1 1Criminal Defense Trial Attorney, Wisconsin Office of the State Public Defender; former Special Team Assistant and Law Clerk in the Office of the Prosecutor (OTP) at the International Criminal Tribunal for the former Yugoslavia (ICTY) 1998, 1999-2000; J.D., The University of Texas School of Law, 1997; B.A., The University of Chicago, 1993. Ms. Schairer organized pattern evidence related to the destruction of cultural and personal property of Bosnian Muslims and Bosnian Croats for certain indictments at the ICTY (among several other projects). She has given lectures on both human rights and cultural property topics in Germany, Italy, the Netherlands, and the United States of America. Suzanne Schairer wishes to thank Westlaw, Inc. for providing access to its legal databases free of charge for the purposes of researching this academic article. She is most grateful for that generous contribution to this work. In particular, she thanks Westlaw representative, Gino Lambo, in Milwaukee, Wisconsin, for his assistance. Nothing in this article should be interpreted to represent the views of the ICTY, but solely those of Ms. Schairer. This article is dedicated to my late grandmother, Elizabeth J. Kaftan Muench Kirschling and to my late friend, Renu Jaspal.
1 FILlPOYIé, Zlata's Diary, New York, 1994, pp. I69-I7I.
2cultural genocide was rejected by the General Assembly 6"' Committee by 25 to 6, with 4 abstentions and 13 delegations absent, UN Doc. A/C.6.SR.83, p. 22; see also United Nations Background Paper No. 68, Genocide, ST/DPI/SER.A/68, 12 November 1951, p. 9 (asking "[sjhould 'cultural' genocide e.g. the destruction of schools and cultural institutions of a country or the prohibition of its language, be included? This question occasioned much debate; some representatives held that cultural genocide led towards physical genocide and it was therefore necessary to include it; others thought that this was really a matter involving human rights and that the Convention would have more force if the definition were not too wide", emphasis added).
3 See Prosecutor v. Krstie, Case No. IT-98-33, Trial Chamber I, Judgement of 2 August 2001; and Prosecutor v. Strugar, Jokic, Zec and Kovacevic, Case No. 1T-01-42, issued as a confidential indictment on 27 February 2001 and unsealed on 2 October 2001. See also infra section 3, notes 37-41, and section 7. Please note that this article focuses mainly on the ICTY rather than on the International Criminal Tribunal for Rwanda (ICTR) due to the fact patterns at the former, which lend themselves more readily to the analysis of this topic. Of course, the work of the ICTR has been, and continues to be, an essential part of the development of international humanitarian law. 4 Charter of the United Nations, 26 June 1945, entered into force 24 October 1945, Article 55: "[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based upon respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: [...] b. [...] international cultural and educational co-operation; c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion". One reading of these articles recognizes that b. and c. complement each other and reinforce one another, because international cultural cooperation requires the respect for and the observance of human rights and fundamental freedoms for all. 5 See Universal Declaration of Human Rights, GA Res. 217 A(lIl), UN Doc. A/810, 1948, p. 71.
6 For an idea of how religious sites and objects tie into the definition of cultural property, see Protocols Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International and Non-International Armed Conflicts of 8 June 1977, ILM, 1977, pp. 1391-1449. The Additional Protocols to the Geneva Conventions specifically protect places of worship not only as part of cultural heritage, but also as places of worship, which is different than the approach in the 1954 Hague Convention, which only protects religious sites with historic or cultural significance. With this expanded definition of protected cultural property, individual human rights concerning the freedom of religion take on new importance as indirect support for the protection of such categories of cultural property. 7 See also Restatement of Law, Third, Foreign Relations Law of the United States, para. 702, Comment K, 1987, American Law Institute, Customary International Law of Human Rights. It should be noted that Article 17 of the Universal Declaration of Human Rights does not have a counterpart in the Covenants that comprise the "International Bill of Rights". This right may not be a part of customary international law, because there has been such wide disagreement among States as to its meaning and applications. However, all States have accepted a limited number of rights to private property, which arguably do constitute a part of customary intemational law. 8 See also the International Convention on the Elimination of All Forms of Racial Discrimination, UNTS, Vol. 660, p. 195, entered into force 4 January 1969. The Convention has 77 signatory States Parties and 155 ratifying Parties. Article 5 states: "In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the rights of everyone without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: [...] d) other civil rights, in particular [...] vii. The right to freedom of thought, conscience and religion; e) Economic, social and cultural rights, in particular [...] vi. The right to equal participation in cultural activities". This treaty also demonstrates the connection between cultural rights and human rights in a similar way to Articles 18 and 22 of the Universal Declaration of Human Rights. It is curious to note
that the constituent republics of the former Yugoslavia, Rwanda, Afghanistan and the United States are Parties to this Convention, although the last two States require their approval before matters are referred to the International Court ofJustice. 9 International Covenant on Economic, Social and Cultural Rights, UNTS, Vol. 993, p. 3, entered into force 3 January 1976. Notably, this Covenant is in effect for the constituent republics of the former Yugoslavia, Rwanda, and Afghanistan, but the United States has only signed and not ratified it. As a whole, this Covenant has 64 signatory States and 145 States Parties. 10 Article 13, para. 3. 11 International Covenant on Civil and Political Rights, UNTS, Vol. 999, p. 171, entered into force 23 March 1976. Article 18(1) of this Covenant is worded in a very similar way to Article 18 of the Universal Declaration of Human Rights as it allows for the freedom of thought, conscience, and religion. This includes the right to adopt a religion or belief of choice and to manifest one's religion. The International Covenant on Civil and Political Rights, in Article 18(3), provides a limitation on that freedom, only as "necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others". Article 18(4) of that same Covenant mirrors Article 13, para. 3, of the International Covenant on Economic, Social and Cultural Rights, as it protects the liberty of parents to choose religious education for their
children. The International Covenant on Civil and Political Rights has 65 signatory States and 148 States Parties. 12 ETS No. 5; UNTS, Vol. 213, p. 222, entered into force on 3 September 1953. �3 Human Rights Chamber for Bosnia and Herzegovina, The Islamic Community in Bosnia and Herzegovina v. The Republika Srpska, Case No. CH/96/29, 11 June 1999, reproduced in HRLJ, 1999, p. 336 ff. (stating in its decision that "[t]he European Court has held that the need to secure true religious pluralism is an inherent feature of the notion of a democratic society. In the context of religious opinions and beliefs protection may be required to prevent and even punish improper attacks on objects of religious veneration [cf. Otto-Preminger-Institut v. Austria, Judgement of 20 September 1994, Ser. A, No. 295-A, pp. 17, 19-20, paragraphs 44 and 49]", ibid., para. 171, and also holding that "[...] this case involves discrimination in the enjoyment of the applicant's members' right to freedom of religion under Article 9 of the Convention as well as in the applicant's enjoyment of its property rights under Article 1 of Protocol No. 1 to the Convention. The Chamber also found violations of those substantive provisions in isolation", ibid., para. 208). Cf. Article VIII(I) of the Human Rights Agreement set out in Annex 6 of the General Framework Agreement for Peace in Bosnia and Herzegovina, reproduced in HRLJ, 1997, p. 317. The Court did not address the destruction of all of the mosques because much of that destruction occurred before the Human Rights Agreement entered into effect. 14 HENKIN, PUGH, SCHACHTER and SMIT, International Law: Cases and Materials, 3rd ed., St. Paul, Minnesota, 1993, p. 129: "[...] [r]esolutions, declarations or decisions [from the General Assembly] may be considered by governments and by courts or arbitr·al tribunals as evidence of international custom or as expressing (and evidencing) a general principle of law. They may also serve to set forth principles for a future treaty (this has been the case for the Declarations against Torture and a number of other Declarations in the field of human rights)". Adopted at the 311" Session of the UNESCO Gencral Conference on 2 November 2001. For the full text, see 1LM, 2002, p. 57. 16 The preamble of the Declaration envisages that "[t]he General Conference [is] committed to the full implementation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognized legal instruments, such as the
two International Covenants of 1966 relating respectively to civil and political rights and the economic, social and cultural rights [...]". 17 Article 4 of the Declaration (Human rights as guarantees of cultural diversity) provides that "[t]he defenee of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular, the rights of persons belonging to minorities and those indigenous peoples. No one may invoke cultural diversity to infringe upon human rights by international law, nor to limit their seope". 18 Article 5 (Cultural rights as an enabling environment for cultural diversity) reads: "Cultural rights are an integral part of human rights, which are universal, indivisible and interdependent. The flourishing of creative diversity requires the full implementation of cultural rights as defined in Article 27 of the Universal Declaration of Human Rights and Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights. All persons have therefore the right to express themselves and to create and disseminate their work in the language of their choice, and particularly in their mother tongue; all persons are entitled to quality education and training that fully respects their cultural identity; and all persons have the right to participate in the cultural life of their choice, and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms". 19 Article 7 (Cultural diversity as the wellspring of creativity) reads: "Creation draws on the roots of cultural tradition, but flourishes in contact with other cultures. For this reason, heritage in all its forms must be preserved, enhanced, and handed on to future generations as a record of human experience and aspirations, so as to foster creativity in all its diversity and to inspire genuine dialogue among cultures". o UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/I995/2, adopted on 26 August 1994, cf. especially Part III. The full text of the Draft Declaration is reproduced in ILM, 1995, p. 541. 21 Proclaimed by GA Res. 36/55 of 25 November 1981, UN Doc. A/36/684. See Article 4, stating: "1. All States shall take effective measures to prevent and eliminate discrimination on grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life", and Article 6, stating: "In accordance with article 1 of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms: a) To worship and assemble in
connection with a religion or belief, and to establish and maintain places for these purposes; b) To establish and maintain appropriate charitable or humanitarian institutions; c) To make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief [...]". 22 GA Res. 47/135, Annex, UN Doc. A/47/49, 1993. The preamble makes specific reference to the UN Charter, the Universal Declaration of Human Rights, the Convention on the Prevention and Punishment of Genocide, the International Convention on the Elimination of all Forms of Racial Discrimination, the International Bill of Rights and several other instruments as well. See also Article 2: "1. Persons belonging to national or ethnic, religious, and linguistic minorities [...] have the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination. 2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life". z3 Adopted on 8 September 2001, Durban, South Africa. See para. 59: "We recognize with deep concern religious intolerance against certain religious communities, as well as the emergence of hostile acts and violence against communities because of their religious beliefs and their racial or ethnic origin in various parts of the world which in particular limit their right to freely practice their belief', and para. 60: "We also recoguize with deep concern the existence in various parts of the world of religious intolerance against religious communities and their members, in particular limitation of their right to practice their beliefs freely, as well as the emergence of increased negative stereotyping, hostile acts and violence against such communities because of their religious beliefs and their ethnic or so-called racial origin". 24 Adopted by the UNESCO General Conference at its 14th Session, Paris, 4 November 1966. Of particular interest is one section of the preamble: "Recalling that the [UNESCO] Constitution also states that the wide diffusion of culture and the education of humanity for justice and liberty and peace arc indispensable to the dignity of man and constitute a sacred duty which all nations must fulfil in a spirit of mutual assistance and concern [...]". Article 1, para. 3, reads: "In their rich variety and diversity, and in the reciprocal influences they exert on one another, all cultures form part of the common heritage belonging to all mankind". 25 See BELL-FIALKOFF, Ethnic Cleansing, New York, 1996, pp. 57-109, see especially pp. 75- 78. This book provides a very useful framework for analyzing the "collective identity" of a group of people according to a number of categories, including religion, within the context of "cleansing".
26 MAAS, Love Thy Neighbor: A Story of War, New York, 1996, p. 11, quoting a Serb carpenter from Vi"segrad: "[w]e all lived in Visegrad like a big family, the Muslims and Serbs", [...] "[e]veryone had mixed marriages. We never tried to find out who was a Serb or Muslim. We didn't look for differences. You know, it wasn't the people who wanted to fight. It was the politicians who prepared this stew, and now we can never go back". 7For information regarding some of the alleged Serb criminals charged with damaging or destroying the cultural property of non-Serbs, see Prosecutor v. Karadzic and Mladi6, Case No. IT-95-5, indictment of 24 July 1995, paras. 19, 30-33, 37-39; Prosecutor v. Stakié, Case No. IT-97-24-PT, fourth amended indictment of 10 April 2002, count 6; Prosecutor v. Zupljanin, Case No. IT-99-36-1, amended indictment of 19 December 1999, count 3 and counts 10-12; Prosecutor v. Krajsnik and Plavsic, Case No. IT-00-39 and 40, consolidated amended indictment of 7 March 2002, count 3; Prosecutor v. Brdjanin and Tali6, Case No. IT-99-36-PT, corrected version of fourth amended indictment of 10 December 2001, count 3 and counts 10- 12 ; and Prosecutor v. Milosevic, Case No. IT-02-54, Appeals Chamber, Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 1 February 2002. This case consolidates the three original indictments against Milosevic, including the one for crimes committed in Bosnia and Herzegovina, which charges him with genocide. The indictments that were consolidated are Prosecutor v. Milosevic et al., Case No. 1T-99-37-PT, second amended indictment of 29 October 2001 ("Kosovo'); Prosecutor v. Milosevic, Case No. IT-01-50-1, initial indictment of 8 October 2001 ("Croatia'); and Prosecutor v. Milosevic, Case No. IT-O1- 51-1, initial indictment of 22 November 2001 ("Bosnian and Herzegovina,'). See also Prosecutor v. Deronjic, Case No. IT-02-61-I, indictment of 3 July 2002, counts 1, 4-6; Prosecutor v. Simic, Tadic and Zaric, Case No. IT-95-9, fifth amended indictment of 30 May 2002, count I. 28 GuTmAN, A Witness to Genocide, New York, 1993, pp. 77-83, stating that "[t]he Bosnian Institute in Zurich, an independent scholarly institution, estimates that in areas of Serb occupation, 90 percent of the mosques have been destroyed"; see also, RAMET, Balkan Babel, Boulder/Oxford, 1996, p. 278, citing Glas Istre (Pula), 11 June 1994, p. 14; Verčernji List (Zagreb), 21 March 1992, p. 4; National Catholic Reporter, 26 August 1994, p. 11: "By June 1994, Bosnian Serbs had succeeded in destroying 45 percent of Catholic churches in Vrhbosanska-Sarajevo Archbishopric, 50 percent of Catholic churches in the Bishopric of Banja Luka, and more than forty Catholic churches and church edifices in the Bishopric of Mostar; in addition, they caused serious damage to an additional 30 percent of Catholic churches in Vrhbosanska and an additional 45 percent in Banja Luka. [...] By August 1994, Bosnian Serb forces had destroyed or ruined some 650 mosques across Bosnia-Herzegovina.
29 GUTMAN, "European Recognition May Spark Wider Conflict", ibid., p. 10, claiming that Banja Luka was thirty miles from the military front at Bosanska Gradiska; see also Spotlight Report No. 3, The Case of Banja Luka, The Humanitarian Law Fund, 10 May 1993; Spotlight Report No. 14, The Humanitarian Law Fund, August 1994; and War Crimes in Bosnia- Herzegovina, Human Rights Watch, Helsinki, June 1994. 30 GUTMAN, cit. supra note 28, pp. 78, 81-82, stating: "In Novo Selo, a village near Zvornik, Serb troops rounded up 150 women, children and old people, and forced them at gunpoint into the local mosque. In front of the captives they challenged the local community leader, Imam Memic Suljo, to desecrate the mosque, Akim said, quoting eyewitness accounts. They told him to make the sign of the cross, eat pork, and finally to have sexual intercourse with a teenage girl. Asic said Suljo refused all these demands and was beaten and was cut with knives. His fate is unknown. [...] According to the accounts of Muslim expellees, mosques were used by the Serbs as prisons, slaughterhouses and morgucs. Alija Lujinovic, 53, who was one of the witnesses quoted in an August 2 Newsday report on concentration camps in Bosnia, said that before he was taken to Brcko Luka, he was held for four days, along with 150 to 180 men in a mosque in Brcko. 'They didn't let us go to the toilet. We had to relieve ourselves in the mosque, in the sacred absolution basin,' hc said. 'They gave us no food for 48 hours and then served us pork.' Then, he said, 'they beat the prisoners there"'. 31 The topic of disputes over cultural property stolen during the Second World War is too vast and complex to treat comprehensively in this article. There are new legal developments relating to this topic alt of the time. One excellent book on this topic is SIMPSON (ed.), The Spoils of War, New York, 1997. For an insightful discussion of the Nazi art purges, see NICHOLAS, The Rape of Europa, New York, 1994. 3z Gu�'n�N, cit. supra note 28, p. 8 1, quoting Zehrid Ropic, a Tuzla architect compiling a list of destroyed monuments in northeast Bosnia: "Our clear impression is that they are not destroying some historical monuments but every historical monument that represents the culture, tradition and continuity of people". Cf. SELLS, The Bridge Betrayed: Religion and Genocide in Bosnia,
Berkeley, 1996, p. 4: "The northeast Bosnian town of Zvornik was known for its heritage of Bosnian Muslim poets, saints, rebels, and mystics. From April through July of 1992 the Serb military killed or expelled the entire Muslim population. After all the mosques in the primarily Muslim town were dynamited and ploughed over, the new Serb nationalist mayor declared, 'There never were any mosques in Zvornik.' Destroyed with those mosques was the evidence not only of the Muslim heritage of Zvornik but also of five hundred years of shared living between Christians and Muslims. History could now be rewritten according to the desires of those who wished to claim that this land was always and purely Christian Serb. In May 1993 to celebrate Zvornik's new status as 100 percent 'pure' and cleansed of all Muslims, the mayor dedicated a new church, renamed a local, formerly Muslim village 'Saint Stephen' and kissed a crucifix"; see also MAAS, cit. supra note 26, pp. 82-85, 85: "It always meant the same thing, a destroyed mosque. The goal of ethnic cleansing was not simply to get rid of Muslims; it was to destroy all traces that they had ever lived in Bosnia. The goal was to kill history. If you want to do that, then you must rip our history's heart, which in the case of Bosnia's Muslim community meant the destruction of its mosques". 33 MAAS, ibid., p. 9: "A few hundred yard from City Hall, a mosque had been dynamited out of existence, and the rubble carted away. All that remained was a patch of black earth, and Markovic said it would he turned into a park once life returned to normal. The town doesn't have enough parks he said, as though the destruction of a house of worship was an inspired act of civic improvement". See the Press Release issued by the UN High Commissioner for Refugees as reported by Sarajevo Radio Bosnia-Herzegovina Network, 16 December 1993, explaining that the leveled sites of the Ferhadija and the Arnaudija mosques in Banja Luka are now filled with garbage and are used as parking lots; see also The Islamic Community in Bosnia and Hercegovina v. The Republika Srpska, cit. supra note 13, para. 165, where the Human Rights Chamber states that for the Muslim believers in Banja Luka "the works on the site of Ferhadija and the use of some other sites as dumps and parking places amount to continuing desecration [...]". 34 Cf. "Bosnian Serb Mayor Rejects Bid to Rebuild Demolished Mosque", The Baltimore Sun, 16 April 1998, p. 15A: "The mayor of Bosnia's largest Serb-held city has refused to allow an ancient mosque to be rebuilt... The Ferhadija mosque, built in 1579 and a landmark in the northern city of Banja Luka, was blown up by Bosnian Serbs in 1993 and turned into a parking lot. Soon after, the city's remaining 16 mosques were blown up - among the hundreds the Serbs destroyed in the 1992-95 war". See also "Without a Prayer - Rebuilding a Muslim Temple Is a Test of Bosnia's Peace", The Washington Post, 10 May 1998, p. C01: "[...] Then the mayor explained that 'the reconstruction of the Ferhadija mosque would be perceived by the Serbs as the darkest humiliation which would open the old wounds and bring far-reaching consequences"'; and "Police Rescue Western Envoys Held by Serbs", The Ottawa Citizen, 8 May 2001, p. A10 (describing the riots surrounding the reconstruction of the Ferhadija mosque. The Serb protestors pelted Muslim' refugees and officials with tear gas, stones, and eggs on the date of its inauguration). 35 "Systematic Destruction", The Art Newspaper, July-August 2000, p. 6 (citing a study done by Harvard librarian, Andras Riedlmayer). It should be noted that 80 Serbian Orthodox
churches have been damaged or vandalized as well in this area. See also "Historian Relates Kosovo's Mosque Loss", Chicago Tribune, 10 April 2002, p. 7 (stating that Serb forces deliberately destroyed mosques and Muslim holy sites in Kosovo), and "Kosovo, Burned Books and Blasted Shrines", The UNESCO Courier, September 2000 (interview with Andras Riedlmayer by Guttman. Mr. Riedlmayer recently testified about the destruction of cultural property in Kosovo at the trial of Slobodan MiIosevic at the ICTY). 6 See Prosecutor v. Milosevic et al. ("Kosovo'), cit. supra note 27, counts 1 and 5. 3� DoNm and FINE, Bosnia and Herzegovina, A Tradition Betrayed, New York, 1994, p. 226. 38 Prosecutor v. Milosevic ("Croatia'), cit. supra note 27, and Prosecutor v. Strugar, Jokic, Zec and Kovačevié, cit. supra note 3. 39 Prosecutor v. Milosevic ("Croatia'), ibid., counts 1, 28-32; Prosecutor v. Strugar, Jokic, Zec and Kovačevié, ibid., counts 10-16. 40 Ibid. 41 DOME and FINE, cit. supra note 37, p. 253, stating: "On November 9, 1993, sustained artillery barrage by Croatian forces destroyed the elegant white marble Mostar bridge spanning the Neretva River, an act of senseless and deliberate destruction [...]. Dating from 1556 the Mostar bridge was treasured by members of all three ethnic groups and by millions of foreign tourists who visited it over the years. Along with the physical suffering inflicted on Mostar's civilians and the nearly total devastation of the eity, the mindless destruction of the Mostar bridge deepened the despair of those who still hoped to preserve pluralism and a multiethnie society in Bosnia and Herzegovina". Also of note is that in 1998, UNESCO, the World Bank and the City of Mostar launched a project to rebuild the bridge. The 29-meter stone arch bridge had been a UNESCO World Heritage Site. For information regarding charges against Croatian leaders, though not concerning this example, see Prosecutor v. Naletilie "Tuta " and Martinovic "Stela ", Case No. IT-98-34-PT, second amended indictment of 16 October 2001 (regarding the attack on Ahmici); Prosecutor v. Ljublie, Case No. IT-00-41, amended indictment, corrected version, 8 April 2002, count 1 and counts 11-13 (regarding the "CBOZ" or Central Bosnian Operative Zone, ineluding Vitez and Busovaca); Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement of 3 March 2000 (regarding the attacks on Vitez, Busovaca, Kiseljak and Zenica);
and Prosecutor v. Kordic and Cerkez, Case No. IT-95-I4/2-T, Trial Chamber III, Judgement of 26 February 2001 (holding that the HVO deliberately targeted mosques and other religious and educational institutions as part of a common plan or scheme). 4z Prosecutor v. Hadzihasanovic, Alagic, and Kubura, Case No. IT-OI-47-PT, amended indictment of I 1 January 2002, count 7. 43 See supra note 35. 44 That is one reason why the indictment concerning the shelling of Dubrovnik is so important. See supra notes 38-40. 45 For more detail on the concept of military necessity as it relates to the destruction of cultural property, cf. supra in this Yearbook the article by ANDREA GiotA, sections 4.1 and 5.
46 GA Res. 47/121 of 18 December 1992. This resolution provides some support for the proposition that ethnic cleansing has been labeled as a form of genocide. 7 see infra sections 4.2-4.6. 48 See infra sections 4.1, 4.6, 5 and 6. 49 See infra sections 5 and 7. 50 See Prosecutor v. Krstic, cit. supra note 3. Cf. infra section 7. 51 Prosecutor v. Karadiic and Mladi6, Case No. IT-95-5-D, Decision of 16 May 1995, para. 2. 52 Federal Secretariat for People's Defense, Regulations on the Implementation of International Laws of War in the Armed Forces, 1988. 53 Sections 4.1 and 4.2 will give a very general overview of Articles 2 and 3. Articles 4 and 5 are treated infra sections 5-7.
54 The language in this Statute mirrors Article 147 of the Fourth Geneva Convention. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, UNTS, Vol. 75, p. 287, entered into force on 21 October 1950. 55 See Prosecutor v. Tadic, Case No.1T-94-1-A, Appeals Chamber, Judgement of 15 July 1999, paras. 79-84. Usually an international conflict involves two different States, but if not, the test for such an international conflict is one of "overall control", ibid., para. 120. sb Prosecutor v. Kordi6 and Cerkez, cit. supra note 41, para. 341: "i. Where the property destroyed is of a type accorded general protection under the Geneva Conventions of 1949, regardless of whether or not it is situated in occupied territory, and the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction; or ii. Where the property destroyed is accorded protection under the Geneva Conventions, on account of its location in occupied territory; and the destruction occurs on a large scale; and iii. the destruction is not justified by military necessity, and the perpetrator acted with the intent to destroy the property in question or in reckless disregard of the likelihood of its destruction". 57 Article 53 states: "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to a private person, or to the State, or to other public authorities, or to social or cooperative organizations is prohibited, except where such destruction is rendered absolutely necessary by military operations". s8 Prosecutor v. Blaskic, cit. supra note 41, para. 148; cf. Art. 42 of the 1907 Hague Regulations, annexed to the 1907 Hague Convention IV Respecting the Laws and Customs of War: "Territory is considered occupied when it actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised".
59 Prosecutor v. Blaskic, ibid., para. 157: "The notion of 'extensive' is evaluated aecording to the facts of the case - a single act, such as the destruction of a hospital, may suffice to characterize an offence under this count". 60 The language in Article 2(d) of the Statute of the ICTY mirrors this Article as well: cf. supra note 54. 61 Prosecutor v. Kordic and Cerkez, cit. supra note 41, para. 336, citing the reference to the protection of civilian hospitals, with no mention made of the limitations contained in Article 19 of that same Convention. However, the possibility of exceptions raised. 62 For example, in Blaskic, cit. supra note 41, the destruction of religious and educational property was charged under Art. 3(d) of the Statute. The holding concerning Art. 2(d) makes no specific reference to cultural property. However, the Miloševié indictment, the Naletilic and Martinovic indictment, the Brdjanin and Tali6 indictment, and the Strugar, Jokic, Zec and Kovadevic indictment, for example, include an overlap between the charges under Art. 2(d) and other related charges concerning cultural property other than hospitals (such as mosques and churches). If the drafters of the Geneva Conventions had wanted to include specific items of cultural property among the protected items they could have easily listed them in the text of the Conventions. 63 See infra section 4.3. Of course, both of those Conventions and the relevant Regulations had provisions concerning cultural property. Those provisions listed hospitals as well as more traditionally recognized categories of cultural property. 64 At the time that the Geneva Conventions were drafted, it is arguable that hospitals were considered to be a category of cultural property under customary international law. They had been cited for protection in the articles concerning cultural property alongside items more clearly understood to be categories of cultural property in several major legal instruments: Article 35 of the Lieber Instructions for the Government of Armies (Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber and promulgated as General Order No. 100 by President Lincoln on 24 April 1863); Article 27 of the Regulations annexed to the 1907 Hague Convention IV (as recognized as "declaratory of the laws and customs of war" by the Nuremberg International Military Tribunal); Article 5 of the 1907 Hague Convention XI Respecting Bombardment by Naval Forces; the Rules relating to aerial warfare drawn up by the Commission of Jurists, meeting in the Hague on 11 December 1922 and never adopted, but considered authoritative and representative of customary rules (cited in TOMAN, The Protection of Cultural Property in the Event of Armed Conflict,, Dartmouth/Paris, 1996, p. 178). Beginning with the 1954 Hague Convention the definition of cultural property shifted more towards a focus on the protection of buildings of historic, artistic, and archaeological value, and with the 1977 Additional Protocols to the Geneva Conventions
came to include places of worship not important for artistic or historic importance. One might even go so far as to argue that hospitals are still a category of cultural property protected as institutions dedicated to charity. 6S Cf. Arts. 23, 24, 27, 38, 50, 58, 86, 93, 130 and 142 of the Fourth Geneva Convention. This Convention does stress the importance of respecting the religious background of civilians. One might argue that this extends to cover items of cultural property with religious significance, particularly in light of the 1977 Additional Protoeols to the Geneva Conventions. See TOMAN, cit. supra note 64, pp. 80-81, citing the position of the Italian Consultative Committee in reference to the 3,000 Cambodian eivilians sheltered in the temples of Angkor. 67 Ibid., p. 2 1. on the 1954 Hague Convention see infra sections 4.5 and 9. � Prosecutor v. Furundzija, Case No. IT-95-17, Judgement of 10 December 1998, para. 133, mentioning that the list enumerated in Article 3 of the Statute is illustrative only and that the "umbrella-rule" applies, which means that not everything eovered is listed in the Statute itself; supporting the notion that this "umbrella-rule" does not just include customary international law, but conventional international law as well, including specifically "any agreement which incontestably bound the parties at the date the crime was perpetrated", see also Prosecutor v. Blaskic, cit. supra note 41, para. 170. 69 Article 3, Statute of the ICTY, originally published as Annex to the Report of the Secretary- General Pursuant to paragraph 2 of Security Council Resolution 808( 1993).
70 Prosecutor v. Krnojelac, Case No. IT-97-25, Judgement of 15 March 2002, para. 51, citing Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 (hereinafter the Tadi6 Jurisdiction Decision) and confirmed in Prosecutor v. Delalic and others, Case No. IT-96-21-A, Judgement on Appeal of 20 February 2001. 71 Prosecutor v. Krnojelac, ibid., para. 51; see also Prosecutor v. Kunarac and Others, Case No. IT-96-23-T and Case No. IT-96-23/I-T, Judgement of 22 February 2001, para. 402; Prosecutor v. Delalié and Others, Case No. IT-96-21-T, Judgement of 16 November 1998, parma. 193; and Prosecutor v. Blaskic, cit. supra note 41, paras. 65 and 69. 2 Prosecutor v. Krnojelac, ibid., para. 52: "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" (citing the Tadic Jurisdiction Decision, cit. supra note 70, para. 94 and Prosecutor v. Aleksovski, Case No. IT-95-14/I-T, Judgement of 25 June 1999, para. 20). �3 Prosecutor v. Kunarac, Kovi6, and Vukovic, cit. supra note 71, para. 404 (citing the Tadic Jurisdiction Decision, cit. supra note 70, para. 143). �4 Prosecutor v. Kordic and Cerkez, cit. supra note 41, para. 346 (enumerating "(i) the destruction of property occurs on a large scale; ii. the destruction is not justified by military necessity; and iii. the perpetrator acted with the intent to destroy the property or in reckless disregard of the likelihood of its destruction"). 75 Ibid., para. 347.
�6 Prosecutor v. Blaskic, cit. supra note 41, para. 180; in Article 52(2) of Additional Protocol I of the Geneva Conventions, the definition of a military objective is limited to "those 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 that time, offers a definite military advantage". 77 Ibid., para. 184. 78 Prosecutor v. Delali6, cit. supra note 71, paras. 590-591. �9 US v. Karl Krauch, Law Reports of Trials of War Criminals, Vol. X, pp. 42-47. 80 See Hague Regulations, Articles 46-47; 1945 Charter of the International Military Tribunal, Article 6(b), Annex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis (London Agreement), London, 8 August 1945, UNTS, Vol. 85, p. 251; Law No. 10 of the Control Council for Germany, Art. 2(1)(b), Official Gazette of the Control Council for Germany, No. 3, p. 22; and Art. 33 of Geneva Convention IV. 81 Prosecutor v. Jelisic, Case No. IT-95-10, Judgcment of 14 December 1999, para. 48. This does not apply to cultural property per se, but is illustrative of one way in which the Trial Chambers have construed this provision. sz Ibid. s3 Prosecutor v. Blaskic, cit. supra note 41, para. 185: "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. In addition, the institutions must not have been in the immediate vicinity of military objectives".
� Prosecutor v. Kordié and Cerkez, cit. supra note 41, paras. 359-362. For more information on these instruments and the relevant articles, see infra sections 4.3, 4.5, and 4.6. 85 Cf. supra note 83. 86 For an example, see PARKS, "Protection of Cultural Property from the Effects of War", in PHELAN (ed.), The Law of Cultural Property and Natural Heritage: Protection, Transfer, and Access, Evanston, 1998, p. 3-18, stating: "The subsequent response to the 1954 Hague Cultural Property Convention, its Regulations, and Protocol is best described as underwhelming... [a]ctual implementation has been found to be virtually nonexistent except by less then a handful of Western European nations, and, ironically, by some States that are not yet State Parties". 87 Report of the Secretary-General Pursuant to paragraph 2 of Security Council Resolution 808(1993), para. 41.
88 See TOMAN, cit. supra note 64, p. 11, mentioning that "buildings dedicated to religions" was introduced by the Turkish delegate to replace "churches" at the Brussels Conference. 89 Art. 5 provides that "[i]n bombardments by naval forces all the necessary measures must be taken by the commander to spare as far as possible sacred edifices, buildings used for artistic, scientific, or charitable purposes, historic monuments, hospitals, and places where the sick or wounded are collected, on the understanding that they are not used at the same time for military purposes. It is the duty of the inhabitants to indicate such monuments, edifices, or places by visible signs [...]".
90 See BASSIOUNI, "Reflections on Criminal Jurisdiction in International Protection of Cultural Property", Syracuse Journal of International Law and Commerce, 1983, p. 281 ff., pp. 291-292. 91 Reproduced in GLASER, Droit international pgnal conventionnel, Vol. 1, Bruxelles, 1970, p. 503 ff.
92 The Hague Convention for the Protection of Cultural Property in case of an Armed Conflict, 14 May 1954, UNTS, Vol. 249, p. 240. 93 Cit. supra note 69, paras. 41-44. 94 The Federal Republic of Yugoslavia lodged a notification of succession regarding the 1954 Hague Convention and its First Additional Protocol on 1 I September 2001. 95 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of 26 March 1999, reproduced in 1LM, 1999, p. 769; see Art. 43(1): "The Protocol shall enter into force three months after twenty instruments or ratification, acceptance, approval or accession have been deposited". For a more detailed discussion of the Second Protocol to the 1954 Hague Convention, see supra in this Yearbook, GioiA, "The Development of International Law Relating to the Protection of Cultural Property in the Event of Armed Conflict: The Second Protocol to the 1954 Hague Convention" and infra section 9.
96 See the preamble of the Convention. 97 Article 1 provides that "[f]or 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 or artistie, 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 subparagraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of an armed conflict, the movable cultural property defined in subparagraph (a); c) centres containing a large amount of cultural property as defined in subparagraphs (a) and (b), to be known as 'centres containing monuments"'. 98 Article 4(2). 99 Cf. Article 11(2). low See also infra section 9. �°� This included the former Yugoslavia. The constituent republics of the former Yugoslavia are now Parties to the Geneva Conventions and their Additional Protocols as well.
102 SANDOZ, SWINARSKI and ZIMMERMANN (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC Commentary), Dordrecht/Geneva, 1987, p. 646. �°3 Adopted by the General Conference of UNESCO at its 16'b Session, Paris, 14 November 1970, reproduced in ILM, 1971, p. 289. Most of the constituent republics of the former Yugoslavia are Party to this Convention, but a detailed discussion of this Convention is outside of the scope of this article. There were 92 States Parties as of 18 October 2001. 104 Article 8.
105 Adopted by the General Conference at its 17th Session, Paris, 16 November 1972. One could interpret the first clause in the preamble of the Convention, regarding "changing social and economic conditions", to include wartime conditions. As of August 2002, this Convention had 174 Parties, including the constituent republics of the former Yugoslavia. 106 The Convention entered into force on 1 March 2002 for Croatia, but does not bind the other constituent republics of the former Yugoslavia. 107 See Article 24(3) and its accompanying rules of procedure Nos. 98 ter(b) and 105. 108 Agreement on Succession Issues Between the Five Successor States of the Former Yugoslavia, 21 June 2001, reproduced in ILM, 2002, p. 3. Article 3 of Annex A on Movable and Immovable Property of this Agreement exempts tangible movable property of great importance to cultural heritage from the passing to successor States under Article I.
109 GUTMAN, cit. supra note 28, pp. 80-81: "Kristallnacht for the Bosnian Muslims came not in one or two nights as it did for Germany's Jews in November 1938, but was spread over many months, according to information now available". ��° As it stands, the Nuremberg International Tribunal recognized that the burning and demolishing of synagogues, the looting of Jewish businesses amounted to the persecution of the Jews as a crime against humanity. See The Trial of the Major War Criminals before the International Military Tribunal, 14 November 1945-1 October 1946, Vol. I, Nuremberg, 1947, p. 248 (cf. AJIL, 1947, pp. 237-238); see also the judgements against Goering and Rosenberg who were convicted for plunder, ibid., pp. 272-275, 286-288, holding in the latter that: "Acting under Hitler's orders of January 1940 to set up the 'Hohe Schule', he organized and directed the 'Einsatzsab Rosenberg', which plundered museums and libraries, confiscated art treasures and collections, and pillaged private houses" (p. 287); cf. AKHAVAN, "Contributions of the International Criminal Tribunals for the Former Yugoslavia and Rwanda to Development of Definitions of Crimes against Humanity and Genocide", ASIL, Vol. 94, 2000, p. 279 ff., p. 279, stating that: "Under Article 6(c) of the Charter of the International Military Tribunal at Nuremberg, crimes against humanity were penalized only if committed 'in connection with or execution of war crimes or crimes against peace. This requirement created a significant gap in the scope of protection provided by international law". See also Attorney-General of the Government of Israel v. Adolf Eichmann, District Court of Jerusalem, ILR, 1961, p. 5 ff., para. 184, noting that Eichmann was not convicted on the basis of its role in Kristallnacht, because it was not clear that he took part in organizing it. III) European Community Monitoring Mission, Cultural Heritage Report, No. 2, April 1995, p. 2. The European Community Monitoring Mission stated that religious heritage had been singled out for destruction due to its symbolic importance to the people of Bosnia. 112 DAMROSCH, Genocide and Ethnic Conflict, in WIPPMAN (ed.), International Law and Conflict, Ithaca, 1998, p. 258 ff., pp. 266-267, stating that: "One issue concerns the extent of the protection, if any to be given to preservation of a given culture, including its physical symbols such as synagogues or mosques as well as more intangible factors such as the language and traditions of the group. The Genocide Convention deals with the problem of cultural genocide through a determination that the essence of the crime of genocide is not the destruction of culturally significant buildings or interference with cultural practices, but the particularly heinous acts against human members of the group that are enumerated in Article II (killing, causing serious bodily or mental harm, inflicting conditions calculated to bring about physical destruction, preventing births, and forcibly transferring children)... Where such
attacks on physical integrity have occurred, however, it is quite proper to refer to limitations on ethnically oriented activities as part of the evidence from which to infer an intent to destroy the group as such. Similarly, while mere destruction of structures or even of traditional means of livelihood would not by itself constitute genocide, such activities, when combined with acts that are prohibited by Article II, can supply evidence from which genocidal intent could be inferred... In response to an argument that a particular pattern of killings had no anti-group intent but was an unavoidable side effect of other conduct, proof that the killings were accompanied by deliberate destruction of symbols of group identity (for example, schools or libraries serving as repositories of the group's culture) would help establish the intent to destroy the group as such. For example, the fact that mosques in affected areas of Bosnia have been demolished without regard to military necessity should be probative of genocidal intent". li3 As an illustration of this proposition, see several of the indictments at the ICTY. For example, see Prosecutor v. Stakic, cit. supra note 27, count 6; Prosecutor v. Zup janin, ibid., count 3; Prosecutor v. Krajsnik and Plavsic, ibid., count 3; Prosecutor v. Milosevic, ibid.; Prosecutor v. Naletili6 "Tuta and Martinovic "Stela ", cit. supra note 4I; Prosecutor v. L - bli6, ibid. Ain example of that would be the original indictments against Milosevic for Croatia and Kosovo: Prosecutor v. Milosevic ("Croatia'), cit. supra n. 27, count 1 and Prosecutor v. Milosevic ("Kosovo'), ibid., counts I and 2. Milosevic is charged in these indictments with persecution and crimes against civilian and cultural property, but not with genocide. 15 see Prosecutor v. Milosevic ("Bosnia and Herzegovina'), ibid. In contrast to his conduct in Croatia and Kosovo, Milosevic has been indicted for genocide in relation to Bosnia and Herzegovina. He is also charged with persecution as a crime against humanity based in part upon the destruction of cultural property. Such pattern evidence will be a great tool for the prosecutors trying to convict him of genocide. This would include the cases being tried at the ICTR in Africa.
117 Prosecutor v. Jelisic, Case No. IT-95-10-A, Appeals Chamber, Judgement of 5 July 2001, para. 48, stating that: "The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime. However in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime"; see also Ruzidana and Kayishema v. Prosecutor, Case No. ICTR-95-I-A, Judgement of 1 June 2001. 118 Cit. supra note 27. This charging section in this indictment is such that the counts that charge genocide and erimes against humanity are combined and they both include a section describing the wanton destruction of institutions dedicated to education and religion (i.e. cultural property). 119 See Bnsstotltm and MnNUC.4s, The Law ojthe International Criminal Tribunal for the Former Yugoslavia, Irvington-on Hudson, 1995, p. 589, tracing the notion of crimes against humanity to the Preamble of the 1907 Hague Convention, which states that "the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the laws of humanity, and from the dictates of public conscience".
120 See The Trial of the Major War Criminals before the International Military Tribunal, cit. supra note 110, pp. 241-242; see also R6LmrG and Rt1'rER (eds.), The Tokyo Judgment - The International Military Tribunal for the Far East, 29 April 1946-12 November 1948, Amsterdam, 1977. �z� The elements of crimes against humanity under the Statute of the ICTY are: 1. the existence of an armed conflict; 2. that the acts were part of a widespread or systematic attack against a civilian population; 3. that the perpetrator had knowledge that his act was part of a broader context of such an attack. The Trial Chamber in Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgement of 14 January 2000, para. 627, expanded upon what is required for a charge of persecution: "In sum a charge of persecution must contain the following elements a) those elements required for all crimes against humanity under the Statute; b) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 5; and c) discriminatory grounds". 122 prosecutor v. Kupreskic, ibid., para. 615. Cf. also para. 557: "The perpetrator of persecution must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. 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" (citing Prosecutor v. Ruzidana and Kayishema, Case No. ICTR-95-1-A, Judgement of 21 May 1999, paras. 133-134). z3 prosecutor v. Krnojelac, cit. supra note 70, para. 431, stating that: "The crime of persecution consists of an act or omission which: I. discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (the actus reus); and 2. was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically, race, religion, or politics (the mens rea)". See section 2 of this paper, for an idea of some relevant fundamental rights with relation to cultural property, particularly religious sites. 124 prosecutor v. Tadic, cit. supra note 55, para. 283, stating that: "The ordinary meaning of Article 5 makes it clear that this provision does not require all crimes against humanity to have been perpetrated with discriminatory intent. Such intent is only made necessary for one sub- category of crimes, namely "persecutions" provided for in Article 5(h)"; see also Prosecutor v. Kupreskic, cit. supra note 121, paras. 431, 607, 625, mentioning that: "Although the actus reus of persecution may be identical to other crimes against humanity, what distinguishes it is that it is committed on discriminatory grounds", and also mentioning that the intent to discriminate need not be the primary intent, but a significant one. There is no requirement that a
discriminatory policy exist or that the accused participated in such a policy. This requirement is not the same at the ICTR: see Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Trial Chamber I, Judgement of 6 December 1999; see also Prosecutor v. Kordie and Cerkez, cit. supra note 41, para. 217, stating that there must be a conscious intent to discriminate. i25 Prosecutor v. Krnojelac, cit. supra note 70, para. 432, and Prosecutor v. Kordi6 and Cerkez, cit. supra note 41, paras. 189 and 203, which requires a persecutory act or omission and a discriminatory basis for that act or omission on one of the listed grounds; see also Prosecutor v. Kupreskic, cit. supra note 121, para. 621. i26 Prosecutor v. Blaskic, cit. supra note 41, para. 227; see also Attorney-General of the Government of Israel v. Adolf Eichmann, cit. supra note 110, paras. 56-57, stating that when Hitler came to power the Jews began to be persecuted through the destruction of their synagogues, and the boycott of their businesses, etc. 17 Prosecutor v. Blaskic, ibid., para. 233. i2s Prosecutor v. Kupreskic, cit. supra note 121, para. 618; Prosecutor v. Kordie and Cerkez, cit. supra note 41, para. 196. 129 Prosecutor v. Krnojelac, cit. supra note 70; para. 434, declining to agree with the view expressed in the Kordic and Cerkez judgement that the "gross or blatant" quality of the denial signifies a separate element with respect to seriousness; Prosecutor v. Kupreskic, ibid., para. 621. 130 Prosecutor v. Kupreskié, ibid., paras. 615(e) and 622. 13 'Prosecutor v. Krnojelac, cit. supra note 72, para. 434 Prosecutor v. Kvocka et al., Case No. IT-98-30/1, Judgement of 2 November 2001, para. 185; Prosecutor v. Tadi6, Case No. IT-94-1, Judgement of 7 May 1997, para. 649; Prosecutor v. Kupreskic, ibid., para. 550. �3z HAMMOND, "Cultural Terrorism", The Wall Street Journal, 5 March 2001, p. A22. 133 Ibid.
134 In certain cases this could include just one act. See Prosecutor v. Kupreskic, cit. supra note 121, para. 624. �35 In Article 2 of the Convention, genocide is defined as: any of the following aets with the 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 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. See also Article 4(2) of the Statute of the ICTY and Article 2 of the Statute of the ICTR, and LEMKIN, Axis Rules in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Washington, 1944. �36 Prosecutor v. Kambanda, Case No. ICTR-97-23, Judgement of 4 September 1998, para. 16, stating that: "The crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with intent 'to destroy in whole or in part a national, ethnic, racial, or religious group"'; see also Prosecutor v. Jelisic, cit. supra note 81, paras. 79 ff., distinguishing between the killing arbitrarily and killing with the clear intention to destroy the group. Arguably, evidence regarding the destruction of religious sites and objects can serve to prove that a group was being targeted specifically rather than arbitrarily.
�3� Prosecutor v. Krstic, cit. supra note 3, paras. 577-579, citing GA Res. 47/121 of 18 December 1992 for the proposition that ethnic cleansing has been labeled as a form of genocide and the Judgement of the Federal Constitutional Court of Germany of 12 December 2000, para. (III)(4)(a)(aa), where the Court stated that: "[T]he statutory definition of genocide defends a supra-individual object of legal protection, i.e. the social existence of the group [...] [T]he intent to destroy the group [...] extends beyond physical and biological extermination [...]. The text of the law does not therefore compel the interpretation that the culprit's intent must bc to exterminate physically at least a substantial number of members of the group". �3$ Prosecutor v. Krstic, ibid., para. 580. �39 United Nations Background Paper No. 68, Genocide, cit. supra note 2, pp. 7-8, stating that: "Some Members thought that provisions should include to prevent 'cultural' genocide (i.e. acts aimed at destroying the particular culture of a group, for example by destroying its literary works or closing its schools); others opposed the inclusion of such provisions, holding that cultural genocide was not on par with actual physical genocide and that too wide a definition would make the Convention meaningless".
140 Federal Court of Australia, Nulyarimma v. Thompson: Buzzacott v. Hill, Judgement of 1 September, reproduced in ILM, 2000, p. 20. In these two cases, claims were brought alleging that Government ministers, members of Parliament and the Commonwealth had or would contribute to the destruction of Aboriginal people as an ethnic or racial group and that would constitute genocide. The cases were heard together and the Federal Court of Australia issued one decision concerning these matters. In Nulyarimma v. Thompson, the conduct in question was the drafting and support for amendments to the Native Title Act (the Government's "Ten Points Plan"). Those amendments were codified into legislation known as the Native Title Amendment Act of 1988. This Act modified and extinguished certain native title rights. Four Aboriginal applicants (Wadjularbinna Nulyarimma, Isobel Coe, Billy Craigie, and Robbie Thorpe) went to a magistrate in Canberra to issue warrants to arrest the Prime Minister (John Howard), the Deputy Prime Minister (Tim Fischer), a Senator (Brian Harradine) and a member of the House of Representatives, at that time (Pauline Hanson) for the crime of genoeide. The magistrate refused to issue the warrants and the decision was first appealed to a single judge of the Supreme Court of the Australian Capital Territory, and later to the Full Court of the Federal Court. The second case, Buzzacott v. Hill, concerned a motion made to strike out proceeding, on behalf of the Arabunna people, instituted against the Commonwealth, the Minister for Foreign Affairs and Trade and the Minister for Environment because they did not apply to place the traditional lands of the Arabunna people on UNESCO's World Heritage List. They claimed that such failure to act constituted genocide. Their argument was that the resulting mining and related activities would threaten the Arabunna people's traditional way of life. They sought an order compelling the Government to protect the land and damages by proceeding with the World Heritage application, not a criminal prosecution. The strike out motion was referred by a judge to a full court sitting in Adelaide, but adjourned by that court to be handled by the Federal Court together with the other appeal. The Court reeoguized the crime of genocide as a peremptory norm of international jus cogens. Despite that fact, and the fact that Australia signed the Genocide Convention of 1948, the Court dismissed the claim because Australia has not passed legislation defining it as a criminal offense under domestic law in Australia. The majority (Justices Wilcox and Whitlam) held that without the appropriate legislation or recognition under the common law, customary international law carries no force in Australia. Justice Whitlam held that the jus cogens status of the Genocide Convention of 1948 did not mean that it should be considered a part of the common law, and that in a number of Australian States the creation of new crimes by common law is expressly forbidden by statute. Justice Wilcox held that a treaty does not enter into force in Australia without the appropriate legislation to bring it into effect. He also did not accept that genocide is a part of the common law. He argued, for policy reasons, that a law creating a serious criminal offense in Australia requires specific legislation. What is interesting is Justice Merkel's Dissenting Opinion. He held that a rule of customary international law could be adopted into Australian law without enacting specific legislation, if such a law is consistent with existing statutes and the policies of the common law. He held that genocide was consistent with Australian common law and did not amount to the creation of a new crime due to the fact that it was a universal
crime. Offenders should be on notice of the crime because of its noted universality. All the justices agreed that the fact patterns did not meet the intent element of genocide. This is given support by the Jelisi6 Appeal Judgement, cit. supra note 117, para. 47, stating that: "As to proof of specific intent [of the crime of genocide], it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group, or the repetition of destructive and discriminatory acts". This would certainly seem to include the destruction of cultural property, specifically religious sites and objects. �4z Prosecutor v. Krstic, cit. supra note 3, para. 580, stating that: "The Trial Chamber however points out 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. In this case, the Trial Chamber will thus take into account as evidence of intent to destroy the group the deliberate destruction of mosqucs and houses belonging to members of the group".
See also Prosecutor v. Krstic, Case No. IT-98-33-A, Appeals Chamber, Prosecution Response to the Defence Appeal Brief, Public Redacted Version, Filed 8 May 2002, pp. 2-31. 143 The text of the Rome Statute is reproduced in ILM, 1998, p. 999 ff. 144 See Artiele 8(1), Article 8(2)(b)(ix) and Article 8(2)(e)(iv) and (v), which read: "1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-seale commission of such crimes. 2. For the purpose of this Statute, 'war crimes' means: [...] b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely any of the following acts: [...] ix. 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; [...] 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; v. Pillaging a town or place, even when they are taken by assault". 14 Cf. ZIMMERMAN, "Article 8 (War Crimes)", in TRIFFTER (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden-Baden, 1999, p. 173 ff., p. 264. 146 Cf ibid., p. 278. 147 See Article 7(I)(h) and (2)(g), articulating that: "1. For the purpose of this Statute, 'crimes against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge that of the attack: [...] h) Persecution 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; [...] 2. For the
purpose of paragraph 1: [...] g) 'Persecution' means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity". 148 Cf supra note 2; see also SCHABAS, "Problems of International Codification - Were the Atrocities in Cambodia and Kosovo Genocide?", New England Law Review, 2001, p. 287 ff., pip. 291-292 (citing UN Doc. A/C.6/SR.83). Cf. SCHABAS, "Was Genocide Committed in Bosnia and Herzegovina? First Judgements of the International Criminal Tribunal for the Former Yugoslavia", Fordham International Law Journal, 2001, p. 23 ff., p. 33, note 61 (citing the Report of the Preparatory Commission for the ICC, Addendum, Finalized Draft Text of Elements of Crimes, UN Doc. PNICC/2000/l/Add. 2, 2000). 150 Cf supra note 86.