Protection of Cultural Heritage in International Criminal Law

Mgr. Ivan RYŠKA

Disertační práce

Abstract:

The thesis examines possible approaches of International Criminal Law (ICL) towards protection of cultural heritage. The current attitude is still predominantly defined by traditional International Humanitarian Law (IHL) that originates in 19th century. Later development is related mostly to activities of UNESCO that started to recognize human element of cultural heritage - link between cultural heritage and communities or individuals. The concept brings significant innovations - most notably recognition and reflection of cultural rights related to cultural heritage. Nevertheless both IHL and ICL are quite reluctant to accept such influence. Number of decisions of the International Criminal Tribunal for the former Yugoslavia (ICTY) shows that despite lack of legal base in wording of the relevant documents the court is able and willing to reflect human element of cultural heritage in its decisions. Same applies in Al Mahdi case that was later tried before the International Criminal Court (ICC) and is still the only case where defendant was charged solely with attacks against protected cultural objects. Finally the view was confirmed in New Policy on Cultural Heritage published by ICC in 2021. It seems like ICC wants to adopt new approach towards cultural heritage protection - the base will not be protection of cultural heritage per se but rather attitude established on human rights protection. Protection of cultural heritage shall be seen as protection of human rights of communities and individuals related to it instead. This idea is closely related to activity of Special Rapporteur in the Field of Cultural Rights who examined link between communities and individuals and their cultural heritage to relate it to cultural heritage protection. Nevertheless we need to ask if such approach is universally applicable in every case or we have to consider other elements as well. In order to fully understand the matter I based my research on examination of relevant IHL documents starting from 19th century - Lieber Instructions, Brussels Declaration, 1899 and 1907 Hague Regulations, 1954 Hague Convention and its Second Protocol and 1977 Additional Protocols to Geneva Conventions and number of other less significant treaties. However the matter is not limited to IHL. Concept of cultural heritage was developed by UNESCO and it is inevitable to consider documents related to this organization in my research. 1972 UNESCO Convention can be seen as good base but it was not until UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage when UNESCO precisely defined its views regarding intentional destruction of cultural heritage. There is also number of other relevant treaties concerning intangible cultural heritage and indigenous communities that could help to create general picture how UNESCO sees term cultural heritage and links it with other elements such as cultural rights and communities. The issue is also partly developed in international instruments concerning human rights protection. Cultural rights related to cultural heritage are not well developed however with activity of Special Rapporteur in the Field of Cultural Rights and her reports the issue became clearer in last years. We can conclude that current development is predominantly backed by human rights protection. Returning to ICL the most valuable source of information is case law of both ICTY and ICC. Especially ICTY treated cultural heritage destruction in number of cases often related to policy of ethnic cleansing in former Yugoslavia which means that there is strong human element present and cultural rights have to be considered. It is important to mention that attacks against cultural heritage were treated both as war crimes and crimes against humanity and the court also mentioned link between such acts and crime of genocide. The main aim of the thesis is to explain how ICL approaches cultural heritage destructions however there is several other

Abstract:

The thesis examines possible approaches of International Criminal Law (ICL) towards protection of cultural heritage. The current attitude is still predominantly defined by traditional International Humanitarian Law (IHL) that originates in 19th century. Later development is related mostly to activities of UNESCO that started to recognize human element of cultural heritage - link between cultural heritage and communities or individuals. The concept brings significant innovations - most notably recognition and reflection of cultural rights related to cultural heritage. Nevertheless both IHL and ICL are quite reluctant to accept such influence. Number of decisions of the International Criminal Tribunal for the former Yugoslavia (ICTY) shows that despite lack of legal base in wording of the relevant documents the court is able and willing to reflect human element of cultural heritage in its decisions. Same applies in Al Mahdi case that was later tried before the International Criminal Court (ICC) and is still the only case where defendant was charged solely with attacks against protected cultural objects. Finally the view was confirmed in New Policy on Cultural Heritage published by ICC in 2021. It seems like ICC wants to adopt new approach towards cultural heritage protection - the base will not be protection of cultural heritage per se but rather attitude established on human rights protection. Protection of cultural heritage shall be seen as protection of human rights of communities and individuals related to it instead. This idea is closely related to activity of Special Rapporteur in the Field of Cultural Rights who examined link between communities and individuals and their cultural heritage to relate it to cultural heritage protection. Nevertheless we need to ask if such approach is universally applicable in every case or we have to consider other elements as well. In order to fully understand the matter I based my research on examination of relevant IHL documents starting from 19th century - Lieber Instructions, Brussels Declaration, 1899 and 1907 Hague Regulations, 1954 Hague Convention and its Second Protocol and 1977 Additional Protocols to Geneva Conventions and number of other less significant treaties. However the matter is not limited to IHL. Concept of cultural heritage was developed by UNESCO and it is inevitable to consider documents related to this organization in my research. 1972 UNESCO Convention can be seen as good base but it was not until UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage when UNESCO precisely defined its views regarding intentional destruction of cultural heritage. There is also number of other relevant treaties concerning intangible cultural heritage and indigenous communities that could help to create general picture how UNESCO sees term cultural heritage and links it with other elements such as cultural rights and communities. The issue is also partly developed in international instruments concerning human rights protection. Cultural rights related to cultural heritage are not well developed however with activity of Special Rapporteur in the Field of Cultural Rights and her reports the issue became clearer in last years. We can conclude that current development is predominantly backed by human rights protection. Returning to ICL the most valuable source of information is case law of both ICTY and ICC. Especially ICTY treated cultural heritage destruction in number of cases often related to policy of ethnic cleansing in former Yugoslavia which means that there is strong human element present and cultural rights have to be considered. It is important to mention that attacks against cultural heritage were treated both as war crimes and crimes against humanity and the court also mentioned link between such acts and crime of genocide. The main aim of the thesis is to explain how ICL approaches cultural heritage destructions however there is several other

Keywords

Mezinárodní právo trestní, Mezinárodní humanitární právo, lidská práva, kulturní statky, kulturní dědictví, kulturní práva, válečné zločiny, UNESCO

Jazyk práce: angličtina

Datum vytvoření / odevzdání či podání práce: 6. 3. 2023

Obhajoba závěrečné práce

• Vedoucí: prof. JUDr. Dalibor Jílek, CSc.

UNIVERZITA PALACKÉHO V OLOMOUCI

Právnická fakulta

Doktorský studijní program / obor:
Teoretické právní vědy / Evropské a mezinárodní právo