1.1 The 1907 IV Hague Regulations

The 1907 IV Hague Convention and Annexed Regulations represent customary international law.Footnote ³ Take, for example, the razing in May 2000 of the Stela of Matara (an obelisk inscribed with most ancient example of the “old Ethiopic” script in existence) during the Ethiopian occupation of Eritrea. The Eritrea–Ethiopia Claims Commission affirmed that its destruction constituted a violation of customary international law and was prohibited by Article 56 of the 1907 IV Hague Regulations.Footnote ⁴ Indeed, these regulations contain two provisions that specifically touch upon the protection of such cultural artifacts. The first, applicable during armed conflict, is Article 27:

Article 27 was groundbreakingFootnote ⁵ in its demand that the world pay special attention to certain types of objects and buildings at a time when little distinction was made between military targets and civilian property. However, with hindsight, we can see there was still a long way to go before cultural property reached the position it occupies today in IHL, and in international law in general. This is first and foremost because this provision categorizes cultural institutions with hospitals, institutions dedicated to charitable purposes, and “places where the wounded and sick are collected.” In addition, if the object or institution happened to be destroyed not by siege or bombardment but by some other means, it would only receive the general form of protection awarded to “enemy property.”Footnote ⁶ The defense mounted by Slobodan Praljak, convicted by the ICTY Trial Chamber for his involvement in the destruction of mosques and the Old Bridge in Mostar during the Balkan war, was that the Bosnian Muslims’ failure to provide “distinctive and visible signs” indicating the presence of protected monuments relieved the Croatian army (HVO) of its obligation to abide by Article 27. The Trial Chamber, however, rejected this view, declaring that “le non-usage de ce signe ne prive en aucun cas le bien de sa protection.”Footnote ⁷

The second provision of the 1907 IV Hague Regulations concerning cultural institutions, Article 56, applies during enemy occupation:

There are two noticeable differences here. First, the article abandons the inclusion of hospitals and “places where the wounded and sick are collected” and instead mentions “works of art,” extending protection to movable objects. Second, there is no waiver to this obligation. Most importantly, its violation triggers some sort of legal responsibility. According to Suzanne Schairer,Footnote ⁸ Article 56 was the basis for the trial of Wilhelm Keitel and Alfred Rosenberg at Nuremberg. In fact, the very term “cultural property” was first used when the Nuremberg Tribunal stated that “the OKW Chief [Wilhelm Keitel] directed the military authorities to cooperate with the Einsatzstab Rosenberg in looting cultural property in occupied territories.”Footnote ⁹ The Einsatzstab Rosenberg was a Nazi educational research institute and museum containing more than 21,000 artworks stolen from countries across occupied Europe, and both Keitel and the chief of the institute, Rosenberg, were found guilty inter alia of the war crime of plunder.Footnote ¹⁰

Apart from Articles 27 and 56, the 1907 IV Hague Regulations contain other norms that are relevant – albeit indirectly – to cultural and religious sites, such as the prohibition of pillage (Articles 28 and 47) and the obligation of the occupying power to ensure, circumstances permitting, “public order and safety, while respecting, unless absolutely prevented, the laws in force in the country” (Article 43), something that could be translated as a duty to prevent looting, vandalism or illegal archaeological excavations.

The impact of such events as the destruction of Reims Cathedral in France and the Louvain library in Belgium during the First World War led to various attempts in the interwar years to reform the laws for the protection of cultural property in armed conflict. These included initiatives by the Netherlands Archaeological Society and the Office International des Musées in the League of Nations. However, the only (relatively) successful initiative turned out to be the Washington Treaty of 1935, more commonly known as the “Roerich Pact” after its driving force, Nikolas Roerich, a Russian artist and lawyer, who was nominated three times for the Nobel Prize in peace. The pact declared that monuments, museums, and scientific, artistic, educational, and cultural institutions are neutral, unless used for military purposes.Footnote ¹¹ However, it proved to be of more symbolic than practical importance. This is because only ten American states were bound by it,Footnote ¹² and that meant that it did not apply to the warring parties in the Second World War. Moreover, as all ten states subsequently ratified the 1954 Hague Convention, it can be said it has fallen into desuetude.

Before the outbreak of the Second World War, President Roosevelt, whose administration had been key to ensuring the Roerich Pact’s adoption, urged the governments of Germany, Poland, France, and Britain to agree to safeguard undefended towns and cultural institutions. France and Britain subsequently issued a joint declaration assuring that it was

But a qualification followed: they would respect such monuments only as long as Germany followed suit. Hitler’s administration reciprocated in similar terms:

Although the Nazis began a war of cultural aggression in the rest of Europe – most prominently in Poland – it is remarkable that, during the first two years of the war, Germany, France, and Britain largely honored this political accord among themselves. However, when Britain broke with the agreement, sending its bombers over the city of Lübeck, Germany swiftly responded by retaliating in kind against Bath, and from that moment the situation escalated.Footnote ¹⁵ Carpet bombing wreaked devastation on many European cities, with the inevitable destruction of their historic monuments, as well as the looting of many hundreds of works of art – some of which remain at large more than six decades later.Footnote ¹⁶

Against this backdrop, the revisionist movement found a receptive audience for its premise that Articles 27 and 56 had aimed too high and, as a consequence, had risked getting too little.Footnote ¹⁷ It argued that what was needed was “a convention of narrower application, so as to render feasible a higher standard of protection.”Footnote ¹⁸ As a result, an international conference held in The Hague under the aegis of UNESCO adopted two new sets of rules: the 1954 Hague Convention and its First Additional Protocol.

Despite the merits of the 1954 Hague Convention, it is worth noting that the revisionist justifications for a new legal instrument appear questionable, to say the least: armed forces, rebel groups, and/or individual combatants do not systematically destroy cultural property simply because the outdated character of the legal norms somehow leaves this option open. As the political pact adopted at Roosevelt’s initiative shows, it was not difficult for France, Britain, and Germany to perceive the difference between destroying cultural objects and refraining from doing so. The fundamental question that endures to this day is whether the will exists to act upon that distinction.

1.2 The 1954 Hague Convention

The 1954 Hague Convention offered the first legal definition of “cultural property.” Article 1 reads:

This definition spells out the elements that render cultural property a category – namely, any type of goods, movable or immovable, as long as they are of great importance to the cultural heritage of every people. Given that a requirement of this new concept is that the object concerned is specifically defined as cultural heritage, buildings of a more diverse nature, such as hospitals and charitable or educational institutions, are deemed to lie outside its scope. Furthermore, by demanding a threshold “of great importance to every people” (that is, every nation),Footnote ¹⁹ the overinclusiveness of the 1907 IV Hague Regulations, which demanded the protection of every individual historic monument, was finally resolved.

Article 3 of the 1954 Hague Convention also obliges the signatories to begin preparations in peacetime for

Although this provision leaves a wide margin of discretion, Resolution II of the Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict of May 1954 (Resolution II of 1954) provides some guidance for the implementation of this task. For example, it recommends that each state establish a national advisory committee to inform the government of “the measures required for the implementation of the Convention in its legislative, technical or military aspects, both in time of peace and during an armed conflict” (paragraph a). The 1954 Hague Convention also contains specific obligations regarding military personnel during peacetime. These include the introduction of its provisions into the state’s military regulations, requiring it to foster a “spirit of respect for the culture and cultural property of all peoples” among the members of its armed forces (Article 7(2)), and the appointment of specialist personnel “whose purpose will be to secure respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it” (Article 7.2)). The 1954 Hague Convention further demands that the state disseminates its text widely during peacetime, “so that its principles are made known to the whole population, especially the armed forces and personnel engaged in the protection of cultural property” (Article 25). Likewise, it may indicate the presence of cultural property within its borders by marking it with the convention’s distinctive emblem, the so-called blue shield. Hence, despite the apparent vagueness of Article 3, the obligation to prepare during peacetime for the foreseeable effects of war is rendered increasingly more concrete as we scroll through the text.

When engaged in armed conflict, there are four basic obligations. I refer to them as basic or core obligations as these are the only ones whose application is extended to noninternational armed conflicts (Article 19(1)); the rest of the convention’s obligations only come into play in international conflicts. The first of these is that cultural property cannot be used (Article 4(1)) for purposes that could expose it to damage or destruction, and the second prohibits directing acts of hostility against cultural property (Article 4(2)). However, both these obligations may be waived in case of “imperative military necessity,” a crucial concept that was nevertheless left undefined at the time the convention was framed. The last two obligations cannot be lifted. According to the third cardinal obligation, enshrined in Article 4(3):

Last, Article 4(4) forbids reprisals against cultural property, while Article 4(5) contains a clarification that holds that a state cannot evade its obligations by claiming that its opponent has not applied appropriate safeguards. In fact, the use of the 1954 Hague Convention’s “blue shield” is not mandatory. Some states (such as Peru and Oman) do not affix it at all, whereas others (for example, the Netherlands and Poland) do so religiously, and still others, such as Japan, only use the blue shield irregularly.Footnote ²⁰ This confusing situation means that, as Roger O’Keefe argues, it is left to each side in the armed conflict to decide what counts as its opponent’s cultural property.Footnote ²¹ The absence of a clear means of identification is one of the recognized defects of the 1954 Hague Convention that will be addressed by the interplay between the World Heritage Convention and the 1954 Hague Convention discussed in Chapter 4.

Outside the core obligations, the 1954 Hague Convention foresees a “special protection” regime for certain immovables of “very great importance” (Article 8). Under this regime, immovables can only be used for military purposes or subjected to attack in exceptional cases of “unavoidable military necessity” (Article 11(2)), a concept that is once again left undefined. The special regime is currently considered a dead letter as there are only five properties (all belonging to developed countries) listed on the corresponding “International Register of Cultural Property under Special Protection.”Footnote ²² In fact, the stringent conditions for eligibility dissuaded some states from seeking to place their cultural properties on the International Register. For example, one of the eligibility requirements for this special regime demands that property be situated at an adequate distance from a military objective, something that prevented the inclusion of the temples of Abu Simbel along the Nile, as they were considered too close to the Aswan Dam to qualify. Poland, similarly, pointed out that because the majority of its museums and historic monuments lay close to bridges, lines of communication, and railway stations, it could not hope to sign up to this special regime. Switzerland declared “the strict application of Article 8 … makes it difficult to select this type of property in a small country where all the built-up areas are extremely close together.”Footnote ²³ Likewise, the Soviet Union complained that, because its most important monuments were situated in its most important cities (for example, Moscow, Tallinn, and Leningrad), their proximity to industrial, urban, and military enclaves precluded their listing in the register.Footnote ²⁴ According to Article 8(2), a property may nevertheless benefit from this regime, whatever its location, “if it is so constructed that, in all probability, it will not be damaged by bombs.” But, as Craig Forrest observes, if it will not “in all probability” be damaged, why place it under a special regime of protection?Footnote ²⁵

Article 28, concerning individual criminal responsibility, backs all of the 1954 Hague Convention’s obligations:

The article does not elucidate what an act breaching the 1954 Hague Convention (the actus reus) or the criminal intention behind it (the mens rea) entails. Neither does it offer a definition of the type of punishment such an act should draw down. Although the purpose of leaving the content of this provision open ended was to allow each state to choose the mode of compliance best adapted to its national criminal system, the result is that most states have failed to incorporate a crime based on Article 28 into their criminal codes – and this includes Syria and Mali.Footnote ²⁶

The nature of the wars in the specified countries moves to the fore another doubt concerning the implementation of Article 28: namely, whether it can be used to prosecute individuals who have destroyed or looted cultural property in noninternational armed conflicts. This is because the provision on individual criminal responsibility is located in Article 28, whereas the only provision applicable in armed conflict, according to the 1954 Hague Convention, is Article 4,Footnote ²⁷ where the core obligations are found. This is another matter that will be addressed in Chapter 4.

The number of states party to the 1954 Hague Convention increased progressively after its entry into force in 1956. However, the revisionist policy resurfaced in 1974, the year in which the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts convened in Geneva. At the time, there were sixty-three parties to the 1954 Hague Convention. However, the conference held that because the 1954 Hague Convention had “by no means entered into force worldwide,”Footnote ²⁸ each of the ensuing two Additional Protocols of 1977 must also include a provision to reaffirm the protection of cultural property.

1.3 The Two Additional Protocols of 1977

Although those drafting the 1977 Additional Protocols intended simply to restate the essential obligations of the 1954 Hague Convention, they effectively revised the rules for the protection of cultural property. Article 53 of Additional Protocol I, applicable in international armed conflicts, reads as follows:

Article 16 of Additional Protocol II, applicable in noninternational armed conflicts, repeats this wording verbatim, except for the prohibition on reprisals, which does not appear. The first way in which these provisions differ from those of 1954 is in their list of objects: the protocols mention “places of worship,” a category not covered by the 1954 Hague Convention per se. Secondly, they speak about cultural objects and places of worship that represent the “cultural or spiritual heritage of peoples.” Some legal commentators’ understanding of the threshold of the protocols differs from the interpretation applied to the 1954 Hague Convention: they claim that Article 16 refers to “only a few of the most famous monuments, such as the Acropolis in Athens and St. Peter’s Basilica in Rome.”Footnote ²⁹ This opinion is quite prominent and has even appeared in the arbitral award in the case between Eritrea and Ethiopia concerning the Stela of Matara.Footnote ³⁰ Nevertheless, it appears to be historically inaccurate. The official records of the 1974–1977 Diplomatic Conference reveal that the term “heritage of peoples” was preferred to that of “heritage of a country” so as to prevent clashes between a state’s predominant culture and the diverse national and religious identities of its minority populations.Footnote ³¹ Therefore, Articles 53 and 16 of Additional Protocols I and II, in effect, refer to cultural property of importance to every nation, and, at least in this sense, they coincide with the scope of the 1954 Hague Convention.Footnote ³²

Where the differences between the two Additional Protocols and the 1954 Hague Convention become most evident is in their respective regimes of protection. For one thing, the protocols completely outlaw the use of cultural objects and places of worship by the military (Article 53(b) of Additional Protocol I), whereas the convention allows the use of cultural property and its surroundings for military purposes in the case of “imperative military necessity” (Article 4(2)). Likewise, the convention applies the same waiver to the ban on acts of hostility directed against cultural property, whereas neither Article 53 nor Article 16 of Additional Protocols I and II, respectively, mentions any such disclaimer concerning acts of hostility. The United Kingdom, for example, lowers the bar of protection because it interprets the protocols as allowing attacks against cultural objects and places of worship if these are unlawfully used for military purposes.Footnote ³³ Although the concept of “imperative military necessity” is not defined in the 1954 Hague Convention, as a result of developments in international customary law, it is out of the question that its mere use for military purposes would be sufficient grounds to allow an attack against a cultural property.Footnote ³⁴

Additional Protocol I is known for its development of individual criminal responsibility. Article 85(4)(d) reads as follows:

It is difficult to understand why Additional Protocol I attaches so many conditions before an attack against a cultural object can be regarded as a “grave breach” – all of which are also alien to the essential rules of protection put forward by the 1954 Hague Convention. It relies on (1) the display of “clearly recognized” emblems, which the protocol then fails to specify;Footnote ³⁵ (2) regimes of special protection awarded by “other international arrangements”; and (3) a condition (that the cultural object must not in the “proximity of a military objective”) that is not mentioned in Articles 53 and 16 of the Additional Protocols – or any other treaty, for that matter. Article 85(4)(d) has never served as the basis for a prosecution for war crimes. Indeed, the need for better and more detailed provisions concerning crimes against cultural property and individual criminal responsibility became one of the primary concerns of the next revisionist wave, which proposed the adoption of yet another new instrument: the 1999 Second Protocol.

1.4 The 1999 Second Protocol

The armed conflicts that dominated the end of the 1980s and beginning of the 1990s led legal practitioners and commentators to argue for the adoption of a new instrument to counteract the shortcomings of the 1954 Hague Convention’s outdated or inefficient provisions. In the words of John Henry Merryman:

UNESCO and its member states shared the view that the 1954 Hague Convention was unable to meet the challenges thrown up by new, more deadly methods of warfare. Indeed, the 1992 report by the UNESCO director-general at the time, Federico Mayor-Zaragoza, on “the reinforcement of UNESCO’s action on the protection of the world cultural and natural heritage”Footnote ³⁷ maintained:

Also crucial to this revisionist movement was the report UNESCO commissioned in 1993 from Patrick J. Boylan, the “Review of the Convention for the Protection of Cultural Property in Armed Conflict”Footnote ³⁹ (commonly known as the Boylan Report), which suggested a substantial modification of the 1954 Hague Convention’s terms.Footnote ⁴⁰

Different alternative revisions were considered. The option of an amendment was discarded as it depended on achieving unanimity among all the state signatories.Footnote ⁴¹ The adoption of a separate independent convention was also ruled out so as to prevent fragmentation of the legal regime by the creation of two parallel systems.Footnote ⁴² In the end, it was decided that the best option was to produce another protocol to the 1954 Hague Convention, and so the 1999 Second Protocol was born. Its text revisited those issues deemed no longer to stand the test of time, namely:

1. (i) the lack of definition of the waiver of imperative military necessity;

2. (ii) the failed system of special protection;

3. (iii) the provision on individual criminal responsibility; and

4. (iv) institutional matters.Footnote ⁴³

The 1999 Second Protocol therefore supplements the provisions of the 1954 Hague Convention and applies in its entirety to both international and noninternational armed conflicts.Footnote ⁴⁴ In order to invoke the waiver of “imperative military necessity” in an assault on cultural property, the 1999 Second Protocol lays down two conditions: first, the cultural property has been turned into a military objective by its function, and, second, there is no other feasible way to secure an advantage in the war (Article 6(a)). Similarly, armed forces can invoke “imperative military necessity” when using cultural property or its surroundings for purposes likely to expose it to destruction or damage if this is the only feasible way of attaining the military advantage it seeks to secure (Article 6(b)). Only commanding officers or those of similar rank can take such a decision – and, if possible, they must give advance warning.

The 1999 Second Protocol also created an “enhanced regime” of protection that was supposed to replace the 1954 Hague Convention’s “special regime” (Article 10) slowly. The cultural property that qualifies for this enhanced form of protection is then placed on the Enhanced Protection List. The 1999 Second Protocol failed to devise a special emblem at the time. In 2015, the Committee for the Protection of Cultural Property in the Event of Armed Conflict (1999 Second Protocol Committee) adopted another distinctive emblem, consisting of a blue shield with a red background,Footnote ⁴⁵ for cultural property under enhanced protection. It is still unclear whether its deployment will be mandatory. Once a property or object is included on such a list it becomes immune from military use and from attack. The latter prohibition only ceases if it has been turned into a military objective, and the only possible way of ending this situation is by mounting an assault. In such a case, however, the attacking force must take all feasible precautions, and, if circumstances permit, the order to attack must be taken at the highest operational level (Article 13).

Turning to individual criminal responsibility, the 1999 Second Protocol specified the following as serious violations:

1. a. making cultural property under enhanced protection the object of attack;

2. b. using cultural property under enhanced protection or its immediate surroundings in support of military action;

3. c. extensive destruction or appropriation of cultural property protected under the Convention and this Protocol;

4. d. making cultural property protected under the Convention and this Protocol the object of attack.Footnote ⁴⁶

The first three violations are subject to universal criminal jurisdiction, meaning that a state party in whose territory an alleged offender is present has the obligation either to extradite or to prosecute them. Where there is no extradition treaty in force between countries, the Second Protocol can provide the legal basis for extradition (Articles 16–18).

The last revision to be implemented was the creation of the 1999 Second Protocol Committee.Footnote ⁴⁷ This comprises twelve states, elected for a four-year term by a meeting of the state parties. The committee convenes annually, and its main functions are to develop the guidelines for the implementation of the protocol; grant, cancel, or suspend enhanced protection for cultural property; update the Enhanced Protection List; and monitor the protocol’s implementation (Article 27).

The drafters of the Second Protocol aimed to update the provisions of the 1954 Hague Convention by incorporating the developments that had taken place in IHL since 1954 without creating another parallel regime of protection, which would risk fragmenting the legal regime. However, as a result of the spirit of revisionism that imbues the 1999 Second Protocol, it has effectively multiplied the existing regimes of protection. The reason for this is illustrated by the rules of the Vienna Convention on the Law of Treaties, which address the application of successive treaties concerning the same subject:

As such, the protocol’s definition of “imperative military necessity” is not applicable to states that are only party to the 1954 Hague Convention. This means they benefit from a wider margin of interpretation than those who have also acceded to the 1999 Second Protocol. In addition, as long as there are states bound by the 1954 Hague Convention but not by the 1999 Second Protocol (fifty-eight of them at the time of writing), the regime of special protection will continue to apply. As a result, the ordinary, special, and enhanced regimes of protection coexist, running parallel to each other. Indeed, Argentine’s delegate to the protocol’s preparatory conference predicted such an outcome when he warned that the enhanced protection regime would bring about a “three-tiered system of protection, which … would bring confusion and be detrimental to the system of special protection.”Footnote ⁴⁹ He may well have been right because, as matters stand, the enhanced regime has made little progress beyond the protection afforded by the special system as there are only ten properties registered with the Enhanced Protection List (all of which constitute world heritage sites), not much more than the five included on the International Register of Cultural Property under Special Protection.

Given the similarities between a property liable to benefit from the enhanced protection regime and one designated as world cultural heritage, the 1999 Second Protocol Committee has highlighted the need to examine the synergies between these two categories – presumably in order to revamp the enhanced protection regime, since there are more than eight hundred cultural sites on the World Heritage List at the time of writing. This is one of the matters examined in Chapter 5.

It was the destruction of a monument of universal value, one of “great importance for all humanity,” that triggered a further call to restate the rules, although this time, as we shall see, the call led to the adoption of a “declaration” (a nonbinding instrument) rather than a fully fledged treaty.

1.5 The 2003 UNESCO Declaration

As the Taliban had gained control of 90 percent of Afghanistan by 2001,Footnote ⁵⁰ the country could not be characterized as engulfed in conflict. Taliban rule, however, was noted for its “absolute lack of freedom of expression and [its] total ban on pictures,”Footnote ⁵¹ which were regarded as traces of infidel religions. It was in this context of heightened religious intolerance that the regime ordered the dynamiting of the statues known as the Buddhas of Bamiyan. This act of iconoclasm led some key international actors, such as the then-UNESCO director-general, Koïchiro Matsuura, to speak of “crimes against culture.”Footnote ⁵² Given the impossibility – or inadvisability – of adopting international sanctions,Footnote ⁵³ the UNESCO General Conference suggested another response: the adoption of a recommendation “proclaiming the systematic, deliberate and discriminatory destruction of cultural heritage of value for humanity as a crime under international law.”Footnote ⁵⁴ This prompted the 2003 UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage – the most recent example of the influence of revisionism.

In fact, the 2003 UNESCO Declaration does little more than reproduce the basic undertakings of the World Heritage Convention (to which Afghanistan was a party), the 1954 Hague Convention, the 1999 Second Protocol, and customary international law. Federico Lenzerini and Lyndel V. Prott are justifiably critical: “There was no need to create a legal instrument condemning such kinds of acts … [as] it is well known that this course of action was already prohibited by international law.”Footnote ⁵⁵ They declare that since the declaration has no binding force and simply reproduces existing law, “some might therefore argue that it weakens it. Why re-state in a declaration what is already mandatory?”Footnote ⁵⁶ This weakness is exemplified by Article VII, which lays out the terms of individual responsibility:

This makes a recommendation out of an obligation that already existed under Article 28 of the 1954 Hague Convention. Moreover, a recommendation of this sort had already been made in Article 47 of the 1972 UNESCO Recommendation Concerning the Protection, at National Level, of the Cultural and Natural Heritage. It is also very troubling that the offense enshrined in Article VII of the 2003 UNESCO Declaration does not encompass the whole range of actions and omissions that would otherwise constitute a violation against cultural property under the various existing binding instruments, for example, the use of cultural property for purposes that may expose it to damage or destruction. Concerning the mens rea (criminal intentions), Article II(2) of the 2003 UNESCO Declaration states that “intentional destruction” means an “act intended to destroy”;Footnote ⁵⁷ Article VII would seem to place reckless damage to cultural heritage outside its scope.

The notion of “crimes against culture” was regarded as a far-reaching concept, one that would place cultural and natural heritage within the reach of international law and carry implications far beyond Bamiyan.Footnote ⁵⁸ However, because of its revisionist and therefore ad hoc nature, the 2003 UNESCO Declaration may have had the contrary effect, narrowing the focus of what constitutes a violation of cultural heritage.

1.6 Final Remarks

Each newly adopted instrument, regardless of its form, has led to further changes to the terms under which cultural property is protected. Because of the number of treaties that revisionism has steered into being, the notion of “cultural property” may stand for many very different things: it can encompass the overinclusive list of objects of the 1907 IV Hague Regulations, the narrower definition provided by the 1954 Hague Convention, or the definition of the two Additional Protocols, which includes places of worship in their own right, and whose exact threshold for the “importance” of cultural property still engenders debate among legal scholars. To this we have to add the more exclusive notion of cultural property under “special protection” – not to be confused with property under “enhanced protection” in the 1999 Second Protocol. The same happens with the meaning of “protection,” which can cease to exist if the site is used for military purposes (1907 IV Hague Convention), if it becomes a military objective (Additional Protocols I and II), or in the case of “imperative military necessity,” which in turn triggers different interpretations depending on whether the state is only a party to the 1954 Hague Convention or to its 1999 Second Protocol as well – and so on.

Revisionism has also had the effect of multiplying the number of instruments dealing with the same subject matter. This increases the likelihood of situations in which all the warring parties have committed to respect cultural property in armed conflict as set out in one instrument or another but hold none of these in common. The states involved in the 2003 Iraq War are a case in point, as Chapter 6 shows. Even though the laws for the protection of cultural property in armed conflict suffer from lacunae, the continual adoption of new instruments is not the way to address perceived deficiencies.

2.1 The Effect of the ICTY and ICC Statutes on the 1954 Hague Convention

One strand of the idealist approach holds that the ICTY and ICC Statutes indicate the “ripening of wartime protections for cultural property into customary law.”Footnote ⁵⁹ Its adherents also claim that these statutes have strengthened the obligations of the 1954 Hague Convention,Footnote ⁶⁰ particularly as they designate the destruction of cultural and religious institutions as war crimes.

Article 3(d) of the ICTY Statute includes acts against cultural objects and places of worship in its list of war crimes:

For its part, the ICC Statute, in force since 1 July 2002, depicts a war crime as follows (Article 8(2)(b)(ix)):

A closer look at the wording of the ICTY and ICC Statutes, however, reveals that the claim that they have helped the existing regime of protection “ripen” into customary international law, or that they reinforce the undertakings of the 1954 Hague Convention, is a rather optimistic reading of their provisions. First, the list of objects encompassed by the ICTY and ICC Statutes was in fact inspired by the 1907 IV Hague Regulations,Footnote ⁶² which were already considered to be outdated by the end of the Second World War. As such, neither of these statutes requires that cultural and religious institutions meet a threshold of relevance, an issue that was pivotal in the drafting of the 1954 Hague Convention, reflecting the fact that “what was wanted was a convention of narrower application.”Footnote ⁶³ What is more, the ICC Statute only covers immovable property, and it still includes hospitals and places harboring the sick and wounded with cultural and religious institutions.

Second, the ICTY Statute only regards as war crimes those acts that have resulted in the seizure of, or destruction or willful damage to, such institutions, whereas the 1954 Hague Convention prohibits directing acts of hostility against cultural property regardless of the result, and includes the use of such property and its surroundings for purposes that may lead to its damage or destruction. And, third, the ICC Statute labels direct attacks against these institutions as a war crime, unless they become legitimate military objectives, whereas the 1954 Hague Convention refers to the distinctive waiver of “imperative military necessity.”

Despite the fact that the former Republic of Yugoslavia had been a party to the 1954 Hague Convention since 1956Footnote ⁶⁴ and the ICC Statute was adopted in 1998, nothing in the statutes echoes the obligations of the 1954 Hague Convention.

2.2 The ICTY Case Law and the 1954 Hague Convention as Customary International Law

The second idealist line of argument holds that the jurisprudence of the ICTY shows that “the central provisions of the 1954 Hague Convention, including the obligation to prevent or halt looting of or vandalism to cultural property, have achieved the status of customary international law.”Footnote ⁶⁵ However, aside from the fact that the list of objects included in Article 3(d) bears no resemblance to the definition of “cultural property” of the 1954 Hague Convention, the manner in which the ICTY understands the elements constituting the crime against cultural property is very far from the 1954 Hague Convention’s description of these violations. According to the established jurisprudence of the ICTY, the specific elements of the crime of seizure, destruction, or willful damage of cultural and religious institutions are as follows:

1. (i) It has caused damage or destruction to property that constitutes the cultural or spiritual heritage of peoples;

2. (ii) the damaged or destroyed property was not used for military purposes at the time when the acts of hostility directed against these objects took place; and

3. (iii) the act was carried out with the intent to damage or destroy the property in question or in reckless disregard of the likelihood of the destruction or damage to the institution in question.Footnote ⁶⁶

The first element does not match the standards of the 1954 Hague Convention as it requires actual damage or destruction, and the same applies to the second, given that the expression “used for military purposes” is directly borrowed from Article 27 of the 1907 IV Hague Regulations. It is therefore untenable to claim that the case law of the ICTY has been instrumental in confirming the central obligations of the 1954 Hague Convention as customary international law.

In this context, it is important to note the recent declaration of the ICTY Trial Chamber in Prlić et al. In this judgment, the chamber declared that “the 1954 Hague Convention is regarded as an integral part of customary international law.”Footnote ⁶⁷ However, even though the determination of customary international law has been called “more [of] an art than a scientific method,”Footnote ⁶⁸ there are two important limitations to such an artistic endeavor: proving, or at least trying to argue for, the existence of opinio juris (the subjective belief in the obligations of customary law) and state practice, the two components necessary to contend that a norm is customary. The Trial Chamber gave no such justification for its claim in its main text, although it did provide a footnote at the end of its bold statement referring to “Arrêt Kordić, par. 92.” Strikingly, however, paragraph 92 of such decision does not even mention the 1954 Hague Convention but says instead that the “Hague Convention IV is considered by the Report of the Secretary-General as being without doubt part of international customary law.”Footnote ⁶⁹ This refers to the 1907 IV Hague Convention and its annexed regulations, not to the 1954 Hague Convention. Hence, there is no basis whatsoever to say that ICTY case law shows that the whole of the 1954 Hague Convention, or its core obligations, reflects customary international law.

2.3 The Erga Omnes Nature of Cultural Heritage Obligations

A third idealist strand argues that the principle of respect for cultural property during times of conflict is one that belongs to “the general category of norms establishing erga omnes obligations [that is, obligations owed to the international community as a whole], a category recognized by the International Court of Justice in the well-known Barcelona Traction case.”Footnote ⁷⁰ In order to support this view, several explanations are provided, all stressing the idea that the preservation of cultural heritage represents an important universal value.Footnote ⁷¹ These explanations range from reminding us that UNESCO has helped elevate cultural heritage to the rank of an “international public good”Footnote ⁷² to the fact that the preamble of the 1954 Hague Convention refers to “people” as opposed to states. The argument is that the 1954 Hague Convention did so in order to

By contrast, it is not at all clear that importance or value alone can give rise to an erga omnes obligation. This is illustrated by the words of the International Court of Justice in the South West Africa cases:Footnote ⁷⁴

The statement in the 1954 Hague Convention’s preamble is not sufficient to give legal form to generate rights and obligations toward the international community as a whole. This is not only because preambles are nonbinding, but primarily because Article 18 of the 1954 Hague Convention limits the application of the convention to its state parties and, at most, to those other states that agree to respect its provisions. So, to paraphrase O’Keefe, cultural heritage can indeed be considered as the concern of the international community as a whole, but not as the object of erga omnes obligations.Footnote ⁷⁶

2.4 The Human Dimension of Cultural Heritage Law?

The ICTY established that the destruction of cultural and religious institutions could be regarded as persecution and thus amount to a crime against humanity,Footnote ⁷⁷ and that sometimes it can even be proof of the mens rea, or intention to commit the crime of genocide.Footnote ⁷⁸ This jurisprudential trend is generally seen as representing “the human dimension of international cultural heritage law,”Footnote ⁷⁹ and some legal commentators have greeted its appearance with enthusiasm. It is not clear, though, whether they regard this development as a complement to what some call the “traditional”Footnote ⁸⁰ protection of cultural property or as a complete shift in the law’s internal rationale toward a more anthropocentric understanding of cultural property.Footnote ⁸¹ Either way, a closer scrutiny of the link between the destruction of cultural heritage and acts of persecution and genocide reveals that (1) a complete recalibration of rationale would limit the scope of the laws protecting cultural heritage, and (2) this “human dimension” cannot be regarded as a complement to the protection of cultural property per se. We should therefore approach this jurisprudential development with caution.

In the first instance, reorienting the law to emphasize its human dimension would transform it into a completely anthropocentric understanding of cultural heritage, and as a result, the scope of its protection would be severely curtailed. On top of proving all contextual elements of crimes against humanity,Footnote ⁸² the crime of persecution requires that the cultural or religious property under threat is symbolic of the identity of a certain human group;Footnote ⁸³ if it cannot be determined that the damaged site “belongs to a given civilian population,”Footnote ⁸⁴ there is no case to answer. This would imply abandoning important examples of cultural heritage that are of significance not to a particular group but to humanity in general – for example, the lack of a thriving Buddhist community in contemporary Afghanistan would leave little room to argue that the destruction of the Bamiyan Buddhas amounted to persecution. Moreover, even where there is no doubt that a cultural or religious site is connected to a living community, the crime of persecution operates solely in those cases when there is a clear intention to discriminate against the civilian population.Footnote ⁸⁵ Although this is a marked tendency in wars of aggression such as the Balkan conflict,Footnote ⁸⁶ not all destruction of cultural and religious property results from the desire to harm a particular group of people. For instance, in Syria, when Bashar Al-Assad’s army captured the ancient citadel of Aleppo, to the alleged accompaniment of the cry “Bashar, or we burn the country down,”Footnote ⁸⁷ it would be difficult to prove that its purpose was to harm the Syrian community rather than to use the citadel to blackmail the rebel forces.

When it comes to genocide, the International Court of Justice stated in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide that “the targeted group must in law be defined positively, and thus not negatively as, for example, the ‘non-Serb’ population.”Footnote ⁸⁸ So, even when it is clear that a specific community has been intentionally subjected to harm, a stringent requirement comes into play: its members must represent a group with a positive identity, rather than being singled out by the religion they do not profess, the language they do not speak, or any cultural aspect they do not possess.

Beyond these limitations, there is yet a further point of contention to consider: does this way of thinking represent, in the words of Theodor Meron, a “doctrinal contribution … to international law protecting cultural property in times of military conflict”?Footnote ⁸⁹ The evidence is not entirely convincing. The ICTY has primarily used the destruction of cultural sites as an instrument to prove persecution or the mens rea of genocide. For this reason, the object of redress is the affected civilian group and not the cultural site per se. Therefore, rather than representing the human dimension of international cultural heritage law, the attitude of the ICTY toward cultural property in cases of persecution and genocide can be better characterized as the cultural heritage dimension of human rights law. This conceptual distinction underscores the fact that the values protected by the proscription of the destruction of cultural property in wartime may be interconnected with, but are not the same as, those violated by the crime of persecution. The distinction matters: it can make all the difference in, for example, the argument for replacing war crimes with crimes against humanityFootnote ⁹⁰ – a line of reasoning that seems bound to gain increasing acceptance among scholars, given that the ICC collapses the actus reus of persecution into other forms of war crimes.Footnote ⁹¹ Such a shift to a complete anthropocentric understanding of cultural heritage would limit our capacity to call certain acts of destruction international crimes.