Military Necessity in International Cultural Heritage Law

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This book offers the first comprehensive scholarly analysis of the current meaning and scope of military necessity – a key concept in the international legal framework for the protection of cultural heritage during armed conflicts since the adoption of the 1954 Hague Convention. Academic discussions commonly view military necessity uniquely through the lens of international humanitarian or international criminal law. In her book, Berenika Drazewska presents a more comprehensive perspective, examining developments across various strands of international law arisen since 1954. This novel approach demonstrates how international cultural heritage law affords a particularly strict meaning to military necessity. As a result, the relative waiver will only be available to belligerents very rarely, in truly extraordinary circumstances.

Drazewska’s Military Necessity in International Cultural Heritage Law engages a significant issue in this rapidly evolving field of international law, the inclusion of necessity in regulation of the protection of cultural heritage during armed conflict after 1945. Its very inclusion was viewed as a major concession, which is only multiplied because of the difficulties of its application on the ground. This thorny issue has come to the fore again with large-scale cultural losses inflicted during recent armed conflicts. Elegantly written and scholarly in its approach, this book places this question and possible answers to it within the broader sweep of international law and recent developments not only in international humanitarian law, but state responsibility, international criminal law and international criminal law. It offers a significant and timely reexamination and reconceptualization of this important topic.
Prof. Ana Filipa Vrdoljak (UNESCO Chair in International Law & Cultural Heritage, Faculty of Law, University of Technology, Sydney)

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Berenika Drazewska, Ph.D. (European University Institute, 2016) is currently the Dorset Researcher in Public International Law at the British Institute of International and Comparative Law, and Research Affiliate at the School of Law of Singapore Management University. She has published scholarly articles on the protection of cultural heritage in international law.
Drazewska’s Military Necessity in International Cultural Heritage Law engages a significant issue in this rapidly evolving field of international law, the inclusion of necessity in regulation of the protection of cultural heritage during armed conflict after 1945. Its very inclusion was viewed as a major concession, which is only multiplied because of the difficulties of its application on the ground. This thorny issue has come to the fore again with large-scale cultural losses inflicted during recent armed conflicts. Elegantly written and scholarly in its approach, this book places this question and possible answers to it within the broader sweep of international law and recent developments not only in international humanitarian law, but state responsibility, international criminal law and international criminal law. It offers an significant and timely reexamination and reconceptualization of this important topic.
Prof. Ana Filipa Vrdoljak, (UNESCO Chair In International Law & Cultural Heritage, Faculty of Law, University of Technology, Sydney)
Foreword

Acknowledgments

Principal Abbreviations

Cases

International Instruments

Introduction

1The Development of the Treaty Framework for the Protection of Cultural Heritage
 1.1 A Historical Perspective

 1.2 The Birth of a Specific Treaty Regime for the Protection of Cultural Property

 1.3 The Road to the Hague Convention (1949–1954)
 1.3.1 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (cpc) (1954)

 1.3.2 The Changing Interplay of Military Realism and Cultural Considerations between the oim Draft of 1938 and the Hague Convention of 1954

 1.3.3 The Issue of Military Necessity During the Hague Conference
 1.3.3.1 Military Necessity in the Preamble of the Hague Convention

 1.3.3.2 Military Necessity vis-à-vis the General Protection Regime

 1.3.3.3 Military Necessity vis-à-vis the Special Protection Regime


 1.4 The World Heritage Convention (1972)

 1.5 The Additional Protocols to the Geneva Conventions (1977)

 1.6 The Second Protocol to the Hague Convention (1999)

 1.7 The unesco Declaration Concerning the Intentional Destruction of Cultural Heritage (2003)

 1.8 Conclusions


2The Concept and Scope of Military Necessity
 2.1 Introduction: Problems Related to Military Necessity
 2.1.1 The Elusive Definition

 2.1.2 Risk of Abuse

 2.1.3 Conflicting Discourses on Military Necessity


 2.2 Military Necessity vis-à-vis the Laws of War
 2.2.1 16th–18th Century

 2.2.2 Kriegsraison

 2.2.3 Post-War Scholarship and Judicial Practice

 2.2.4 Military Necessity and Military Advantage


 2.3 The Conceptual Framework for Military Necessity
 2.3.1 The Principle of Military Necessity
 2.3.1.1 Manifestations of the Principle of Military Necessity in Treaties


 2.3.2 Military Necessity as an Exception
 2.3.2.1 Manifestations of the Exception for Military Necessity in Treaties


 2.4 Military Necessity: Excuse or Justification?


 2.4.1.1 Limits to Military Necessity

 2.5 Conclusions

3Military Necessity within the Framework for the Protection of Cultural Heritage in Armed Conflicts A Dynamic Interpretation
 3.1 Introduction

 3.2 Interpretation of the Hague Convention 60 years on
 3.2.1 Recognition of the Concern for Cultural Heritage of All Mankind
 3.2.1.1 A Dynamic Evolution of a Concept: from “Cultural Property” to “Cultural Heritage”


 3.2.2 The Change in the Concept and Scope of Military Necessity Following the Adoption of the Hague Convention
 3.2.2.1 The Contribution of the 1977 Additional Protocols

 3.2.2.2 Military Necessity in the Second Protocol to the Hague Convention


 3.2.3 Customary International Law
 3.2.3.1 Respect for Cultural Property and Its Emergence into International Customary Law

 3.2.3.2 Enforcement of the Duty of Respect as International Custom

 3.2.3.3 The icrc Study on Customary ihl

 3.2.3.4 The Manual on Air and Missile Warfare Produced by the Program on Humanitarian Policy and Conflict Research (hpcr Manual) at Harvard University

 3.2.3.5 The 1999 Bulletin of the UN Secretary General


 3.2.4 Dynamic Interpretation of Treaties and the Hague Convention


 3.3 Conclusions


4The Impact of Individual Criminal Responsibility for Offences Against Cultural Property on Military Necessity
 4.1 Introduction
 4.1.1 Offences against Cultural Property and the Development of Individual Criminal Responsibility

 4.1.2 The Civilian vs. Cultural Property Approach to the Protection of Cultural Property
 4.1.2.1 Statutes of International and Internationalised Criminal Tribunals

 4.1.2.2 Work of the ilc: 1996 the Draft Code of Crimes against the Peace and Security of Mankind


 4.2 Military Necessity in International Criminal Trials

 4.3 Military Necessity as a Plea for Excluding Responsibility Compared to the Defences Set out in the icc Statute
 4.3.1 Superior Orders

 4.3.2 Duress

 4.3.3 Necessity in Individual Criminal Responsibility

 4.3.4 Lawful Defence of Oneself and Others

 4.3.5 Defences of Insanity, Intoxication and Error Juris

 4.3.6 Error Facti
 4.3.6.1 Monte Cassino: A Case of Putative Military Necessity?


 4.3.7 Military Necessity and the Burden of Proof


 4.4 Destruction of Cultural Property vis-à-vis War Crimes, Crimes against Humanity, and Genocide

 4.5 Conclusions


5Military Necessity vis-à-vis the Protection of Cultural Heritage in Non-international Armed Conflicts
 5.1 Introduction

 5.2 The Treaty Framework: A Change of Focus
 5.2.1 Additional Protocol ii

 5.2.2 Second Protocol to the Hague Convention


 5.3 Customary International Law and the icc Statute

 5.4 Destruction of the Sufi Mausolea in Timbuktu: Al Mahdi before the icc

 5.5 Discussion and Conclusions


6Military Necessity and the Responsibility of States
 6.1 Introduction

 6.2 Requirements of Necessity
 6.2.1 The Essential Interest

 6.2.2 The Balancing of Interests

 6.2.3 The ‘Only Way’ to Safeguard the Essential Interest

 6.2.4 Grave and Imminent Peril

 6.2.5 Lack of Contribution to the State of Necessity


 6.3 Necessity vis-à-vis Other Circumstances Precluding Wrongfulness

 6.4 Onus Probandi in Invoking Necessity

 6.5 Responsibility of a State for Unlawful Destruction of Cultural Property During Armed Conflict
 6.5.1 The Co-Existence of State Responsibility and Individual Criminal Responsibility

 6.5.2 Rules on State Responsibility for Acts against Cultural Property
 6.5.2.1 Breach of an International Obligation of the State

 6.5.2.2 Attribution


 6.5.3 Responsibility of a State for Failure to Prevent Violations and Punish Perpetrators

 6.5.4 State Responsibility for Violation of the Obligation to Respect Cultural Heritage
 6.5.4.1 Consequences of Destruction of Cultural Heritage as an Internationally Wrongful Act


 6.6 Responsibility for the Destruction of Property and the Plea of Military Necessity

 6.7 Conclusions


7Lessons on Necessity Resulting from the Interplay of Environmental Protection and Armed Conflict
 7.1 Introduction

 7.2 The Martens Clause as a Consequence of the Common Concern

 7.3 Treaty Framework for the Protection of the Environment – An Overview

 7.4 State Responsibility for Environmental Damage: Lessons from the uncc
 7.4.1 The Review of Claims and the Agency Approach

 7.4.2 The Compensability of Environmental Damage
 7.4.2.1 Loss of Cultural Heritage as Part of Environmental Damage


 7.4.3 Partial Conclusions on the Contribution of the uncc


 7.5 Necessity in International Environmental Law
 7.5.1 Environmental Necessity as a Balancing Factor

 7.5.2 Environmental Necessity as a Circumstance Precluding Wrongfulness
 7.5.2.1 Environmental Necessity and Forcible Measures


 7.6 Conclusions


8Concluding Remarks

References

Index

All interested in the protection of cultural heritage during armed conflicts (and the protection of common goods under international law more generally), in addition to research institutes and military academies.
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