Shift from Cultural Property to Cultural Heritage and its Possible Consequences for International Criminal Law

2021 ◽  
Vol 10 (2) ◽  
pp. 37-61
Author(s):  
Ivan Ryška
Keyword(s):  
Cultural Heritage ◽  
Criminal Law ◽  
International Criminal ◽  
Current Approach ◽  
Cultural Property ◽  
International Criminal Law ◽  
Legal Documents ◽  
International Criminal Tribunals ◽  
Cultural Expressions ◽  
Conceptual Shift

The article examines the content of terms ‘cultural property’ and ’cultural heritage’. It illustrates the continual development in the protection of cultural property that evolved into the concept of cultural heritage. The first part of the article describes differences between the two notions and explains why the term ’cultural heritage’ is more suitable for the current approach to protection of cultural expressions. The second part of the article deals with possible consequences that the conceptual shift from cultural property to cultural heritage can bring to protection under International Criminal Law. It argues that despite the wording of relevant legal documents, it does not explicitly work with the term ’cultural heritage’. The author notes that jurisprudence of international criminal tribunals has already been recognizing this concept and reflecting upon the extent of the term in some of their decisions.

Part II Substantive Aspects, Ch.5 International Criminal Law and the Protection of Cultural Heritage

2020 ◽  
Author(s):  
Frulli Micaela
Keyword(s):  
Cultural Heritage ◽  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Cultural Property ◽  
International Criminal Law ◽  
Strong Impact ◽  
International Criminal Tribunals ◽  
Protection Of Cultural Heritage

This chapter looks at how international criminal law has become a crucial tool to foster the protection of cultural heritage. On the normative level, the main developments consisted in the introduction of rules criminalizing acts against cultural property in binding treaties dealing with the protection of cultural property in times of armed conflict. Then, international criminal tribunals (ICTs) paved the way for implementing individual criminal responsibility. Three different and partially divergent approaches have characterized the criminalization of acts against cultural property. The first two—civilian use and cultural value—emerged in different moments and had a strong impact on the drafting of rules criminalizing acts against cultural property in times of armed conflict. The third one, the human dimension approach, developed from the jurisprudence of ICTs and characterizes both the qualification of acts against cultural property as crimes against humanity and their role in proving the mental element of genocide.

The Swinging Pendulum of Cultural Heritage Crimes in International Criminal Law

2020 ◽  
pp. 109-132
Author(s):  
Anne-Marie Carstens
Keyword(s):  
Cultural Heritage ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Historical Analysis ◽  
Hague Convention ◽  
Criminal Court ◽  
Cultural Property ◽  
International Criminal Law ◽  
International Criminal Tribunals

Contemporary prosecutions in international criminal tribunals have exposed a long-standing debate over the role of cultural heritage-based crimes in international criminal law. This chapter presents an historical analysis that reveals that the pendulum has swung back and forth with regard to support for including offenses that expressly refer to the destruction or seizure of artistic, historic, and scientific property and of ‘historic monuments’. While cultural heritage destruction was proposed as an offense after the First World War, a pervasive reluctance to include it largely prevailed from the postwar Nuremberg trials until the late 1980s. This chapter attributes this reluctance in part to coinciding developments in cultural property protection that were occurring outside international criminal law, such as the 1954 Hague Convention and the early drafts of the 1948 Genocide Convention. Before the end of the century, though, the pendulum swung back in favor of including the deliberate and unnecessary destruction of certain cultural heritage as a discrete and separate war crime. Both ad hoc international criminal codes and the Rome Statute of the International Criminal Court reflect lasting recognition of the role that cultural heritage destruction can play in the larger narrative of oppressing, persecuting, and even eradicating targeted collective groups.

The International Criminal Law Aspects of the Protection of Global Commons: The Case of Cultural Heritage

2021 ◽  
pp. 211-238
Author(s):  
Francesca Capone
Keyword(s):  
Cultural Heritage ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Legal Framework ◽  
Cultural Property ◽  
International Criminal Law ◽  
Global Commons ◽  
Recent Developments

This chapter addresses the international criminal aspects of the protection of global commons, with particular regard to cultural heritage. As the general principle of respect for cultural heritage transcends the classic scheme of state responsibility for wrongful acts, international criminal law is recognized as one means of protecting cultural heritage for transmission to future generations. In order to reflect on the capacity of international criminal law to effectively enhance the protection of cultural heritage, first, this chapter aims at providing a critical overview of the existing international legal framework as enshrined in the relevant instruments criminalizing any form of intentional destruction of cultural property. Second, the analysis will focus on the role of the International Criminal Tribunal for the former Yugoslavia (ICTY) and its groundbreaking case law. Third, this chapter will discuss the most recent developments of international criminal practice as it applies to the destruction of cultural heritage, examining in particular the Al Mahdi case.

Types of cultural property and their protection under International Criminal Law

2020 ◽  
Vol 20 (1) ◽  
pp. 220-236
Author(s):  
Ivan Ryška
Keyword(s):  
Human Rights ◽  
Cultural Heritage ◽  
Criminal Law ◽  
Historical Development ◽  
International Criminal ◽  
War Crimes ◽  
Case Law ◽  
Cultural Property ◽  
International Criminal Law ◽  
Crimes Against Humanity

SummaryIn this article we analyze the forms of protection of distinct types of cultural heritage under International Criminal Law. Initially, we introduce the concept of categorization of cultural heritage into types, and review its historical development. The main focus is on the present day approach to the protection based on human rights, which builds heavily on the link between a certain type of cultural heritage and a community or individual. Later, we examine the possible ways to prosecute attacks against cultural heritage under International Criminal Law. Our analysis demonstrates, that the attacks against cultural heritage may, under various circumstances, fall under the category of war crimes, crimes against humanity, or genocide. We support our conclusions by jurisprudence arguments from case law treating the prosecution of destruction of cultural heritage under International Criminal Law.

Prosecuting Starvation under International Criminal Law

2019 ◽  
Vol 17 (4) ◽  
pp. 781-814
Author(s):  
Manuel J Ventura
Keyword(s):  
Present Article ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Legal Documents ◽  
International Criminal Tribunals ◽  
Explicit Reference

Abstract Historically, international criminal tribunals have not included a specific provision criminalizing the use of starvation within their respective statutes or founding legal documents. In light of this, and after clarifying what material/objective and mental/subjective elements characterize starvation, the present article seeks to explore whether it can be adjudicated as a crime against humanity or as an act of genocide and how this could be accomplished within the existing framework of international criminal law. In this respect, it is submitted that the general absence of an explicit reference to a crime of starvation in the statutes of international criminal tribunals is not a legal bar to the prosecution of the corresponding behaviour. Furthermore, this article briefly considers starvation as a war crime, particularly pursuant to Article 8(2)(b)(xxv) of the International Criminal Court (ICC) Statute — which criminalizes starvation in international armed conflicts at the ICC — and the conspicuous absence of a corresponding and parallel provision that would criminalize starvation as a war crime in non-international armed conflicts.

The Principle of Complementarity: A Reflection on Its Meaning, Origin and Types in International Criminal Law

2021 ◽  
Vol 29 (1) ◽  
pp. 82-94
Author(s):  
Muyiwa Adigun
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
World War ◽  
International Criminal Tribunals ◽  
The First World War ◽  
Domestic Courts ◽  
The Relationship ◽  
First World ◽  
Principle Of Complementarity

The principle of complementarity is one of the most important concepts in international criminal law as it defines the relationship between international criminal tribunals and domestic courts. Certain claims have been made in respect of this concept thus this study examines the correctness of the claims made. The study finds that the concept is claimed to have originated from the sciences and that its expression in international criminal law has taken a distinctive form different from that in the sciences, that it is traceable to the First World War and that there are at least about four categories of the concept. The study, however, argues that while the concept originated from the sciences, its expression in international criminal law is no different from that in the sciences, that it is traceable to the trial of Peter von Hagenbach in 1474 (the Breisach Trial) and that there are at least five categories of the concept. The study therefore concludes that the claims made are incorrect.

scholarly journals Nazi Crimes in Poland. A Never-Ending Search for Justice

2019 ◽  
pp. 142-160
Author(s):  
Hanna Kuczyńska
Keyword(s):  
World War Ii ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
World War ◽  
National Courts ◽  
International Criminal Tribunals ◽  
Efficient Machine

This article deals with the model for prosecuting Nazi crimes committed in Poland in the light of the model presently used in international criminal law. It tries to answer the question: should the investigation of crimes of international law be handed over to transnational tribunals? Should they be hybrid tribunals involving a national factor, or completely supra-national tribunals like the International Criminal Court? Is it legitimate to transfer jurisdiction over these matters to national courts? The case of unpunished Nazi crimes in Poland may give a partial answer to this question. Certainly, various attempts made after World War II, including procedures brought before Polish courts, have contributed to understanding the function of international criminal law, and finding the answer to the question of the best model for prosecuting crimes of international law. At present, we also have the experience of international criminal tribunals, in particular the ICC, which is an efficient machine for prosecuting crimes of international law. Interesting conclusions can be drawn from its functioning that could improve the work of Institute of National Remembrance (IPN) prosecutors, and shed new light on the considerations regarding the prosecution of Nazi crimes in Poland after World War II.

The Al Mahdi CaseFrom Punishing Perpetrators to Repairing Cultural Heritage Harm

2020 ◽  
pp. 133-156
Author(s):  
Karolina Wierczyńska ◽  
Andrzej Jakubowski
Keyword(s):  
Cultural Heritage ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Cultural Sites ◽  
Historical Monuments ◽  
Evolving System ◽  
Individual Criminal Responsibility

This chapter examines the ongoing process of consolidating international criminal law regimes for counteracting cultural heritage crimes, with particular focus on reparations for cultural harm. It begins with a wider panorama of international criminal law and jurisprudence in relation to cultural heritage crimes. This background outlines the limited provisions of the Rome Statute and offers some critical observations in relation to the evolving system of individual criminal responsibility for cultural heritage crimes. Second, it scrutinizes the approach taken by the International Criminal Court (ICC) in convicting Al Mahdi for the crime of intentionally directing attacks against buildings dedicated to religion and/or historical monuments. Third, this chapter considers the issue of remedies and reparations for cultural harm suffered in light of the relevant provisions of the Rome State and the practice of international human rights bodies. Next, it analyzes the approach taken by the ICC in Al Mahdi regarding the methodology of determining reparations for the international destruction of cultural heritage. This chapter also analyzes the possible reconsideration of the crime of deliberate attacks against protected cultural sites going beyond the notion and scope of war crime.

scholarly journals International Criminal Law as a Spotlight and Black Holes as Constituents of Legacy

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 209-213 ◽  
Author(s):  
Larissa van den Herik
Keyword(s):  
Black Holes ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
International Criminal Tribunals ◽  
One Step ◽  
Overall Performance ◽  
Fair Balance

This contribution engages with Sara Kendall’s and Sarah Nouwen’s article on the legacy of the International Criminal Tribunal for Rwanda (ICTR) and their call for an ethos of institutional modesty. I much support the nuanced approach that underlies their call and I see it as a prerequisite to properly and adequately appreciate the ICTR’s past existence and operation. I would even be open to moving one step further in the direction of an ethos of sobriety. Rather than seizing the momentum to celebrate accomplishments and highlight milestones, legacy-talk and legacy-construction of international criminal tribunals should entail a form of reckoning. Indeed, as suggested by Kendall and Nouwen, the “justices not done” and the “justices pending” must be part and parcel of the ICTR’s legacy-constructions so as to offer a fair balance and to capture the ICTR’s overall performance, explicitly accounting for results as well as omissions.

Sign in / Sign up

Export Citation Format

Share Document