and internationalised tribunals fail to criminalise the use of cultural property by the holder or one who exercises control over the property in support of a military action, even though Article 53 of Additional Protocol I and Article 16 of Additional Protocol II as well as Article 4(1) of the 1954 Hague Convention prohibit the use of all cultural objects in support of military effort.114 Accordingly, the ICTY Trial Chamber stated in the Strugar case115 concerning the attack on the Old Town of Dubrovnik, Croatia, that if the Croatian defenders had installed defensive military positions in the 109 For an in-depth analysis of the Jokić case, see, Meron, pp. 50–54; see also, Ehlert, pp. 140–141. 110 Prosecutor v. Jokić, ICTY (Trial Chamber), Judgement of 18 March 2004, para. 50, citing Wenger, paras. 2067; 2069–2072. See also, Gonzalez, pp. 64–65. 111 Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 308: “Therefore, a requisite element of the crime […] is actual damage or destruction occurring as a result of an act directed against this property.” 112 Prosecutor v. Hadžihasanović and Kubura, ICTY (Trial Chamber), Judgement of 15 March 2006, para. 58; Prosecutor v. Martić, ICTY (Trial Chamber), Judgement of 12 June 2007, para. 96. 113 O’Keefe, Protection of Cultural Property, p. 345. 114 Gottlieb, p. 867. 115 For an in-depth analysis of the Strugar case, see, Ehlert, p. 143; Meron, pp. 50–54.

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Old Town of Dubrovnik, it would have been “a clear violation of the World Heritage protected status of the Old Town”.116 However, no case law exists on this issue. Hence, it is not clear how the ICTY chambers would have decided in such a case and foremost, if the use of cultural property in support of a military action really qualifies as an act punishable under Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute and Article 3(d) of the ICTY Statute. In conclusion, an attack aimed at cultural property is punishable under international criminal law. According to the ICTY’s case law, actual damage to the cultural property in question is required, which is contrary to the respective provisions of international humanitarian law and therefore an unsatisfiable development. Commendably, though, the Rome Statute criminalises the directing of an attack and does not require actual damage to the cultural property in question. In practice, however, it might be difficult for the prosecution’s side to prove that an attack was directed against cultural property without any damage done to the respective object. Especially in cases were the protected institution is located in the immediate vicinity of military activities or military installations, “the practical result may be that it cannot be established that the acts which caused destruction of or damage to cultural property were ‘directed against’ that cultural property, rather than the military installation or use in its immediate vicinity”.117 5. Level of Gravity of the Offence According to customary international law, war crimes do not require to be widespread or directed against a certain group as required for crimes against humanity. A war crime can be committed against a single victim.118 Nevertheless, it is axiomatic that a war crime has to be a serious violation of the law and customs of war.119 Therefore, in the following an assessment has to be made to which extent the protected institution has to be damaged or destroyed to amount for a serious violation of the laws and customs of war. 116 Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, paras. 183, 193, 195. Based on the evidence presented in that case, the Trial Chamber found no evidence to support the argument that the Croatian forces indeed established such military positions, and asserted that even if such evidence existed it would not have justified the nature, extent, and duration of the attack on the Old Town. 117 Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 310. 118 Sandoz, p. 307. 119 See, supra, pp. 111 et seq.



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The Rome Statute and the ICC Elements of Crimes do not specify the level of gravity required for the destruction of cultural property to amount to a war crime. However, the ICC Elements of Crimes state that “[t]he object of the attack was one or more buildings” (italics supplied).120 Hence, the assumption can be made that the damage or destruction of one building can already amount to a war crime under the Rome Statute. Nevertheless, it has to be noted that Article 8(2)(a)(iv) of the Rome Statute only criminalises the “extensive destruction and appropriation of property” (italics supplied). Furthermore, according to Zimmermann in the Commentary on the Rome Statute, “it has to be taken into account that the ICC’s jurisdiction as a whole shall be limited to the most serious crimes of concern to the international community as a whole”. Thus, “singular incidents of illegal seizures or acts of destruction, which only concern items of marginal value and which are not committed on a somewhat larger scale would normally not be subject to the jurisdiction of the ICC”.121 Yet, the ICC Elements of Crimes refer to the destruction or seizure of “certain” property thereby implying that even a single incident of destruction or seizure might already constitute a crime under this provision.122 Although Article 3(d) of the ICTY Statute uses the plural ‘institutions’, it should be intended to prohibit any destruction of or damage to any institution.123 In the Naletilić and Martinović case, Mladen Naletilić was, inter alia accused of the destruction of one single mosque in Sovići, Bosnia and Herzegovina.124 Even though the Trial Chamber did not decide on this matter (the defendant was acquitted upon that count, since there was not enough evidence of his implication in the destruction of this particular mosque),125 one could assume that the destruction of one single mosque would be sufficient to meet the requirements of Article 3(d) ICTY Statute. The Jokić case dealt with the destruction of the Old Town of Dubrovnik, Croatia, which at the time of the attack was listed on the UNESCO’s World Heritage List.126 The ICTY Trial Chamber stressed in that case that the extent of effected destruction must be taken into account in assessing the gravity of the defendant’s criminal act. As the Trial Chamber explained, 120 ICC Elements of Crimes, Article 8(2)(b)(ix), para. 2. 121 Zimmermann, para. 152. 122 ICC Elements of Crimes, Article 8(2)(b)(xiii), para. 1. 123 Mettraux, p. 95. 124 Prosecutor v. Naletilić and Martinović, ICTY, Second Amended Indictment of 28 September 2001, para. 56. For an in-depth analysis of the case, see, Meron, p. 49. 125 Prosecutor v. Naletilić and Martinović, ICTY (Trial Chamber), Judgement of 31 May 2003, paras. 606–610. See also, Frulli, Offences against Cultural Heritage, p. 209. 126 See, supra, p. 65.

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“the attack on the Old Town was particularly destructive. Damage was caused to more than 100 buildings, including various segments of the Old Town’s walls, ranging from complete destruction to damage to nonstructural parts”. Furthermore, the Trial Chamber remarked concerning the special protection of the Old Town of Dubrovnik under the 1972 World Heritage Convention that, “since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town, constituted of civilian buildings and resulting in extensive destruction within the site”. It concluded that, “the unlawful attack on the Old Town must therefore be viewed as especially wrongful conduct”.127 Hence, the status of special protection of the Old Town of Dubrovnik under the 1972 World Heritage Convention plays a role in assessing the level of gravity. One can assume that the destruction of cultural property inscribed on the 1972 World Heritage List fulfils the required level of gravity to amount to a war crime, even if only one institution was destroyed. In the same decision, the Trial Chamber also commented on the possibility of restoring the damaged historical institutions, stating that, “restoration of buildings of this kind, when possible, can never return the buildings to their state prior to the attack because a certain amount of original, historically authentic material will have been destroyed, thus affecting the inherent value of the buildings”.128 This leads to the conclusion that, even if there is the possibility of restoring damaged cultural property; this fact does not constitute a mitigating circumstance in favour of the defendant. In another case, the ICTY Trial Chamber stated that the condition [of seriousness] is met when the damage or destruction constitutes a breach of a rule protecting important values and involves grave consequences for the victim. The Chamber notes that while civilian property is afforded general protection under customary international law, special attention is paid to certain property, namely religious buildings, owing to their spiritual value. Because those values go beyond the scope of a single individual and have a communal dimension, the victim here must not be considered as an individual but as a social group or community. The Chamber considers that the destruction of or damage to the institutions referred to in Article 3(d) of the Statute constitutes grave breaches of international law when the destruction or damage is sufficiently serious to constitute desecration. The Chamber considers that the seriousness of the crime of destruction 127 Prosecutor v. Jokić, ICTY (Trial Chamber), Judgement of 18 March 2004, para. 53. See also, Gonzalez, pp. 64–65; Meron, p. 51. 128 Prosecutor v. Jokić, ICTY (Trial Chamber), Judgement of 18 March 2004, para. 52.



the prosecution of the destruction of cultural property135 of or damage to institutions dedicated to religion must be ascertained on a case-by-case basis, and take much greater account of the spiritual value of the damaged or destroyed property than the material extent of the damage or destruction.129

Hence, even if only a single institution is destroyed it can fulfil the required level of gravity if its destruction affects several people. The destruction of a church, inter alia, can affect the entire religious community in the village in which the church was located. To sum up, even the damage or destruction of one single protected institution can amount to a war crime, especially if the respective institution is granted enhanced protected by international law, inter alia the 1972 World Heritage Convention. Also, the destruction of one single institution can amount to a war crime if the values of said institution have a communal dimension. The possibility of restoration of the damaged or destroyed property does not release from individual criminal responsibility. Yet, one has to keep in mind that the jurisdiction of the ICC, the ad hoc and internationalised tribunals is limited to the most serious crimes of concern for the international community as a whole. Therefore, considerations have to be made on a case-by-case basis. 6. Not Justified by Military Necessity As already established in the previous chapter, the obligation to protect cultural property is not absolute. Cultural property may lose its protection if it is used for military purposes or if its destruction is demanded by military necessity. Hence, in accordance with the 1954 Hague Convention and the 1999 Second Protocol as well as the Additional Protocols, Articles 8(2) (b)(ix) and 8(2)(e)(iv) as well as Articles 8(2)(b)(xiii) and 8(2)(e)(xii) of the Rome Statute criminalise the attack against cultural property “provided they are not military objectives”. Similarly, the statutes of the ad hoc and internationalised tribunals criminalise the destruction of cultural property only if the destruction is not justified by military necessity.130 Accordingly, the lack of military necessity is an element of the crime and has thus to be 129 Prosecutor v. Hadžihasanović and Kubura, ICTY (Trial Chamber), Judgement of 15 March 2006, para. 63. 130 Even though Article 3(d) ICTY Statute does not contain the ‘military necessity’requirement, ICTY chambers established that the destruction of cultural property can be justified by military necessity. See, Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 185; Prosecutor v. Naletilić and Martinović, ICTY (Trial Chamber), Judgement of 31 March 2003, para. 604; Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, paras. 298–300.

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proven by the prosecution in order to charge a defendant under a certain count. It may not be considered as a defence by the defendant. However, the lack of a definition of military necessity and the ambiguity of Article 31, which deals with the grounds for excluding criminal responsibility, do not allow to rule out that military necessity could be raised by a defendant charged with attacks against cultural property.131 Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute, like the Additional Protocols and the 1999 Second Protocol, instead of referring to the concept of military purposes or military necessity, they refer to the more specific concept of military objectives. However, neither the Rome Statute nor the ICC Elements of Crime define the notion of ‘military objectives’. Military objectives are defined by Article 52(2) of the Additional Protocol I as objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.132

Furthermore, Article 52(3) Additional Protocol I provides, in case of doubt whether an object which is normally dedicated to civilian purpose, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.

Since no cases have dealt with this issue, the ICTY chambers have not defined the notion of ‘military necessity’ nor have they discussed the requirements of military necessity at any length.133 Therefore, reference can be made to the explanations in the previous chapter.134 Yet, is has to be held that the ICTY’s chambers have made factual determinations about the existence or absence of military necessity in the context of the destruction of cultural property.135 A good example was given by the ICTY Appeals Chamber in the Brđanin case,136 in which the accused was held responsible 131 Frulli, Offences against Cultural Heritage, p. 214; see also, Knoops, pp. 76–80, 83–89, 136. 132 Supra, p. 73. See, Henckaerts/Doswald-Beck, pp. 29–32. On the emergence of Article 52 Additional Protocol I into customary international law see, O’Keefe, Protection of Cultural Property, pp. 318–323. 133 Hayashi, p. 101. 134 See, inter alia, supra, pp. 17 et seq. 135 Hayashi, p. 101. 136 For an in-depth analysis of the Brđanin case, see, Meron, pp. 54–55.



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for destroying mosques and churches with mines and other explosives, and for tearing them down with heavy machinery and for setting fire to them.137 According to the ICTY Appeals Chamber: The very manner in which many of the sites were damaged or destroyed, including the time required to mine churches, mosques, and minarets and to blow them up (or to set them on fire), suggests that these installations contained no military threat, but were instead systematically destroyed because of their religious significance to the ethnicities targeted. There is nothing to suggest that their destruction provided any kind of advantage in weakening the military forces opposing the Bosnian Serbs, favoured the Bosnian Serb position, or was otherwise justified by military necessity.138

It is worth emphasising that the destruction of cultural property is not only justified under international humanitarian law if the respective cultural property itself has been turned into a military objective. According to the ICTY Trial Chamber in the Blaškić case, the respective cultural property, furthermore, – in order to be the object of the offence – cannot be in the immediate vicinity of military objectives.139 In a later decision by the ICTY Trial Chamber, this requirement was, however, dismissed. In the Naletilić and Martinović case, the ICTY Trial Chamber concluded that the mere fact that a given institution is in the immediate vicinity of a military objective does not justify its destruction.140 Hence, the location is irrelevant for the cultural property in question to be the object of the offence. In order to corroborate this assumption, ICTY chambers refer to Article 27 of the 1907 Hague Regulations, which explicitly states that it is not because of the location of cultural property, but because of their use as military objectives that cultural property may lose its protection. Furthermore, ICTY chambers have referred to Article 16 of the 1999 Second Protocol, which strengthens this view.141 Article 16 holds, that when and as long as the respective cultural property has, by its function, been made into a military objective, its protected status is waived. The fundamental principle is that, protection of whatever nature will be lost if cultural property is used for military 137 Prosecutor v. Brđanin, ICTY, Sixth amended Indictment of 9 December 2003, para. 63. 138 Prosecutor v. Brđanin, ICTY (Appeals Chamber), Judgement of 3 April 2007, para. 341. 139 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 185. 140 Prosecutor v. Naletilić and Martinović, ICTY (Trial Chamber), Judgement of 31 March 2003, para. 604. 141 See, Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, paras. 300–301, 310. Disagreeing with Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 185, (requiring that the property not be in the vicinity of legitimate military objectives). See also, Prosecutor v. Martić, ICTY (Trial Chamber), Judgement of 12 June 2007, para. 98. Meron, p. 53.

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purposes.142 Nevertheless, it has to be noted that according to Article 23(g) of the 1907 Hague Regulations and Article 4(2) of the 1954 Hague Convention, cultural property which has been made into a military objective may be attacked only when and for as long as there is no feasible alternative available for obtaining a similar military advantage to that offered by directing an act of hostility against that objective.143 Significantly, even though the existence of a protected institution in the immediate vicinity of military activities or installations does not justify its destruction, the ICTY Trial Chamber concluded in the Strugar case that the practical result may be that it cannot be established if the acts, which caused destruction of or damage to cultural property, were “directed against” that cultural property, rather than at the military installation in its immediate vicinity.144 It can be assumed that the ICC will adopt this approach. The protection of cultural property under recent developments in international criminal law is very broad, as the protective status can only be waived if the cultural property itself has been made into a military object and military necessity requires its damage or destruction. In particular, there must be a military advantage from the total or partial destruction of the cultural property. Furthermore, turning a protected institution into a military object can be prosecuted under war crimes law. It has to be noted, though, that in reality cultural property will not, in many cases, constitute a military objective for which military necessity requires its destruction. O’Keefe enlists few examples: Historic fortresses, barracks, arsenals and the like might be said to make by their nature an effective contribution to military action, although when decommissioned they are better characterised as historic monuments […]. Historic bridges, railway stations, docks and other forms of civil infrastructure could conceivably, by their purpose […], make an effective contribution to military action […]. The location of cultural property – that is, its position on the battlefield in relation to the positions of the opposing parties – may also make an effective contribution to either’s military action, for example by obstructing a line of sight or line of fire, although, in cases where a party has deliberately positioned itself so as to take advantage of this, the contribution to military action is better characterised as a function of the passive or de facto use of the property in question.145 142 See, Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 362. Trial Chamber stating that this is “consistent with the customs codified in Article 27 of the Hague Regulations”. 143 O’Keefe, Protection of Cultural Property, p. 326. See also, supra, pp. 53 et seq. 144 Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 310. 145 O’Keefe, Protection under International Criminal Law, pp. 12–13.



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It is clear from the foregoing that an attack on cultural property can only be justified by military necessity if the respective cultural property has been used for military purpose and accordingly has been made into a military objective or if the respective cultural property has been located in the immediate proximity of military objectives.146 7. Mens Rea Additionally, to the above-established mental elements concerning the general requirements, the perpetrator has to fulfil the mental elements of the underlying offence. Regarding the required mens rea for the destruction of cultural property, the Rome Statute states in Article 8(2)(b)(ix) that the attack against the protected institutions has to be committed “intentionally”. Similarly, the ICTY chambers stated “the damage or destruction must have been committed intentionally to institutions which may clearly be identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts” (italics supplied).147 Contrary, the ICTY Statute criminalises “seizure of, destruction or wilful damage done to institutions”.148 The ICTY chambers did not indicate why it chose the term ‘intentionally’ instead of ‘wilfully’ as may be derived from the ICTY Statute. The ICTY chambers might have just adopted the language of Article 85(4) of the Additional Protocol I, which states that the attack on the cultural property has to be committed wilfully. In another case however, the ICTY chambers held that the destruction or damage must be committed “wilfully” and that “the accused intends by his acts to cause the destruction or damage of institutions dedicated to religion or education and not used for military purpose” (italics supplied).149 The ICTY chambers defines the wilful nature of the destruction or damage to be established when the perpetrator acted intentionally, with the knowledge and will of the proscribed result, or in reckless disregard of the likelihood of the destruction.150 146 Frulli, Case-Law of the ICTY, p. 199. 147 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 185; see also, Prosecutor v. Naletilić and Martinović, ICTY (Trial Chamber), Judgement of 31 March 2003, para. 603; Prosecutor v. Hadžihasanović and Kubura, ICTY (Trial Chamber), Judgement of 15 March 2006, para. 58. 148 ICTY Statute, Article 3(d) (italics supplied). 149 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 361. 150 Prosecutor v. Hadžihasanović and Kubura, ICTY (Trial Chamber), Judgement of 15 March 2006, para. 59, referring to Prosecutor v. Brđanin, ICTY (Trial Chamber), Judgement of 1 September 2004, para. 599.

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Hence, the difference between ‘intentionally’ and ‘wilfully’ is only of a ­rhetorical nature. A controversial issue while drafting the Rome Statute was whether the term “intentionally” was related solely to the directing of an attack or also the object of the attack, as is required by Article 85(4) of the Additional Protocol I. The travaux préparatoires adopted the latter approach. Therefore, the ICC Elements of Crime require that the perpetrator must have known about the protected status of the institution. Similarly, the ICTY Trial Chamber decided in the Blaškić case that the accused must have committed the damage or destruction intentionally to institutions, which may “clearly be identified as dedicated to religion or education” (italics supplied).151 Additionally, the perpetrator must have knowledge of the institution’s failure to qualify as a military objective, and nevertheless carry out the attack. However, he does not have to make a legal assessment of the protected status of the institutions. He merely needs to know the factual circumstances, which give the objects a special status.152 How the ICTY chambers would deal with this issue could have been addressed by the ICTY Trial Chamber in the Jokić case, which dealt with the attack on the Old Town of Dubrovnik, Croatia. The defendant admitted in his guilty plea that he was aware of the fact that the old town of Dubrovnik was in its entirety a UNESCO World Cultural Heritage site pursuant to the 1972 Convention for the Protection of the World Cultural and Natural Heritage. He was further aware that a number of buildings in the Old Town and the towers of the Old Town’s Walls were marked with the symbols mandated by the 1954 Hague Convention.153 Since the defendant submitted a guilty plea, however, the Trial Chamber did not discuss this factor in the judgement. In conclusion, the mental element of the underlying offence requires the perpetrator to intentionally attack the protected institution. Furthermore, the perpetrator has to have knowledge of the institutions protected status and he has to know that the institution does not qualify as a military objective. 151 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 185; see also, Wolfrum, Cultural Property, para. 23. 152 Arnold, para. 99. Different opinion, Wallenfels, p. 220: “It is not realistic to assume that a combatant in a conflict, who is in most cases unfamiliar with the foreign terrain on which he is fighting and who might very well come from a completely different culture, can easily recognise buildings of cultural or religious significance on the territory of the enemy.” 153 Prosecutor v. Jokić, ICTY (Trial Chamber), Judgement of 18 March 2004, paras. 23, 55. See, Acquaviva, War Crimes, p. 302; Meron, p. 50.



the prosecution of the destruction of cultural property141 § 3 Crimes against Humanity

I. Evolution and Definition Crimes against humanity were first explicitly subjected to individual criminal responsibility in the IMT Charter after World War II.154 According to Article 6(c) of the IMT Charter, crimes against humanity are murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.155

Of the 24 defendants indicted at the IMT, 17 were found guilty of crimes against humanity.156 In the IMT Charter crimes against humanity were linked to the initiation of war which is why the applicability of Article 6(c) IMT Charter was limited to events that took place after 1939, when war broke out in Europe.157 Without such a connecting element, though, the Charter would have violated the sovereignty of States because the war-connecting element was indispensable to link crimes against humanity to pre-existing conventional and customary international law prohibiting certain conduct of war, which crimes against humanity extended to the civilian population of States.158 In the only two cases in which the IMT found a defendant guilty exclusively of crimes against humanity (Streicher case and von Schirach case), the Tribunal did not specify the nature, content, and scope of the link between crimes against humanity and war crimes.159 Control Council Law No. 10 also provided for prosecutions of crimes against humanity, adopting a definition that did not require the nexus with other crimes within the Law.160 154 For a detailed evolution of crimes against humanity, see, Bassiouni, Crimes against Humanity, pp. 86–166. 155 For an in-depth analysis of Article 6(c) of the IMT Charter see, Schwelb, pp. 188–197. 156 France et al. v. Göring et al., IMT, Judgement of 30 September and 1 October 1946, pp. 130–131. 157 France et al. v. Göring et al., IMT, Judgement of 30 September and 1 October 1946, p. 65. 158 Bassiouni, Crimes against Humanity, p. 33. 159 Cassese, International Criminal Law, p. 106. 160 Control Council Law No. 10, Article II(1)(c): “Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.” See, Schwelb, p. 217.

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The drafters also removed the requirement of a nexus with an armed conflict.161 The definition of crimes against humanity of the IMT Charter was adopted not only by the IMTFE but also by the ad hoc tribunals.162 The ICTY Statute adopted from the IMT Charter the required nexus with an armed conflict for crimes against humanity whereas the ICTR Statute does not require this link. The ICTY’s requirement of an armed conflict is unique to this ad hoc tribunal and according to the ICTY Appeals Chamber, contrary to customary international law.163 Furthermore, it has to be held that the language of the IMT judgement itself supports that the requirement for a nexus between crimes against humanity and war crimes or crimes against peace was a jurisdictional requirement, which was particular to the IMT Charter since the judgement makes reference to “crimes within the meaning of the Charter” (italics supplied).164 Therefore, this requirement is not going to be relevant for the following remarks.165 Furthermore, the ICTR requires for crimes against humanity that the attack upon civilian populations must be “widespread or systematic”.166 Concerning the underlying

161 Bassiouni, Crimes against Humanity, p. 33: “Article II(c) of CCL 10 removed the warconnecting element by virtue of the complete powers that the Council had at that time over Germany, which had unconditionally surrendered to the Allies, who exercised German sovereignty in that country’s territory.” See also, Schwelb, pp. 217–218. 162 ICTY Statute, Article 5 “Crimes against humanity”: “The International Criminal Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecution on political, racial and religious grounds; (i) other inhumane acts.” ICTR Statute, Article 3 “Crimes against humanity”: “The International Tribunal for Rwanda shall have the power to prosecute ­persons responsible for the following crimes when committed as part of a widespread or s­ystematic attack against any civilian population on national, political, ethnic, racial or ­religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecution on political, racial and religious grounds; (i) Other inhuman acts.” 163 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, paras. 140, 141: “The nexus in the Nuremberg Charter between crimes against humanity and the other two categories, crimes against peace and war crimes, was peculiar to the context of the Nuremberg Trial established specifically ‘for the just and prompt trial and punishment of the major war criminals of the European Axis countries’. […] It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict.” Citing IMT Charter, Article 1. See also, Boas/Bischoff/ Reid, p. 27; Cassese, Crimes against Humanity, p. 356; Schabas, Atrocities, p. 59. 164 France et al. v. Göring et al., IMT, Judgement of 30 September and 1 October 1946, p. 56. 165 For an overview on this unique requirement, see, Mettraux, pp. 148–152. 166 ICTR Statute, Article 3.



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offences the statutes of the ad hoc tribunals added to the IMT Charter’s enumeration torture, rape and imprisonment. The ILC Draft Code 1996 broadened the definition of crimes against humanity by including additional underlying offences,167 which did play an important role in the negotiations on the Rome Statute.168 In 1998 the Rome Statute adopted in its Article 7 crimes against humanity, as follows: [A]ny of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparably gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in para­ graph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The underlying offences of Article 7 of the Rome Statute are far more detailed and cover a wider range of crimes than any prior formulation of crimes against humanity. Also concerning crimes against humanity the internationalised tribunals adopted different approaches. The Statute of the SPSC transferred the definition of crimes against humanity verbatim from the Rome Statute.169 The drafters of the SCSL Statute chose a definition similar to the one of the ICTY Statute.170 The respective provision of the SCSL Statute does not require, however, a nexus with an armed conflict. Furthermore, the 167 ILC Draft Code 1996, Article 18: “A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a government or by any organization or group: a) murder; b) extermination; c) torture; d) enslavement; e) persecution on political, racial, religious or ethnic grounds; f) institutionalized discrimination on political, racial, religious or ethnic grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; g) arbitrary deportation or forcible transfer of population; h) arbitrary imprisonment; i) forced disappearance of persons; j) rape, enforced prostitution and other forms of sexual abuse; k) other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm.” 168 Werle, para. 788. 169 SPSC Statute, Section 5. 170 SCSL Statute, Article 2.

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drafter’s added more underlying offences concerning sexual violence. The ECCC Statute adopted a definition of crimes against humanity identical to the ICTR’s definition.171 Like the elements of crimes for war crimes, the elements of crimes for crimes against humanity are divided in general requirements and the applicable underlying offence. The following sections will analyse these two components of crimes against humanity. II. General Requirements In 2002, the ICTY Appeals Chamber set forth in the Kunarac case the general requirements, which must be satisfied before an underlying offence qualifies as a crime against humanity: (i) There must be an attack. (ii) The acts of the perpetrator must be part of the attack. (iii) The attack must be directed against any civilian population. (iv) The attack must be widespread or systematic. (v) The perpetrator must know that his acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his acts fit into such a pattern.172

Similarly, the ICC Elements of Crimes state for each crime against humanity: The conduct was committed as part of a widespread or systematic attack directed against a civilian population. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.173

Depending on the respective statute the attack must additionally be committed “on national, political, ethnical, racial or religious grounds”.174 The following assessment is based on these requirements. 1. Part of a Widespread or Systematic Attack a. Attack The definition of crimes against humanity clearly requires that the acts must occur as part of an attack. The notion attack is further elaborated 171 ECCC Statute, Article 5. 172 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 85. 173 E.g. ICC Elements of Crimes, Article 7(1)(a), Crime against humanity of murder, paras. 2, 3. 174 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 297.



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upon in Article 7(2)(a) of the Rome Statute stating that attack “means a course of conduct involving the multiple commission of acts referred to in para­graph 1 [of Article 7 Rome Statute]”. The requirement of multiple commission of acts is fulfilled if the same act is committed multiple times or if several different acts are committed. However, a single act may likewise constitute a crime against humanity if it fits within the overall context as stated by the ICTY Trial Chamber in the Duško Tadić case: Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be held liable. Although it is correct that isolated, random acts should not be included in the definition of crimes against humanity […].175

According to the ICTY Appeals Chamber in the Kunarac case, “a crime would be regarded as an ‘isolated act’ when it is so far removed from the attack that, having considered the context and circumstances in which it was committed, it cannot reasonably be said to have been part of the attack”.176 In such cases, the isolated act may constitute grave infringements of human rights or, depending on the circumstances, war crimes, but not a crime against humanity.177 Nevertheless, the decision of the ICTY Trial Chamber in the Mrkšić et al. case is a recent recognition of the fact that a single act by a perpetrator can constitute a crime against humanity. In that decision the Trial Chamber stated: Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such an individual committing a crime against a single victim or a limited number of victims might be recognized as guilty of a crime against humanity if his acts were part of a specific context identified above.178

Therefore, it is important to determine when a single act can be regarded as being linked to an attack. Rodney Dixon suggests adopting the factors, which assist in determining whether there is a nexus between a war crime

175 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 649. 176 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 100. 177 Cassese, International Criminal Law, p. 101. 178 Prosecutor v. Mrkšić et al., ICTY (Trial Chamber), Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence of 3 April 1996, para. 30.

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and an armed conflict as set for by the ad hoc tribunals and which have been previously described.179 It is important to note that the concept of ‘attack’ and that of ‘armed conflict’ are distinct and independent. Therefore, the ICC Elements of Crimes explicitly state that the acts do not need to constitute a military attack.180 This was affirmed by the ICTY Appeals Chamber when stating that “the attack in the context of a crime against humanity is not limited to the use of armed force; it encompasses any mistreatment of the civilian population”.181 Furthermore, the attack also does not need to occur in relation to armed hostilities or an armed conflict. Even though the IMT Charter and the ICTY Statute contained this prerequisite, the definition of crimes against humanity in customary international law does not require a nexus with an armed conflict.182 According to the ICTY Trial Chamber, “under customary international law, the attack could precede, outlast, or continue during the armed conflict, but not be part of it”.183 Additionally, Article 7(2)(a) of the Rome Statute requires the attack to be “pursuant to or in furtherance of a State or organizational policy”. The ICC Elements of Crimes specify: “It is understood that ‘policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population.”184 Subsequent jurisprudence of the ICC indicates that, “such a policy may be made either by groups of persons who govern a specific territory or by any organisation with the capability to commit a widespread or systematic attack against a civilian population”.185 The requirement of a State or an organisational policy was neither required by the IMT and IMTFE Charters nor by the statutes of the ad hoc tribunals. However, the ICTY chambers discussed this issue frequently with contradictory results.186 Finally, in the Kordić and 179 Dixon, para. 10. See, supra, pp. 117 et seq. 180 ICC Elements of Crimes, Article 7 Crimes against humanity, Introduction, para. 3. 181 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 86. 182 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Decision of 2 October 1995, para. 141: “It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict.” See also Cassese, Crimes against Humanity, p. 356. 183 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 70. See also, Abhati, ICC, p. 16. 184 ICC Elements of Crimes, Article 7 Crimes against humanity, Introduction, para. 3. 185 Prosecutor v. Katanga and Ngudjolo Chui, ICC (Pre-Trial Chamber), Decision of 30 September 2008, para. 398. 186 See, Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 654; Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 204.



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Čerkez judgement, the ICTY Trial Chamber held that the existence of a policy to commit criminal acts “should better be regarded as indicative of the systematic character of the offences charged as crimes against humanity” and therefore not an additional requirement the attack has to fulfil.187 Furthermore, the ICTY Appeals Chamber found in the Kunarac et al. case that there is no requirement of a State or other policy with respect to crimes against humanity since there exists no such requirement under customary international law.188 In addition, the Appeals Chamber stated, it may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic (especially the latter) to show that there was in fact a policy or plan, but it may be possible to prove these things by reference to other matters. Thus, the existence of a policy or plan may be evidentially relevant, but is not a legal element of the crime.189

The ICTY Appeals Chamber deemed it necessary to reject the requirement of a State policy or organisational plan in order to broaden the scope of crimes against humanity to apply to non-State actors.190 However, William Schabas holds that the ICTY Appeals Chamber’s explanation is unconvincing and bolsters the Rome Statute’s additional requirement by stating that “the reference to ‘State or organizational policy’ in article 7(2) [of the Rome Statute] should probably be construed broadly enough to encompass entities that act like States even if they are not formally recognized as such”.191 Furthermore, M. Cherif Bassiouni observes that the ICTY Appeals Chamber erred in its finding that the requirement of a State or organisational policy does not reflect customary international law, because the State policy has been an element of crimes against humanity since its implication at the IMT.192 In order to define the requirement of State or organisational policy, it is necessary to look into decisions the ICC has made, which have addressed this element of crimes against humanity. The ICC Pre-Trial Chamber in the 187 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, paras. 181–182. 188 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, fn. 114, referring inter alia to France et al. v. Göring et al., IMT, Streicher Judgement of 30 September and 1 October 1946, pp. 84, 254, 304; France et al. v. Göring et al., IMT, von Schirach Judgement of 30 September and 1 October 1946, pp. 318–319; Article II(1)(c) of Control Council Law No 10. 189 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 98. 190 Bassiouni, Crimes against Humanity, p. 25. 191 Schabas, ICC, pp. 151–152; see also, Bassiouni, Crimes against Humanity, pp. 26–28. 192 Bassiouni, Crimes against Humanity, pp. 20–23, 25.

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Katanga et al. case provided that the requirement is intended to ensure that an attack, “even if carried out over a large geographical area or directed against a large number of victims, must still be thoroughly organised and follow a regular pattern”.193 In the Bemba case, the ICC Pre-Trial Chamber ruled that a policy “may be made by groups of persons who govern a specific territory or by any organisation with the capability to commit a widespread or systematic attack against a civilian population. The policy need not be formalized”.194 Hence, also non-State actors can commit crimes against humanity as long as they depict State-like characteristics in order to be capable to commit a widespread or systematic attack against a civilian population.195 The policy does not have to be precise and it is does not necessarily have to come from the highest level. The presence of the policy element can be gathered from the totality of the circumstances.196 “Significant evidence includes actual events, political platforms or writings, public statements or propaganda programs and the creation of political or administrative structures.”197 To recapitulate, an attack in the context of crimes against humanity is a course of conduct involving the multiple commissions of acts or a single act as long as there is a link with the widespread or systematic attack. The respective acts do not need to constitute a military attack. Moreover, the requirement of “State or organizational policy”, as set forth by the Rome Statute, should be incorporated in the requirements of the attack as a legal element of the crimes against humanity even though, presently, it is controversial if it represents customary international law. b. Widespread or Systematic The attack against the civilian population has to manifest a widespread or systematic character. This requirement was established in order to distinguish a crime against humanity from an ordinary crime, which would fall under the jurisdiction of a domestic criminal court and not of an international criminal tribunal. The ILC explained that the notion ‘widespread’ refers to “the number of victims”.198 Subsequent jurisprudence of the ad hoc tribunals as well as the ICC has defined ‘widespread’ as referring “to the large-scale nature of the 193 Prosecutor v. Katanga et al., ICC (Pre-Trial Chamber), Decision of 30 September 2008, para. 398. 194 Prosecutor v. Bemba, ICC (Pre-Trial Chamber), Decision of 15 June 2009, para. 81. 195 Bassiouni, Crimes against Humanity, p. 28. 196 Werle, para. 812, referring to Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 204. 197 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 204. 198 ILC Draft Code 1996, p. 47.



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attack and the number of targeted persons”.199 Furthermore, the acts must be “massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims” and the act must involve an attack which was “carried out over a large geographical area or an attack in a small geographical area directed against a large number of civilians”.200 Based on the practice of the ICTY chambers, if it is demonstrated that the crimes committed against a small group of individuals in village A, are in fact part of a broader criminal campaign taking place in a wider area comprising, among other villages, village A, then it is possible to consider the crimes committed against that relatively small number of villagers in village A a crime against humanity.201 Concerning the term ‘systematic’, the ILC stated that the attack, in order to be systematic, has to be pursuant to “a preconceived plan or policy”. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts. The reason of this requirement is to exclude a random act which was not committed as part of a broader plan or policy.202 Subsequent jurisprudence of the ad hoc tribunals as well as the ICC has adopted an expansive definition of ‘systematic’ by referring “to the organised nature of the acts of violence and the improbability of their random occurrence”.203 Therefore, ‘systematic’ consists of two components: 199 Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber), Judgement of 17 December 2004, para. 94. See also, Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 94; Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 July 2004, para. 101; Prosecutor v. Limaj et al., ICTY (Trial Chamber), Judgement of 30 November 2005, para. 183; Prosecutor v. Muvunyi, ICTR (Trial Chamber), Judgement of 12 September 2006, para. 512; Prosecutor v. Muhimana, ICTR (Trial Chamber), Judgement of 28 April 2005, para. 527; Prosecutor v. Katanga et al., ICC (Pre-Trial Chamber), Decision of 20 September 2008, paras. 394–397; Prosecutor v. Bashir, ICC (Pre-Trial Chamber), Decision of 4 March 2009, para. 81. 200 Prosecutor v. Bemba, ICC (Pre-Trial Chamber), Decision of 15 June 2009, para. 83. See also, Prosecutor v. Katanga and Ngudjolo Chui, ICC (Pre-Trial Chamber), Decision of 30 September 2008, paras. 395 and 398; Prosecutor v. Akayesu, ICTR (Trial Chamber), Judgement of 2 September 1998, para. 580; Prosecutor v. Ntakirutimana et al., ICTR (Trial Chamber), Judgement of 21 February 2003, para. 804; Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 206, citing the Report of the International Law Commission on the work of its forty-eighth session, 6 May - 26 July 1996, Official Records of the General Assembly, 51st Sess., Supplement No. 10, UN Doc. A/51/10 [hereinafter “ILC REPORT 1996”] and holding that the attack may be widespread due to “the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude”. 201 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, paras. 625, 635, 637–638, 642–646, 649. See also, Abhati, ICC, p. 28. 202 ILC Report 1996, p. 47. 203 See, Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 94; Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 July 2004, para. 101; Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber) Judgement of

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(i) the acts must be organised and not random; and (ii) these acts must be repeated or continuous.204 The ICTY chambers have identified factors that can be taken into consideration in determining whether an attack qualifies as widespread or systematic.205 These factors include: (i) the consequences of the attack upon the targeted population; (ii) the number of victims; (iii) the nature of the acts; (iv) the possible participation of officials or authorities; (v) the existence of identifiable patterns of crimes;206 (vi) the existence of an acknowledged policy targeting a particular community;207 (vii) the establishment of parallel institutions meant to implement this policy; (viii) the employment of considerable financial, military or other resources; (ix) the repeated, unchanging and continuous nature of the violence.208 Accordingly, to amount to a crime against humanity the attack must – additionally to the aforementioned requirements – be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims. Furthermore, the attack must be carried out over a large geographical area or in a small geographical area directed against a large number of civilians. Additionally, the attack has to be organised and not random as well as repeated or continuous. Finally, the civilian population and the territorial scope have to be determined coherently, in order for the criminal acts to be connected to each other.209 2. Directed against any Civilian Population The widespread or systematic attack must be directed against ‘any civilian population’ to constitute for a crime against humanity. The use of the term ‘directed’ means that the civilian population must be the primary object and not just an incidental victim of the attack.210 Furthermore, the expression ‘directed against’ a civilian population serves to clarify that customary international law obliges parties to the conflict to distinguish at all times between the civilian population and combatants, 17 December 2004, para. 94; Prosecutor v. Muvunyi, ICTR (Trial Chamber), Judgement of 12 September 2006, Prosecutor v. Katanga and Ngudjolo Chui, ICC (Pre-Trial Chamber), Decision of 30 September 2008, paras. 397–398. 204 Abtahi, ICC, p. 22. 205 Taylor, p. 292. 206 Prosecutor v. Blagojević and Jokić, ICTY (Trial Chamber), Judgement of 17 January 2005, para. 545. 207 Prosecutor v. Jelisić, ICTY (Trial Chamber), Judgement of 14 December 1999, para. 53. 208 Prosecutor v. Blagojević and Jokić, ICTY (Trial Chamber), Judgement of 17 January 2005, para. 545. 209 Abhati, ICC, p. 33. 210 Prosecutor v. Kunarac et al., ICTY (Trial Chamber), Judgement of 22 February 2001, para. 421.



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and obliges them not to attack a military objective if the attack is likely to cause civilian casualties or damage, which would be excessive in relation to the military advantage anticipated.211 This, however, does not mean that the entire population of a given geographic area must have been subjected to the attack. Rather, according to the ICTY Appeals Chamber: It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian population rather than against a limited and randomly selected number of individuals.212

In order to determine if the attack was indeed directed against the civilian population in question, the ICTY Appeals Chamber considered in the Kunarac case inter alia the following factors: (i) the means and methods used in the course of the attack; (ii) the status of the victims; (iii) the number of the victims; (iv) the discriminatory nature of the attack; (v) the nature of the crimes committed in the course of the attack; (vi) the resistance to the assailants at the time of the attack; and (vii) the extent to which the attacking force attempted to comply with the precautionary requirements of the laws of war.213 It is important to hold that under customary international law, it is the overall attack, not the perpetrator’s individual act, which must be directed against the civilian population.214 For the purpose of crimes against humanity, a ‘population’ is defined by the ICTY Appeals Chamber in the Kunarac case as a sizeable group of people who possess some distinctive features, which mark them as targets of the attack.215 Further, the Appeals Chamber explains: The use of the word ‘population’ does not mean that the entire population of the geographical entity in which the attack is taking place must have been subject to that attack. It is sufficient to show that enough individuals were targeted in the course of the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian

211 Prosecutor v. Kunarac et al., ICTY (Trial Chamber), Judgement of 22 February 2001, para. 426; see also, Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 308. 212 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 105; Prosecutor v. Naletilić and Martinović, ICTY (Trial Chamber), Judgement of 31 March 2003, para. 235. 213 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 91. 214 Mettraux, p. 164. 215 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 423.

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However, neither international instruments nor the jurisprudence set any minima as to the size of the targeted population.217 To determine the scope oft the term ‘civilian’, the ICTY chambers consulted Article 50 of the Additional Protocol I,218 which defines a civilian in international armed conflict as “any person who does not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the Third Convention [which are members of armed forces and militias] and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”219 Further, Paragraph 2 of the same Article states with regard to the notion of ‘civilian population’ that “[t]he civilian population comprises all persons who are civilians”.220 The ICTY jurisprudence holds that the terms ‘civilian population’ should be broadly defined, while the targeted population must be “predominantly civilian in nature”.221 Furthermore, according to the ICTY Trial Chamber in the Blaškić decision, crimes against humanity do not mean only acts committed against civilians in the strict sense of the term but include also crimes against two categories of people: those who were members of a resistance movement and former combatants – regardless of whether they wear uniform or not – but who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or, ultimately, had been placed hors de combat, in particular, due to their wounds or their being detained. It also follows that the specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian. Finally, it can be concluded

  216 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 11. See also, Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 90; Prosecutor v. Naletilić and Martinović, ICTY (Trial Chamber), Judgement of 31 March 2003, para. 235; Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 July 2004, para. 105; Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber) Judgement of 17 December 2004, para. 95. 217 Abtahi, ICC, pp. 27–28.   218 Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber), Judgement of 17 December 2004, para. 97, citing Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 July 2004, para. 110. 219 Additional Protocol I, Article 50(1). 220 Additional Protocol I, Article 50(2).   221 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 643; Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 547.



the prosecution of the destruction of cultural property153 that the presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population.222

The term ‘any’ means that crimes against humanity can be committed against members of any civilian population regardless of their nationality, ethnicity, or any other distinguishing feature. Furthermore, it does not matter whether they are of the same nationality as the perpetrator or of a different nationality, or whether they are stateless.223 Therefore, a crime against humanity could also be committed against a State’s own population if that State participates in the attack.224 To sum up, directing an attack concerning crimes against humanity means that the civilian population must be the primary object of the attack and not just an incidental victim. However, not the entire population of a geographic entity has to be the subject of the attack. Furthermore, the population must be civilian as defined by Article 50 of the Additional Protocol I and the presence of soldiers within an intentionally targeted civilian population does not change their protected status. 3. On National, Political, Ethnical, Racial, or Religious Grounds The statutes of the ICTR and the ECCC require that the crime against humanity be committed on one of several enumerated grounds (national, political, ethnic, racial or religious).225 According to Gideon Boas, James L. Bischoff and Natalie Reid: This might stem from the notion that the ECCC and the ICTR fall into a special category of international tribunals colloquially referred to as ‘genocide tribunals’, as opposed to ‘war crimes tribunals’ such as the ICTY and the SCSL: the raison d’être of both the ECCC and the ICTR is to bring to justice persons suspected of involvement in government-sponsored campaigns of persecution of certain minority groups.226

222 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 214. See, Abtahi, ICC, p. 31. 223 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 635. 224 Prosecutor v. Vasiljević, ICTY (Trial Chamber), Judgement of 29 November 2002, para. 33; see also, Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 635. 225 See e.g., ECCC Statute Article 5: “The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed crimes against humanity during the period of 17 April 1975 to 6 January 1979. Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as: […] persecutions on political, racial, and religious grounds. (italics supplied)” 226 Boas/Bischoff/Reid, p. 129, 375–379.

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Concerning this additional requirement, the ICTR Appeals Chamber held that it does not mean that a discriminatory mens rea must be established for each and every crime against humanity. But rather, it means that the attack on the civilian population itself must be discriminatory in nature.227 Nevertheless, the acts committed against persons outside these categories may form part of the discriminatory attack “where the act against the outsider supports or furthers or is intended to support or further the attack on the group discriminated against on one of the enumerated grounds”.228 The ECCC Trial Chamber interprets this requirement similarly as “an added jurisdictional requirement, which goes to the nature of the attack, not to the underlying offences”. Furthermore, the ECCC Trial Chamber notes, “that any discriminatory basis requirement under the Nuremberg Charter, the Tokyo Charter and Control Council Law No. 10 was limited to the underlying offence of persecution, for which a discriminatory intent was specifically required. All other offences as crimes against humanity in these instruments existed independently of any discriminatory basis”.229 However, the ECCC Trial Chamber did not clearly state whether this requirement is necessary for all crimes against humanity or merely for the underlying offence of persecution. The requirement of the commission of crimes against humanity on the above enumerated grounds has especially in connection with the underlying offence of persecution led to absurdities, such as requiring that political persecution must be based on political, racial or religious grounds.230 The ICTY Trial Chamber in the Duško Tadić case stated: [B]ecause the requirement of discriminatory intent on national, political, ethnic, racial or religious grounds for all crimes against humanity was included in the Report of the Secretary-General, […] the Trial Chamber adopts the requirement for all crimes against humanity under Article 5.231

This statement, however, was reversed on appeal, holding that there is no requirement in customary international law for a crime against humanity to be perpetrated with discriminatory intent, except in the specific case of

227 Prosecutor v. Akayesu, ICTR (Appeals Chamber), Judgement of 1 June 2001, paras. 464–469, 595; Prosecutor v. Bagilishema, ICTR (Trial Chamber), Judgement of 7 June 2001, para. 81. 228 Prosecutor v. Semanza, ICTR (Trial Chamber), Judgement of 15 May 2003, para. 331. 229 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 313. 230 Boot, para. 62. 231 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 652.



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persecution.232 Subsequent jurisprudence of the ICTY adopted the Appeals Chamber’s approach. The ICTR Appeals Chamber subsequently made the same ruling with respect to the ICTR Statute.233 The Rome Statute does not require the commission of crimes against humanity to be on national, political, ethnical, racial or religious grounds. Nevertheless, the underlying offence of persecution entails this requirement as will be discussed in the following chapter. 4. Mens Rea Concerning the mental element234 of crimes against humanity, Article 7 of the Rome Statute requires that the perpetrator must commit the acts with knowledge of the widespread or systematic attack against a civilian population. The ICC Elements of Crimes elaborate on this requirement that the perpetrator must know “that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population”.235 Therewith, the ICC Elements of Crimes affirmed jurisprudence of the ICTY since its chambers set out the following requirements for the mens rea of crimes against humanity: (i) the perpetrator’s intent to commit the underlying offence or offences with which he is charged; (ii) the perpetrator’s knowledge that there is an attack on the civilian population; and (iii) the perpetrator’s knowledge that the acts comprise part of the attack, or at least the perpetrator takes the risk that his act is part of the attack.236 The requirement of the knowledge of the attack is crucial as the ICTY Trial Chamber noted in the Kordić and Čerkez case: Part of what transforms an individual’s act into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of the greater dimension to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of the attack […] is necessary to satisfy the mens rea element of the accused.237 232 Prosecutor v. Duško Tadić, ICTY (Appeals Chamber), Judgement of 27 February 2001, para. 305. 233 Prosecutor v. Akayesu, ICTR (Appeals Chamber), Judgement of 1 June 2001, paras. 464–469. 234 For a definition of the general requirements of mens rea, see, supra, pp. 119 et seq. 235 ICC Elements of Crimes, Article 7 Crimes against humanity, Introduction, para. 2. 236 Prosecutor v. Kunarac et al., ICTY (Trial Chamber), Judgement of 22 February 2001, para. 434, citing Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 659; Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 556; Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, paras. 247 and 251; Prosecutor v. Brđanin, ICTY (Trial Chamber), Judgement of 1 September 2004, para. 138. 237 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 185.

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However, this condition “should not be interpreted as requiring proof that the perpetrator had knowledge of all the characteristics of the attack or the precise details of the plan or policy of the State or organization”.238 Further, the accused does not have to “approve of the context in which his or her acts occur”,239 nor is it required that the perpetrator shares the purpose or the goal behind the attack.240 Concerning the personal motives of the perpetrator, the ICTY Appeals Chamber decided that, ‘the motives of the accused for taking part in the attack are irrelevant and a crime against humanity may be committed for purely personal reasons.’ […] It is also irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim. It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable assumption that he was not aware that his acts were part of that attack.241

In conclusion, the mens rea for crimes against humanity requires that the perpetrator has the intent to commit the underlying offence. Furthermore, the perpetrator has to have knowledge of the attack against the civilian population and that his acts comprise part of the attack. However, the perpetrator does not need to have knowledge of the characteristics of the attack. III. Underlying Offence with Regard to the Destruction of Cultural Property: Persecution Not much jurisprudence exists on the destruction of cultural property as a crime against humanity. In the few cases, which have been decided however,  the underlying offence of persecution was applied.242 These cases 238 ICC Elements of Crimes, Article 7 Crimes against humanity, Introduction, para. 2. See also, Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 102; Prosecutor v. Limaj et al., ICTY (Trial Chamber), Judgement of 30 November 2005, para. 190. 239 Prosecutor v. Limaj et al., ICTY (Trial Chamber), Judgement of 30 November 2005, para. 190. 240 Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber), Judgement of 17 December 2004, para. 99. 241 Prosecutor v. Kunarac et al., ICTY (Appeals Chamber), Judgement of 12 June 2002, para. 103, citing the Trial Chamber Judgement in the same case of 22 February 2001, para. 434. 242 See, Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000; Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001;



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demonstrate that the destruction of cultural property not only bears an inherent gravity, but may also correspond to a serious crime against persons.243 The crime of persecution has been included as aforementioned in the Charters of the IMT and IMTFE as well as in the statutes of the ad hoc and the internationalised tribunals. Article 7(1)(h) of the Rome Statute criminalises [p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.

The respective provisions of the ad hoc and internationalised tribunals vary slightly since some of them are less detailed and criminalise curtly “persecutions on political, racial and religious grounds”.244 Bassiouni defines persecution as: State policy leading to the infliction upon an individual harassment, torment, oppression, or discriminatory measures, designed to or likely to produce physical or mental suffering or economic harm, because of the victim’s beliefs, views or membership in a given identifiable group (religious, social, ethnic, linguistic etc.), or simply because the perpetrator sought to single out a given category of victims for reasons peculiar to the perpetrator.245

Similarly, according to Article 7(2)(g) of the Rome Statute, the crime of “persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. The ICC Elements of Crimes provide the following elements for the crime of persecution: Prosecutor v. Plavšić, ICTY (Trial Chamber), Judgement of 27 February 2003; Prosecutor v. Naletilić and Martinović, ICTY (Trial Chamber), Judgement of 31 March 2003; Prosecutor v. Stakić, ICTY (Trial Chamber), Judgement of 31 July 2003; Prosecutor v. Deronjić, ICTY (Trial Chamber), Judgement of 30 March 2004; Prosecutor v. Brđanin, ICTY (Trial Chamber), Judgement of 1 September 2004; Prosecutor v. Krajišnik, ICTY (Trial Chamber), Judgement of 27 September 2006; Prosecutor v. Martić, ICTY (Trial Chamber), Judgement of 12 June 2007. 243 Frulli, Case-Law of the ICTY, p. 209. 244 ICTY Statute, Article 5(h); ICTR Statute, Article 3(h); ECCC Statute, Article 5. The Sierra Leone Statute adds in Article 2(h) ethnic to the list of grounds. The SPSC adopts in Section 5.1(h) the respective provision of the Rome Statute. 245 Bassiouni, Crimes against Humanity, p. 396: “To support the theory that the […] definition reflects the common understanding of these terms prior to 1945, this writer turned to the most obvious source – dictionaries. The languages researched are those reflected in the world’s major criminal justice systems […]. They express the plain and common meaning of the term and to some extent its legal significance in these various cultures.”

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chapter two 1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights. 2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such. 3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law. 4. The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court. 5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.246

The two latter requirements are already covered by the general requirements of crimes against humanity and will therefore not be defined again in the following remarks. In its Duško Tadić decision, the ICTY Trial Chamber similarly found that “[t]he elements of the crime of persecution are the occurrence of a persecutory act or omission and a discriminatory basis for that act or omission on one of the listed grounds, specifically race, religion or politics”. Further, “the persecutory act must be intended to cause, and result in, an infringement on an individual’s enjoyment of a basic or fundamental right”.247 1. Deprivation of a Fundamental Right In order to fulfil the requirements of the underlying offence of persecution, a fundamental right set forth by international customary law or international treaty law has to be denied. The statutes of the international criminal tribunals do not provide for a list of such fundamental rights. As established in the previous section of this writing, though, cultural property is protected by various international conventions and protocols. Hence, to assess if the destruction of cultural property is a deprivation of a fundamental right set forth by international customary law or international treaty law, the ICTY Appeals Chamber refers in the Blaškić case to Article 53 of the Additional Protocol I and the respective provision of the ICTY Statute (Article 3(d)).248 The ICTY Trial 246 ICC Elements of Crimes, Article 7(1)(h) Crime against humanity of persecution, Elements. 247 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 715. For an analysis of the Duško Tadić case concerning the crime against humanity of persecution, see, Swaak-Goldman, pp. 145–150. 248 Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 July 2004, para. 145.



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Chamber refers in the Kordić and Čerkez case to the jurisprudence of the IMT, as well as to the ILC Draft Code 1991 in assessing whether the destruction of cultural property amounts to a deprivation of a fundamental right.249 Both chambers came to the conclusion that the destruction of cultural property is indeed a denial of a fundamental right set forth by international customary and conventional law. Also the Rome Statute does not provide for a definition or list of the fundamental rights, which have to be denied in order for the offence to amount to a crime of persecution.250 Since there exists no case law concerning the destruction of cultural property as a form of persecution under the Rome Statute, no definite assessments can be made yet. It can be assumed, though, that also under the Rome Statute the provisions of the previously discussed international treaties, which protect cultural property, fulfil the requirements of a fundamental right. 2. Nature of the Offence According to the ICC Elements of Crimes, in order for the act in question to amount to a crime of persecution, the act either has to be referred to in Article 7(1) of the Rome Statute or it has to be any crime within the jurisdiction of the Court. The provisions of the ad hoc tribunals, however, did not include this constraint. Nevertheless, the question, whether the crime of persecution must be linked to another crime enumerated in the ICTY Statute, was considered in detail by the ICTY Trial Chamber in the Kupreškić et al. case. The Trial Chamber noted that this requirement first appeared in the IMT Charter, which stated in Article 6(c) that persecution has to be committed “in execution of or in connection with any crime within the jurisdiction of the Tribunal”. However, the Trial Chamber found that customary international law of crimes against humanity, as developed after the IMT, does not require the link between crimes against humanity and war crimes anymore.251 Hence, the ICTY Trial Chamber dismissed the requirement of Article 7(1)(h) of the Rome Statute as “not consonant with customary international law,” pointing out that in Article 10 of the Rome 249 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 206. See also, Prosecutor v. Stakić, ICTY (Trial Chamber), Judgement of 31 July 2003, para. 766. 250 Bassiouni, Crimes against Humanity, p. 404. 251 Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 577. The Chamber found support for this argument in the relevant provision in Control Council Law No. 10, national legislation from France and Canada, case law, certain conventions and the ICTY’s decision in the Duško Tadić Judgement.

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Statute it is provided that “[n]othing in the Statute shall be interpreted as limiting or precluding in any way existing or developing rules of international law for purposes other than this Statute”.252 Therefore, the ICTY Trial Chamber rejected the requirement that persecution must be linked to crimes found elsewhere in the ICTY Statute.253 Subsequent jurisprudence has adopted this approach.254 Hence, for the purpose of this analysis, the crime of persecution does not require to be linked to another crime against humanity, war crime or any other crime listed in the statutes of international criminal tribunals. This is especially important concerning the destruction of cultural property. Murder, torture or other acts of persecution can usually be linked to other crimes listed in Article 7 or elsewhere in the Rome Statute whereas the destruction of cultural property conducted outside the scope of an armed conflict, can not be linked with another crime under the Rome Statute. Therefore, these crimes would go unpunished if the requirement of a link to another crime would be exercised strictly.255 Concerning the acts covered by the crime against humanity of persecution, the IMT stated that the persecution of the Jews was particularly apparent in, for example, the burning and demolishing of synagogues. Inter alia, the tribunal convicted Alfred Rosenberg for war crimes and crimes against humanity for his involvement with “a system of organised plunder of both public and private property throughout the invaded countries”.256 Following Hitler’s orders, Rosenberg established the Einsatzstab Rosenberg, which looted museums and libraries and stole collections and masterpieces of art.257 The accused Julius Streicher was found guilty by the IMT of crimes against humanity, including the demolition of the Nuremberg synagogue.258 Also in the Eichmann case, which was conducted by the District Court of Jerusalem in 1961, the Court held that the systematic destruction of 252 Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 580. 253 Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, paras. 581, 614. 254 Roberts, p. 633. 255 Gottlieb, pp. 875–876. 256 France et al. v. Göring et al., IMT, Rosenberg Judgement of 30 September and 1 October 1946, pp. 293, 295. For an in-depth analysis, see, Nowlan, pp. 221–223. 257 France et al. v. Göring et al., IMT, Rosenberg Judgement of 30 September and 1 October 1946, pp. 293, 295. See also, Frulli, Case-Law of the ICTY, p. 205; Abhati, ICTY, p. 26. 258 France et al. v. Göring et al., IMT, Streicher Judgement of 30 September and 1 October 1946, pp. 301, 302. See also, Abhati, ICTY, p. 26; Frulli, Case-Law of the ICTY, p. 205.



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synagogues in Nazi Germany manifested persecution of the Jews and sentenced the accused Adolf Eichmann, inter alia, for the destruction of synagogues to dead.259 In addition, the ILC Draft Code 1991 asserted that persecution may encompass the “systematic destruction of monuments or buildings representative of a particular social, religious, cultural or other group” when committed in a systematic matter or on a mass scale.260 The ICTY Trial Chamber came in the Blaškić case to the conclusion that the crime of persecution includes not only bodily and mental harm and violations of the individual freedom but also “acts which appear less serious, such as those targeting property, so long as the victimized persons were specially selected on grounds linked to their belonging to a particular community”. Accordingly, persecution may “take the form of confiscation or destruction of private dwellings or businesses, symbolic buildings or means of subsistence belonging to the Muslim population of Bosnia and Herzegovina”.261 The Trial Chamber further concluded that the attacks committed against the Muslim population and the buildings symbolising their culture “sufficed to establish beyond reasonable doubt that the attack was aimed at the Muslim civilian population” and therefore fulfils the requirements of persecution.262 The Appeals Chamber in the same case effectively endorsed this position. After quoting the Trial Chamber’s finding that the discriminatory destruction of, inter alia, symbolic buildings could constitute persecution as a crime against humanity, the Appeals Chamber affirmed that “the destruction of property, depending on the nature and extent of the destruction, may constitute a crime [against human­ity] of persecutions of equal gravity to other crimes listed in Article 5 of the Statute”.263 The ICTY Trial Chamber in the Kordić and Čerkez case referred specifically to the destruction of cultural property by stating: The destruction of cultural property as an underlying act of persecution is to be understood as destruction or damage of an institution dedicated to religion, charity, education, or the arts and sciences, historic monuments and

259 Attorney-General of the Government of Israel v. Adolf Eichmann, District Court of Jerusalem, Judgement of 11 December 1961, para. 57. See, Abtahi, ICTY, p. 26; Frulli, CaseLaw of the ICTY, p. 206. 260 ILC Draft Code 1991, p. 104. 261 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, paras. 227, 233. see also, Domínguez-Matés, pp. 876–877; Gottlieb, p. 874. 262 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 425; See also, Abtahi, ICTY, p. 27. 263 Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 June 2004, para. 149.

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chapter two works of art and science, when the perpetrator acted with the intent to destroy or damage that property or in the reckless disregard of the substantial likelihood of the destruction or damage.264

Consequently, the act has to be directed against one of the protected institutions. In the same case the Trial Chamber stated: The destruction of cultural property, when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people. As such, it manifests a nearly pure expression of the notion of ‘crimes against humanity’, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects.265

The ICTY chambers corroborated in several cases that the destruction of  cultural property as an underlying act of persecution is to be understood as the destruction or damage of an institution dedicated to religion, charity, education, or the arts and sciences, historic monuments and works  of art and science, when the perpetrator acted with the intent to destroy or damage that property or in the reckless disregard of the substantial likelihood of the destruction or damage. Such an act of destruction carried out on discriminatory grounds, and for which the general elements  of crimes against humanity are fulfilled, constitutes the crime of persecution.266 In the latest decision of the ICTY chambers concerning the destruction of cultural property as a crime against humanity of persecution, which was decided upon in February 2009, the ICTY Trial Chamber stated that additionally, the protected institution in question “must not have been used for a military purpose at the time when the acts of hostility directed at this property took place”.267 Therewith, the ICTY Trial Chamber significantly changed the – until then effective – practice of the ICTY chambers, which did not require the absence of military necessity as an element of

264 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, paras. 206, 362; see also, Meron, p. 48. 265 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 207; see also, Francioni/Lenzerini, p. 637; Gottlieb, p. 874. 266 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 207; see also, Prosecutor v. Stakić, ICTY (Trial Chamber), Judgement of 31 July 2003, paras. 765–767. Prosecutor v. Brđanin, ICTY (Trial Chamber), Judgement of 1 September 2004, para. 119; Prosecutor v. Krajišnik, ICTY (Trial Chamber), Judgement of 27 September 2006, paras. 782–783. Prosecutor v. Milutinović et al., ICTY (Trial Chamber), Judgement of 26 February 2009, para. 205. 267 Prosecutor v. Milutinović et al., ICTY (Trial Chamber), Judgement of 26 February 2009, para. 208.



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persecutions by way of destruction of cultural property.268 This requirement, however, is only relevant in cases of persecution, which take place in nexus with an armed conflict. Since the Rome Statute and most statutes of the internationalised tribunals do not require a nexus with an armed conflict for crimes against humanity, the military necessity requirement will not play a significant role. Furthermore, the ICTY Trial Chamber requires that the damage or the destruction of the protected institution must result from “an act directed against this property”.269 Accordingly, “damage to protected property caused by ongoing fighting in its vicinity or even within it would not constitute a crime against humanity”.270 In addition, the ICTY chambers set forth the requirement of the act of persecution to be discriminatory.271 According to the ICTY Trial Chamber in the Blagojević and Jokić case: An act is discriminatory when a victim is targeted because of his or her membership in a group defined by the perpetrator on a political, racial or religious basis. The act or omission needs to discriminate in fact, i.e., a discriminatory intent is not sufficient, but the act or omission must have discriminatory consequences.272

With regards to the destruction of cultural property as an act of persecution this means that the respective cultural property has to be destroyed because it represents a specific political, racial or religious group. In most cases such cultural property will be religious institutions since they are easily related with the religious group, which is the target of the overall attack. In conclusion, acts of persecution can be manifold and clearly comprise  the destruction of cultural property. Most importantly, the act of

268 Prosecutor v. Kordić and Čerkez, ICTY (Trial Chamber), Judgement of 26 February 2001, para. 205; Prosecutor v. Stakić, ICTY (Trial Chamber), Judgement of 31 July 2003, para. 763. See also, Hayashi, pp. 108–110. 269 Prosecutor v. Milutinović et al., ICTY (Trial Chamber), Judgement of 26 February 2009, para. 209, referring to Prosecutor v. Strugar, ICTY (Trial Chamber), Judgement of 31 January 2005, para. 308. 270 Prosecutor v. Milutinović et al. ICTY (Trial Chamber), Judgement of 26 February 2009, para. 209, referring to Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 419 (accepting as a potentially exculpating argument that the reason for the destruction of the school and church was that they became locations of fighting). 271 Prosecutor v. Blagojević and Jokić, ICTY (Trial Chamber), Judgement of 17 January 2005, para. 579. 272 Prosecutor v. Blagojević and Jokić, ICTY (Trial Chamber), Judgement of 17 January 2005, para. 583.

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destruction has to be directed against one of the institutions protected by international law, those are institutions dedicated to religion, charity, education, or the arts and sciences, historic monuments and works of arts and sciences. Furthermore, the act has to be discriminatory on political, racial or religious grounds, which means the respective institution must clearly be identified as belonging to the by the respective crime against humanity targeted civilian population. In other words, the owner of the respective institution, that is the victim, was, or was perceived to be, a member of the targeted group.273 Furthermore, according to the latest practice of the ICTY chambers, the respective institution must not have been used as a military objective. 3. Level of Gravity of the Offence Pursuant to Article 7(2)(g) of the Rome Statute, the deprivation of a fundamental right has to be “severe” in order to constitute a crime of persecution. The notion of ‘severe’ does not refer to the character of the act of persecution as such. According to Machteld Boot, “this refers to the character of the deprivation of fundamental rights, which could be explained as a requirement of severity of the discrimination”.274 However, the Rome Statute does not provide for a threshold as to when the discrimination becomes severe.275 Similar to the definition of the Rome Statute, the ICTY Trial Chamber held that “[i]t is the violation of the right to equality in some serious fashion that infringes on the enjoyment of a basic or fundamental right that constitutes persecution” (italics supplied).276 In the Kupreškić et al. case the ICTY Trial Chamber stressed that “not every denial of a human right may constitute a crime against humanity”.277 Accordingly, the ICTY chambers found that, separately or combined, the acts of persecution must be of “equal gravity and severity” to the other acts enumerated under Article 5 ICTY Statute.278 As mentioned above, the acts do not have to be criminalised elsewhere in the ICTY Statute, though. Nevertheless, it is clear that when

273 Boas/Bischoff/Reid, p. 396. 274 Boot, para. 116. 275 Bassiouni, Crimes against Humanity, p. 404. 276 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 697. 277 Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 618. 278 Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 619; Prosecutor v. Kvočka et al., ICTY (Trial Chamber), Judgement of 2 November 2001, para. 185. See also, Bassiouni, Crimes against Humanity, p. 400.



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the acts otherwise appear in the statutes, as it would be the case with murder or torture, the equal gravity requirement is automatically given.279 Although persecution often refers to a series of acts or a course of conduct, the ICTY Chambers held that a single act or omission might be sufficient.280 Furthermore, when applying the gravity requirement – particularly in respect of conduct, which does not otherwise constitute an offence under the statutes or a crime under international criminal law – the acts must not be considered in isolation, but in context, by looking at their cumulative effect. “Although individual acts may not be inhumane, their overall consequences must offend humanity in such a way that they may be termed ‘inhumane’”.281 Concerning the level of gravity to which the destruction of cultural property can be considered a crime of persecution under Article 5(h) of the ICTY Statute, the ICTY Appeals Chamber noted in the Blaškić case that, whether an attack on property constitutes persecution may depends on the type of property involved. “Certain types of property whose destruction may not have a severe enough impact on the victim as to constitute a crime against humanity, even if such destruction is perpetrated on discriminatory grounds”.282 It can be assumed, that the destruction of the above mentioned institutions, which are dedicated to religion, charity, education, or the arts and sciences as well as historic monuments and works of arts and science would fulfil the required level of gravity. However, it remains unclear if the destruction of a single object of the offence would satisfy the  gravity requirement. Unfortunately, the ICTY chambers failed to define if the perpetrator has to commit a certain number of acts in order to fulfil the required level of gravity of crimes against humanity. One can make an assessment of the required gravity for the destruction of cultural property to fulfil Article 5(h) ICTY Statute by looking at the facts of the  cases, which have been decided by the ICTY chambers in the last ­couple of years.

279 Prosecutor v. Brđanin, ICTY (Trial Chamber), Judgement of 1 September 2004, para. 995. 280 Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 July 2004, para. 164, citing Prosecutor v. Vasiljević, ICTY (Appeals Chamber), Judgement of 25 February 2004, para. 113. 281 Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 622. 282 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 146, citing Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 631.

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In the Blaškić case,283 the defendant, Tihomir Blaškić, ordered during and immediately after many of the attacks in the cities, towns, and villages of the municipalities of Vitez, Busovača, Kiseljak and Zenica in Bosnia and Herzegovina the wanton and extensive destruction and or plundering of Bosnian Muslim institutions dedicated to religion or education.284 He was therefore found guilty by the ICTY Trial Chamber for the order of a crime against humanity of persecution for, inter alia, the destruction and plunder of property and, in particular, of institutions dedicated to religion or education because he was found to have ordered the destruction of numerous buildings and institutions dedicated to religion and education in several villages throughout Bosnia and Herzegovina.285 Another case, which dealt with the destruction of cultural property as a crime of persecution, concerned the two defendants Dario Kordić und Mario Čerkez.286 In this case, numerous buildings and institutions dedicated to religion and education in several villages were likewise affected. This also applies to the Stakić case.287 Also, the Brđanin case dealt with a defendant who was held responsible for the destruction of over 40 mosques and at least 8 catholic churches.288 The ICTY Trial Chamber stated, that it is satisfied that the destruction of, or wilful damage to, Bosnian Muslim and Bosnian Croat religious and cultural buildings in the case at hand occupy the same level of gravity as the other crimes enumerated in Article 5 of the Statute.289 This leads to the conclusion that not only the destruction of one or two cultural monuments but rather of numerous monuments at several places fulfil the gravity requirement of persecution as a crime against humanity according to Article 5(h) of the ICTY Statute. It has to be held, though, that in the Deronjić case, the accused was found guilty for persecution as a crime

283 For an in-depth analysis of the Blaškić case, see, Ehlert, 139–140; Meron, pp. 45–47. 284 Prosecutor v. Blaškić, ICTY, Second Amended Indictment of 25 April 1997, paras. 6.3, 11. 285 Prosecutor v. Blaškić, ICTY (Trial Chamber), Judgement of 3 March 2000, para. 267; see also, Frulli, Case-Law of the ICTY, p. 208. 286 For an in-depth analysis of the Kordić and Čerkez case, see, Ehlert, pp. 141–142; Meron, pp. 47–48. 287 Prosecutor v. Kordić and Čerkez, ICTY, Amended indictment of 30 September 1998, para. 34; Prosecutor v. Stakić, ICTY, Fourth amended indictment of 10 April 2002, para. 54. 288 Prosecutor v. Brđanin, ICTY, Sixth amended Indictment of 9 December 2003, para. 47. 289 Prosecutor v. Brđanin, ICTY (Trial Chamber), Judgement of 1 September 2004, para. 1023; see also, Meron, p. 54.



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against humanity pursuant to Article 5(h) of the ICTY Statute inter alia for the destruction of only one single mosque.290 Nevertheless, a definite conclusion cannot be drawn from existing case law due to the fact that the cases concerning persecution as a crime against humanity all deal with several acts of persecution. In all cases the defendants did not only destroy cultural property, but also civilian property. Furthermore, these acts were usually linked with other acts covered by persecution, including but not limited to, murder, extermination and unlawful detention. This might be due to the fact that persecution is not a crime per se in most of the world’s legal systems, as it is more likely to take the form of a motive, policy or goal. Consequently, there has always been a historical difficulty in identifying and defining persecution as a crime without connecting it to other specific criminal acts, like murder or extermination.291 Hence, even though the ICTY chambers decided that acts of persecution do not need to be linked to another crime under international criminal law, in practice, the cases, which have been decided up to today, show that those acts always also constitute crimes under other provisions of the ICTY Statute. Therefore, the question whether solely the destruction of cultural property could amount to persecution as a crime against humanity cannot be answered by analysing existing case law. 4. Mens Rea The mens rea of persecution differs slightly from the mens rea of the other crimes against humanity. According to the Rome Statute, it consists of three parts: (i) the mental element required for crimes against humanity; (ii) the intent to commit the underlying act or omission; and (iii) the specific intent to discriminate “on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law”.292 This has been described as a “higher” mens rea requirement than for other international crimes.293 Concerning the intent of persecution, the ICTY chambers have held that the intent must be aimed at a group, rather than an individual, for the reason that the mens rea of the crime of persecution “is the specific intent to 290 Prosecutor v. Deronjić, ICTY, Second amended indictment of 29 September 2003; Prosecutor v. Deronjić, ICTY (Trial Chamber), Judgement of 30 March 2004, p. 77. 291 Bassiouni, Crimes against Humanity, p. 405; see also, Petrovic, p. 250. 292 Rome Statute, Article 7(h). 293 Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 634.

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cause injury to a human being because he belongs to a particular community or group”.294 The discriminatory intent of the perpetrator can be inferred from the discriminatory nature of the attack amounting to a crime against humanity if “the circumstances surrounding the commission of the alleged acts substantiate the existence of such intent”.295 The ICTY chambers have found circumstances that may be considered when inferring discriminatory intent. These circumstances include “the systematic nature of the crimes committed against a racial or religious group and the general attitude of the alleged perpetrator as demonstrated by his behaviour”.296 The requirements for the specific intent can only be inferred from the “objective facts and the general conduct of the accused seen in its entirety. Only on rare occasions it will be possible to establish such an intent on documents laying down a perpetrator’s own mens rea”.297 Furthermore, according to the ICTY Trial Chamber in the Kupreškić et al. case, the mental element of persecution has to be distinguished from the mental element of genocide. Since both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging in both categories what matters is the intent to discriminate. While in the case of persecution, the discriminatory intent can take various inhumane forms and manifest itself in a plurality of actions including murder [or destruction of cultural property], in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong. Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.298

a. Political, Racial, or Religious Grounds for Persecution The provision in the ICTY Statute covering the crime against humanity of persecution requires the persecution to be on “political, racial, and 294 Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 July 2004, para. 164; Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber) Judgement of 17 December 2004, para. 111; Prosecutor v. Martić, ICTY (Trial Chamber), Judgement of 12 June 2007, para. 120. 295 Prosecutor v. Kvočka et al., ICTY (Appeals Chamber), Judgement of 28 February 2005, para. 366; Prosecutor v. Martić, ICTY (Trial Chamber), Judgement of 12 June 2007, para. 121. 296 Prosecutor v. Blaškić, ICTY (Appeals Chamber), Judgement of 29 July 2004, para. 164; Prosecutor v. Kvočka et al., ICTY (Appeals Chamber), Judgement of 28 February 2005, para. 460. 297 Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber) Judgement of 17 December 2004, para. 715. 298 Prosecutor v. Kupreškić et al., ICTY (Trial Chamber), Judgement of 14 January 2001, para. 636. See also, Abhati, ICTY, p. 28.



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religious grounds” (italics supplied).299 The ICTY Trial Chamber addressed this matter in the Duško Tadić decision by analysing the IMT Charter as well as Control Council Law No. 10. Both provisions require that persecutions be committed “on political, racial or religious grounds” (italics supplied).300 Concerning this matter the Trial Chamber stated: [I]t is highly unlikely that the Statute’s drafters intended the word ‘and’ to require all three grounds to be present. The Statute should therefore be read in accordance with custom whereby each of the three grounds in and of itself is a sufficient basis for persecution.301

The ICTY has since taken a consistent approach to this question.302 Discrimination on political, racial, or religious grounds is the most widely recognised elements of the mens rea of persecution as a crime against humanity. These features are also included in the IMT Charter, the statutes of the ad hoc tribunals as well as in the statutes of the internationalised tribunals. For the definition of “persecution on racial grounds” Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination,303 can be consulted, which states that discrimination is “any distinction, exclusion, restriction or preference based on race, colour descent, or national or ethnic origin”.304 Consequently, if the perpetrator discriminates against the victim because the victim is of a certain race, he or she is acting on racial grounds. If the perpetrator discriminates against the victim because of the victim’s specific religious faith, he or she is acting on religious grounds.305 A perpetrator acts on “political” grounds if he or she discriminates against the victim because of his or her political beliefs.306 This, however, does not require that the victim is a member of a political party or group.307 In the case of Josef Altstötter et al. the US military tribunal identified opposition to political ideas as the relevant discriminatory basis in relation to

299 ICTY Statute, Article 5(h). See also, ECCC Statute, Article 5. 300 IMT Charter, Article 6(c); Control Council Law No. 10, Article II(1)(a). 301 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 713. 302 Roberts, p. 635. 303 21 December 1965, 660 UNTS 195, GA Res. 2106 (XX), Annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc. A/6014 (1966). 304 See Boot/Hall, para. 65. 305 Prosecutor v. Duško Tadić, ICTY (Trial Chamber), Judgement of 7 May 1997, para. 711. 306 Prosecutor v. Akayesu, ICTR (Trial Chamber), Judgement of 2 September 1998, para. 583. 307 Werle, para. 902.

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the specific offence of persecution. Generally addressing the notion of discrimination on political grounds, the Trial Chamber noted as follows: Coming into the category of cases upon political grounds, we must remember that ‘political’ in Law No. 10, written to apply in the Third Reich, cannot be read in the sense of ‘political’ as it is known in countries which enjoy a two or more party system. ‘Political’ as all Nazi judges construed it – and the defendant Cuhorst construed it – meant any person who was opposed to the policies of the Third Reich, and being opposed to the policies of the Third Reich was in turn construed as meaning the doing of an act which was contrary to the successful conduct of the war.308

b. Other Grounds for Persecution The Rome Statute is the first international instrument, which included – additionally to the aforementioned grounds – other discriminatory grounds and as such, expands the scope of jurisdiction beyond the parameters that have crystallised under customary international law.309 Since the drafters of the Statute for the SPSC adopted the Rome Statute, the same may be held for this provision.310 Also, the SCSL Statute criminalises not only the persecution on the aforementioned grounds, but also the persecution on “ethnic” grounds.311 A perpetrator acts on ‘national’ grounds if he or she discriminates against a victim because of the victim’s nationality or membership to a minority group.312 The discrimination on ‘ethnic’ grounds is consumed by ‘racial’ grounds and therefore of little relevance.313 The term ‘cultural’ should be interpreted broadly, including a specific group’s language, customs, art, architecture etc.314 The discrimination on the grounds of gender is defined by Article 7(3) of the Rome Statute, which holds that gender means “the two sexes, male and female, within the context of society”. Furthermore, the drafters of the Rome Statute included in Article 7(h) the persecution on “other grounds that are universally recognized as impermissible under international law”. Presumably, the drafters thereby made a

308 United States of America v. Josef Altstötter et al., American Military Tribunal, Judgement of 4 December 1947, in: United Nations War Crimes Commission, Vol. VI, p. 81. 309 Werle, para. 903. 310 SPSC Statute, Section 5.1(h). 311 SCSL Statute, Article 2(h). 312 Boot/Hall, para. 66. 313 Boot/Hall, para. 67; Werle, para. 904. 314 Boot/Hall, para. 68; Werle, para. 904.



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reference to customary international law and therefore made room for further development of the discriminatory grounds of persecution.315 § 4 Interim Conclusion I. War Crimes After analysing the statutes of the international criminal tribunals and existing case law concerning the destruction of cultural property, the following elements of crimes for the destruction of cultural property as a war crime could be crystallised: General Requirements    (i) At the time the underlying offence was committed, there was an armed conflict or a state of belligerent occupation.   (ii) There existed a nexus between the underlying offence and the armed conflict or the state of belligerent occupation. (iii) The perpetrator knew that an armed conflict or a state of bellige­ rent  occupation existed at the time the underlying offence was committed. Requirements of the Underlying Offence    (i) The object of the offence was an institution dedicated to religion, charity or education, the arts or science, or a historic monument or a work of art or science.   (ii) The object of the offence was destroyed, damaged or an attack was directed at the object. (iii) The destruction, damage or directing of an attack against the object of the offence was not justified by military necessity. (iv) The perpetrator intentionally destroyed, damaged or aimed an attack against the object of the offence and he had knowledge about the protected status of the object of the offence. Prosecuting the destruction of cultural property as a war crime is relatively unproblematic as can be deviated from the practice of the international tribunals, especially the ICTY. Commendable is the Rome Statute’s strict execution concerning the directing of an attack against cultural property as well as the explicit extension of the crime to non-international armed

315 Werle, para. 905.

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conflicts. Furthermore, it is remarkable that already the destruction of one of the under international law p ­ rotected institution can amount to a war crime under international criminal law. However, some critical observations need to be made. First of all, again the inconsistency within the different statutes of the international tribunals concerning the objects of the offence leads to a certain equivocality. Above all, it has to be held, that none of the statutes makes reference to the notion of ‘cultural property’ and the definition of the UNESCO conventions. Furthermore, the Rome Statute, in contrast to the ICTY Statute, does not include movable cultural property in its definition of the objects of the offence. Another fact, which needs to be pointed out, is the fact that the statutes of the international tribunals adhere to the doctrine of ‘military necessity’. As could be observed in the previous chapter concerning international treaties protecting cultural property, the trend goes more and more towards eliminating or at least constraining the waiver of military necessity. Hence, one could have expected, at least from the Rome Statute, to further restrict the waiver of military necessity. Furthermore, the Rome Statute as well as the statutes of the other international criminal tribunals failed to include a provision, which criminalises the use of cultural property by the holder of the property in support of a military action. Due to these shortcomings, certain authors propose that separate crimes, which take credit of those shortcomings and refer solely to the destruction of cultural property, shall be included in the list of international war crimes.316 However, after analysing existing case law, this seems exaggerated. In most cases, the prosecution of the destruction of cultural property during armed conflicts under the existing provisions is unproblematic. It would be recommendable, though, to revise in the Rome Statute the objects of the offence by adopting UNESCO’s definition of cultural property as provided in Article 1 of the 1954 Hague Convention which would inter alia lead to the penalisation of the destruction of movable cultural property. Furthermore, the applicability of the waiver of military necessity should be restricted. However, especially concerning the Rome Statute’s provisions criminalising the destruction of cultural property, a complete assessment cannot be made, since the ICC as of September 2013 has not yet decided upon any cases concerning the destruction of cultural property. 316 See, inter alia, Gottlieb, p. 881; Kersten, p. 1.



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II. Crimes against Humanity After analysing the statutes of the international criminal tribunals and existing case law concerning the destruction of cultural property, the following elements of crimes for the destruction of cultural property as a form of persecution as a crime against humanity could be crystallised: General Requirements    (i) At the time the underlying offence was committed, there was a widespread and systematic attack, which was part of a State or organisational policy and directed against a civilian population.   (ii) The underlying offence was part of the attack. (iii) The perpetrator knew that the underlying offence formed part of this attack. Requirements of the Underlying Offence    (i) The object of the offence was an institution dedicated to religion, charity or education, the arts or science, or a historic monument or a work of art or science.   (ii) The object of the offence was destroyed or damaged. (iii) The destruction of or damage done to the object of the offence was of equal gravity and severity to other underlying offences of war crimes.   (iv) The object of the offence was not a military objective.    (v) The owner of the object of the offence was, or was perceived to be, a member of the group the overall attack was aimed at.   (vi) The perpetrator has to intentionally destroy or damage the object of the offence on political, racial or religious grounds. While the prosecution of the destruction of cultural property under war crimes law is quite extensive, naturally it does not cover the destruction of cultural property, which is not related to an armed conflict or a state of occupation. Hence, the prosecution of the destruction of cultural property as a crime against humanity has been a major step for the protection of cultural property during peacetime and for the development of international criminal law in this area. The seminal judgements by the ICTY chambers in this regard, furthermore, have emphasised the cultural and historical importance of institutions dedicated to religion and education. Yet, some authors argue that the crime of destruction of cultural property should be categorised as a new crime against humanity in order to emphasise the gravity of the crime.317 However, this seems unnecessary because on the 317 See, inter alia, Gottlieb, p. 888.

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contrary the categorising of the destruction of cultural property as acts of persecution shows the importance of cultural property to the life and identity of every human group and for the heritage of mankind.318 Another argument would speak in favour of the new categorisation of the destruction of cultural property as a crime against humanity, though. It has been established in the above that there exists no case-law which exclusively deals with the destruction of cultural property as the crime against humanity of persecution and it seems unlikely that solely the destruction of cultural property could amount to a crime of persecution. Hence, the categorisation of a new crime against humanity might be necessary in order to prosecute perpetrators which solely destroyed cultural property and did not commit any acts which might amount to other crimes against humanity. Furthermore, the Rome Statute’s constraint that the respective act of persecution either has to be on the list of crimes against humanity referred to in Article 7(h) of the Rome Statute or has to be any crime within the jurisdiction of the ICC, is deeply objectionable. Fortunately, this constraint is contrary to customary international law since it would lead to the undesirable result that the destruction of cultural property committed outside of an armed conflict or a state of belligerent occupation could not be prosecuted under international criminal law. Therefore, the ICTY Trial Chamber’s dismissal of the requirement as not consonant with customary international law is commendable. Ultimately, it has to be held, that a definite conclusion concerning the destruction of cultural property as an act of persecution cannot be drawn, since the existing cases all deal with multiple differing acts of persecution.

318 Frulli, Case-Law of the ICTY, p. 209.

CHAPTER THREE

CASE STUDY CAMBODIA As already demonstrated in the introduction of this study, the destruction of cultural property is present in almost every armed conflict. Furthermore, the destruction of valuable cultural property occurs during peacetime. Much has been published on the destruction of mosques and churches during the armed conflict in the former Yugoslavia and the destruction of the Buddhas of Bamiyan and other religious institutions in Afghanistan. However, in many more conflicts during the last decade, the destruction of cultural property has been an issue. One example is the destruction of Buddhist institutions during the Khmer Rouge Regime, which will be analysed in the following. § 1 Background to the Khmer Rouge Regime I. Democratic Kampuchea A detailed account of all the events in Cambodia from 1975 to 1979 would go beyond the scope of this writing. Nevertheless, in order to get an idea of Democratic Kampuchea, the main events will be described in the following. In April 1975, the Communist Party of Kampuchea (CPK), also known as the Khmer Rouge,1 removed the Prime Minister of the then so-called Khmer Republic, Lon Nol,2 after a five-year-long internal armed conflict from power and renamed the country “Democratic Kampuchea”.3 The CPK’s 1 “Khmer Rouge” was the name King Norodom Sihanouk gave to his communist opponents in the 1960s and has since been used. See, Dy, pp. 1, 9. For an overview on the establishment of the Khmer Rouge, see, Dy, pp. 5–12; Harris, pp. 57–62. 2 Lon Nol had been brought to power 1970 in a coup d’état. He replaced King Norodom Sihanouk, who had ruled the Kingdom of Cambodia from 1954 until 1970, after Cambodia had gained independence from France. During the early 1970s the Khmer Republic became involved in the war in Vietnam and sided with South Vietnam. See, Keller, paras. 3–4. For a detailed account of the reign of King Sihanouk and the subsequent overthrow by Lon Nol, see, Carney, Unexpected Victory, pp. 17–21; Chandler, pp. 85–235. 3 For a detailed account of the CPK’s way to power, see, Carney, Unexpected Victory, pp. 21–35; Frieson, pp. 33–50.

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leadership, also called Central Committee, comprised, among others, Pol Pot (born Saloth Sar) as the Secretary of the CPK and Prime Minister, Nuon Chea as the Deputy Secretary of the CPK and President of the People’s Representative Assembly, Ieng Sary, Deputy Prime Minister and Minister of Foreign Affairs as well as Khieu Samphan, who became the Head of State of Democratic Kampuchea after Prince Sihanouk’s resignation in 1976.4 There have been many attempts to analyse the ideology of the Khmer Rouge Regime.5 A detailed assessment of these analyses would exceed the scope of this writing, which is why only a short introduction will be given. The intellectual roots of the Khmer Rouge lie in communism, that is, according to Karl Jackson, “Maoism, European Marxism, Fanonism, perhaps Stalinism, and certainly Khmer nationalism”.6 The Khmer Rouge expressed those intellectual roots in a commitment to a dictatorship of the proletariat, which was marked by a desire for a pure Khmer nation, which should be completely sovereign and self-reliant and free of subjugation by foreign as well as class enemies.7 This ideology partly fed upon the longheld fears among Cambodians that Cambodia’s neighbours, in particular Vietnam, sought to take over the country. To corroborate these assumptions, the Khmer Rouge pointed out the loss of territory since the historical days of Angkor,8 inter alia the loss of parts of the Mekong Delta to Vietnam.9 To achieve the aim of a dictatorship of the proletariat, the Khmer Rouge called for a total revolution, which would involve the reorganisation of the economic and social structure of the country as well as the persecution and physical elimination of those elements in the Cambodian society regarded as enemies of the new system. Soon after the Khmer Rouge came to power, by invading Cambodia’s capital Phnom Penh on 17 April 1975, they evacuated Cambodia’s cities and forced their inhabitants into the countryside. Within a week the people of Phnom Penh and other cities were moved to rural areas in order to do agricultural work.10 The Khmer Rouge emptied the cities to abolish urban    4 Dy, pp. 18–22; Carney, Organization of Power, pp. 101–102; Chandler, pp. 264–265.    5 Harris, pp. 70–80. For attempts to analyse the Khmer Rouge’s ideology, see, Chandler, pp. 237–246.    6 Jackson, Intellectual Origins, p. 250.    7 Jackson, Ideology, pp. 39, 49; Kiernan, Pol Pot Regime, pp. 25–26.    8 Becker, p. 29: “The touchstone of Cambodian history, of Cambodia’s identity, is the temple complex at Angkor. Those massive stone wonders are to modern Cambodians what the Parthenon is to today’s Greeks – architectural masterpieces and solid, visible reminders that Cambodia was once the premier state and culture of the region.”    9 Jackson, Ideology, p. 58. 10 Dy, pp. 14–17: Between two and three million people were moved to the countryside to become agricultural workers. See also, Chandler, p. 247.



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living as well as money, private property and markets. Furthermore, the leadership around Pol Pot saw the cities as breeding grounds of those who threatened their vision of Cambodia, which were the civil and military personnel of the Khmer Republic, foreign sympathisers, the middle class, intellectuals and teachers, religious leaders and ethnic minorities. According to the Khmer Rouge leaders, the emptying of the cities from these so-called “new people” would serve the revolution in two ways: to dilute the power of those viewed as counter-revolutionaries and further the CPK’s plan for a society based primarily on communal agriculture.11 The CPK’s so-called four-year plan aimed at achieving an average national yield of three tons of rice per hectare.12 Therewith, the leaders of Democratic Kampuchea hoped to transform Cambodia into a completely independent country in both the economic and political spheres.13 The CPK called for the collectivisation of all private property and the establishment of cooperatives as part of their motive to abolish private ownership and capitalism, and to strengthen the status of workers and peasants. Cambodians were forced to work in teams under the constant oversight of armed Khmer Rouge cadres or soldiers. The work hours on the rice fields and construction sites were long; seven days a week from dawn continuing into the night and food rations were limited.14 As part of the process, preexisting traditions and institutions were abolished, including religion and all kinds of educational institutions. Families were split up and men and women were assigned to work and live in groups. Children were separated from their parents and encouraged to report on any “unreliable” relatives. Furthermore, marriages required the approval of CPK cadres and forced marriages between women and soldiers, who had been injured and therefore become disabled, or defrocked Buddhist monks were common.15 The Khmer Rouge’s policy of transforming the Cambodian economy led to starvation, disease, physical exhaustion caused by inadequate food, medicine and sanitation as well as oppressive work requirements, which led to the death of hundreds of thousands from 1975 to 1978. Additionally, the Khmer Rouge cadres and soldiers overseeing the workers killed many thousands who refused or could no longer work, often murdering their 11 Jackson, Ideology, pp. 49–58; Kiernan, Pol Pot Regime, pp. 31–64. 12 Furthermore the four-year plan included arrangements to plant vegetables, and hoped to generate income from timber, fishing, animal husbandry, tree farms, etc. See, Dy, p. 27. For a detailed description of the CPK’s economic ideology, see, Twining, pp. 119–137. 13 Chandler, p. 252; Dy, pp. 26–27. 14 Chandler, pp. 258–261, 265–270. 15 Dy, pp. 29–37; Keller, para. 5.

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family members as well.16 Beyond those deaths, the Khmer Rouge Regime also targeted certain identifiable groups for extermination. The Regime regarded the existence of these groups as inconsistent with the CPK’s goals for a pure Khmer nation. Former government leaders, military officers, and bureaucrats were immediately after the Khmer Rouge’s raise to power targeted for elimination. Hence, during the first few months of Democratic Kampuchea, the Khmer Rouge committed thousands of summary executions.17 In addition, the Khmer Rouge targeted several ethnic minorities like the Cham Muslims18 as well as ethnic Vietnamese, Chinese and Thai.19 The CPK leaders also saw the educated part of the Cambodian population, like teachers, artists and other educated people, as enemies of the revolution. Thousands were accused of ties with foreign intelligence agencies and detained in special security centres, where they were forced, under torture, to confess to false connections and killed afterwards.20 Finally, by 1976 the paranoia of the CPK leaders turned against there own members, which led to massive killings of long-time Khmer Rouge loyalists, including some senior leaders. Before being killed, most of them were detained and tortured in the security centre S-21, which was located in Phnom Penh and established at a former school named Tuol Sleng.21 Scholars and governments have offered differing totals of the number of Cambodians killed by the Khmer Rouge. The Vietnamese and post-Khmer Rouge Cambodian governments have referred to two to three million killed.22 Jackson and Ben Kiernan arrive separately at a figure of 1.5 million.23 II. 1978 Rebellions in the Eastern Zone The CPK’s leaders linked the eastern part of Cambodia to Vietnam, which they had always seen as the enemy. In May 1978, they purged ninety-two of the most important Khmer Rouge cadres in the Eastern Zone,24 which led to the uprising of a resistance movement around Chea Sim and Heng 16 Becker, pp. 237–253. 17 Becker, pp. 205–207. 18 Headley, Islam: “There were 150,000 to 200,000 Muslims in Cambodia as late as 1975.” 19 Becker, p. 253; Chandler, p. 285; Hawk, pp. 212–213; Kiernan, Pol Pot Regime, pp. 251–309. 20 Becker, pp. 221–225, 272–276; Hawk, pp. 209–210. 21 Chandler, p. 285. 22 Ratner/Abrams/Bischoff, p. 313. 23 Jackson, Introduction, p. 3; Kiernan, Pol Pot Regime, p. 461. 24 The Khmer Rouge had divided the country into four zones.



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Samrin.25 From June to September 1978, most of the Eastern Zone became a battlefield between the CPK and the resistance movement, with the CPK branding the uprisers as “Khmer bodies with Vietnamese minds”.26 The resistance movement managed to assemble their troops and tried to fight back the predominant CPK forces.27 The battle was characterised by major human rights abuses by the Khmer Rouge’s soldiers. The rebels on the other hand drew back in the jungle, where they had to realise by August 1978 that they were unable to hold the territory. They had to escape in the direction of the Vietnamese border.28 The CPK meanwhile reportedly killed at least 100,000 civilians in the Eastern Zone. CPK cadres, their families and villagers were exterminated, while hundreds of thousands of other inhabitants of the Eastern Zone were forced to evacuate the region to points north and west of the country, where many of them died of starvation and disease or were murdered.29 Others managed to escape to Vietnam. In 1979, surviving leaders of the Eastern Zone, like Hun Sen and others, became part of the Cambodian government, once the Vietnamese had driven the Khmer Rouge to the northern part of Cambodia.30 III. Armed Conflict with Vietnam In 1975, as a result of border clashes and ideological differences, relations between Democratic Kampuchea and Vietnam grew increasingly poor. Most of the CPK’s leaders were anti-Vietnamese and those CPK members who had ever lived in Vietnam or had relations with the Vietnamese were purged.31 Clashes between Vietnam and Democratic Kampuchea began already in 1975, when the CPK became obsessed with the longstanding border-dispute between the two countries. Soon afterwards, serious fighting erupted on Tral Island (or Phu Quoc in Vietnamese).32 In mid-1976, Democratic Kampuchea established closer ties with China. As a result, the conflict 25 Kiernan, Pol Pot Regime, pp. 392–396. For a biography as well as interviews with Chea Sim and Heng Samrin, see, Kiernan, Genocide and Resistance, pp. 59–64. 26 Kiernan, Cambodian Peace Process, p. 192. 27 Kiernan, Genocide and Resistance, pp. 53–54. 28 Kiernan, Genocide and Resistance, pp. 55–56. 29 Dy, p. 39; Kiernan, Pol Pot Regime, p. 404; Stephen/Lallah/Ratner, p. 12. 30 Kiernan, Cambodian Peace Process, p. 192. 31 Dy, p. 56. For further information on the conflict between Cambodia and Vietnam, see, Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, paras. 59–62. 32 Chandler, p. 256.

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between Democratic Kampuchea and Vietnam became part of the SinoSoviet rivalry, with Moscow backing Vietnam and Beijing backing Democratic Kampuchea, which lead to Democratic Kampuchea obtaining massive military aid from China.33 In 1977, the conflict escalated and Democratic Kampuchea’s forces attacked Vietnamese villages bordering Cambodia and killed hundreds of civilians. Consequently, Vietnam launched major attacks on Democratic Kampuchea, advancing more than 20 kilometres into Democratic Kampuchea. This led to the determination of diplomatic relations between the two countries in December 1977.34 A full-scale armed conflict between Cambodia and Vietnam broke out around that time and continued until Vietnamese troops took control of Phnom Penh in January 1979.35 IV. Destruction of Cultural Property 1. The Monkhood Buddhism plays a major role in Cambodia and an estimated 95% of the Cambodian population are followers of this religion.36 Buddhism is not only the State religion in Cambodia; it is an integral element of traditional Cambodian life. Buddhism in Cambodia embodies and transmits culture and many Cambodians speak of Buddhism as the soul of Khmer culture and civilisation.37 Therefore, it was widely welcomed, that Article 20 of the 1976 Constitution of Democratic Kampuchea guaranteed religious freedom. However, the Constitution also declared, that “all reactionary religions, which are detrimental to Democratic Kampuchea and the Kampuchean People are strictly forbidden”.38 This proved to be a foretaste of what was to come after the Khmer Rouge’s invasion of Phnom Penh,39 since one aspect of the Khmer Rouge’s ideology was to dismantle Buddhism and any other religion (Catholic Vietnamese, Islamic Cham, and animist highland tribes)40 practiced in Cambodia.41 One of the reasons to 33 Dy, p. 57: “From 1977 to late 1978, China provided DK [Democratic Kampuchea] with hundreds of tanks, cars and heavy weapons, tens of thousands of shells and bullets, and six jet fighters.” 34 Dy, pp. 57, 60. 35 Chandler, p. 271; Dy, p. 60. 36 On Buddhism in Cambodia, see, Headley, Cambodian Adaption. 37 Hannum, p. 87. 38 Prosecutor v. Nuon Chea et al., ECCC (Office of the Co-Investigating Judges), Closing Order of 15 September 2010, para. 210. 39 Seekins, Religious and Minority Communities. 40 Kiernan, Pol Pot Regime, p. 6. 41 Becker, pp. 189–190; Chandler, p. 247. Contradictory, Vickery, pp. 179, 183.



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dismantle Buddhism was that the CPK saw an economic burden in the “unproductive” monks. Furthermore, the Khmer Rouge modelled their revolution on the Cultural Revolution in China, which depicted Buddhism as superstition.42 Therefore, the CPK leaders ordered, shortly after they gained power, the defrocking of all Buddhist monks in Cambodia.43 According to Donald Seekins, around 40,000 to 60,000 monks were defrocked in Democratic Kampuchea.44 The top clergy was murdered immediately and those who were not executed were ordered to forfeit their robes and join the people to work in the cooperatives, an order that violated their religious tenets. Additionally, many monks were ordered to marry, which would prevent them from returning to their clergy.45 2. Buddhist Places of Worship It has to be noted that the Buddhist places of worship were already under extreme threat during the years before the Khmer Rouge gained power. At least 997 wats,46 about one-third of Cambodia’s temples, were disabled between March 1970 and June 1973.47 This was mainly due to the fact that, both Khmer Republic and CPK troops found the compounds of wats ideal military bases. When the United States intensified their bombardment of Cambodia’s territory bordering Vietnam, they had knowledge of the fact that the CPK had established training camps in the compounds of wats. Given the intensity and indiscriminate nature of much of the bombing by the US Air Force, it is inevitable that a great number of wats in the eastern part of the country were struck during that time.48 Wat Sang Samei in Chan Trea district, Svay Rieng province was bombed by B52s over a three-day period in 1970. All the kots and the dining hall were 42 Harris, pp. 63, 92. 43 Prosecutor v. Nuon Chea et al., ECCC (Office of the Co-Investigating Judges), Closing Order of 15 September 2010, para. 210: “With respect to Buddhists, this policy began on or before 17 April 1975 and continued until at least 6 January 1979.” 44 Seekins, Religious and Minority Communities. 45 Becker, p. 254; Harris, pp. 107–108; Kiernan, Pol Pot Regime, pp. 55–58; 100. For a detailed description of monks’ forced labour, defrocking and forced marriages, see, Harris, pp. 114–116; 122–129. See also, Prosecutor v. Nuon Chea et al., ECCC (Office of the Co-Investigating Judges), Closing Order of 15 September 2010, paras. 740–742. 46 Wat is the Khmer expression for a Buddhist temple. 47 Harris, p. 152: “Responsibility for the destruction has often been uncritically assigned to the communists, a view no doubt reinforced by the movement’s own self-congratulatory claim that 90% of all monasteries, the greatest concentration falling in the East and Southwest zones, had been demolished.” 48 Owen/Kiernan, p. 63: The bombardments by the US Air Force required the Cambodian populations to take measures in order to protect their places of worship.

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However, it is unquestioned that the Khmer Rouge deliberately attacked Buddhist places of worship, statuary, relics, libraries, and schools from the moment they came into power 1975. The Khmer Rouge were compelled to destroy the old center of Cambodian life – the pagoda – to replace it with the new – the cooperative hall or canteen, the barren wooden sheds that symbolized the death of the faith practiced by nearly 80 percent of Cambodians.50

Consequently, those wats, which were still active after the time of the Khmer Republic, were closed between October and December 1975.51 Tep Vung, a Buddhist superior, testified after the end of the Khmer Rouge Regime in regard to the destiny of certain Buddhist places of worship in the province of Siem Reap (north-western Cambodia) that all nine pagodas in the capital of Siem Reap were either turned into offices for the local security service, or transformed into arms depots, schools for training officers, workshops to repair military vehicles, or into barracks for mobile troops.52 He added further examples of wats he witnessed being plundered and then turned into arms depots, army barracks or stables. Another wat was destroyed by bulldozers in order to turn the grounds into a rice field.53 One particular shocking example given by Vung is the one of the Pokey pagoda in Siem Reap province: “The Pokey pagoda with its great towers was turned into a place of torture and killing following April 17, 1975: a large number of people were beaten to death with clubs or hammers, or were shot there.”54 Also in other districts, pagodas were turned into execution Harris, p. 153: “At Wat Kdol, Battambang a large banner in Khmer and English was put up on the roof of the preah vihear (central sanctuary) requesting pilots not to drop bombs because the pagoda was home to two cabinets of ancient objects where the ‘property of their nation’. Wat Kdol was, indeed, never bombed.” 49 Harris, p. 153. 50 Becker, p. 254. 51 Harris, p. 154. 52 Vung, p. 150. 53 Vung, p. 151. See also, Moni, p. 155. 54 According to Vung, the Pokey pagoda was not the only place of worship, which was turned into a prison, p. 152: “The Prey Prok pagoda […] in Siem Reap province was turned into a reeducation center. Since September 1977, more than 1,000 families (about 7,000



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sites: Inter alia at Wat Kampong Tralach, Kampot district, 21,151 people are estimated to have been killed.55 The almost 3,000 wats that existed in Cambodia by 1975 were desecrated by using them as stables or granaries, prisons and execution sites or they were destroyed completely in order to provide recycled building materials.56 The abolition of religion and the destruction and misappropriation of Buddhist places of worships occurred throughout every area of Cambodia during the CPK regime.57 According to Elizabeth Becker, the destruction was almost absolute, “with more devastating consequences for Cambodia than the Chinese attack on Buddhism had had for Tibet”.58 It has to be held, though, that most wats in the capital Phnom Penh survived the Khmer Rouge Regime intact except for minor damages and deterioration. Nevertheless, the grounds of one wat were turned into a vegetable garden and by 1979 almost all of its over 100 stupas had been broken. In another well-known wat (Wat Langka) soldiers were trained in martial arts, knife and bayonet fighting.59 Not only Buddhist places of worship were destroyed during Democratic Kampuchea. As part of the Khmer Rouge’s attack of the Cham Muslims,60

people) were detained there until January 1979. […] From 1975 to 1979, the Troung Bat pagoda […] was transformed into a place to jail people and Buddhists. […] Many people were killed there through barbarous methods.” For further accounts of the misappropriation of pagodas in Democratic Kampuchea, see, Harris, pp. 158–162. 55 Harris, p. 160. 56 Becker, p. 254; Hawk, p. 214; see also, Harris, p. 154: “The stupas and preah vihear of Wat Tap Pranam, a prominent monastery close to the old capital of Udong, were demolished so that its bricks could be reused for bridge construction. Wat Mony Sovannaram in Antong Vien, Kratie province was dismantled so that its iron could be utilized in a dike at Ou Kantuot.” See also, Prosecutor v. Nuon Chea et al., ECCC (Office of the Co-Investigating Judges), Closing Order of 15 September 2010, paras. 321, 740. 57 Prosecutor v. Nuon Chea et al., ECCC (Office of the Co-Investigating Judges), Closing Order of 15 September 2010, para. 743: “the Southwest Zone (including Wat Damnak Trayoeng in Touk Meas District, Kampot Province), the Northwest Zone (including Wat Samrong in Ek Phnom District, Battambang Province and Wat Kirirum in Phnom Sampov District, Battambang Province), the Central (Old North) Zone, the (New) North Zone, the East Zone (including Wat Chambak, Chantrea District, Svay Rieng Province and Wat Ta Kut and Wat Me in Ksach Kandal District, Kandal Province and Wat Thlork in Svay Chrum District, Svay Rieng Province), the West Zone, the Northeast Zone (including Wat Chey Mongkul in Se San District, Stung Treng Province) and in the autonomous sector of Kratie (Sector 505 including Wat Antung Vien in Kratie District, Kratie Province).” 58 Becker, p. 254. 59 Harris, pp. 157–158. 60 Hannum, pp. 86–87: “The Cham, a non-Khmer people of Malayo-Polynesian racial stock, are the remnants of the Hinduized Kingdom of Champa. They lived apart from the Khmer and had their own religion (Islam), language, and distinctive dress. Beginning in at least 1973, the Khmer Rouge instituted a harsh program a forced “Khmerization” in areas of

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their mosques were destroyed or desecrated, used as granaries, pigsties, or prisons. Furthermore, copies of the Koran were damaged and Cham schools were shut down.61 Also Christian churches, inter alia the French Catholic Cathedral in Phnom Penh, were destroyed by the Khmer Rouge.62 They dismantled the Cathedral in order to use its stones to reinforce dams for paddy farming.63 3. Buddha Images and Buddhist Books Significantly, the damage to or removal of Buddha images and other sacred objects from wats occurred very frequently. The Khmer Rouge collected most statutes, which were made of gold and statutes made of cement were simply destroyed. Accordingly, a revolutionary slogan advised: “If you demolish a statute of Buddha you will gain a sack of cement.”64 Similarly, Vung stated: Since the Pol Pot-Ieng Sary reactionaries came to power, they have killed so many Buddhist priests and plundered and destroyed so much property in gold, silver, and precious objects contributed by Buddhists, such as: sacred books, objects of worship, such as banners and golden parasols. […] Later on, Pol Pot agents seized and burned all the books of the Buddhist canon and other cultural works of national importance that were found in the pagodas. What most afflicts priests and Buddhists was the destruction of two bronze statutes, Preah Ang Chek and Preah Ang Chom, carved by our forefathers in the Angkor Wat period.65

Other testimonies reiterate that Buddha statutes were pulled down by trucks, thrown in rivers, deposited in toilets or even destroyed with landmines.66 Kampuchea under their control, which was later extended to the entire country. In many areas Cham communities were broken up and families dispersed among the Khmer population. The distinguishing characteristics of Cham ethnicity were prohibited, including speaking the Cham language, practicing Islam, and observing traditional customs […].” 61 Becker, p. 252; see also, Headley, Islam: “According to Cham sources, 132 mosques were destroyed during the Khmer Rouge era.” See also, Prosecutor v. Nuon Chea et al., ECCC (Office of the Co-Investigating Judges), Closing Order of 15 September 2010, para. 211. 62 Stephen/Lallah/Ratner, p. 11. 63 Becker, p. 403. According to Harris, p. 158: “The work [the destruction of the cathedral], which happened a year after liberation, appears to have been undertaken by a special forces battalion […] on orders from above. The source of information, furthermore, remembering seeing Khieu Samphan drive by the site after the Cathedral’s destruction.” See also, Hawk, p. 214. 64 Harris, p. 162. 65 Vung, p. 149. 66 Harris, pp. 164–165: “Nevertheless, attempts were made to preserve at least some items of religious and cultic significance. This was clearly difficult, for large statutes that



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As in most totalitarian systems, the burning of books was also common in Democratic Kampuchea. Inter alia the books from the French Catholic Cathedral and the École Française d’Extrême-Orient in Phnom Penh were burned by Khmer Rouge soldiers while celebrating the fall of Phnom Penh.67 As far as Buddhist literature was concerned, there is reliable evidence for its destruction at some places throughout Democratic Kampuchea.68 4. Temple Complex of Angkor Interestingly, the CPK leaders left the famous temple complex of Angkor, a hundreds-of-years-old witness of Khmer history that was inscribed on the World Heritage List in 1992, intact. The CPK did not envision Angkor as a religious site though, as most of the Cambodian population did. For the Khmer Rouge leaders the temples were at the centre of what they considered Cambodian culture and a critical symbol of past Cambodian accomplishments. They were a symbol of national pride. Thus, in Democratic Kampuchea not the pictures of Karl Marx or Joseph Stalin not even Pol Pot hung on the walls. Only Angkor was considered safe enough to become the symbol for Democratic Kampuchea.69 Hence, during the time of Democratic Kampuchea just a few pieces went missing and most of the other priceless objects were left in place. The temples only suffered from the lack of care since the Cambodian curators belonged to the intelligentsia and therefore were not allowed to work in the compounds anymore. Thus, the temples had been left to deteriorate.70 Becker, one of the few western visitors to the country during Democratic Kampuchea, reported that she visited Angkor Wat in December 1978 and could detect no major damage to the temples beyond that caused by water seepages, fungal growth and the like.71

could not easily be hidden, but […] some old villagers did manage to hide the contents of a cabinet containing more than 90 small statutes, including some gold, while a man […] buried some broken Buddha images that he had discovered amongst some children’s playthings under a tree. He dug them up again in the 1980s.” See also, Kampuchean Clergy, p. 145. 67 Harris, p. 167. 68 See, e.g., Harris, p. 168: “Old palm leaf manuscripts at Wat Prasat Mathar […] had been stored in two big cupboards. They were all burnt by the Khmer Rouge when they arrived in the area.” 69 Becker, p. 417; Bevan, p. 121; Harris, pp.71–72; Ratner/Abrams/Bischoff, p. 329. 70 Clément/Quinio, pp. 389–390, 395; see also, Forrest, Protection of Cultural Property, pp. 278–279: “Initiated by a Japanese Trust Fund, UNESCO launched a safeguarding campaign to save Angkor in 1991. Shortly thereafter, Angkor was inscribed on the World Heritage List and the Danger List.” 71 Becker, p. 406, 417. In contrary, Vung, pp. 149–150: “In 1976, the Pol Pot-Ieng Sary executioners used mines to blow up two 5-meter-high stone statutes at the Angkor Thom

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5. Orders Concerning the Destruction It remains unclear, though, if orders to destroy Buddhist places of worship and relics had been formulated at a higher level of the CPK. There exists evidence, that the Khmer Rouge recruited so-called demolition teams, which were ordered to dismantle pagodas from iron, wood and other building materials.72 According to the testimony of a former prison chief, who was responsible for the demolition teams in his district, all orders came from a high level of the CPK and were delivered by letter to the district.73 One clear example of high-level intent to destroy cultural property is the decision, in which the CPK leaders ordered that the armed forces should demolish the French Catholic Cathedral in Phnom Penh.74 Furthermore, the closing order of Case 002 holds that the accused, Nuon Cheah, “lead meetings of CPK cadres and RAK members where he presented the Party policy to prohibit all religions including Buddhism, to defrock monks, to close pagodas, and to forbid Buddhist ceremonies”.75 Furthermore, according to John D. Ciorciani and Youk Chang, the leadership of the CPK left compelling evidence of their intent to abolish Buddhism and to defrock and kill Buddhist monks. Pursuant to their research, multiple interview transcripts establish that Pol Pot and Nuon Chea ordered Party members to ‘wipe out,’ ‘defrock,’ or ‘kill’ all of the Buddhist monks in Cambodia at CPK’s May 1975 Party Congress. According to [the witness] Heng Samrin, Nuon and Pol called monks a ‘special class,’ the most important to Temple […]. They also broke the neck of the statute of Koh Thlok […]. […] The Pol Pot-Ieng Sary executioners also partly destroyed the well-known ancient Angkor Wat Temple. They destroyed or pillaged hundreds of Buddha statues carved from stone and precious wood on the third floor of the temple. […] the Pol Pot-Ieng Sary clique wanted to destroy all pagodas and temples, which they regarded as the symbols of the Khmer people’s soul and sacred feelings. They used mines to blow up the main door … and on the third floor, on the southern side, causing heavy damage.” 72 Harris, pp. 155–156: “All activity was monitored by a high-ranking cadre. […] Sledge hammers were the main tool and explosives were never employed. […] In toto [they] dismantled more than twenty pagodas […] in other words all the wats around Khsach Kandal […]. The rest were dismantled for their iron girders – these were usually transported by boat to Phnom Penh – wood, and other building materials. It took approximately 15 days to demolish a two-story preah vihear and even stupas without iron were demolished. Sometimes Buddha images survived intact, but by the time they had finished their work, all had been broken into small pieces.” 73 Harris, p. 157. 74 Ciorciari/Chang, p. 285. 75 Prosecutor v. Nuon Chea et al., ECCC (Office of the Co-Investigating Judges), Closing Order of 15 September 2010, para. 978.



case study cambodia187 fight. ‘Pol Pot said that no monks were to be allowed, no festivals were to be allowed any more, meaning no more religion.’ Nuon Chea added that ‘wats [Buddhist temples] would not be allowed’.76

Furthermore, Ciorciari and Chang collected evidence, which proved the CPK’s intent to destroy Islam in Cambodia and to erase the Cham Moslems’ distinct ethnicity and religious identity, which includes the destruction of their mosques and other religious institutions.77 Whether or not the CPK leaders directly ordered the destruction of religious property and the defrocking of Buddhist, the devastation during the Khmer Rouge Regime is enormous and the numbers speak for themselves: “In 1981 about 4,930 monks served in 740 wats in Cambodia. […] In 1969 by contrast, observers estimated that 53,400 monks and 40,000 novice monks served in more than 3,000 wats.”78 V. Cambodia after 1979 After invading Phnom Penh, the Vietnamese installed a communist regime referred to as the People’s Republic of Kampuchea (PRK), which ruled the country with the support of the Vietnamese army until 1989.79 The Khmer Rouge meanwhile fled power quickly and established themselves along both sides of Cambodia’s border with Thailand. Significant military support from China and the members of the Association of Southeast Asian Nations (ASEAN), which harboured fears of a Vietnamese hegemony, maintained the Khmer Rouge as an active fighting force.80 The CPK’s ruthless

76 Ciorciari/Chang, p. 266, referring to interviews with Kun Chhay, Mat Ly and Heng Samrin. 77 Ciorciari/Chang, pp. 268–267: “The banning of Islam, the forced assimilation of the Chams, and the widespread and disproportionate abuses committed against them all suggest that the CPK leadership intended to destroy Chams, in whole or in part. There is little concrete documentary proof that top-ranking CPK officials knew about the treatment of Chams, because the orders banning Islam have not survived, and CPK correspondence seldom refer to Chams by name. Nevertheless, circumstantial evidence of superior knowledge abounds. High-ranking members of the CPK were certainly aware of the broad prohibition of religious practice. The existence of myriad attacks against lives and basic rights of Chams throughout Democratic Kampuchea also makes it highly probable that top leaders bore constructive (if not actual) knowledge of genocidal offenses being committed by individuals beneath them in the CPK hierarchy.” 78 Headley, Role of Buddhism in Cambodian Life. 79 Chandler, p. 271; Dy, p. 60; Kiernan, Cambodian Peace Process, pp. 192–194; Linton, Cambodia’s Extraordinary Chambers, p. 199. 80 Kiernan, Cambodian Peace Process, pp. 199–205.

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methods against the population continued in the – by them occupied – northern part of Cambodia. In 1982, three major resistance groups (a royalist faction around the former King Sihanouk, a conservative and rightist faction and a communist faction dominated by the Khmer Rouge) formed the Coalition Government of Democratic Kampuchea in exile, which was headed by Sihanouk.81 Even though the Khmer Rouge strongly fought back, the PRK and Vietnam managed to maintain control of about 90 percent of Cambodia’s countryside by the end of the 1980s. Peace negotiations between all belligerent Cambodian factions were entered in 1989 and after two years of negotiations, the Paris Agreement was signed on 23 October 1991.82 The peace agreement called for the United Nations Transitional Authority in Cambodia (UNTAC) inter alia to organise and conduct elections in an atmosphere of peace and neutrality. UNTAC, however, was not mandated to document, let alone investigate and prosecute the violations of the Khmer Rouge Regime.83 UNTAC became operational in March 1992 and its mandate ended in September 1993 with the promulgation of the Constitution of the Kingdom of Cambodia, which restored the constitutional monarchy. Furthermore, after the election a new Cambodian government was formed, headed by the reinstated King Sihanouk and his son, Prince Norodom Ranariddh, and Hun Sen as Co-Prime Ministers.84 In 1994, the Cambodian national legislature passed a law outlawing the  Khmer Rouge and offering defectors amnesty.85 In August 1996, Ieng  Sary came forward in order to negotiate a mass defection of thousands  of dissident forces. In exchange King Sihanouk granted Ieng Sary amnesty.86 Finally, by the end of the 1990s, the Khmer Rouge had effectively ceased operations, which went hand in hand with Pol Pot’s death in April 1998 and the defection of Nuon Chea and Khieu Samphan in December 1998.87

81 Keller, para. 8. 82 For a detailed account of the peace negotiations, see, Keller, paras. 12–24; Kiernan, Cambodian Peace Process, pp. 206–208, 220. 83 Linton, Cambodia’s Extraordinary Chambers, p. 201. For a detailed description of UNTAC’s legal basis and mandate, see, Keller, paras. 25–34. 84 Buckley, pp. 642–644; Keller, para. 35; Linton, Cambodia’s Extraordinary Chambers, pp. 202–203. 85 Linton, Cambodia’s Extraordinary Chambers, pp. 213–214. 86 Buckley, p. 644. 87 Linton, Cambodia’s Extraordinary Chambers, pp. 217–218.



case study cambodia189 § 2 The Extraordinary Chambers in the Courts of Cambodia (ECCC)

I. Establishment of the ECCC Shortly after the invasion of Cambodia by Vietnam, the newly installed People’s Republic of Kampuchea issued Decree-Law No. 0188 to establish a People’s Revolutionary Tribunal, which should judge the crimes committed by the “Pol Pot-Ieng Sary clique”.89 The Decree-Law entailed, among others, provisions for the prosecution of genocide and already presumed the guilt of the “Pol Pot-Ieng Sary clique”.90 The trial was then held in absentia of the accused and death penalties were imposed on Pol Pot and Ieng Sary.91 Those convictions, however, have never been recognised by the international community, which regarded the process as a politically designed show trial.92 After the trial against the “Pol Pot-Ieng Sary clique”, some attempts were made to try further members of the Khmer Rouge Regime.93 However, no real efforts were put in these attempts until the Cambodian Prince Sihanouk granted amnesty to Ieng Sary in 1996. This act prompted the UN Commission on Human Rights in April 1997 to pass a resolution requesting the UN Secretary-General to consider creating a Khmer Rouge Tribunal.94 In late 1998, the Secretary-General mandated a UN Group of Experts with the examination of the situation in Cambodia. The Group recommended in January 1999 that the UN should create an international criminal tribunal for Cambodia similar to the ICTY, which should be seated near, but not in, 88 Reprinted in a Letter dated 17 September 1979 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General, UN Doc. A/34/491 (20 September 1979). See, Horsington, p. 466. 89 Indictment, reprinted in a Letter dated 4 October 1979 from the Permanent Representative of Viet Nam to the United Nations addressed to the Secretary-General UN Doc. A/C.3/34/1 (11 October 1979). See, Horsington, p. 466. 90 Linton, Cambodia’s Extraordinary Chambers, p. 209. 91 Linton, Cambodia’s Extraordinary Chambers, pp. 210–211. For a detailed account of the trial see, De Nike, pp. 19–28; Quigley, pp. 1–18. 92 Linton, Cambodia’s Extraordinary Chambers, p. 211; Marks, p. 24. 93 Linton, Cambodia’s Extraordinary Chambers, pp. 212–222; According to Marks, pp. 27–36, around the same time, the Special Representative of Human Rights in Cambodia, Thomas Hammarberg of Sweden, forced the Cambodian government to consider trials for the Khmer Rouge’s atrocities. Cambodia’s government formally asked the UN in June 1997 to assist in bringing to justice members of the Khmer Rouge for the atrocities they committed between 1975–1979. See also, Buckley, p. 647. 94 UN Commission for Human Rights, Situation of Human Rights in Cambodia, CHR Res. 1997/49, 53rd Sess., 58th Mtg., UN Doc. E/CN.4/RES/1997/49 (11 April 1997). See, Horsington, p. 466.

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Cambodia.95 The Cambodian Government, however, did not agree to the establishment of an ad hoc tribunal but argued in favour of a Cambodianled tribunal, which led to four years of negotiations between the UN and the Cambodian Government.96 In order to find a solution, the US proposed the creation of a hybrid Khmer Rouge Tribunal, which the UN, however, would only agree to if it had a majority of international judges and an independent international prosecutor.97 Nevertheless, in January 2001, the Cambodian National Assembly enacted the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (ECCC Statute) in order to create a special tribunal within the existing Cambodian court structure. The ECCC Statute settled several legal and political controversies between the UN and the Cambodian Government in favour of the Cambodian Government, which resulted in the UN Secretary-General leaving the negotiations.98 In the spring of 2003, though, the Secretary-General resumed negotiations with the Cambodian Government, which led to the Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes committed during the Period of Democratic Kampuchea99 in March 2003. Both parties had consented that the ECCC Agreement would have priority over the ECCC Statute and that those provisions of the Statute that did not correspond with the Agreement would be altered.100 The General Assembly of the United Nations then adopted the ECCC Agreement in May 2003.101       95 Stephen/Lallah/Ratner, pp. 39–52; Ratner, p. 614: “The group evaluated five options for trails: fully domestic trials under Cambodian law, a tribunal established by the UN, a Cambodian tribunal under some form of UN administration (the so-called mixed tribunal), an international tribunal established by treaty, and trials in states other than Cambodia under their domestic laws.” See also, Etcheson, p. 199; Horsington, p. 468; Linton, Experiments in International Justice, p. 188.      96 Etcheson, p. 199; Horsington, p. 468; Leang/Smith, p. 145; Linton, Experiments in International Justice, p. 189; Ratner, pp. 615–618. For a detailed overview on the negotiation process, see, Donovan, pp. 553–561.       97 Horsington, p. 468.      98 Donovan, pp. 561–564; Horsington, p. 469; Linton, Cambodia’s Extraordinary Chambers, p. 223; Meijer, p. 208.      99 UN General Assembly, Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes committed during the Period of Democratic Kampuchea, UN GAOR, 57th sess., Supp. No. 109, Annex, UN Doc. A/RES/57/228 B (2003), [hereinafter “ECCC Agreement”]. For an indepth analysis of the ECCC Agreement, see, Donovan, pp. 564–572. 100 Horsington, p. 470; Linton, Cambodia’s Extraordinary Chambers, p. 224; Meijer, p. 208. 101 UN General Assembly, UN GAOR, 57th sess., Supp. No. 109, UN Doc. A/RES/57/228 B (2003). See also, Meijer, p. 208.



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Concerning the relationship between the ECCC Statute and the ECCC Agreement it has to be clearly held that the Agreement is above the Statute. Hence, those provisions of the Statute, which were less detailed than those of the Agreement and the Statute’s provisions, which were not in conformity with the Agreement, needed to be adapted.102 II. Nature of the ECCC In their first decision ever, the ECCC Co-Investigating Judges described the Court as a “special internationalized tribunal”.103 The ECCC Trial Chamber has also commented on the Court’s hybrid nature, affirming that the ECCC is of special and independent character within the Cambodian legal system […] designed to stand apart from existing Cambodian courts and rule exclusively on a narrowly-defined group of defendants for specific crimes committed within a limited period.104

The Trial Chamber specifies that the Court is a “separately constituted, independent and internationalized court”.105 The ECCC is a hybrid or internationalised tribunal, which is based on the application of national and international laws and employs national and international officials. The merits of such an internationalised court is that local and international staff work side by side, which guarantees not only some kind of ownership of the process by the local population, but also it guarantees more insight on the crimes committed since the local prosecutors and judges are familiar with the territory, the language and the habits of the accused.106 Furthermore, the internationalised character of the ECCC respects Cambodian sovereignty, while facilitating at the same time some degree of international involvement to ensure that impartial and

102 Meijer, pp. 210–211. See, on the differences between the ECCC Statute and the ECCC Agreement, Horsington, pp. 471–478. Linton, Cambodia’s Extraordinary Chambers, p. 225: “The Law on the Extraordinary Chambers was accordingly amended and promulgated on 27 October 2004.” 103 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Offices of the Co-Investigating Judges), Order of 31 July 2007, para. 20. In general on internationalized tribunals, see, Cassese, Internationalized Courts and Tribunals, pp. 6–13. 104 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Decision of 15 June 2009, para. 10. 105 Ibid. See also, Cohen, p. 28. 106 Cassese, Internationalized Courts and Tribunals, p. 6.

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objective justice, which meets international standards, is delivered.107 Another advantage is that the trials are held in the country where the atrocities have been committed, which gives the local population the possibility to attend the proceedings as spectators or even to actively take part in the trials.108 Furthermore, an internationalised tribunal such as the ECCC can promote to the development of the rule of law in a post-conflict country by legal training of local staff and effective outreach.109 The hybrid nature of the ECCC can also be seen in its funding: The funds are provided by UN Member States and the Cambodian Government makes monetary and in-kind contributions.110 III. Jurisdiction of the ECCC According to Article 1 of the ECCC Agreement and Article 1 of the ECCC Statute, the temporal jurisdiction of the Extraordinary Chambers in the Court of Cambodia extends from 17 April 1975 to 6 January 1979. Hence, the period covered by the Court starts from the Khmer Rouge’s invasion of Phnom Penh and goes until the Vietnamese’s capture of the Cambodian capital. The choice to limit the temporal jurisdiction to the period from 17 April 1975 to 6 January 1979 was presumably pragmatic. Primarily, the ECCC should not be overburdened in order to enable the Court to start its work promptly and the limited temporal jurisdiction was chosen in order to limit the financial and human resources needed.111 The ECCC Agreement as well as the ECCC Statute state that the Court should bring to trial “senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations”.112 The UN and the Cambodian Government decided that the scope of personal jurisdiction should be limited in the spirit of achieving justice, truth and national reconciliation.113 Consequently, low- to middle-ranking cadres of the Khmer Rouge may not be prosecuted by the ECCC. The formulation of

107 Horsington, pp. 479–480; Kaufmann/Marschner, p. 62. 108 Cohen, p. 2; Horsington, p. 480. For an in-depth analysis of the Cambodians’ involvement in the proceedings, see, Ehlert/Kaufmann, pp. 26–37. 109 Cassese, Internationalized Courts and Tribunals, p. 6; Cohen, p. 6. 110 Cohen, p. 31; Leang/Smith, p. 145. 111 Meijer, pp. 211–212. 112 ECCC Agreement, Article 1; ECCC Law, Article 1. 113 Leang/Smith, p. 147; see also, Linton, Cambodia’s Extraordinary Chambers, pp. 226–228.



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the personal jurisdiction, however, is open to different interpretations and has already led to several issues.114 The ECCC are part of the Cambodian domestic judicial system and therefore, they are a domestic court with domestic and – due to their hybrid nature – international law applicable at the same time. International law, however, is only to be applied by the Court when there are gaps in the Cambodian law or when it stands in conflict with international law. Following this concept, the applicable provisions deriving from Cambodian law are murder, torture and religious persecution,115 which are crimes under the Criminal Code of the Kingdom of Cambodia of 1956.116 The applicable international provisions are crimes under the 1948 Genocide Convention,117 crimes against humanity,118 grave breaches of the 1949 114 Inter alia, in Case 001 the defence lawyers of the accused, Kaing Guek Eav, appealed its judgement mainly on the grounds that their client was not a senior leader of Democratic Kampuchea nor was he most responsible for the crimes and serious violations. See, Appeal Brief by the Co-Lawyers for Kaing Guek Eav alias “Duch” against the Trial Chamber Judgement of 26 July 2010, 18 November 2010, pp. 3–18. See also, Kaufmann/Marschner, pp. 60–61. 115 ECCC Statute, Article 3: “The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed any of these crimes set forth in the 1956 Penal Code, and which were committed during the period from 17 April 1975 to 6 January 1979: Homicide (Article 501, 503, 504, 505, 506, 507 and 508); Torture (Article 500); Religious Persecution (Articles 209 and 210).” See also, Linton, Cambodia’s Extraordinary Chambers, p. 229. 116 Promulgated on 21 February 1955 by the King (Kram No. 933NS), Kingdom of Cambodia, imprinted in: Recueil Judiciaire, Special Edition, 1956, pp. 11–403 [hereinafter “1956 Penal Code”]. Presently, the ECCC does not possess an authorative of the 1956 Penal Code. See, ECCC Trial Chamber, Letter to Minister of Justice about Notification of the 1956 Penal Code of Cambodia and Request for Clarification of the Official Code to the Minister of Justice, 21 August 2009. An unofficial English translation, however, is on file with the author. 117 ECCC Statute, Article 4: “The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed the crimes of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and which were committed during the period from 17 April 1975 to 6 January 1979. The acts of genocide, which have no statute of limitations, mean any acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children from one group to another group. The following acts shall be punishable under this Article: attempts to commit acts of genocide; conspiracy to commit acts of genocide; participation in acts of genocide.” See also, Linton, Cambodia’s Extraordinary Chambers, pp. 229–231. 118 ECCC Statute, Article 5: “The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979. Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political,

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Geneva Conventions,119 crimes under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,120 and crimes under the 1961 Vienna Convention on Diplomatic Relations.121 Concerning the statute of limitations, it has to be noted that neither the ECCC Agreement nor the ECCC Statute contains any provisions on this issue. Presumably, the drafters took the position that for the international crimes no statute of limitations applies.122 For the crimes under national criminal law, though, the situation is different since the 1956 Cambodian Criminal Code has a statute of limitations of ten years. Therefore, the ECCC Statute has extended the limitation period for these crimes with additional 30 years.123 IV. Structure of the ECCC The judicial component of the ECCC consists of the Pre-Trial Chamber, the Trial Chamber and the Supreme Court Chamber. In each Chamber the national judges are in the majority.124 The ECCC Statute encourages the racial and religious grounds; other inhuman acts.” See also, Linton, Cambodia’s Extraordinary Chambers, pp. 231–232. 119 ECCC Statute, Article 6: “The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed or ordered the commission of grave breaches of the Geneva Conventions of 12 August 1949, such as the following acts against persons or property protected under provisions of these Conventions, and which were committed during the period 17 April 1975 to 6 January 1979: wilful killing; torture or inhumane treatment; wilfully causing great suffering or serious injury to body or health; destruction and serious damage to property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or a civilian to serve in the forces of a hostile power; wilfully depriving a prisoner of war or civilian the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement of a civilian; taking civilians as hostages.” See also, Linton, Cambodia’s Extraordinary Chambers, pp. 232–233. 120 ECCC Statute, Article 7: “The Extraordinary Chambers shall have the power to bring to trial all Suspects most responsible for the destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict, and which were committed during the period from 17 April 1975 to 6 January 1979.” For an in-depth analysis of Article 7, see, infra, pp. 198 et seq. 121 ECCC Statute, Article 8: “The Extraordinary Chambers shall have the power to bring to trial all Suspects most responsible for crimes against internationally protected persons pursuant to the Vienna Convention of 1961 on Diplomatic Relations, and which were committed during the period from 17 April 1975 to 6 January 1979.” See also, Linton, Cambodia’s Extraordinary Chambers, pp. 233–234. 122 Meijer, p. 215. 123 ECCC Statute, Article 3. 124 ECCC Statute, Article 9: “The Trial Chamber shall be an Extraordinary Chamber composed of five professional judges, of whom three are Cambodian judges with one as president, and two foreign judges; and before which the Co-Prosecutors shall present their cases. The president shall appoint one or more clerks of the court to participate. The Supreme



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judges of the respective Chamber to arrive at unanimity in their decisionmaking. If unanimity cannot be reached, though, a so-called “super-majority” rule applies. A super-majority requires at least one international judge within each of the three Chambers to agree with the decision.125 The inclusion of the “super-majority” rule was a concession to the UN since all judges, domestic and international, are ultimately selected by Cambodia’s Supreme Council of the Magistracy, which also selects the President of each of the chambers, who ought to be Cambodian.126 Due to the fact that the ECCC Statute is based on national law – in order to incorporate the Court in the Cambodian court system – the ECCC has adopted the French-inspired Cambodian civil law model of criminal justice,127 which entails the inclusion of an investigating judge in the ECCC’s structure. To reflect the Court’s hybrid structure, one Cambodian and one international judge are to be appointed as Co-Investigating Judges. They are jointly responsible for investigations and are equal in status.128 In the event of a disagreement between the Co-Investigating Judges the ECCC Pre-Trial Chamber will resolve the dispute.129 Pursuant to Article 16 of the ECCC Statute, one Cambodian and one international lawyer will be appointed to be Co-Prosecutors, who are jointly responsible for the preparation and issuing of indictments.130 Disagreements between the Co-Prosecutors are also to be resolved by reference to the ECCC Pre-Trial Chamber.131 Further, due to the French-inspired Cambodian civil law model of criminal justice, the drafters of the ECCC Statute adopted the French system of civil party participation, which allows victims to participate actively in the Court Chamber, which shall serve as both appellate chamber and final instance, shall be an Extraordinary Chamber composed of seven judges, of whom four are Cambodian judges with one as president, and three foreign judges; and before which the Co-Prosecutors shall present their cases. The president shall appoint one or more clerks of the court to participate.” 125 ECCC Statute, Article 14. See also, Cohen, p. 29: “The voting system that determines decision in the various chambers in unique and is the product of the protacted struggle over ‘ownership’ and independence […].” 126 ECCC Statute, Article 11. See, Linton, Cambodia’s Extraordinary Chambers, p. 243; Meijer, pp. 219–212. 127 Linton, Cambodia’s Extraordinary Chambers, p. 197. 128 Linton, Cambodia’s Extraordinary Chambers, p. 242–243; Petit/Ahmed, pp. 170–171. 129 ECCC Statute, Article 23. See also, Leang/Smith, p. 146; Linton, Experiments in International Justice, p. 192. 130 Linton, Cambodia’s Extraordinary Chambers, pp. 241–242; Petit/Ahmed, p. 170. 131 See also, Leang/Smith, p. 146; Linton, Experiments in International Justice, p. 193. For further information on disagreements between Co-Prosecutors, see, Kaufmann/ Marschner, p. 62; Petit/Ahmed, pp. 171–172.

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trials.132 According to the ECCC’s Internal Rules,133 victims are admissible as Civil Parties if the injury is “(a) physical, material or psychological; and (b) the direct consequence of the offence, personal and have actually come into being”.134 When joined as a Civil Party, the victim becomes a party to the criminal proceedings and has almost the same rights as the Accused.135 The purpose of Civil Party action before the ECCC is to: (a) participate in criminal proceedings against those responsible for crimes within the jurisdiction of the ECCC by supporting the Prosecution; and (b) allow victims to seek reparations.136 V. Procedural Law of the ECCC Article 12 of the ECCC Agreement holds that the procedures to be applied at the ECCC are based on national law. Since the adoption of the Cambodian Code of Criminal Procedure (CPC)137 did not take place until August 2007, Article 12(1) of the ECCC Agreement took recourse to international law by stating that in cases in which Cambodian law does not deal with a particular matter or in which there is uncertainty in Cambodian law or Cambodian law is inconsistent with international standards “guidance may be sought [from] procedural rules established at the international level”.138 The applicable law at the ECCC must, therefore, pursuant to Article 12(2) of the ECCC Agreement, be consistent with “international standards of justice, fairness and due process of law”. Furthermore, the Court is bound to the fair trial rights embodied in Articles 14 and 15 of the International Covenant of Civil and Political Rights (ICCPR).139,140 Additionally, the ECCC’s Plenary, consisting of the Court’s judges, adopted the so-called Internal Rules to consolidate applicable Cambodian law for proceedings before the Court and to adopt rules where existing  Cambodian law does not deal with a matter or is inconsistent with

132 See, Ehlert/Kaufmann, pp. 28–37; Linton, Cambodia’s Extraordinary Chambers, pp. 249–252; Petit/Ahmed, pp. 173–174. 133 Internal Rules, Preamble. For further information on the Internal Rules, see, Acquiva, Internal Rules, pp. 129–151; Linton, Cambodia’s Extraordinary Chambers, pp. 236–240, 252–256. 134 Internal Rules, Rule 23 (2). 135 Internal Rules, Rule 23 (6). 136 Internal Rules, Rule 23 (1). 137 An unofficial English translation is on file with the author. 138 See, Meijer, p. 225. 139 23 March 1976, 999 UNTS 171. 140 ECCC Statute, Article 33. See, Meijer, pp. 225–228.



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international standards. The ECCC Pre-Trail Chamber stated in one of its early decisions that, the Internal Rules form a self-contained regime of procedural law related to the unique circumstances of the ECCC, made and agreed upon by the plenary of the ECCC. They do not stand in opposition to the Code of Criminal Procedure of the Kingdom of Cambodia (‘CPC’) but the focus of the ECCC differs substantially enough from the normal operation of Cambodian criminal courts to warrant a specialised system. Therefore, the Internal Rules constitute the primary instrument to which reference should be made in determining procedures before the ECCC where there is a difference between the procedures in the Internal Rules and the CPC.141

Furthermore, according to the ECCC Pre-Trial Chamber, the CPC shall apply only, when “a question arises which is not addressed by the Internal Rules”.142 VI. The Cases The hearings in the first case, Case 001, indicting Kaing Guek Eav, alias Duch, started in February 2009 and ended in November 2009.143 Duch, who turned 71 years in 2013, was the Deputy Chairman and then Chairman of the security centre S-21, also known as Tuol Sleng, where at least 12’380 prisoners were executed or died due to torture or other inhumane treatment in detention under the Khmer Rouge.144 On 26 July 2010, the ECCC Trial Chamber issued its judgement, finding Duch guilty of crimes against humanity and grave breaches of the 1949 Geneva Conventions, and sentencing him to 35 years in prison.145 On appeal the Surpreme Court Chamber increased Duch’s sentence to life imprisonment.146 141 Prosecutor v. Nuon Chea, ECCC (Pre-Trial Chamber), Decision of 26 August 2008, para. 14. See also, Kaufmann/Marschner, pp. 63–64. 142 Prosecutor v. Nuon Chea, ECCC (Pre-Trial Chamber), Decision of 26 August 2008, para. 15. 143 For an in-depth analysis of the Duch Trial, see, Staggs Kelsall et al., pp. 4–46. 144 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Offices of the Co-Investigating Judges), Closing Order of 8 August 2008, paras. 1–3. 145 The crimes against humanity included enslavement, imprisonment, torture (including one instance of rape), and persecution on political grounds. The war crimes included wilful killing, torture and inhumane treatment, wilfully causing great suffering or serious injury to body or health, wilfully depriving a prisoner of war or civilian of the rights of fair and regular trial, and unlawful confinement of a civilian. The sentence will be reduced by five years in compensation for the violation of Duch’s human rights resulting from illegal pre-trial detention by the Cambodian Military Court. After receiving credit for the eleven years he has already served in pre-trial detention, Duch would have had 19 years of the sentence remaining. 146 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Surpreme Court Chamber), Judgment of 3 February 2012, p. 320.

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In the second case, Case 002, members of the CPK’s leadership are indicted: Nuon Chea, age 86, former Deputy Secretary of the Communist Party of Kampuchea; Ieng Sary, age 87, former Deputy Prime Minister for Foreign Affairs; Khieu Samphan, age 81, former Head of State; and Ieng Thirith, age 80, former Minister of Social Affairs.147 The initial hearing for Case 002 took place at the end of June 2011. Afterwards, Case 002 has been severed into a series of separate trials, each addressing a different section of the indictment.148 The first trial primarily focuses on alleged crimes against humanity related to the forced movement of the population from Phnom Penh and later from other regions (phases one and two), and execution of Khmer Republic soldiers immediately after the Khmer Rouge takeover in 1975. The trial commenced on 22 November 2011, but only against Nuon Chea, Ieng Sary and Khieu Samphan since Ieng Thirith was found unfit to stand trial.149 On 14 March 2013 the accused Ieng Sary died after having been hospitalised for a couple of days.150 The hearings concerning the two remaining defendants are ongoing as of September 2013. On 7 September 2009, the international Co-Prosecutor filed two introductory submissions, requesting the Co-Investigating Judges to initiate investigation of five additional suspected persons. These two submissions have been divided into what is known as Case files 003 and 004. The cases are currently under investigation by the Co-Investigating Judges. So far, no charges have been issued and it is unclear if there will be any charges issued at all.151 § 3 Direct Applicability of the 1954 Hague Convention by the Extraordinary Chambers in the Courts of Cambodia Different from all the other statutes of international criminal tribunals, the  ECCC Statute provides – apart from war crimes and crimes against 147 See, Prosecutor v. Nuon Chea et al., ECCC (Offices of the Co-Investigating Judges), Closing Order of 15 September 2010, paras. 36, 38, 41–47. 148 See, Prosecutor v. Nuon Chea et al., ECCC (Trial Chamber), Decision of 26 April 2013 on Severance of Case 002/01 following Supreme Court Chamber Decision of 8 February 2013, p. 70. 149 See, Prosecutor v. Nuon Chea et al., ECCC (Trial Chamber), Decision of 17 November 2011 on Ieng Thirith’s fitness to stand Trial, p. 29; see for further information, Bassiouni, International Criminal Law, p. 768. 150 See, ECCC Press Release, “Accused Person Ieng Sary Dies”, [http://www.eccc.gov.kh/ en/articles/accused-person-ieng-sary-dies], visited on [4 September 2013]. 151 Bassiouni, International Criminal Law, pp. 768–767; Kaufmann/Marschner, p. 59.



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humanity – for a special provision for the prosecution of the destruction of cultural property. According to Article 7 of the ECCC Statute, The Extraordinary Chambers shall have the power to bring to trial all Suspects most responsible for the destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and which were committed during the period from 17 April 1975 to 6 January 1979.

The inclusion of the 1954 Hague Convention in the ECCC Statute was already suggested by the UN Group of Experts, which examined the situation in Cambodia in late 1998.152 The rationale behind this suggestion mainly stems from the fact that the destruction of cultural property is not included in the list of grave breaches of the 1949 Geneva Conventions, which the UN Group of Experts had also recommended to be included in the ECCC Statute.153 The Additional Protocols could not be included in the ECCC’s jurisdiction since they came into force during the time of Democratic Kampuchea. Hence, their application by the ECCC would have violated the principle of nulla crime sine lege. The Khmer Rouge’s destruction of cultural property might, though, have been covered by the 1907 Hague Regulations. However, violations of the 1907 Hague Regulations were not included in the ECCC Statute either. In view of this, the inclusion of the 1954 Hague Convention seems to have been the only solution in order to provide for a provision for individual criminal responsibility of the destruction of cultural property. In addition, Cambodia ratified the 1954 Hague Convention shortly after it came into force and has since then tried – apart from the time of Democratic Kampuchea – to protect its rich cultural heritage in accordance with the Convention’s provisions.154 Therefore, an inclusion of the 1954 Hague Convention in the ECCC Statute seemed only natural. As already established in the previous chapter with regard to the 1954 Hague Convention, Article 28 of the Convention deals with sanctions for the violations of the Convention.155 This article, however, does not stipulate the breaches, which are punishable under the Convention nor the required elements of the crime. It only obliges the State Parties to the Convention to undertake “all necessary steps to prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or 152 Stephen/Lallah/Ratner, p. 23. 153 Stephen/Lallah/Ratner, pp. 22–23. 154 Cambodia ratified the 1954 Hague Convention in April 1962. Concerning Cambodia’s application of the 1954 Hague Convention, see, Clément/Quinio, pp. 390–394. 155 See, supra, pp. 59 et seq.

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order to be committed a breach of the present Convention”. Therefore, it was pointed out by several experts that referring to the 1954 Hague Convention in the ECCC Statute as a source of the crime of destruction of cultural property creates a problem, since the Convention does not establish individual criminal responsibility for violations of its provisions, nor does it set forth a list of violations.156 However, the UN Group of Experts held that the “destruction of cultural property incurs individual criminal responsibility under the 1954 Hague Convention”.157 It might be due to those technical difficulties or maybe due to the extreme gravity of the other crimes committed during Democratic Kampuchea, which caused the ECCC Co-Investigating Judges and the Co-Prosecutors not to include the prosecution of the destruction of cultural property under Article 7 of the ECCC Statute in the closing order for Case 002.158 It is unlikely that, even if there are going to be more trials at the ECCC, the destruction of cultural property will be prosecuted. Nevertheless, in the following a compilation is going to be created of the elements of crimes of Article 7 of the ECCC Statute, especially since the direct application of Article 28 of the 1954 Hague Convention is not only going to be relevant for the ECCC but it might also be relevant for other future cases in relation to the destruction of cultural property. Partly due to the fact that pursuant to Meyer, the Convention has emerged into customary international law.159 I. Preliminary Observations 1. Principle of Legality According to Article 33 of the ECCC Statute, “the trial court shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights”.160 Article 15(1) ICCPR sets out the principle of legality,161 which holds: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the 156 Ardema, p. 68; Linton, Cambodia’s Extraordinary Chambers, p. 233. 157 Stephen/Lallah/Ratner, p. 23. 158 See, Heindel, p. 101. 159 Meyer, pp. 387–388. 160 See also, Heindel, pp. 88–89. 161 The principle of legality (nullum crimen sine lege) is part of customary international law. See, Werle, para. 104.



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time when it was committed”. This principle is qualified in Article 15(2) of the ICCPR, which adds that “[n]othing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”. The ICTY chambers have clarified that compliance with the principle of legality requires that first, the offence with which an accused is charged was sufficiently foreseeable and second, that the law providing for such liability was sufficiently accessible to the accused at the time of the commission of the offence.162 An assessment of the foreseeability and accessibility requirements with regard to the principle of legality should therefore take into account the particular nature of international law, including customary international  law, at the time the crime was committed.163 The ICTY Appeals Chamber has defined the terms “foreseeability” and “accessibility” in the Hadžihasanović et al. case. As to foreseeability, the conduct in question is the concrete conduct of the accused; he must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision. As to accessibility, in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom (italics supplied).164

Consequently, it must be ascertained that the violations of the 1954 Hague Convention were recognised under Cambodian or international law between 17 April 1975 and 6 January 1979. According to the practice of the ICTY Appeals Chamber in the Kordić and Čerkez case, the principle of legality “is also satisfied where a State is already treaty-bound by a specific convention, and the International Tribunal applies a provision of that convention irrespective of whether it is part of customary international law”.165 Cambodia ratified the 1954 Hague Convention in 1962 and was accordingly bound by the Convention from that point on. Therefore, there is no need to make an assessment whether the 1954 Hague Convention has emerged 162 Prosecutor v. Milutinović et al., ICTY (Appeals Chamber), Decision of 21 May 2003, para. 38. 163 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 31, referring inter alia to Prosecutor v. Milutinović et al., ICTY (Appeals Chamber), Decision of 21 May 2003, paras. 38–42. 164 Prosecutor v. Hadžihasanović et al., ICTY (Appeals Chamber), Decision of 16 July 2003, para. 34. 165 Prosecutor v. Kordić and Čerkez, ICTY (Appeals Chamber), Judgement of 17 December 2004, para. 44.

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into customary international law during the time of the ECCC’s temporal jurisdiction. Since Article 28 of the 1954 Hague Convention provides for sanctions in cases of violations of the Convention, it can be held that it was foreseeable during the 1975 to 1979 period that potential accused could be held criminally liable for offences pursuant to Article 7 of the ECCC Statute. Furthermore, the law, which provides for individual criminal responsibility, was sufficiently accessible considering Cambodia being bound by the provisions of the 1954 Hague Convention. 2. Serious Violation of International Humanitarian Law In order to ensure that prosecutions under Article 7 of the ECCC Statute and therefore under the 1954 Hague Convention pass the test of legality, and thus meet fair trial requirements, furthermore, an assessment needs to be made whether the provision constitutes a serious violation of international humanitarian law.166 The following requirements were set forth by the ICTY Trial Chamber in the Duško Tadić case in order for a norm to be considered as a serious violation of international humanitarian law: (i) the violation must constitute an infringement of a rule of international humanitarian law; (ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim; (iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.167 Evidently, as long as the destruction of cultural property occurs during an armed conflict or during belligerent occupation it is a violation of the rules of international humanitarian law. Furthermore, the 1954 Hague Convention, to which Article 7 of the ECCC Statute relates, clearly is a treaty of international humanitarian law since it deals with the protection of cultural property during armed conflict. In addition, it has been established at length in this writing that the rule is customary in nature. The rule also belongs to treaty law, especially in this setting, since Article 7 of the ECCC Statute particularly refers to the 1954 Hague Convention. In the following, an assessment will be made whether the required conditions of the 1954 Hague Convention are met in the Cambodian context. Concerning the

166 Linton, Cambodia’s Extraordinary Chambers, p. 233; see also, Werle, para. 960. 167 See, supra, pp. 112 et seq.



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required level of seriousness it can be held that the destruction of cultural property clearly breaches a rule, which protects important values, that is the cultural property of peoples. Moreover, the destruction of cultural property involves insofar grave consequences for the victim as cultural property represents an essential part of a groups identity. Finally, it can be held that according to the UN Group of Experts, the violation of provisions protecting cultural property entails under Article 28 of the 1954 Hague Convention the individual criminal responsibility of the person breaching the rule. Hence, Article 7 of the ECCC Statute fulfils the requirements set forth by the ICTY in the Duško Tadić case and therefore passes the test of legality. II. Elements of the Crime 1. Existence of an Armed Conflict According to Articles 18 and 19 of the 1954 Hague Convention, the Convention is applicable only during armed conflict and belligerent occupation.168 Therefore, the existence of either an international or noninternational armed conflict or belligerent occupation is an essential element of the crime. a. International Armed Conflict The 1954 Hague Convention is pursuant to Article 18, applicable to international armed conflicts.169 According to the practice of the international criminal tribunals, an “armed conflict exists whenever there is a resort to armed forces between States […]”. Furthermore, an armed conflict is indisputably international if it takes place between two or more States. An official recognition of a state of war is not required.170 As previously discussed, there were continuous border clashes between Vietnam and Democratic Kampuchea, which evolved into a full-scale armed conflict by 1977. In the judgement of Case 001, the ECCC Trial Chamber held: The Chamber finds that armed hostilities existed between Cambodia and Vietnam from 17 April 1975 through 6 January 1979. Continuous clashes, whether border skirmishes or more serious incursions into both Cambodian and Vietnamese territory, continued throughout this period, despite DK and

168 See, supra, pp. 44 et seq. 169 Ibid. 170 See, supra, p. 39.

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Hence, it can be held, that an international armed conflict existed between Cambodia and Vietnam throughout the whole time of the ECCC’s jurisdiction, that is 17 April 1975 until 6 January 1979. b. Non-International Armed Conflict According to Article 19(1) of the 1954 Hague Convention, the Convention is also applicable during non-international armed conflict.172 Pursuant to the practice of the international criminal tribunals, a non-international armed conflict is defined as “protracted armed violence between governmental authorities and organized groups or between such groups within a State”.173 However, it has to be held, that it is not unambiguous that Article 28 of the 1954 Hague Convention is applicable to non-international armed conflicts.174 The UN group of Experts suggested that breaches of the Convention committed during non-international armed conflict “perhaps” give rise to individual criminal responsibility.175 The international criminal tribunals, however, have established that the destruction of cultural property during non-international armed conflicts entails individual criminal responsibility under international criminal law. In 1978, as previously discussed, a resistance movement was formed in the Eastern Zone of Democratic Kampuchea, which was defeated by the Khmer Rouge’s forces. It could be held that those clashes amounted to a non-international armed conflict. Clearly, the clashes were fought between the governmental authorities, that is the Khmer Rouge, and an organised group, that is the resistance movement around Chea Sim and Heng Samrin, and therefore fulfil the definition of a non-international armed conflict. In order to evaluate further, if the conflict manifested the required intensity the following requirements need to be fulfilled: (i) the attacks have to amount to a certain seriousness; (ii) the attacks have to spread over a certain territory and over a certain period of time; (iii) the number of government forces needs to increase; (iv) there needs to be a certain level of

171 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 423. 172 See, supra, p. 45. 173 See, supra, pp. 114 et seq. 174 See, supra, pp. 46 et seq. 175 Stephen/Lallah/Ratner, p. 23.



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mobilisation and distribution of weapons among both parties to the conflict.176 With the evidence at hand it is difficult to make a final assessment,177 especially since the ECCC Trial Chamber has not decided on the status of the 1978 rebellion. This might mainly be due to the fact that individual criminal responsibility for war crimes during non-international armed conflicts is a fairly recent development of international criminal law. In the Duško Tadić decision of the ICTY Trial Chamber it was held, that according to customary international law, certain war crimes are also applicable during non-international armed conflicts. However, this judgement was handed down 17 years after the rebellion in the Eastern Zone of Democratic Kampuchea. Furthermore, the Additional Protocol II, which deals with the law of armed conflict during non-international armed conflicts, had just been drafted several months before the rebellion. It is thus difficult to characterise the acts during the, assumable, internal armed conflict as war crimes under the law at the time.178 c. Belligerent Occupation Pursuant to Article 18(2), the 1954 Hague Convention is also applicable “in cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”. A territory is considered occupied “when it is actually placed under the authority of the hostile army”. Furthermore, the occupation “extends only to the territory where such authority is established and can be exercised”.179 Hence, belligerent occupation can be defined as the armed forces of a State exercising some kind of forceful control or authority over inhabited territory outside the accepted international frontiers of their State.180 Therefore, the presence of foreign armed forces is an essential requirement for a state of occupation. In Democratic Kampuchea, however, the “occupying” armed forces were DPK forces and accordingly not foreign armed forces. Therefore, there was clearly no state of belligerent occupation in Democratic Kampuchea.

176 See, supra, pp. 115 et seq. 177 Ratner/Abrams/Bischoff, p. 329. 178 Stephen/Lallah/Ratner, p. 23. 179 1907 Hague Regulations, Article 42. 180 A. Roberts, p. 255.

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2. Nexus between the Destruction of Cultural Property and the Armed Conflict The 1954 Hague Convention does not explicitly require the destruction of cultural property to be linked to an armed conflict. However, as previously discussed, in order for the Convention to be applicable there needs to be a state of armed conflict or belligerent occupation. Furthermore, in war crimes law the underlying offence must always be closely linked to an armed conflict.181 Hence, referring to the jurisprudence of the ICTY, O’Keefe holds that there must be a nexus between the destruction of cultural property and the armed conflict.182 As previously discussed, there existed an international armed conflict in Democratic Kampuchea during the whole period of the ECCC’s jurisdiction. Furthermore, there might have existed a state of non-international armed conflict during the 1978 rebellion in the Eastern Zone. Nevertheless, a nexus between those armed conflicts and the destruction of Buddhist places of worship and other religious institutions is difficult to draw. It was the CPK’s aim to abolish religion in Democratic Kampuchea that led to the widespread attack on religious institutions and not the conflict with Vietnam or the 1978 rebellion in the Eastern Zone. Hence, the 1954 Hague Convention is not applicable to the destruction of cultural property in Democratic Kampuchea, which has been enlisted in the previous chapter.183 However, if investigated thoroughly, it might be possible that for the destruction of certain sites evidence showed up, which would link the destruction somehow to the armed conflict with Vietnam or the 1978 rebellion in the Eastern Zone. Furthermore, as previously indicated, certain Buddhist and also Moslem places of worship were turned into army barracks, workshops for military vehicles, military training camps and arms depots. Those acts of misappropriation of cultural property were clearly linked to the armed conflict with Vietnam and might even be linked to the 1978 rebellion in the Eastern Zone. Therefore, the examination of the elements of crimes of Article 7 of the ECCC Statute should not be interrupted at this point. 3. Object of the Offence In contrary to the provisions concerning the destruction of cultural property in the statutes of the international tribunals, which have been 181 See, supra, pp. 117 et seq. 182 O’Keefe, Protection of Cultural Property, p. 99; see also, Ratner/Abrams/ Bischoff, p. 329. 183 Ciorciari/Chang, p. 286; Linton, Cambodia’s Extraordinary Chambers, p. 233.



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analysed in the previous section of this writing, the 1954 Hague Convention clearly defines cultural property in Article 1.184 The first subparagraph of Article 1 refers to movable and immovable property, which is of “great importance to the cultural heritage of peoples”. The definition is thus restricted to property of ‘great importance’. Concerning the notion “cultural heritage of every people” it was held that the 1954 Hague Convention can apply to as few or as many buildings, sites and objects situated on the territory of each High Contracting Party as that Party itself sees fit. The cultural property destroyed by the Khmer Rouge during Democratic Kampuchea is clearly of great importance since it represents an enormous part of Cambodian culture. As previously discussed, Buddhism is part of everyday life in Cambodia and therefore, the Buddhist places of worship as well as Buddha statutes and images are of great importance.185 Also, the cultural property of the Cham Moslems is of great importance, since this minority defines itself through its religion. Moreover, the temple complex of Angkor and other monuments dating back from that time, clearly are of great importance for the Cambodians, since they represent their history. Paragraph (a) of Article 1 of the 1954 Hague Convention sets for a list of cultural property, which fulfils the requirements of the 1954 Hague Convention: “[M]onuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above.”

184 1954 Hague Convention, Article 1: “For the purposes of the present Convention, the term ‘cultural property’ shall cover, irrespective of origin or ownership: (a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in subparagraph (a); (c) centres containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as ‘centres containing monuments’.” 185 See, Kampuchean Clergy, p. 145: “Our pagoda and articles of worship belong to our cultural legacy of which the entire Kampuchean people can be proud […].”

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Evidently, most of the cultural property destroyed during Democratic Kampuchea fits this list. Inter alia, the temples of Angkor are monuments of history and architecture; the Buddha statues and images are works of art; the Buddhist books are books of historical interest, especially the old palm leaf manuscripts. However, as already established in the analysis of the 1954 Hague Convention, the Convention does not include religious institutions respectively places of worship in its definition of cultural property. Those institutions are only protected by the 1954 Hague Convention if they are monuments of architecture, history or art. Hence, the Buddhist places of worship, the Cham Moslem’s mosques and other institutions like the French Catholic Cathedral have to be of architectural, historical or artistic value in order to be considered cultural property under the 1954 Hague Convention. Most probably, those places of worship are either of architectural, historical or artistic value. For instance, the façades as well as the interior of most wats and mosques are specially ornate and therefore of artistic value while other wats and mosques are of a certain age and therefore of historic value. Accordingly, most of the cultural property destroyed by the Khmer Rouge fulfil the requirements set forth by Article 1 of the 1954 Hague Convention. Some of the cultural property destroyed during Democratic Kampuchea is also covered by Article 1(b) of the 1954 Hague Convention, which highlights the importance of museums and libraries as well as other “buildings whose main and effective purpose is to preserve or exhibit the movable cultural property”. If those buildings themselves have cultural value they are already protected under Paragraph (a). If not, though, they are protected under Paragraph (b) not because of their own historical value but because of their purpose and their content. In such cases they must in fact contain, conserve or exhibit movable cultural property. Since almost all wats have some kind of library or some place on their compounds where Buddhist scripts are stored, they might fulfil the requirements of Article 1(b) of the Convention even if the wat itself is not protected under Article 1(a) of the Convention. Buddhist scripts are usually of historic or artistic interest and therefore movable cultural property according to Article 1(a) of the 1954 Hague Convention. Consequently, wats storing Buddhist scripts of historic interest are protected under Article 1(b) of the 1954 Hague Convention. Article 1 (c) of the 1954 Hague Convention introduces furthermore special protection for “centres containing monuments”, which means larger areas containing a considerable amount of cultural property protected by



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Paragraphs (a) and (b). Therewith Paragraph (c) protects major groups of buildings, which include both movable and immovable property. The temple complex of Angkor could fall under this category of cultural property. Furthermore, as established in the analysis of the 1954 Hague Convention, the Convention provides for a regime of special protection.186 The requirements for cultural property to fall under the regime of special protection are much stricter. In the Cambodian context, though, the regime of special protection under the Convention is not relevant because none of Cambodia’s cultural property was inscribed on the 1954 Hague Convention’s list of cultural property under special protection. 4. Nature of the Offence According to Article 4(1) of the 1954 Hague Convention, Parties should (i) refrain from any use of the property and its surroundings which is likely to expose it to destruction or damage in the event of armed conflicts; (ii) refrain from any act of hostility directed against such property.187 By summoning the Parties to the 1954 Hague Convention to refrain from any use of the property, which is likely to expose it to destruction or damage “the prohibition extends to de facto or passive use of a monument or other relevant immovable cultural property in any manner likely to draw fire on it”.188 Accordingly, Article 4(1) prohibits the deliberate interposition of cultural property in the line of fire and the effective incorporation of a monument into a defensive line. Also the use of a monument as e.g. field barracks or headquarters is forbidden since it is likely that such monuments will be exposed to attacks.189 Therewith, the 1954 Hague Convention, respectively the ECCC Statute, exceeds the provisions dealing with the protection of cultural property of the ad hoc and internationalised tribunals and also of the Rome Statute. They do not criminalise, as has been criticised in the previous section of this writing, the deliberate interposition of cultural property in the line of fire and exposing it deliberately to attacks. As previously discussed, during the conflict between the Khmer Rouge and the armed forces of the Khmer Republic, both parties used Buddhist places of worship as military bases and training camps. Therewith, the Khmer Rouge as well as the armed forces of the Khmer Republic violated 186 See, supra, pp. 55 et seq. 187 See, supra, pp. 51 et seq. 188 O’Keefe, Protection of Cultural Property, p. 124. 189 Ibid.

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Article 4(1) of the 1954 Hague Convention since military bases and training camps are very likely to become the object of an attack in an armed conflict. However, the temporal jurisdiction of the ECCC is limited to the time between 17 April 1975 and 6 January 1979. The conflict between the Khmer Rouge and the Khmer Republic, though, ended with the Khmer Rouge’s invasion of Phnom Penh on 17 April 1975. Hence, possible perpetrators could not be held responsible for those acts. Nevertheless, the Khmer Rouge continued to use certain Buddhist places of worship for military purposes after 17 April 1975. Certain wats were used as arms depots, workshops to repair military vehicles or barracks for soldiers, others were turned into training grounds for Khmer Rouge officers and soldiers. Therewith, those wats were used for purposes, which were likely to expose them to destruction or damage in an event of an armed conflict. Since it has been established that most wats fulfil the requirements of Article 1 of the Convention and that there existed an ongoing armed conflict with Vietnam, those acts constitute a clear violation of the 1954 Hague Convention, which is punishable under Article 7 of the ECCC Statute. The second part of Article 4(1) of the 1954 Hague Convention obliges the Parties to the Convention to refrain “from any act of hostility directed against such property”. As established in the assessment of the 1954 Hague Convention, acts of hostility constitute the whole range of actions and operations of war in the broad sense, regardless of whether they are committed by the opposing party or by the party to the conflict, which has cultural property in its possession. The acts do not need to have any actual result as long as they are directed against the respective cultural property. Furthermore, acts of hostility directed against another object, which result in the incidental damage to or destruction of cultural property, are also prohibited under the Convention. The acts of hostility the Khmer Rouge committed against cultural property are, as previously discussed, manifold. Wats were destroyed by bulldozers, mosques were dismantled, Buddhist scripts and religious books were burnt, Buddha statues were thrown in rivers or destroyed by landmines. All those acts clearly were directed against the respective cultural property. Furthermore, O’Keefe actually names some of those acts as examples of acts of hostility, which are covered by Article 4(1), such as the destruction by bulldozers or explosives.190 Hence, the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea fulfils the definition of 190 O’Keefe, Protection under International Criminal Law, p. 17.



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acts of hostilities. However, it needs to be held that according to the above definition the acts of hostility need to be actions and operations of war and according to the Dictionary of International Law of Armed Conflict, the acts of hostility need to be committed “by a belligerent against any enemy”.191 This emphasises again the need for a nexus between the destruction of cultural property and an armed conflict. The nexus, however, is very difficult to establish concerning the Khmer Rouge’s destruction of the above-enlisted cultural property and there is not enough evidence for destruction of cultural property, which exhibits such a nexus. Furthermore, the turning of wats into execution sites and prisons, which was common in Democratic Kampuchea, is not covered by Article 4 of the 1954 Hague Convention. 5. Level of Gravity of the Offence Concerning the level of gravity required for an act to amount to a breach of the 1954 Hague Convention, the Convention does not stipulate any absolute rules. Therefore, the level of gravity for war crimes concerning the destruction of cultural property, as established by the international criminal tribunals, will be taken as a benchmark for the assessment of the level of gravity required by Article 7 of the ECCC Statute. Accordingly, already the damage or destruction of one protected institution amounts to a war crime and the possibility of restoration does not exclude individual criminal responsibility.192 During Democratic Kampuchea the Khmer Rouge destroyed more than half of the Buddhist places of worship throughout Cambodia. Additionally, they destroyed churches and mosques as well as other cultural property. Clearly, the required level of gravity is fulfilled. However, a final assessment can only be made on a case-by-case basis, since not all the cultural property in Cambodia was destroyed by the same perpetrator. 6. Not Justified by Military Necessity Article 4(2) of the 1954 Hague Convention holds that the respect for cultural property, as stated under Article 4(1) of the Convention, can be waived “in cases where military necessity requires such a waiver”. As established in the assessment of the 1954 Hague Convention, the waiver of military necessity covers three different situations. First, it opens to the State, which is in

191 Verri, p. 113. 192 See, supra, pp. 132 et seq.

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control of the territory in which the respective cultural property is located, the possibility of using such an object for military purposes. Second, the provision allows the belligerent party, if military necessity imperatively so requires, waiving the obligation not to destroy or damage cultural property. Third and finally, a party to the conflict may make use of this provision if the other party has violated its obligations by having used the respective cultural property for military purposes.193 In the Cambodian context it can be held that the cultural property destroyed by the Khmer Rouge was clearly not used for military purposes. The situation was different, though, during the conflict between the Khmer Rouge and the forces of the Khmer Republic. During this conflict, both parties used Buddhist places of worship as military bases and training camps. Hence, the destruction of such sites might have been required due to military necessity. The conflict between the Khmer Rouge and the Khmer Republic, though, ended with the Khmer Rouge’s invasion of Phnom Penh on 17 April 1975. As a result, the waiver of military necessity cannot be applied to the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea. Accordingly, the destruction of cultural property by the Khmer Rouge was not justified by military necessity and can therefore be prosecuted under Article 7 of the ECCC Statute. 7. Mens Rea Neither Article 28 of the 1954 Hague Convention not Article 7 of the ECCC Statute provides for a definition of the required mens rea of the crime. Hence, reference has to be made to the law of war crimes. Pursuant to Article 30 of the Rome Statute, which represents customary international law, war crimes can only be committed with intent and knowledge, the latter meaning that the perpetrator was aware of the circumstances of the crime.194 In other words, the perpetrator has to have knowledge of the armed conflict and he has to be aware of the fact that the institution in question is cultural property as defined by Article 1 of the 1954 Hague Convention.195 Whether the perpetrator needs to know that the respective cultural property was particularly protected by the 1954 Hague Convention is questionable. The ICTY chambers have not set forth such a requirement. Hence, it has to be established that the perpetrators in the Cambodian context had knowledge of the international armed conflict with Vietnam or 193 See, supra, pp. 53 et seq. 194 See, supra, p. 120. 195 O’Keefe, Protection under International Criminal Law, p. 26.



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knowledge on the 1978 rebellion’s status as a non-international armed conflict. Again, this would require, though, that the destruction or misappropriation of cultural property was actually linked to one of the ongoing armed conflicts. Furthermore, the Khmer Rouge must have known that Buddhist and Moslem places of worship and other cultural property they destroyed or reused were part of the Cambodian cultural property. It cannot be required, though, that they must have known about their protection under the 1954 Hague Convention. It can be assumed that the Khmer Rouge knew that the Buddhist places of worship and other religious institutions they destroyed were part of the Cambodian cultural property. Particularly, since the Khmer Rouge specifically aimed at erasing this part of the Cambodian culture. Furthermore, the respective perpetrator has to manifest the intent to destroy the cultural property, which, again, can only be assessed on a case-by-case basis. The intent might not be easily proven, especially for those cases in which the respective cultural property was destroyed in order to get building material or was misappropriated in order to provide for military facilities. In such cases it might be difficult to prove the perpetrator’s intent to destroy such property because of its status as a cultural property or rather because it provided for good building materials and the perpetrator was indifferent to the fact the respective building manifested cultural property. § 4 Alternative Provisions for the Prosecution of the Destruction of Cultural Property at the Extraordinary Chambers in the Courts of Cambodia Due to the fact that the prosecution of the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea under Article 7 of the ECCC Statute is not unproblematic because of the requirement of the nexus with an armed conflict, alternative provisions in the ECCC Statute for the prosecution of the Khmer Rouge’s destruction of cultural property are going to be examined in the following. I. Grave Breaches of the 1949 Geneva Convention According to Article 6 of the ECCC Statute, the Extraordinary Chambers shall have the power to bring to trial all Suspects who committed or ordered the commission of grave breaches of the Geneva Conventions of 12 August 1949, such as the following acts against persons or

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The list of grave breaches of the 1949 Geneva Conventions, which are subject to individual criminal responsibility, include the “destruction and serious damage to property, not justified by military necessity and carried out unlawfully and wantonly”. Most probably, the Khmer Rouge’s destruction of cultural property meets the requirements of the underlying offence. However, again, the general requirements most probably will not be fulfilled since in order for the 1949 Geneva Convention to be applicable, there needs to be an international armed conflict and most importantly there needs to be a nexus between the destruction of the cultural property in question and the international armed conflict. As already established for the applicability of the 1954 Hague Convention in the case of Cambodia, this nexus is not given for most of the cultural property, which was destroyed by the Khmer Rouge. Hence, Article 6 of the ECCC Statute most probably is not applicable in this context. II. 1956 Penal Code In order for the ECCC to also take into account Cambodian law, Article 3 of the ECCC Statute states: The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed any of these crimes set forth in the 1956 Penal Code, and which were committed during the period from 17 April 1975 to 6 January 1979.

The 1956 Penal Code is applicable to the crimes committed during Democratic Kampuchea, even though, it was probably not applied during that time, however no evidence suggests that the Khmer Rouge formally repealed or denounced the criminal law in effect at the time they took power.196 Moreover, “even if the Khmer Rouge had explicitly denunciated the 1956 Penal Code it would not per se insulate their acts from criminality under earlier Cambodian law, especially if the regime sought to justify violations of the most basic protection of human dignity”.197 Nevertheless, there are controversies concerning the 1956 Penal Code’s statute of limitations. Given that the crimes committed during Democratic Kampuchea 196 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 29. See also, Kaufmann/Marschner, p. 63; Stephen/Lallah/Ratner, pp. 25–26. 197 Ratner/Abrams/Bischoff, p. 335.



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date back to 1975, the 1956 Penal Code’s statute of limitations had been extended by the drafters of the ECCC Statute for a further 30 years beyond the original 10 years. Certain authors challenge the legality of doing this for domestic crimes.198 In Case 001, the defence lawyers of the accused also questioned the legality of extending the statute of limitations for the 1956 Penal Code, which prompted them to file a preliminary objection concerning termination of prosecution of domestic crimes and requesting the dismissal of the charges brought against the accused under the 1956 Penal Code.199 In the subsequent decision of the ECCC Trial Chamber, the Chamber lacked a majority. Therefore, in Case 001, the Trial Chamber could not exercise jurisdiction over the domestic crimes of the 1956 Penal Code at all.200 It will have to be seen how the ECCC Trial Chamber will decide in Case 002 on this matter. Among others, the crime of religious persecution, punishable under Articles 209 and 210 of the 1956 Penal Code, was included in Article 3 of the ECCC Statute. This crime might be applicable to the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea. Due to the fact that there is not much case law on those crimes, however, the elements of the crimes are not well defined.201 Nevertheless, it can be held that Articles 209 and 210 of the 1956 Penal Code, which are entitled “infractions against the religion”, prohibit attacks against the life or person of a monk, either during the monk’s religious practice or on the basis of that practice.202 Only those monks, who practice a religion, which is recognised by the Cambodian government, are protected by Articles 209 and 210 of the 1956 Penal Code. The officially recognised religions are not listed though, which leads to the assumption that only Buddhist monks are protected under Articles 209 and 210.203 Even though, the 1956 Penal Code only refers to offences against the life or person of a monk, the ECCC Statute refers in Article 3 to

198 Heindel, p. 107; Linton, Cambodia’s Extraordinary Chambers, p. 229. 199 Co-Lawyers for the Defense, “Preliminary Objection Concerning Termination of Prosecution of Domestic Crimes”, E9/1, 4 February 2009. 200 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Decision of 26 July 2010. 201 Ardema, p. 70; Stephen/Lallah/Ratner, p. 25. 202 1956 Penal Code, Article 209: “The malice, to the religious clergies’ life while they are performing the national religious rules, is the crime in the 3rd degree.” 1956 Penal Code, Article 210: “The malice, to the religious clergies’ body while they are performing or perform the religious rules, is the crime in the 2nd degree.” 203 Ciorciari/Chang, p. 270: “The notes refer the readers to Articles 495 et seq., which include crimes of general applicability, for offences against persons who are not Buddhist monks.”

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“religious persecution” and thus, suggests a broader definition of the crime than the 1956 Penal Code.204 However, since the ECCC has not decided on any cases with regard to Articles 209 and 210 of the 1956 Penal Code it remains unclear if those provisions can be applied to the Khmer Rouge’s destruction and misappropriation of cultural property during Democratic Kampuchea, especially since Articles 209 and 210 of the 1956 Penal Code make no references to such offences. Furthermore, there is an evident uncertainty whether the ECCC Trial Chamber will be able to come to a decision concerning the applicability of the 1956 Penal Code in general. Hence, it has to be assumed that the destruction and misappropriation of cultural property in Cambodia cannot be prosecuted under the 1956 Penal Code. III. Crimes against Humanity As established in the previous chapters, there have been several cases at the ICTY, which have prosecuted the destruction of cultural property as a crime against humanity. In the following, an assessment of this possibility within the Cambodian context will be made. Article 5 of the ECCC Statute states: The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979. Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as: […] persecutions on political, racial, and religious grounds […].

In order to fulfil the requirements of the principle of legality in Case 001, the ECCC Trial Chamber already established whether crimes against humanity constituted crimes under national or international law during the ECCC’s temporal jurisdiction, that is during the 17 April 1975 to 6 January 1979 period. The Trial Chamber developed in its judgement that Cambodian law contained no provisions relevant to crimes against humanity. Furthermore, Cambodia was not a party to any international treaty relevant to these crimes between 1975 and 1979. Therefore, the Trial Chamber had to consider whether crimes against humanity, as defined in Article 5 of the ECCC Law, formed part of customary international law during this period. Analysing the IMT as well as the IMTFE Charter and Control Council Law No. 10 as well as other instruments prohibiting crimes against humanity before 17 April 1975, the Trial Chamber came to the conclusion 204 Ciorciari/Chang, p. 270.



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that “the formulation of crimes against humanity adopted in Article 5 of the ECCC Law comports with that existing under customary international law during the 1975 to 1979 period”.205 Concerning the underlying offence of persecution, the Trial Chamber stated that it has been “recognised since the Nuremberg-era tribunals as constituting crimes against humanity and prosecuted as such where the crime’s chapeau requirements are otherwise satisfied”.206 The Trial Chamber adds: It was thus foreseeable during the 1975 to 1979 period that the Accused could be held criminally liable for the offences with which he is charged pursuant to Article 5 of the ECCC Law. The law providing for the Accused’s criminal responsibility was also sufficiently accessible considering its international customary basis.207

In conclusion, the ECCC Trial Chamber finds that crimes against humanity pursuant to Article 5 of the ECCC Law constitute crimes under international law.208 Hence, the principle of legality for Article 5 of the ECCC Statute is observed. 1. General Requirements According to the ICTY chambers and the ICC Elements of Crimes, the following general requirements must be satisfied before an underlying offence qualifies as a crime against humanity: (i) there must be an attack; (ii) the acts of the perpetrator must be part of the attack; (iii) the attack must be directed against any civilian population; (iv) the attack must be widespread or systematic; (v) the perpetrator must know that his acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his acts fit into such a pattern.209 Furthermore, according to the ECCC Statute, the attack must additionally be committed “on national, political, ethnical, racial or religious grounds”. a. Existence of an Armed Conflict? According to the IMT Charter, crimes against humanity can only be subject  to individual criminal responsibility, when they are committed “in 205 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, paras. 285–290. 206 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 293. 207 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 294. 208 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 296. 209 See, supra, pp. 144 et seq.

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execution of or in connection with any crime within the jurisdiction of the Tribunal”.210 The inclusion of this phrase was understood as meaning that crimes against humanity had to be committed in the context of an armed conflict or a military occupation, since the other crimes within the jurisdiction of the Tribunal – war crimes and crimes against peace – were de facto linked to the war.211 Almost a decade later, the ICTY decided that this requirement was not anymore according to customary international law.212 Following the ICTY’s precedent the drafters of the ECCC Statute did not include the requirement of a nexus between crimes against humanity and an armed conflict in their definition of crimes against humanity. Nevertheless, it is important to note that this shift in customary international law creates a potential problem in determining if the requirement of a nexus with an armed conflict was an element of crimes against humanity at the time the crimes within the jurisdiction of the ECCC were committed.213 In order to be in accordance with the principle of legality, a thorough  analysis of the customary international law, which was applicable during the time of Democratic Kampuchea, with regard to the requirement of a nexus between crimes against humanity and an armed conflict, is necessary.214 After analysing various conventions and resolutions dealing with the issue the ECCC Trial Chamber decided in Case 001: “Article 5 of the ECCC Law does not require a link between crimes against humanity and armed conflict”.215 The Trail Chamber relied its conclusion especially on a judgment of the European Court of Human Rights in which the Grand Chamber of the Court held that the nexus with the armed conflict “may no longer have been relevant by 1956”.216 Furthermore, referring to the Duško Tadić 210 IMT Charter, Article 6(c). 211 Mettraux, p. 149. 212 See, supra, pp. 141 et seq. 213 Bassiouni, Crimes against Humanity, p. 262; Ford, p. 128. 214 See, Ford, p. 194. 215 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 291: “Although Article 6(c) of the Nuremberg Charter required a nexus between crimes against humanity and armed conflict, such a nexus was not included in the 1945 Control Council Law No. 10, the 1948 Convention on the Prevention and Punishment of the crime of Genocide, the 1954 International Law Commission’s Draft Code of Offences against the Peace and Security of Mankind, the 1968 Convention of the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, and the 1973 International Convention on the Suppression and Punishment of Apartheid”. See also, Schabas, Atrocities, p. 58. 216 Korbely v. Hungary, European Court of Human Rights (Grand Chamber), Judgment of 19 September 2008), para. 82; See, Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 292: “The Grand Chamber of the European



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decision of the ICTY Appeals Chamber, the ECCC Trial Chamber stated: “The notion of armed conflict also does not form part of the current-day customary definition of crimes against humanity.”217 In a subsequent decision in relation to Case 002, however, the ECCC Pre-Trial Chamber determines: [T]he definition of crimes against humanity in the Nuremberg Charter and Nuremberg Principles continued to apply in the period 1975 to 1979, such that a connection to crimes against peace or war crimes remained a necessary element. It is pertinent to note, however, that as war crimes are prohibited under customary international law both in international and internal contexts, the necessary nexus to armed conflict need not be international in character.218

This led in June 2011, to a request by the ECCC Co-Prosecutors for the ECCC Trial Chamber to exclude the armed conflict nexus requirement again from the elements of crimes of crimes against humanity.219 In their request the Co-Prosecutors make a thorough assessment of the customary international law at the time the atrocities were committed in Cambodia.220 Furthermore, they make the assumption that it was foreseeable and accessible to the accused in Case 002 that they could be held liable for crimes against humanity committed outside of an armed conflict.221 On 26 October 2011 the Trial Chamber rendered its decision and declared “the Co-Prosecutor’s request that the Trial Chamber exclude the nexus to armed conflict requirement from the definition of crimes against humanity to be admissible”.222 Court of Human Rights has noted that, while the nexus with armed conflict initially formed part of the customary definition of crimes against humanity, this nexus may no longer have been relevant as of 1956“. See also, Schabas, Atrocities, p. 61. 217 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 291. 218 Prosecutor v. Nuon Chea et al., ECCC (Pre-Trial Chamber), Decision of 11 April 2011, para. 311. The Pre-Trial Chamber justified its inclusion of an armed conflict nexus requirement on the basis that the status of customary international law with respect to the armed conflict nexus requirement was uncertain and that, therefore, the principle of in dubio pro reo required the Pre-Trial Chamber to rule in favour of the accused, see, Prosecutor v. Nuon Chea et al., ECCC (Pre-Trial Chamber), Decision of 11 April 2011, para. 310. See also, Kaufmann/Marschner, p. 65. 219 Co-Prosecutors’ Request For the Trial Chamber to Exclude The Armed Conflict Nexus Requirement From the Definition of Crimes Against Humanity, 15 June 2011. 220 Co-Prosecutors’ Request For the Trial Chamber to Exclude The Armed Conflict Nexus Requirement From the Definition of Crimes Against Humanity, 15 June 2011, paras. 17–23. 221 Co-Prosecutors’ Request For the Trial Chamber to Exclude The Armed Conflict Nexus Requirement From the Definition of Crimes Against Humanity, 15 June 2011, paras. 24–26. 222 Prosecutor v. Nuon Chea et al., ECCC (Pre-Trial Chamber), Decision of 26 October 2011, depolyment.

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Still, it remains to be seen how the ECCC Trial Chamber will decide in the judgement of Case 002 concerning this matter. Preferably, the Trial Chamber will rule consistent with their decision of 26 October 2011. This would be desirable since requiring the nexus of crimes against humanity with an armed conflict would result in the exclusion of the vast majority of the Khmer Rouge’s offences as most of them were not committed in connection with the armed conflict with Vietnam or the 1978 rebellion in the Eastern Zone.223 For the present assessment it will be assumed that the nexus with an armed conflict is not a general requirement for crimes against humanity, which is also the opinion of several researchers as well as the UN Group of Experts, which have analysed the customary international law at the time of Democratic Kampuchea with regards to crimes against humanity.224 b. Part of a Widespread or Systematic Attack The definition of crimes against humanity clearly requires that the acts must occur as part of an attack, which is a course of conduct involving the multiple commissions of acts. The requirement of multiple commissions is fulfilled if the same act is committed multiple times or if several different acts are committed. The respective acts do not need to constitute a military attack. Moreover, certain authors claim that the requirement of a State or organisational policy, as set forth by the Rome Statute, is, according to customary international law, a requirement of the attack as a legal element of the crimes against humanity.225 Even though, the UN Group of Experts suggested the inclusion of the requirement of a State or organisational policy in the elements of crimes, the ECCC Trial Chamber did not include it in the general requirements of Article 5 of the ECCC Statute.226 Evidently, the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea is a course of conduct, which involves multiple 223 Ratner/Abrams/Bischoff, p. 323; Stephen/Lallah/Ratner, pp. 21–22. 224 Ford, pp. 146–168; Linton, Cambodia’s Extraordinary Chambers, p. 231; Ratner/ Abrams/Bischoff, pp. 323–324; Stephen/Lallah/Ratner, p. 22. For a general analysis of customary international law concerning crimes against humanity at that time, see Cassese, Prosecution of Crimes against Humanity, p. 413: “It is […] in the late 1960s, that a general rule gradually began to evolve, prohibiting crimes against humanity even when committed in time of peace”. P. 414, fn 5: “It is probably with the 1968 Convention on the NonApplicability of Statutory Limitations that the process of gradual crystallization in international customary law of a rule proscribing crimes against humanity even in time of peace was set in motion”. See also, Schabas, Atrocities, pp. 59–60. 225 See, supra, pp. 147 et seq. 226 Stephen/Lallah/Ratner, p. 21; see also, Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, paras. 298–299.



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commissions of acts. As established above, more than half of the Buddhist places throughout Cambodia were either desecrated by misappropriation or destroyed by the Khmer Rouge. Therefore, the attack against the Cambodian cultural property clearly involved multiple commissions of acts. Also the requirement that the attack has to be a State policy could be substantiated since it was part of the Khmer Rouge leadership’s policy to abolish religion throughout Democratic Kampuchea. In addition, the attack has to manifest a widespread or systematic character. Hence, the attack must be massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims. Furthermore, the attack must be carried out over a large geographical area or in a small geographical area directed against a large number of civilians. Additionally, the attack has to be organised and not random as well as repeated or continuous. Finally, the civilian population and the territorial scope have to be determined coherently, in order for the criminal acts to be connected to each other.227 In Case 001, the ECCC Trial Chamber took the following criteria into account in order to establish whether the attack is widespread or systematic: The consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities, or any identifiable patterns of crimes may be taken into account to determine whether the attack satisfies either or both of the “widespread” or “systematic” requirements.228

Given the high number of cultural property damaged, destroyed or misappropriated, the Khmer Rouge’s attack was evidently massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims. Furthermore, the destruction of cultural property took place almost everywhere in Democratic Kampuchea, which seems to be a sufficient geographical area in order to fulfil the requirement of a widespread attack. Also, the destruction of cultural property was clearly organised by the DPK since demolition teams were established whose single purpose was to destroy cultural property. In addition, the destruction of cultural property was continuous, which can be seen in the high number of places of worship, which were destroyed. Finally, it can be confirmed that the destruction of cultural property by the Khmer Rouge was determined

227 See, supra, pp. 148 et seq. 228 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 301.

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coherently since the CPK leadership evidently released orders to destroy the cultural property of certain religions.229 Moreover, the widespread or systematic attack must be directed against ‘any civilian population’ to constitute for a crime against humanity, which means that the civilian population must be the primary object of the attack and not just an incidental victim. However, not the entire population of a geographic entity has to be the subject of the attack. Furthermore, the population must be civilian as defined by Article 50 Additional Protocol I and the presence of soldiers within an intentionally targeted civilian population does not change their protected status.230 In the case of Democratic Kampuchea, the attack, which is the destruction of cultural property, was evidently directed against a civilian population, that is those Cambodians, which follow the religious belief of Buddhism. Furthermore, the attack was directed against Cham Moslems, which are also part of the Cambodian civilian population. To recapitulate, in the case of Cambodia the general requirement of Article 5 of the ECCC Statute of a widespread or systematic attack directed against a civilian population is fulfilled. c. On National, Political, Ethnical, Racial, or Religious Grounds Different from most other international tribunals, the ECCC’s definition of crimes against humanity requires that the crime against humanity be committed on national, political, ethnical, racial or religious grounds.231 The ECCC Trial Chamber interprets this requirement as “an added jurisdictional requirement, which goes to the nature of the attack, not to the underlying offences”. Furthermore, the ECCC Trial Chamber notes: [A]ny discriminatory basis requirement under the Nuremberg Charter, the Tokyo Charter and Control Council Law No. 10 was limited to the underlying offence of persecution, for which a discriminatory intent was specifically required. All other offences as crimes against humanity in these instruments existed independently of any discriminatory basis.232

However, the ECCC Trial Chamber did not clearly state whether this requirement is necessary for all crimes against humanity or merely for the underlying offence of persecution.

229 See, Ciorciari/Chang, p. 275; Stephen/Lallah/Ratner, p. 21. 230 See, supra, pp. 150 et seq. 231 ECCC Statute, Article 5. 232 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 313.



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Concerning the destruction of cultural property during Democratic Kampuchea, it can clearly be held that the crime against humanity was committed on religious grounds. Evidently, the attacks were directed at religious, that is Buddhist, Moslem or Christian, cultural property, and therefore, this general requirement of crimes against humanity according to Article 5 of the ECCC Statute, is clearly fulfilled as well. d. Nexus between the Acts of the Accused and the Attack Different from the other international tribunals, the ECCC Trial Chamber required in Case 001 that the acts of the accused be connected with the overall attack. With this additional requirement, the Trial Chamber wished to exclude isolated acts, which were committed outside the widespread or systematic attack.233 In order to satisfy this requirement, the respective destruction of cultural property must be committed as part of the CPK’s overall policy to abolish Buddhism and Cham Moslems. Presumably, the destruction of most of the cultural property was connected to the overall attack on Buddhism and Cham Moslems. Again, it has to be kept in mind though that certain cultural property was destroyed in order to get building material or it was misappropriated in order to have prisons or army barracks. In such cases it might be difficult to prove that the destruction or misappropriation of such property was linked to the overall attack. e. Mens Rea The mens rea for crimes against humanity requires that the perpetrator has the intent to commit the underlying offence. Furthermore, the perpetrator has to have knowledge of the attack against the civilian population and that his acts comprise part of the attack. However, the perpetrator does not need to have knowledge of the characteristics of the attack.234 Concerning the first requirement of the perpetrator’s intent to commit the underlying offence, a detailed analysis will be made in the following. With regard to the perpetrators’ – that is those, which destroyed the cultural property during Democratic Kampuchea – knowledge of the attack against the civilian population, it is assumed that they had knowledge of the attack against Buddhism and Cham Moslems and that their acts comprised part of the attack. Especially, concerning those perpetrators, who destroyed Buddhist places of worship, it can be assumed that they knew 233 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 318. 234 See, supra, pp. 155 et seq.

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about the attack directed against Buddhist monks and that the destruction of wats was part of the attack. However, a final assessment of the mental elements of the crime can only be made on a case-by-case basis. 2. Underlying Offence with Regard to Destruction of Cultural Property: Persecution As established in the previous chapter, the destruction of cultural property as a crime against humanity has usually been prosecuted under the underlying offence of persecution. Even though, most of the case law derives from the ICTY, the practice of prosecuting the destruction of cultural property was already established by the IMT Trial Chamber and corroborated in the Eichmann case.235 Hence, it can be assumed that customary international law at the time of the ECCC’s temporal jurisdiction provided for the prosecution of the destruction of cultural property under the crime against humanity of persecution.236 According to the ICTY chambers and the ICC Elements of Crimes, the elements of the crime of persecution are: (i) the occurrence of a persecutory act or omission; (ii) a discriminatory basis for that act or omission on one of the listed grounds, specifically race, religion or politics; (iii) the persecutory act must be intended to cause, and result in, an infringement on an individual’s enjoyment of a basic or fundamental right.237 Similarly, the ECCC Trial Chamber finds in Case 001 that “as early as 1975, persecution […] clearly included an act or omission which discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law”.238 a. Deprivation of Fundamental Right According to the practice of the international tribunals, in order to fulfil the requirements of the underlying offence of persecution, a fundamental right set forth by international customary law or international treaty law has to be denied.239 As established in the previous chapter, the ICTY chambers came to the conclusion that the destruction of cultural property is indeed a denial of a 235 See, supra, pp. 156 et seq. 236 Ratner/Abrams/Bischoff, p. 325. 237 See, supra, pp. 157 et seq. 238 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 376. 239 See, supra, pp. 158 et seq.



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fundamental right set forth by international customary and conventional law since various treaties protect cultural property from destruction. Accordingly, the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea represents the deprivation of a fundamental right and therefore, the first element of crimes of the underlying offence of persecution is fulfilled. b. Nature of the Offence The act of persecution concerning the destruction of cultural property can be manifold. Most importantly, the act has to be directed against one of the institutions protected by international law, those are institutions dedicated to religion, charity, education, or the arts and sciences, historic monuments and works of arts and sciences. Furthermore, the act has to be in fact discriminatory, which means the respective institution must clearly be identified as belonging to the, by the attack targeted, civilian population.240 In other words, the owner of the respective institution, that is the victim, was, or was perceived to be, a member of the targeted group. In addition, the act has to be perpetrated with the requisite discriminatory intent. Furthermore, according to the latest practice of the ICTY chambers, the respective institution must not have been used as a military objective.241 Evidently, the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea was directed against institutions protected by international law, since they were mainly directed against institutions dedicated to religion. Clearly, these acts were discriminatory since they were only directed against religious cultural property, which represents Buddhism, Islam or Christianity. Evidently, the discrimination was committed on religious grounds. As already established above, the respective institutions were not being used as military objectives. Therewith, the destruction of cultural property during Democratic Kampuchea fulfils the requirements with regard to the object of the offence of Article 5 of the ECCC Statute. c. Level of Gravity of the Offence In the previous section of this study it was established that the acts of persecution, which are not otherwise subject to individual criminal responsibility under crimes against humanity, have to be of equal gravity or severity

240 See also, Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 377. 241 See, supra, pp. 162 et seq.

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to the other crimes against humanity.242 Hence, not only the destruction of one or two objects of cultural property but rather of numerous objects at several different locations fulfils the gravity requirement of persecution as a crime against humanity. It has to be held, though, that in one case, which was decided by the ICTY, the accused was found guilty for persecution as a crime against humanity inter alia for the destruction of only one single mosque.243 Nevertheless, as already stated before, a definite conclusion cannot be drawn from existing case law since the cases concerning persecution as a crime against humanity all deal with several acts of persecution. In all cases not only cultural property, but also civilian property, was destroyed by the defendants and furthermore, these acts were usually linked with other acts covered by persecution like murder, extermination, unlawful detention etc. Since the Khmer Rouge destroyed or misappropriated more than half of Cambodia’s Buddhist places of worship and also a lot of Cham mosques and other religious institutions, it can be assumed that the Khmer Rouge’s acts fulfil the required level of gravity. Furthermore, it has to be held that the Khmer Rouge also committed other acts, which might fall under the crimes against humanity’s underlying offence of persecution, like the killing and defrocking of the Buddhist monks. Hence, it can be assumed that the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea fulfils the required level of gravity. d. Mens Rea The mens rea of persecution differs slightly from the mens rea of the other crimes against humanity. It consists of three parts: (i) the mental elements required for the general requirements of crimes against humanity; (ii) the intent to commit the underlying offence; and (iii) the specific intent to discriminate on political, racial, and religious grounds.244 Presumably, the perpetrators, who destroyed cultural property during Democratic Kampuchea, intended to commit the underlying offence of persecution. Again, however, it has to be kept in mind that certain cultural property was destroyed in order to get building material or it was misappropriated in order to have prisons or army barracks. In such cases the perpetrator might not fulfil the required mental element since he is lacking the intent to commit the crime of persecution. 242 See also, Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, para. 378. 243 See, supra, pp. 166 et seq. 244 See, supra, pp. 167 et seq.



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Concerning the specific intent to discriminate it has to be noted that Article 5 of the ECCC Statute requires the persecution to be on political, racial, and religious grounds. Since the ICTY Statute’s provision concerning the crime against humanity comprises the same wording, the ICTY chambers addressed this matter and decided that each of the three grounds in and of itself is a sufficient basis for persecution. The ECCC Trial Chamber corroborated the ICTY’s decision in Case 001.245 In the present case, the intent was obviously to discriminate on religious grounds. Again, whether the perpetrators had this specific intent will have to be decided on a case-by-case basis. § 5 Interim Conclusion As a preliminary remark it has to be held that with the evidence at hand it is difficult to make a thorough assessment of the prosecution of the destruction of cultural property in Democratic Kampuchea. Especially, the mental elements of the crimes can only be evaluated on a case-by-case basis. Nevertheless, the analysis has brought about some important results. The inclusion of the 1954 Hague Convention in the ECCC Statute is very commendable since it affirms the immense significance of, in particular, Buddhism and Buddhist cultural property in Cambodian society and the devastating effect its destruction had on Cambodia. However, in general the direct applicability of the 1954 Hague Convention is not unproblematic since there are differing views on whether Article 28 of the Convention entails individual criminal responsibility. Furthermore, in the Cambodian context the 1954 Hague Convention cannot be applied without difficulty due to the required nexus of the destruction of cultural property with an armed conflict. Even though, evidently, there has been a state of international armed conflict with Vietnam throughout the time of Democratic Kampuchea and presumably, there has been a state of non-international armed conflict during the 1978 rebellion in the Eastern Zone, the required nexus of the destruction of cultural property with the armed conflict cannot be proven. Hence, even if the ECCC decides to charge accused in future cases with the destruction of cultural property, it is uncertain if those crimes can be prosecuted according to Article 7 of the ECCC Statute.

245 Prosecutor v. Kaing Guek Eav alias Duch, ECCC (Trial Chamber), Judgement of 26 July 2010, paras. 377, 379.

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For the same reasons, the prosecution of the Khmer Rouge’s destruction of cultural property under Article 6 of the ECCC Statute, that is the 1949 Geneva Conventions, seems unlikely. Another alternative could have been the prosecution of the offences under Article 3 of the ECCC Statute. However, the unclarity concerning the statute of limitations, the offences covered by Articles 209 and 210 of the 1956 Penal Code and the elements of the crimes, make an assessment almost impossible. As a result, it is assumed that Article 3 of the ECCC Statute does not cover the destruction of cultural property. The most suitable provision of the ECCC Statute for the prosecution of the Khmer Rouge’s destruction of cultural property during Democratic Kampuchea seems to be Article 5, which deals with crimes against humanity. However, again there might be an issue with the required nexus with an armed conflict. It has to be hoped, though, that the ECCC Trial Chamber will decide that the nexus requirement is not in conformity with customary international law. If the ECCC Trial Chamber is going to decide accordingly in Case 002, the above assessment showed that the Khmer Rouge’s destruction of cultural property could be prosecuted according to Article 5 of the ECCC Statute as a crime against humanity.

CONCLUSION The findings of the thesis at hand can be divided into two main categories: prosecuting the destruction of cultural property in international criminal law during armed conflict and prosecuting the destruction of cultural property in international criminal law during peacetime. § 1 Prosecuting the Destruction of Cultural Property during Armed Conflicts In international humanitarian law the protection of cultural property during armed conflict is extensive. Additionally, UNESCO has provided for a sound set of instruments concerning the protection of cultural property. Those instruments vary broadly in the scope of application, the definition of cultural property as well as in the protective measures they provide. Nevertheless, it could be established that almost all kinds of cultural property is protected under international law. Furthermore, international humanitarian law as well as the rules established by the UNESCO provide for a vast spectrum of provisions criminalising violations of the protection of cultural property. Even though most State Parties to those treaties have been reluctant to incorporate those provisions into their national legislation, those provisions have almost comprehensively been implemented by the statutes of the ICC, the ad hoc tribunals and the internationalised tribunals. The ICTY chambers had to decide on numerous cases dealing with the destruction of cultural property during armed conflict. Thereby, they have contributed to a great extent to the definition of the elements of crimes of the destruction of cultural property during armed conflict as a war crime. This definition was further elaborated on by the drafters of the Rome Statute inter alia by explicitly extending the crime to non-international armed conflicts. The provisions of international criminal law provide a satisfactory basis for prosecuting the destruction of cultural property during armed conflict. Only few restrictions confine the prosecution of such acts. Mainly they stem from international humanitarian law’s principle of military necessity. However, it was established that the possibility of waiving the obligation to protect cultural property on the grounds of military necessity was more

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and more restricted by international instruments, which deal with the protection of cultural property during armed conflict. Hence, it can be assumed that future cases dealing with the destruction of cultural property will apply a strict standard for the justification by military necessity. Furthermore, it has been established that the inconsistency within the different statutes of the international tribunals concerning the object of the offence leads to a certain equivocality. Foremost, none of the statutes makes reference to the notion of ‘cultural property’ and the definition of the UNESCO instruments. Therefore, it is suggested to revise the Rome Statute’s objects of the offence by adopting UNESCO’s definition of cultural property as provided in Article 1 of the 1954 Hague Convention. Nevertheless, to conclude, it can be held that prosecuting the destruction of cultural property during armed conflict is achievable under today’s international criminal law. § 2 Prosecuting the Destruction of Cultural Property during Peacetime Notably, almost all the international treaties dealing with the protection of cultural property against destruction are exclusively applicable during armed conflict and belligerent occupation. Only the 1972 World Heritage Convention’s scope of application is mainly in peacetime. However, the 1972 World Heritage Convention does not provide for any provisions concerning the individual criminal responsibility for the destruction of cultural property. The only international instrument, which protects cultural property during armed conflict as well as during peacetime and provides for provisions concerning the individual criminal responsibility for its destruction, is the 2003 UNESCO Declaration, which is not a binding treaty, though. Nevertheless, the analysis of the treaty law concerning the protection of cultural property has shown that gradually, the concern for the protection of cultural property has extended to peacetime.1 It was the Taliban’s destruction of the Buddhas of Bamyian, which prompted UNESCO to draft the 2003 UNESCO Declaration. The case study of the situation in Cambodia during the Khmer Rouge showed that the deliberate destruction of cultural property during peacetime or at least not linked to an ongoing armed conflict is not a recent issue. A comparison

1 Bassiouni, International Criminal Law, p. 213.

conclusion231 between the Khmer Rouge’s destruction of Buddhist places of worship in Cambodia and the Taliban’s destruction of cultural property in Afghanistan is inevitable. Francesco Francioni and Frederico Lenzerini called the events in Afghanistan “the pathology of State behaviour toward cultural heritage”.2 Some of the features they presented also seem fitting for the Khmer Rouge’s destruction of cultural property. “First, unlike traditional war damage to cultural heritage, which affects the enemy’s property, the demolition of the Buddhas of Bamiyan concerns Afghan Nation’s heritage. They were located on its territory and belonged to its ancient pre-Islamic past.”3 Similarly, the Khmer Rouge destroyed cultural property, which belonged to Cambodia’s religious cultural heritage, on their own territory. “Second, the purpose of the destruction was not linked in any way to a military objective, but inspired by the sheer will to eradicate any cultural manifestation of religious or spiritual creativity that did not correspond to the Taliban view of religion and culture.”4 Exactly the same ideology stood behind the Khmer Rouge’s destruction of cultural property. The CPK leadership planned to abolish religion in Cambodia and therefore ordered the destruction of religious cultural property. “Third, the modalities of the execution differ considerably from other similar instances of destruction in the course of recent armed conflicts. For instance, during the Balkan war of the 1990s and during the Iraq-Iran war in the 1980s, extensive destruction of cultural property occurred as a result of wanton bombardment, as in the case of Dubrovnik, or under the impulse of ethnic hatred. In the case of the Afghan Buddhas, demolition was carefully planned […], and cynically documented in all its phases of preparation, bombing and ultimate destruction.”5 Similarly, there exists evidence, which proves that the CPK leadership planned the destruction of religious institutions throughout Democratic Kampuchea. Clearly, the international framework for the protection of cultural property is lacking provisions, which protect cultural property from such regimes and consequently it is also lacking provisions, which criminalise such acts. The 2003 UNESCO Declaration is a first step in this direction and it has to be hoped that the international community will adopt a binding treaty dealing with these issues in the near future.

2 Francioni/Lenzerini, p. 620. 3 Ibid. 4 Ibid. 5 Ibid.

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Nevertheless, these shortcomings do not result in immunity from prosecution for the destruction of cultural property during peacetime. The extensive case law of the ICTY has provided for a crime of international criminal law, under which also the destruction of cultural property during peacetime can be prosecuted: the crime of persecution as a crime against humanity. Several cases were decided by the ICTY chambers dealing with the destruction of cultural property as persecutory acts. Thereby, the ICTY chambers have contributed to a great extent to the definition of the elements of crimes of the destruction of cultural property during peacetime as a crime against humanity. Also the IMT and the District Court of Jerusalem have held that that destruction of cultural property can amount to a crime against humanity. Therewith, those international tribunals have emphasised the cultural and historical importance foremost of institutions dedicated to religion and education and the categorising of the destruction of cultural property as acts of persecution shows the importance of cultural property to the life and identity of every human group and for the heritage of mankind. Notably, though, the cases, which have been decided, all deal with the destruction of cultural property, which is somehow related to armed conflicts due to the fact that the cases decided by the ICTY are all related to the armed conflict in the former Yugoslavia and the cases of the IMT and the Jerusalem District Court are all related to World War II. It has been determined in this writing, however, that a nexus between crimes against humanity and an armed conflict is contrary to customary international law. Hence, it could be established that the destruction of cultural property committed by the Khmer Rouge during Democratic Kampuchea could be prosecuted by the ECCC under the crime of persecution as a crime against humanity. Furthermore, however, there are no cases, which exclusively deal with the destruction of cultural property. All the accused at the international criminal tribunals, which were held liable for the destruction of cultural property as a crime of persecution, were additionally found guilty of other crimes of persecution and/or of other crimes against humanity and even war crimes, which makes it difficult to draw a definite conclusion. However, it can be held that regimes such as the Taliban or the Khmer Rouge usually not only destroy cultural property but also commit other acts, which amount to crimes against humanity. Therefore, to conclude, the destruction of cultural property during peacetime can be prosecuted under the crime of persecution as a crime against humanity as long as the overall attack comprehends other crimes against humanity and/or war crimes.

conclusion233 This conclusion is certainly not a perfect solution to the problem at hand, which is why the inclusion of a specific underlying offence for crimes against humanity dealing exclusively with the destruction of cultural property might be necessary in order to prosecute cases in which the crime against humanity solely entails the destruction of cultural property during peacetime. Especially, since the crimes committed by the Taliban and the Khmer Rouge demonstrate that cultural property is a target not only during armed conflicts but also during time of peace.

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INDEX 1874 Brussels Declaration (Project of an International Declaration concerning the Laws and Customs of War) 20 Definition of cultural property 21 Military necessity 21 Military purpose 21 1880 Oxford Manual (Manual of the Laws and Customs of War) 23 1899 Hague Conventions 26 et seq. 1899 Hague Convention (II) respecting the Laws and Customs of War on Land  26 et seq. 1907 Hague Conventions 26 et seq. 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land  26 et seq. 1907 Hague Convention (IX) on Bombardment by Naval Forces in Time of War 32 1907 Hague Regulations (Regulations respecting the Laws and Customs of War on Land) 26 et seq. Belligerent occupation 28 Customary international law 27 Definition of cultural property 28, 29 International Military Tribunal 27 Military necessity 30, 30 fn. 71, 31 Military purpose 31, 32 fn. 79 Non-international armed conflicts 27 Protection of cultural property 29–32 Scope of application 27–28 Violations of the treaty 32–33 Wartime 27 1922 Hague Rules (Hague Rules Concerning the Control of Radio in Time of War and Air Fare)  23–24 Definition of cultural property 24 General protection 24 Military advantage 24 Military necessity 24 Special protection 24 1948 Genocide Convention (see, Genocide Convention) 1949 Geneva Conventions 37–42 Armed conflict 38–40 International 38 Non-international 39

Belligerent occupation 40 Customary international law 38 Definition of cultural property 40 ECCC Statute 111, 194 fn. 119, 213–214 Grave breaches 42, 121, 193–194, 197 Protection of cultural property 41 Scope of application 38–40 Violations of the treaty 41–42 War crimes 109–110, 113 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 42–60 Act of hostility 52–53 Belligerent occupation 47 Customary international law 44 Definition of cultural property 48–50 Direct applicability 198–213 General protection 51–55 International armed conflict 44–45 Mens rea 212–213 Military advantage 54 Military necessity 53–55, 58 Military purpose 52–54, 56–58 Non-international armed conflict 45–47 Scope of application 44–47 Special protection 55–58 Violations of the treaty 59–60 1956 Penal Code 193, 214–216 1972 Convention for the Protection of the World Cultural and Natural Heritage 60–66 Definition of cultural property 61–63 General protection 63–64 Peacetime 61 Scope of application 61 Special protection 64–66 Violations of the treaty 66 1978 Rebellion in the Eastern Zone (see, Rebellion in the Eastern Zone) 1999 Second Hague Protocol 81–96 Act of hostility 85–87, 92, 94 Armed conflict 82–83 Belligerent occupation 82–83 Definition of cultural property 83–84 Enhanced protection 88–92 General protection 84–88 Military advantage 85–87, 92 Military necessity 84–87, 91–92

248

index

Scope of application 82–82 Violations of the treaty 92–96 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Property 96–101 Customary international law 98 Definition of cultural property 98–99 Military necessity 100 Peacetime 100 Protection of cultural property 99–100 Scope of application 100 Violations of the treaty 100–101 Act of hostility 1954 Hague Convention 52–53, 57–58, 209–210 1972 World Heritage Convention 64 1999 Second Protocol 85–87, 92, 94 Additional Protocols 74–75 War crimes 138 Additional Protocols of 1977 (to the Geneva Conventions) 66–81 Armed conflict 74–75 Belligerent Occupation 69 Definition of cultural property 70–72 General protection 72–74 Grave breaches 78–81 Scope of application 67–69 Special protection 74–77 Violations of the treaty 78–81 War crimes 109–111 Additional Protocol I 66–81 Attack 74 International armed conflict 67–68 Additional Protocol II 66–81 Non-international armed conflict 68 Ad hoc tribunals 10 Afghanistan 2, 96, 175, 213 Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution und Cambodian Law of Crimes committed during the Period of Democratic Kampuchea (see, ECCC Agreement) Aggravating circumstances 131 Allies 1, 13, 73 fn. 268 Josef Altstötter et al. case 169 American Civil War 19 Angkor Wat 176, 184, 185, 207–209 Armed conflict 1949 Geneva Conventions 38–40 between Cambodia and Vietnam 179–180 International (see, International armed conflict)

Non-international (see, Noninternational armed conflict) Association of Southeast Asian Nations (ASEAN) 184 Bemba case 148, 149 fn. 200 Blagojević and Jokić case 150 fn. 206, 208 Discriminatory act 163 Blaškić case 124 fn. 77, 128, 135 fn. 130, 137, 139, 140, 146 fn. 186, 148 fn. 196 and 197, 149 fn. 199 and 200 and 203, 152 fn. 216 and 218, 155 fn. 236 Article 53 of the Additional Protocol I 117 fn. 47, 158 Civilian population 152 Crimes against humanity 156 fn. 242 Military objectives 163 fn. 270 Persecution 161, 165–166, 168 fn. 294 and 296 Bosnia and Herzegovina 1, 37 fn. 101 and 102, 133, 161, 166 Brđanin case 126–127, 136–137, 139 fn. 150, 155 fn. 236, 156 fn. 242, 162 fn. 266, 165 fn. 279, 166 Brussels Conference of 1874 19 Buddha statues 184–186, 207–208, 210 Buddhas of Bamiyan 96–97, 101, 230–231 Buddhism 180–181, 186, 207, 222–223, 225, 227 Buddhist monks 177, 180–181, 186–187, 215, 224, 226 Cambodia 2, 175 et seq. Armed conflict with Vietnam 179–180 Bombardment by the US 181 Destruction of cultural property 180–187 Case 001 197 Case 002 198 Case concerning Armed Activities on the Territory of the Congo 27 Case concerning Application of the Genocide Convention 36 Central Committee 175–176 Cham Muslims 178, 183–184 Charter of the United Nations (see, UN Charter) Churches 1, 16, 18, 20, 22 fn. 35, 28, 41, 104, 135, 137 Civilian objects 50, 67, 70–72, 76, 126, 130, 163 fn. 270, 166, 175, 184, 211 Civilian population 150–153 Civilian property 72, 74, 120–121, 123, 127, 167 Crimes against humanity 7, 107, 141 et seq.

index249 Attack 144–148 Control Council Law No. 10 141–142 Definition 141–144 Directed against any civilian population 150–153 Discriminatory intent 153–155 ECCC Statute 144, 193, 216–227 Evolution 141–144 Existence of an armed conflict 142, 146 General requirements 144–156 ICTR Statute 142 ICTY Statute 142 ICC Elements of Crimes 144 ILC Draft Code 143 IMT Charter 141 IMTFE Charter 142 Mens Rea 155–156 On National, Political, Ethnical, Racial or Religious Grounds 153–155 Requirements of the underlying offence 156–171 Rome Statute 143 SCSL Statute 143–144 SPSC Statute 143 State or organisational policy 146–148 Systematic 148–150 Widespread 148–150 Code of Criminal Procedure of the Kingdom of Cambodia 197 Committee for the Protection of Cultural Property in the Event of Armed Conflict 89 Communist Party of Kampuchea (CPK) 175–177, 198 Control Council Law No. 10 13, 141, 159, 169, 216, 222 Convention on the Prevention and Punishment of the Crime of Genocide (see, Genocide Convention) Cultural genocide 34 et seq. Cultural heritage 2–3, 43, 48–49, 55, 61–63 Customary international law 9, 11, 18 1907 Hague Regulations 27, 50 1949 Geneva Conventions 38 1954 Hague Convention 44, 47, 55 1972 World Heritage Convention 60–61 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage 98 Additional Protocols 66, 72 Cultural genocide 35–36 Democratic Kampuchea 175–178 Deronjić case 156 fn. 242, 166–167

Discriminatory intent 154, 162–163, 168, 222, 225 Draft Codes of Crimes against Peace and Security 1991 (see, ILC Draft Code of 1991) 1996 (see, ILC Draft Code of 1996) Dubrovnik 61 fn. 222, 65 fn. 240, 131–134, 140, 231 ECCC (Extraordinary Chambers in the Courts of Cambodia) 11, 189–198 1949 Geneva Convention 193–194, 213–214 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 194, 198–213 1956 Penal Code 214–216 Case 001 197 Case 002 198 Crimes against humanity 144, 193, 216–227 Establishment 189–191 Jurisdiction 192–194 Nature 191–192 Persecution 193, 215–217, 222, 224–227 Procedural law 196–197 Statute of limitations 194 Structure 194–196 War Crimes 111, 121, 122, 144, 205, 211–212, 218–219 ECCC Agreement 190 ECCC Internal Rules 196–197 ECCC Statute 11, 111, 121, 144, 190–191 Eichmann case 160–161, 224 Extraordinary Chambers in the Courts of Cambodia (see, ECCC) Genocide 7, 33–37, 113, 153, 168, 189, Genocide Convention 33–37 Hadžihasanović and Kubura case 124 fn. 77, 131 fn. 112, 135 fn. 129, 139 fn. 147 and 150 Institution dedicated to religion 127 Hague Rules Concerning the Control of Radio in Time of War and Air Fare (see, 1922 Hague Rules) Hybrid tribunals (see, internationalised tribunals) Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (World Heritage Committee) 64

250

index

International armed conflict 101 1907 Hague Convention 27 1949 Geneva Conventions 38–39 1954 Hague Convention 44–45, 203–204 1999 Second Protocol 82 2003 UNESCO Convention 98 Additional Protocol II 67–68, 72 Cambodia 204–205 Crimes against humanity 171 War crimes 110–111, 114–115, 118, 121 International Court of Justice 11, 12, 27, 36 International Covenant of Civil and Political Rights 196 International Criminal Court (ICC) 4, 7, 12 International criminal law 3–4 Concept 7 Sources 7–14 International Criminal Tribunal for Rwanda (ICTR) 10 International Criminal Tribunal for the Former Yugoslavia (ICTY) 10 International humanitarian law 3–4, 9, 15 International Law Commission (ILC) 13, 35 International Military Tribunal (IMT)  10, 12 Crimes against humanity 141, 147, 232 Individual criminal responsibility 113 Persecution 157, 160 War crimes 108 International Military Tribunal for the Far East (IMTFE) 10, 12, 108, 142, 157 International Register for Cultural Property under Special Protection 57 Internationalised tribunals 10, 111, 118, 212, 131, 135, 143, 157, 163, 169, 209, 229 Jokić case 126 fn. 82 1954 Hague Convention 122–123 Dubrovnik 131, 133–134, 140 Katanga et al. case 147–148, 149 fn. 199 Khmer Rouge (Regime) 2, 5, 175–178 Kordić and Čerkez case 71 fn. 257, 115 fn. 39 und 40, 123 fn. 74, 126 fn. 82, 127 fn. 90 and 91, 138 fn. 142, 139 fn. 149, 147 fn. 187, 149 fn. 199 and 201 and 203, 152 fn. 216 and 218, 154 fn. 240 and 242, 163 fn. 268, 168 fn. 294 and 297 Deprivation of a fundamental right 159 Destruction of cultural property as an underlying act of persecution 161–162, 166 Educational institutions 127 Mens rea 155 Principle of legality 201

Krstić case 31–37 Kunarac case 114 fn. 34, 118 fn. 55 and 57, 144–145, 146 fn. 181 and 183, 147, 149 fn. 199 and 203, 150 fn. 210, 151, 152 fn. 216, 155 fn. 236, 156 fn. 238 and 241 Kupreškić et al. case 152 fn. 221, 155 fn. 236, 159–160, 164–165, 167 fn. 293, 168 Law on the Establishment of Extraordinary Chambers in the Court of Cambodia for the Prosecution of Crimes committed during the period of Democratic Kampuchea (see, ECCC Statute) Legality of the Threat of Use of Nuclear Weapons 49 Libraries 1, 18–20, 22 fn. 35, 34, 48, 50, 160, 182, 207 fn. 184, 208 Lieber Code (Manual for the Laws and Customs of War) 19–20 Definition of cultural property 19 Military necessity 19–20 List et al. case 112 List of World Heritage in Danger 65 Lubanga case 114 fn. 35, 117 Manual for the Laws and Customs of War (see, Lieber Code or 1880 Oxford Manual) Mens rea 107, 124 1954 Hague Convention 212–213 Crimes against humanity 154–156 Destruction of cultural property (war crimes) 139–140 In general 119–120 Persecution 167–171 War crimes 120 Mental element (see, mens rea) Middle Ages 16 Military advantage 1907 Hague Regulations 31, 138 1922 Hague Rules 24 1954 Hague Convention 54, 138 Additional Protocols 73, 75–76, 136 1999 Second Protocol 85–87, 92 War crimes 138 Military effort 75–78, 104, 131 Military necessity 17–18, 103–104, 229–230 1874 Brussels Declaration 21 1899 and 1907 Hague Conventions 32 1907 Hague Regulations 30–31 1922 Hague Rules 24 1949 Geneva Conventions 41–42, 109, 214 1954 Hague Convention 53–55, 58, 211–212

index251 1999 Second Protocol 84–87, 91–92 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage 100 Additional Protocols 73, 75–77 Bluntschli, Johann Caspar 22 Lieber Code 19–20 Oppenheim, Lassa 17 Persecutions 162–163 Roerich Pact 25 Rome Statute 124, 136 de Vattel, Emmerich 17 War crimes 135–139, 171–172 Military purpose 1874 Brussels Declaration 21 1907 Hague Regulations 30–32 1922 Hague Rules 24 1954 Hague Convention 52–54, 56–58, 212 1999 Second Protocol 88–89, 91 Crimes against humanity 162 Khmer Rouge 210 War crimes 124, 135–136, 139 Military object 31 Military objective 103–104, 230 1922 Hague Rules 24 1954 Hague Convention 54–56 1999 Second Protocol 85–86, 89–90, 92 Additional Protocol I 72–73, 75–78, 80 Crimes against humanity 150, 164, 173, 225 Mens Rea 140 Rome Statute 121–122, 124, 135–136 War crimes 137–139 Mosques 1, 28, 36, 70 fn. 254, 133, 137, 166–167, 175, 184, 187, 208, 210–211, 226 Mostar Bridge 1, 126 fn. 83 Mrkšić case 115 fn. 42, 117 fn. 49, 145 Museums 20, 25, 34, 48, 50, 160, 208 Naletilić and Martinović case 119, 120 fn. 62, 124 fn. 77, 133, 135 fn. 130, 137, 139 fn. 147, 151 fn. 212, 152 fn. 216, 155 fn. 242 Non-international armed conflict 1907 Hague Convention 27 1949 Geneva Conventions 39–40 1954 Hague Convention 45–47, 204–205 1999 Second Protocol 83 2003 UNESCO Convention 98 Additional Protocol II 68–69 Cambodia 204–205 Crimes against humanity 171 War crimes 110, 114–115 Nuremberg Trials 4, 27, 108, 113, 217

People’s Republic of Kampuchea (PRK) 187 People’s Revolutionary Tribunal 189 Persecution 156–171, 224–227 1956 Penal Code 215–216 Deprivation of a fundamental right 158–159 Discrimination on Cultural grounds 170 Ethnic grounds 170 Grounds of gender 170 National grounds 170 Other grounds 170–171 Political grounds 169–170 Racial grounds 169 Religious grounds 169 ECCC 193, 215–217, 222, 224–227 ICC Elements of Crimes 157–158 IMT Charter 157 IMTFE Charter 157 Level of gravity of the offence 164–167 Mens rea 167–171 Nature of the offence 159–164 Rome Statute 157 Phnom Penh 176, 178, 180, 183–187, 198 Principle of Legality 22, 200–202, 216–217 Project of an International Declaration concerning the Laws and Customs of War (see, 1874 Brussels Declaration) Rebellions in the Eastern Zone 178–179, 204–205 Regulations respecting the Laws and Customs of War on Land (see, 1907 Hague Regulations) Roerich Pact (Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments) 24–25 Definition of cultural property 25 S-21 178, 197 von Schirach case 141, 147 fn. 188 Schools 18, 22 fn. 35, 28, 34, 73, 127, 136, 163 fn. 270, 178, 182, 184 Siem Reap 182 Special Court for Sierra Leone 11 Special Penal for Serious Crimes of the District Court of Dili (East Timor) 11 Srebrenica 36 Stakić case 157 fn. 242, 159 fn. 249, 162 fn. 266, 163 fn. 268, 166 Statute of limitations 194, 214–215, 228 Streicher case 141, 147 fn. 188, 160 Strugar case 61 fn. 222, 62 fn. 260, 65, fn. 240, 72 fn. 262, 80 fn. 299, 116, 123 fn. 73, 124 fn. 77, 125, 126 fn. 82, 131, 132 fn. 116

252

index

und 117, 135 fn. 130, 131, 37 fn. 141, 138, 163 fn. 269 Synagogues 1, 28, 160–161 Duško Tadić case 9 fn. 12, 145, 146 fn. 186, 152 fn. 216 and 221, 153 fn. 223 and 224, 154, 155 fn. 232 and 236 1954 Hague Convention 47 Applicability of international humanitarian law 116 Armed conflict 114 Internal/international conflict 114–115, 205, 218–219 Nexus between the underlying offence and the armed conflict (war crimes) 117–118 Nexus between the underlying offence and the armed conflict (crimes against humanity) 142 fn. 163, 146 fn. 182, 159 fn. 251 Persecution 158, 164 fn. 276, 169 Serious violation of international humanitarian law 112, 113 fn. 31, 202–203 Thirty Years War 16 Taliban 1, 96–97, 101, 230–232 Temple 15 fn. 2 and 3, 16–18, 54 fn. 182, 176 fn. 8, 181, 185, 187, 207–209 Third Reich 1, 170 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (see, Roerich Pact) UN Commission on Human Rights 189 UNESCO 42, 46, 60, 96–97, 101, 229 Convention 42 Mandate 42–43 UN Charter 10, 43 UN Group of Experts 189, 199–200, 203–204, 220 UN Secretary-General 189–190 United Nations Transitional Authority in Cambodia (UNTAC) 188

Vietnam 175 fn. 2, 176, 178 Armed conflict with Cambodia 179–180 War Crimes 7, 9, 59, 81, 108–141 1949 Geneva Conventions 109–111, 113–114, 116 Additional Protocols of 1977 109–110, 121 Applicability 116–117 Belligerent occupation 117 Definition 108–111 Destruction of cultural property 120–141 Lex generalis 120–121 Lex specialis 121–125 ECCC Statute 111, 205, 211–212, 218–219 Evolution 108–111 Existence of an armed conflict 113–116 General requirements 111–120 ICC Elements of Crimes 113–114 ICTR Statute 110 ICTY Statute 109–110 IMT Charter 108 IMTFE Charter 108 ILC Draft Code 110 Level of gravity of the offence 132–135 Mens rea 139–141 Military necessity 135–139 Nature of the offence 129–132 Nexus between the underlying offence and the armed conflict 117–118 Object of the offence 125–129 Requirements of the underlying offence 120–141 Rome Statute 110–111 SCSL Statute 110 Serious violation of international humanitarian law 111–113 SPSC Statute 110 Wat 181–187, 208, 210–211, 224 World War I 2, 23, 26, 32, 108 World War II 2, 4, 12, 13, 32, 34, 42, 108, 112, 141, 232 Yugoslavia 1, 81, 126, 232