Adjudicating Attacks Targeting Culture

Revisiting the Approach under State Responsibility and Individual Criminal Responsibility

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This work proposes a toolkit for international legislators, judges and scholars to consider the adjudication of the causes, means and consequences of attacks targeting culture. Filling international law’s gap regarding culture, this work views the latter as a legacy-oriented local-national-international triptych. Therein, culture can be anthropical or natural (fauna and flora), movable or immovable, secular or religious, tangible or intangible. Drawing from the practice of State responsibility and individual criminal responsibility-based jurisdictions, this work proposes a novel typology of the victims of cultural damage. These are natural persons as members of the collective, the collective as the sum of natural persons, and legal persons as a result of damage inflicted on them or their property. Based on the practice of both modes of responsibility’s jurisdictions, this work considers attacks targeting culture as anthropo-centred, heritage-centred and/or tangible-centred.

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Hirad Abtahi (PhD, Leiden University) is the Chef de Cabinet at the Presidency of the International Criminal Court, which he joined in 2004 as its first head of the legal team. Previously, he served the Milošević trial chamber at the International Criminal Tribunal for the former Yugoslavia. Hirad Abtahi is faculty member at Science Po’s Paris School of International Affairs. He has extensively lectured and published in English, French and Persian.
Laudatio PhD

Preface

Acknowledgements

List of Tables

Abbreviations

General Introduction Mapping Attacks Targeting Culture
 1 Background and Primary Research Question
 1.1 Treaty Law and Modes of Responsibility: Legal Niches or Anthropological Uncertainty?

 1.2 Academia: Specialisation or Compartmentalisation?


 2 Conceptualising Attacks Targeting Culture
 2.1 Culture as a Metaphorical Triptych

 2.2 Ways of Attacking Culture: Tangible-Centred or Heritage-Centred?


 3 Proposed Framework and Tools
 3.1 Placing Culture in Linguistics and Anthropology

 3.2 Placing Culture in a Legal Mould

 3.3 Placing Culture in Judicial Proceedings


 4 Roadmap


Part 1
State Responsibility
Introduction Attacks Targeting Culture – A Westphalian Foresight?

1Inter-State Claim Mechanisms
 1 Introduction: The Subject-Matters of Injury and Terminological Challenges

 2 Legal Persons: Actual and Prospective Tangible-Centred Approach
 2.1 Direct Injury to States

 2.2 Indirect Injury to States: Injury to States’ Nationals – Legal Persons

 2.3 Synthesis: Westphalian Avant-Gardism Regarding Legal Persons and Cultural Property


 3 Natural Persons: A Prospective Heritage-Centred Approach?
 3.1 Direct Injury: Armed Activities and Peacetime

 3.2 Indirect Injury: Material and Moral Injury to Third Parties

 3.3 Synthesis: Westphalian Avant-Gardism Regarding Natural Persons


 4 Conclusion to Chapter 1


2Regional Human Rights Courts
 1 Introduction: The Subject-Matters of Damage and Terminological Challenges

 2 Natural Persons: The Heritage-Centred Approach
 2.1 Natural Persons as Members of the Collective

 2.2 The Collective as the Sum of Natural Persons

 2.3 Synthesis: A Heritage-Centred Approach Grounded on Damages’ Typology and Victims


 3 Legal Persons: The Tangible-Centred Approach
 3.1 Victims: Legal Persons as Such

 3.2 Damage: Legal Persons’ Natural Person Members

 3.3 Synthesis: From Legal Persons to “Living Organisms”


 4 Conclusion to Chapter 2


Conclusion to Part 1: State Responsibility’s Groundwork for Individual Criminal Responsibility


Part 2
Individual Criminal Responsibility
Introduction Attacks Targeting Culture – A Tripartite Crime Matter?

3War Crimes
 1 Introduction: Crimes Concerned with Tangible Culture Only?

 2 The Tangible-Centred Approach: ihl and icl Instruments
 2.1 Introduction

 2.2 Direct Protection: Cultural Property as Such

 2.3 Indirect Protection of Culture’s Tangible as Movable and Immovable of a Civilian Character

 2.4 Synthesis: Direct Protection as Lex Specialis to Indirect Protection


 3 Towards a Heritage-Centred Approach: Dubrovnik and Timbuktu
 3.1 Introduction

 3.2  ihl-icl Intersecting with Peacetime Instruments

 3.3 The Collective and Its Anthropical Environment

 3.4 Synthesis: Blurring the Distinction between the Peacetime and Non-peacetime Legal Regimes?


 4 Conclusion to Chapter 3: Tangible-Centred Means with Heritage-Centred (Intent and) Consequences


4Crimes against Humanity
 1 Introduction: Crimes Coined by the Clash of Civilisations

 2 The Anthropo-centred Approach
 2.1 Introduction

 2.2 The Chapeau Elements: Attacks against a Collective

 2.3 The Underlying Offences: The Crime of Persecution

 2.4 Synthesis: Crimes Immersed in Collective Rights Violations


 3 The Tangible-Centred Approach: The Actus Reus of the Crime of Persecution
 3.1 Introduction

 3.2 The Post-Second World War Trials

 3.3 The Post-Cold War International Criminal Jurisdictions

 3.4 Synthesis: Heritage-Oriented Attacks Targeting Tangible Culture


 4 Conclusion to Chapter 4: Fundamental (Cultural) Rights Violations – Between War Crimes and Genocide?


5Genocide
 1 Introduction: An Intrinsically Anthropological Crime

 2 Drafting the Convention
 2.1 Introduction

 2.2 The Chapeau: Genocide Is Cultural

 2.3 The Actus Rei: Heritage-Centred or Tangible-Centred?

 2.4 Synthesis: Confusing Genocide’s Tangible- and Heritage-Centred Means


 3 Practice of International Criminal Jurisdictions and the icj
 3.1 Introduction: The Group’s Physical/Biological Destruction – A Questionable Mantra

 3.2 Anthropo-Centred Violence through the Genocide Convention’s Actus Rei

 3.3 Tangible-Centred Violence Indicative of Genocidal Intent

 3.4 Synthesis: Ethnic Cleansing’s Heightened Mens Rea


 4 Conclusion to Chapter 5: Cultural Genocide Is a Tautology


Conclusion to Part 2: Individual Criminal Responsibility’s Promising Potential

General Conclusion Emerging Trends and Future Promises
 1 Introspection: Culture as a Heritage-Centred and Tangible-Centred Triptych
 1.1 Culture as an Anthropical and Natural Concept

 1.2 Culture as a Legacy-Oriented Concept


 2 Retrospection: State Responsibility and Individual Criminal Responsibility’s Converging Paths
 2.1 The Typology of Cultural Damage

 2.2 The Victims of Cultural Damage


 3 Prospection: State Responsibility and Individual Criminal Responsibility’s Osmotic Paths
 3.1 Towards a Synergetic Experience

 3.2 The Three Pillars for the Right Question



Bibliography

Index

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