Since the Yugoslav independence wars of the 1990s, some states, notably the Netherlands and Italy, have sought to expand the protection of cultural objects. One effort focuses on increasing the ambit of protection under the current international conventional framework. Thus, for example, in 1993, the UNESCO Director-General reported on the commission of a report to study:
the question whether UNESCO should be given greater powers of initiative and more adequate means of intervention in the event of cultural property being destroyed during an armed conflict; introducing less cumbersome procedures for intervention in limited conflicts than the procedure for appointing Commissioners-General; extending the Convention to include natural as well as cultural sites and; establishing a simpler procedure for inclusion of cultural property on the International Register of Cultural Property under Special Protection. (UNESCO 1993).
These studies and concerns reflected a set of long-term concerns within UNESCO, for the extension of protection for all forms of culture and cultural expression.
Though the form of protection did not change, the breadth of protection has expanded considerably since the end of the Yugoslav wars. “A lengthy quest for the function and values of cultural expressions and practices, and of monuments and sites, led by UNESCO, has paved the way for new approaches to understanding, protecting and respecting our cultural heritage” (UNESCO Brief History). A recent example of this broadening of protection is the Convention for the Safeguarding of Intangible Cultural Heritage (2003). This Convention was the culmination of a process that began in 1966 when “UNESCO’s General Conference adopts the Declaration on the Principles of International Cultural Cooperation, which provides the basis for the development of cultural policies within UNESCO” (Id.). This Convention entered into force on 20 April 2006, following its ratification by 30 States. The first session of the General Assembly of the States Parties was held in Paris from 27 to 29 June 2006. As of February 2007, 74 states had ratified the Convention, including many source states (UNESCO Intangible Heritage 2003). The first session of the inter-governmental committee of states was held in November 2006 in Algiers (id.). The extent of its effectiveness at extending protection to yet another aspect of cultural property is unclear. But it is likely to extend no further than the protection accorded under earlier conventions, principally because the Convention adopts a similar system of protection.
The primary purposes of the Convention for the Safeguarding of Intangible Cultural Heritage are fairly broad: “(a) to safeguard the intangible cultural heritage; (b) to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; (c) to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; (d) to provide for international cooperation and assistance” (Convention for the Safeguarding of Intangible Cultural Heritage 2003, art. 1). The objects to be protected are also fairly broadly defined to include “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artifacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage” (Id., art. 2(1)). But this protection “will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development” (Id.).
The obligations of states under this Convention extend to taking the necessary measures to safeguard these cultural manifestations (Id., art. 11). Safeguarding means “measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage” (Id., art. 2(3)). Adherents to the Convention “recognize that the safeguarding of intangible cultural heritage is of general interest to humanity, and to that end undertake to cooperate at the bilateral, sub-regional, regional and international levels” (Id., art. 19). International assistance is available to any of the state parties to the Convention on application (Id., arts. 22-23). Assistance can include safeguarding studies, the provision of experts and practitioners, staff training, development of standard setting and other measures, infrastructure creation and implementation, the provision of equipment, and other forms of technical and financial assistance (Id., art. 21).
But this Convention, like earlier efforts to protect other forms of cultural property, continue to rely on states to undertake their treaty obligations, and on the community of states, at least who have ratified the applicable conventions, to collectively enforce the obligations of all signatories. But the failed efforts in Yugoslavia has suggested the limits of this approach, at least when it serves as the sole means of protecting these objects. However, even as UNESCO was working on amplifying, without significant change, the patterns of its approach to the protection of cultural objects and practices, another framework for the international protection of cultural objects appears to have now been implemented. The Rome Statute of the International Criminal Court (1998) now provides a substantially different approach to the protection of cultural objects, an approach based on the criminalization, under international law, of the destruction of cultural objects under certain conditions. While it is far too early to determine whether this approach will result in more effective protection for cultural objects, it does offer a significant potential for limiting such destruction when it is possible to connect the destruction to particular individuals.
The Rome Statute of the International Criminal Court (1998) came into force in 2002 after ratification by sixty nations (ICC Establishment). Currently one hundred and four states (not including the United States, the People’s Republic of China or Russia) have become parties to the Rome Statute (Id.). The Rome Statute established a system for the elaboration of an international criminal code for acts described generally in the Rome Statute itself (Rome Statute of the International Criminal Court 1998, arts. 5-10). That elaboration is the responsibility of the Assembly of States Parties, the legislative institution of the ICC system, and is currently codified in the ICC Elements of Crime (2002). The crimes are investigated and prosecuted by the ICC Prosecutor, who proceeds on the basis of applications from State Parties or from the U.N. Security Council (Rome Statute of the International Criminal Court 1998, arts. 14-15). All crimes are tried to the International Criminal Court itself, permanent institution with power to exercise its jurisdiction over persons for the described in the Rome Statute and elaborated in the ICC Elements of Crimes (Rome Statute of the International Criminal Court 1998, art. 1).
The principle of prosecution under the Rome Statute is individual culpability. It is based on the notion that every state has a duty to exercise its criminal jurisdiction over those responsible for international crimes (Rome Statute of the International Criminal Court 1998, Preamble ¶ 6). The focus is on individual responsibility for acts now constituting international crimes. To that end, the International Criminal Court has been given jurisdiction “in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes (Rome Statute of the International Criminal Court 1998, art. 8(1)).
Among the crimes set forth in the ICC Elements of Crimes are a number of crimes against property, including crimes specifically targeting cultural property. One is the “War Crime of Attacking Protected Objects” (ICC Elements of Crime 2002, art. 8(2)(b)(ix)). Specifically, any individual who intentionally directs an attack, the object of which is a building “dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected” (id.) if the conduct tool place in the course of an international armed conflict and the perpetrator “was aware of factual circumstances that established the existence of an armed conflict.” The ICC Elements of Crime also identify the “War Crime of pillaging (ICC Elements of Crime 2002, art. 8(2)(b)(xvi)). The elements of this crime consist of the appropriation for private or personal use of certain property by a perpetrator who intended to deprive the owner of the property without the owner’s consent. The conduct has to take place in the context of and was associated with an international armed conflict and the perpetrator has to be aware of factual circumstances that established the existence of an armed conflict (Id.). The last element of these crimes is loosely applied. “There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was associated with” (id.).
Consider the application of the Rome Statute in the context of a conflict like that in Yugoslavia. It might be possible to suggest that every individual who took part in the destruction of cultural property, or that took such property, could be liable for war crimes under article 8(2)(b)(ix) or (xvi). In combination with the 1954 Hague Convention, this could significantly expand the protection to such objects under the circumstances for liability under the Rome Statute. The 1954 Hague Convention would permit the sort of observation and documentation that could serve to produce the evidence necessary to convict individual perpetrators under the Rome Statute. For example, Article 10 of the 1954 Hague Convention, "Identification and Control," provides that "
During an armed conflict, cultural property under special protection shall be marked with the distinctive emblem described in Article 16, and shall be open to international control as provided for in the Regulations for the execution of the Convention.Article 5, Chapter 1 of the provides that "The delegates of the Protecting Powers shall take note of violations of the Convention, investigate, with the approval of the Party to which they are accredited, the circumstances in which they have occurred, make representations locally to secure their cessation and, if necessary, notify the Commissioner-General of such violations. They shall keep him informed of their activities." (1954 Hague Convention, Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict). It would be an easy matter to use the information gathered in the course of the protection of cultural property under either UNESCO Convention, to serve as a basis for prosecution of individual perpetrators under the Rome Statute where a state is unable or unwilling to prosecute in accordance with the standards of the Rome Statute.
Application of the Rome Statute is still in its infancy. It is possible that UNESCO officials working under the relevant conventions will fail to adequately coordinate with the staff of the ICC Prosecutor. It is also possible that the International Criminal Court itself will read the relevant provision in the ICC Elements of Crimes narrowly. Moreover, it is not clear, despite the language in the Introduction to Article 8, that the War Crimes provisions of the Rome Statute would reach internal conflicts, like civil wars. It is even less likely to reach the sort of actions taken by the Taliban government of Afghanistan when it destroyed the ancient Buddha statues, because there was no conflict, as such, at the time of their destruction. Clearly, then, the Rome Statute might provide an important step forward in the effort to protect cultural property. But there is a long way to go.
Convention for the Protection of Cultural Property in the Event of Armed Conflict Done at the Hague, 14 May 1954 ,Entered in force: 7 August 1956. http://www.icomos.org/hague/hague.convention.html.
----------. Regulations for the Execution of the Convention for the Protection of Cultural Property in the Event of Armed Conflict. http://www.icomos.org/hague/hague.regulations.html#Chapter1.
----------. 2003. Convention for the Safeguarding of Intangible Cultural Heritage. Entered into force on 20 April 2006. http://www.unesco.org/culture/ich_convention/index.php?pg=00006.
International Criminal Court (ICC). 1998/99. Rome Statute of the International Criminal Court: Overview. http://www.un.org/law/icc/general/overview.htm.
----------. 2002. Elements of Crimes. ICC-ASP/1/3. http://www.un.org/law/icc/asp/1stsession/report/english/part_ii_b_e.pdf.
Rome Statute of the International Criminal Court. 1998. U.N. Doc. A/CONF.183/9, 37 I.L.M. 999 (July 17, 1998). http://www.un.org/law/icc/statute/romefra.htm.
UNESCO (United Nations Educational, Scientific and Cultural Organization) Executive Board, Report by the Director-General on the Reinforcement of UNESCO’s Action for the Protection of the World Cultural and Natural Heritage, UNESCO Executive Board Hundred and forty-first Session, 141 Ex/18 (Paris, France, March 26, 1993). http://unesdoc.unesco.org/images/0009/000938/093847Eo.pdf.
----------. 2003. Intangible Heritage. About the Convention for the Safeguarding of the Intangible Cultural Heritage. http://www.unesco.org/culture/ich_convention/index.php.
----------. Brief History of the Convention for the Safeguarding of the Intangible Cultural Heritage (2003). http://www.unesco.org/culture/ich_convention/index.php?pg=00007.