THE UNESCO DECLARATION CONCERNING THE INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE: ONE STEP FORWARD AND TWO STEPS BACK

in The Italian Yearbook of International Law Online
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THE UNESCO DECLARATION CONCERNING THE INTENTIONAL DESTRUCTION OF CULTURAL HERITAGE: ONE STEP FORWARD AND TWO STEPS BACK

in The Italian Yearbook of International Law Online

References

I The full text of the Declaration is available on the UNESCO Web site, at http:// www.unesco.org. 2 This event is recalled in the second sentence of the Preamble of the Declaration. On its international legal implications see FctANCION� and LENZERINI, "The Destruction of the Buddhas of Bamyan and International Law", EJIL, 2003, p. 619 ff. 3 See FFtANCION1 and LENZERINI, "The Destruction of the Buddhas of Bamyan and Interna- tional Law", A study commissioned by UNESCO to Professor Francioni, Department of Public Law, University of Siena, Italy, 2002, on file with the author (part of this study was later pub- lished in the European Journal of International Law; see supra note 2). 4 See Meeting of Experts on the Draft Declaration Concerning the Intentional Destruction of Cultural Heritage, Brussels, Belgium, 9-13 December 2002, UNESCO Doc. 32 C/25 of 17 July 2003, Annex II. Professor Wojciech Kowalski (Poland), Professor Erik Franckx (Belgium), Pro- fessor Jiri Toman (Switzerland/the Czech Republic) and Professor Francesco Francioni (Italy) were among the experts who participated at the meeting. 5 See id., paras. 8 ff. It is to be noted that the text included in this document encompasses the modifications made by the UNESCO Secretariat after the Brussels meeting (see infra in this section and section 3), and it thus does not exactly reflect the draft as prepared by the Brussels experts.

6 International practice in the field of State responsibility clearly demonstrates that the recog- nition of a governmental entity as internationally responsible is mainly based on the substantive element of effective territorial sovereignty, and not on the formal recognition of statehood by the other members of the international community or in the context of international organizations; see FRANCIONI and LENZERINI, cit. supra note 2, p. 629 f. 7 see, in this sense, ibid., p. 630 ff. $ See Treaty on the Protection ofArtistic and Scientific Institutions and Historic Monuments, Washington, 15 April 1935, available at http://www.icrc.org/ihl.nsf. 9 For a detailed examination of the relevant part of these recommendations, see FItAN- CIONI, "Principi e criteri ispiratori per la protezione internazionale del patrimonio culturale", in FRANCIONI, DEL VECCHIO and DE CATERINI (eds.), Protezione internazionale del patrimonio culturale: interessi nazionali e difesa del patrimonio comune della cultura, Milano, 2000, p. 14 £; the author of this article rightly notes that the relevance of these recommendations, for the

formation of a customary norm in the field, is given by their reiteration and by the fact that they are adopted by the UNESCO General Conference, which represents almost all members of the international community. Among the relevant recommendations, see the 1956 UNESCO Rec- ommendation on International Principles Applicable to Archeological Excavations, available at http://www.unesco.org/culture/laws/archeological/html eng/pagel.shtml, in particular the fourth sentence of the Preamble; 1972 UNESCO Recommendation concerning the Protection, at National Level, of The Cultural and Natural Heritage, available in the UNESCO Web site, at http://www.unesco.org/culture/laws/national/html eng/pagel.shtml, whose Preamble states that "every country in whose territory there are components of the cultural [...] heritage has an obli- gation to safeguard this part of mankind's heritage and to ensure that it is handed down to future generations" and that "knowledge and protection of the cultural [...] heritage in the various coun- tries of the world are conducive to mutual understanding among the peoples". See also Article 1 of the UNESCO Universal Declaration on Cultural Diversity, 2 November 2001, available at http://www.unesco.orglconfgenlpressJeV021l O 1- clt- diversity.shtml. 10 The text of the Convention and of its 1954 and 1999 Protocols is available in the UNESCO Web site, at http://www.unesco.org. In particular, the Preamble of the Convention states that "damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world", and that "the preservation of the cultural heritage is of great importance for all peoples of the world and [...] it is important that this heritage should receive international protection". 11 see 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, available at http://www.unesco.org/whc/world_he.htm, sixth, seventh and eighth sentences of the Preamble. 12 See the second sentence of the Preamble. The full text of the Convention is available at http://www.unesco.org/culture/laws/underwater/html eng/convention.shtml.

" The 1972 World Heritage Convention has been ratified by 177 States (updated 28 Novem- ber 2003); see http://www.unesco.org/whc/nwhc/pages/doc/main.htm. 11 See International Court of Justice, North Sea Continental Shelf Cases, Judgement of 20 February 1969, ICJ Reports, 1969, p. 44, para. 77. 15 See, in this sense, FRANCIONl and LENZERINI, cit. supra note 2, p. 636. The authors add that "[t]his conclusion is reinforced by the fact that protection of cultural heritage as a matter of public interest, and not only as part of private property rights, is recognized in most of the mature domestic legal systems of the world. No civilized State, in the sense of Article 38(c) of the Statute of the International Court of Justice, recognizes the right of the private owner of an important work of art to destroy it as part of the exercise of a supposedly unlimited right of pri- vate property. Catalogue and inventory of national treasures are generally intended to limit such private rights in view of safeguarding the public interest to the conservation and transmission of the cultural patrimony to future generations"; this practice reflects the global perception of the objective intrinsic value of cultural heritage, which transcends any kind of "private" power, both individual property or national sovereignty, in view of the need to safeguard the collective inter- est to its preservation. Contra, see O'KEEFE, "World Cultural Heritage: Obligations to the Inter- national Community as a Whole?", ICLQ, 2004, p. 189 ff., p. 208. See also the view expressed by WANGKEO, "Monumental Challenges: The Lawfulness of Destroying Cultural Heritage During Peacetime", Yale JIL, 2003, p. 183 ff.; according to this author, relevant practice "indicate[s] that it would be lawful to destroy relics if doing so would help the state meet basic survival needs or improve people's way of life [...]. In contrast, [...] it would not be lawful to destroy or negatively affect cultural heritage for iconoclastic reasons" (p. 273). Although at first sight this position may appear quite peculiar, it could be interpreted as implying the fact that the destruction of a cultural asset may be considered lawful when (and only when) a preventive assessment of the value of the good to be destroyed and the degree of improvement that would be attained with regard to another fundamental value by means of the destruction (i.e. enhancement of living conditions and/or enjoyment of human rights) demonstrates that the latter supersedes the former; such an interpretation seems to be confirmed by the fact that, at the very end of the same article, the au- thor states that "there should be a presumption against destroying relics [...] and [...] the needs of living people should always come first" (ibid., p. 274). There is no doubt that, in principle, this latter sentence should inform the implementation of any international legal provision. '6 See, more comprehensively, FPANCIONI and LENZERINI, cit. supra note 2, p. 621.

17 see "Protection of religious sites", GA Res. 55/254 of 31 May 2001, para. 1. '$ Id., para. 2. '9 See FRANCIONI and LENZERINI, cit. supra note 2, p. 636. 20 see NAHLIK, "La protection internationale des biens culturels en cas de conflit arme", RCADI, Vol. I20, I, 1967, p. 65 ff., pp. 89 and 145; FRIGO, La protezione dei beni culturali nel diritto internazionale, Milano, 1986, p. 62 ff.; FRANCIONI, "Patrimonio comune dell'umanita, sovranita e conflitti armati", Studi Senesi, 1992, p. 7 ff., p. I3 ff.; MEYER, "The 1954 Hague Cul- tural Property Convention and Its Emergence into Customary International Law", Boston Uni- versity International Law Journal, 1993, p. 349 ff., p. 362; MOSE, "The Destruction of Churches and Mosques in Bosnia-Herzegovina: Seeking a Rights-Based Approach to the Protection of Religious Cultural Property", Buffalo Journal of International Law, 1996, p. 180 ff., p. 184 £; KASTENBERG, "The Legal Regime for Protecting Cultural Property During Armed Conflict", Air Force Law Review, 1997, p. 277 ff.; LIPPCVIArI, "Art and Ideology in the Third Reich: The Protection of Cultural Property and Humanitarian Law of War", Dickinson Journal of Interna- tional Law, 1998, p. 1 ff., p. 97; CARDUCCI, "L'obligation de restitution des biens culturels et des objects d'art en cas de conflit arme: droit coutumier et droit coventionel avant et apres la Conven- tion de La Haye de 1954", RGDIP, 2000, p. 289 ff.; FRANCIONI and LENZERINI, cit. supra note 2, p. 636 ff.; 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", IYIL, 2001, p. 25 ff., p. 26. 21 See respectively Articles 27 and 56 of the Regulations annexed to the Hague Convention IV (Convention (IY) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907) and Article 5 of the Convention (IX) concerning Bombardment by Naval Forces in Time of War, both available at http://www.icrc.org/ihl.nsf.

22 See United States v Carl Krauch, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, Vol. 7, 1952, p. 1081 ff., p. 1131; United States v A�ied Krupp et al., Trials of War Criminals Before the Nuremburg Military Tribunals Under Control Council Law No. 10, Vol. 9, 1950, p. 1327 ff., p. 1340. See, more comprehensively, LiPP- MAN, cit. supra note 20, p. 49 f. 2' See supra note 10. 24 See Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), UNTS, Vol. 1125, p. 5, whose Article 53 states that "[w]ithout prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such objects in support of the military effort; (c) to make such objects the object of reprisals". See also, with an almost identical content (except that for the reference to reprisals), Article 16 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol ll), UNTS, Vol. 1125, p. 609. z5 The text of the Draft Code is available at http://www.un.org/law/ilc/texts/dcode.htm. zb The text of the Statute is available at http://www.un.org/icty/basic/statut/statute.htm.

27 See Prosecutor v Dario Kordic and Mario Cerkez, Judgment of 26 February 2001, avail- able at http://www.un.org/icty, para. 206. z8 Id., para. 207. Generally on the practice of the ICTY in the field of protection of cultural heritage see Abtahi, "The Protection of Cultural Property in Time of Armed Conflict: The Prac- tice of the International Criminal Tribunal for the Former Yugoslavia", Harvard Human Rights Law Journal, 2001, p. 1 ff. z9 See Prosecutor v Miodrag Jokic, Judgment of 18 March 2004, available at http:// www.un.org/icty, para. 46 (emphasis added). 30 Id., para. 51 (emphasis added). The Tribunal also added that "the Old Town was a 'living city' [...] and the existence of its population was intimately intertwined with its ancient heritage. Residential buildings within the city also formed part of the World Cultural Heritage site, and were thus protected" (ibid.). " Id., para. 53. The Old Town of Dubrovnik is inscribed in the UNESCO World Heritage List since 1979 (see http://whc.unesco.org/sites/95.htm); the Tribunal took into consideration this special status for defining and evaluating the gravity of the crime committed by the defendant (ibid., para. 67).

'z For the text of the Statute, see ILM, 1998, p. 999 ff. " See Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Prop- erty in the Event ofArmed Conflict, cit. supra note 10, particularly Article 22(l). 34 see supra note 26. 35 see Statute of the International Criminal Tribunal for the Prosecution of Persons Respon- sible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such viola- tions committed in the territory of neighbouring States, between I January 1994 and 31 Decem- ber 1994, 8 November 1994, available at http://www.ictr.org. '6 See supra note 32. " See Agreement for and Statute of the Special Court for Sierra Leone, 16 January 2002, available at http://www.icrc.org/ihl.nsf. '8 See Prosecutor v Dusko Tadic (Appeals Chamber, 2 October 1995), ILM, 1996, p. 32, para. 98. Article 19 of the 1954 Hague Convention (see supra note 10) extends the protection provided for by the Convention itself with regard to cultural property to the case "of an armed

conflict not of an international character occurring within the territory of one of the High Con- tracting Parties [...]" '9 In the case of the Buddhas of Bamyan both situations existed, since at the relevant time Afghanistan was upset by a civil war between the Taliban regime and the armed factions led by the former President Rabbani. See FRAt�lciorn and LENZERINI, cit. supra note 2, p. 621 ff. Contra, see O'KEEFE, cit. supra note 15, p. 195.

40 Emphasis added. 41 Article IlI(4) states that "States should: (a) become parties to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two 1954 and 1999 Protocols and the Additional Protocols 1 and 11 to the four 1949 Geneva Conventions, if they

have not yet done so; (b) promote the elaboration and the adoption of legal instruments providing a higher standard of protection of cultural heritage; and (c) promote a coordinated application of existing and future instruments relevant to the protection of cultural heritage". 42 see UNESCO Doc. 32 C/25 of 3 October 2003, on file with the author. 43 see the 2001 UNESCO Universal Declaration on Cultural Diversity, cit. supra note 9. 44 Articles VII, as elaborated by the Brussels experts, was divided into two parts, and stated as follows: "1. UNESCO Member States should take all necessary steps, in accord- ance with international law, to establish jurisdiction over, and provide effective penal sanc- tions for those persons who commit or order to be committed acts of intentional destruction of cultural heritage of great importance for humanity, including such cultural heritage which is of special interest for the community directly affected by such destruction. 2. For the pur- poses of a more comprehensive protection, each UNESCO Member State is encouraged

to take all necessary steps, in accordance with international law, to establish jurisdiction over, and provide effective penal sanctions for those persons who are found present on the territory of this State, regardless of their nationality and the place where such act occurred, who commit or order to be committed acts referred to in Paragraph I of this Article". See supra note 5. as Article IX states that, "[i]n applying this Declaration, States recognize the need to respect international rules related to the criminalization of gross violations of human rights and interna- tional humanitarian law, in particular, when intentional destruction of cultural heritage is linked to those violations". During the meeting of 26 September 2003, a couple of delegates proposed to use the term "should" even with regard to this provision; the strong opposition of Italy prevented the Declaration from stating that States "should" respect human rights and humanitarian law. 46 The text of the Italian statement condensed the oral intervention made by the Italian del- egate Professor Francioni at the Conference. The text is on file with the author. 47 rid. (emphasis added). 48 Id

a9 See UNESCO Universal Declaration on Cultural Diversity, cit. supra note 9, Article 1. On the value of cultural diversity in contemporary international law, see LENZERINI, "Riflessioni sul valore della diversita culturale nel diritto intemazionale", Cl, 2001, p. 671 ff. 50 The concept of "common concern of mankind" is especially used in the field of environ- mental protection, particularly by the Convention on climate change ( United Nations Framework Convention on Climate Change, 1992, available at http://unfccc.int/resource/conv/conv.html, Preamble) and by the Biodiversity Convention (see Convention on Biological Diversity, 1992, available at http://www.biodiv.org, Preamble). See BASLAR, The Concept of the Common Herit- age of Mankind in International Law, The Hague, 1998; with reference to cultural heritage see FRANCIONI, cit. supra note 20, p. 7 ff. 51 The principle of erga omnes obligations was proclaimed by the International Court of Justice in the Barcelona Traction, Light and Power Co. case (ICJ Reports, 1970, p. 3), which stated that "an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary interna- tional law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination" (para. 33-34).

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