SPECIAL PROTECTION TO CULTURAL PROPERTY IN AN

ARMED CONFLICT

Destruction of cultural property is not unknown to mankind. This phenomenon has been witnessed
immense number of times in the history of international law, be it the Holocaust which aimed at
eradicating the identity of the Jews or China’s recent efforts to cleanse its Muslim Uighur minority
population. Laws protecting cultural property assume significant prominence as targeted attacks against
monuments, institutions or works of art which preserve the ethnicity of a group, are considered to be a
crime against the international community as a whole. This paper is an attempt to highlight the nuances
of the crime of destroying cultural property in an armed conflict, with an analysis of the Conventions and
customs that surround it. While it focuses on discussing the intricacies of a 2005 ICTY case, it aims to
give the readers an idea of the importance given to protecting cultural identities. However, it also
highlights how enforcement of laws protecting cultural property has been weak and it needs to be
strengthened to achieve true cultural autonomy in the global scenario.

Keywords: Cultural property, Military necessity, Proportionality

1
Contents
I. Introduction..............................................................................................................................................3
II. Definition and Significance.....................................................................................................................4
III. History of the Law governing Cultural Property....................................................................................5
IV. The 1954 Hague Convention.................................................................................................................7
A. Special and General Protection...........................................................................................................7
B. Lacunae in the Enforcement Mechanism of the 1954 Convention......................................................9
V. Types of Crimes against Cultural Property...........................................................................................11
A. Genocide...........................................................................................................................................11
B. Destruction of Cultural Property as War Crimes...............................................................................13
C. Destruction of Cultural Property as Crimes against Humanity..........................................................14
VI. The concept of ‘Proportionality’.........................................................................................................15
VII. Military Necessity..............................................................................................................................16
VIII. Prosecutor v. Strugar (Pavle)............................................................................................................17
Facts of the Case....................................................................................................................................17
Whether an attack against civilians could be justified by military necessity?........................................18
Arguments of the Prosecution............................................................................................................18
Arguments of the Defense.................................................................................................................18
Tribunal’s holding.............................................................................................................................18
Whether special protection given to cultural property was lost if the said property was in the immediate
vicinity of military objectives?..............................................................................................................19
Arguments of the Prosecution............................................................................................................19
Arguments of the Defense.................................................................................................................19
Tribunal’s holding.............................................................................................................................19
IX. Custom................................................................................................................................................20
Direct attack...........................................................................................................................................20
Collateral damage..................................................................................................................................22
X. Conclusion............................................................................................................................................22
XI. References...........................................................................................................................................24

2
 I. Introduction
Cultural properties have been afforded special protection under international law in times
of an armed conflict. Several conventions and declarations highlight the same. 1 It has become a
part of customary international law to bestow special attention towards cultural property. 2 In a
2005 case before the International Criminal Tribunal for Yugoslavia (‘the ICTY’), this issue
arose after Pavle Strugar (the ‘accused’) shelled the Old Town in Dubrovnik which damaged
many structures of cultural significance. 3 This paper is an attempt to trace the historical evolution
of such laws on cultural property, while focusing on the case mentioned above.

At the very outset, the author would clarify that this paper does not address all kinds of
hostile attacks against cultural property, such as their belligerent occupation, theft, pillage,
vandalism, misappropriation and plunder. It only addresses the protection of property from direct
and incidental damage in cases of an armed attack.

This paper is an attempt to elaborate on the laws which govern the protection of cultural
property in the international sphere. For a proper understanding of this subject matter, Part II
begins with identifying what is meant by the term cultural property and its significance in
international law. Part III then traces the history of the evolution of these laws followed by a
discussion on the 1954 Hague Convention in Part IV. Thereafter, Part V discusses different
types of crimes that can be committed against cultural property followed by a discussion on the
concepts of proportionality and military necessity in Parts VI and VII respectively. Part VIII
then discusses a case of the ICTY which revolved around the destruction of historic property in
Dubrovnik, highlighting the importance of laws to protect cultural property. Customs on such
laws have been discussed in Part IX. Finally, Part X concludes with the author’s final
observations.

II. Definition and Significance

There is not a single prevalent definition of cultural property. It depends upon the context

1
UN Educational, Scientific and Cultural Organisation (UNESCO), Convention for the Protection of Cultural
Property in the Event of Armed Conflict, 14 May 1954 (hereinafter, ‘Hague Convention’).
2
General Conference, World Heritage Committee, UNESCO, 27 C/Resolution 3.5, preamble, Recital (b) (2003).
3
Prosecutor v Strugar (Pavle), Judgment, Case No IT-01-42-T, ICL 976 (ICTY 2005), 31st January 2005
(hereinafter, ‘Strugar case’).

3
in which it is being applied,4 the perspective taken and also the result which the parties or court
intend to achieve.5 Most conventions define the term for the purpose of that instrument in one of
their provisions. Say for example, the Hague Convention of 1954, defines cultural property in
Article 1 as ‘movable or immovable property of great importance to the cultural heritage of
every people’.6 It is to be noted that cultural property is not the same as cultural heritage as the
latter can be taken to include traditional songs, folklore, poetry, etc. as well. 7 Such intangible
culture is also protected by certain treaties such as the Convention for the Safeguarding of the
Intangible Cultural Heritage, 2003.8 However, for the purpose of this paper, we refer to cultural
property which includes tangible physical structures/objects.

Some Conventions give a more holistic definition by specifying ‘works of art’, ‘historic
monuments’ and ‘places of worship’, rightly adding the element of spirituality prevalent in most
cultures.9 Some other Conventions give their own exceptions in the form of hospitals and places
where sick and wounded are collected. 10 Overall, it can be broadly understood that cultural
property may include structures of historic, cultural, artistic, archaeological or even spiritual
importance but the ambit of this term has to be kept within the boundaries of the specific
convention that it is being dealt under.

The study of this field of law assumes significant importance in the international sphere.
Several cultural structures and monuments represent the identity and character of a community. 11
Old towns and cities were made in certain ways which were unique to themselves and formed a
distinct part of their popularity. In such a situation, it was very easy for the enemy in an armed
conflict to try and destroy these structures in order to exterminate the other side. 12 Such
4
Roger O’Keefe, The Protection of Cultural Property in Armed Conflict, 25 (2006).
5
Askerud Pernille & Etienne Clément, Preventing the Illicit traffic in Cultural Property: a resource handbook for the
implementation of the 1970 UNESCO Convention, CLT.97 / WS / 6 (1997); Irini A. Stamatoudi, Cultural Property
and Restitution 4 (2011).
6
Hague Convention, Article 1.
7
Stamatoudi, supra note 5, pg. 8.
8
UN Educational, Scientific and Cultural Organisation (UNESCO), Convention for the Safeguarding of the
Intangible Cultural Heritage 2003, 17 October 2003.
9
International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125
UNTS 3, Article 53; O’Keefe, supra note 4.
10
International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on
Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Article 27
(hereinafter, ’Hague Rules’).
11
Joris D. Kila & Marc Balcells, Heritage and Identity: Issues in Cultural Heritage Protection, Vol. 3 181 (2014).
12
Id., 181.

4
destruction of the collective conscience of the town, or ‘urbicide’, in a way ‘murders the city’
and removes it from the history of mankind. 13 Popular examples of such an activity could be
Sarajevo and Beirut.14 The case that this paper seeks to highlight, the Pavle Strugar case, is also a
classic example of the same, wherein the destruction of the Old Town in Dubrovnik was an act
against the identity of the city inhabitants at large. 15 In fact, the Old Town was included as a part
of the UNESCO World Heritage List in 1979.16 This list includes areas of cultural, historic,
religious or other significance which enjoy special legal protection. They are said to be of
‘outstanding value to humanity’.17 Thus, the international laws preserving such historic structures
become very important in light of such atrocities being committed against them.

III. History of the Law governing Cultural Property

The history of the laws protecting cultural property dates back to the time of Grotius, who
is said to have believed that reason or logic ‘compelled’ one to not harm those things which
neither weakened the enemy nor gave advantage to the one harming them, such as ‘things of
artistic value’.18 He was supported by other scholars such as Gentili 19 and Textor.20 However,
they all accepted the principle of necessity, describing the killing of civilians and cultural
property as lawful if it was unavoidable in the affairs of the war. 21 The notion of artistic creations
and monuments as being a separate category of property started emerging in the 16th century.22
Over the years, these laws kept evolving till the French Revolution and the Napoleonic wars
between 1803-15, which again saw a change in the attitude of people towards these heritage
structures.23 With the revolution gaining momentum, the French became apprehensive of the
effect it might have on their cultural property.24 A Commission of Monuments was established in

13
Id., 181.
14
Id., 181.
15
Strugar case.
16
Strugar case.
17
O’Keefe, supra note 4.
18
Hugo Grotius, On the Law of War and Peace, Book 3, chap. 12, s. 6 (1626).
19
Albericus Gentili, Three Books on the Law of War (1598), translated by J. C. Rolfe (1933), book 2, chap. 23.
20
J. W. Textor, Synopsis Juris Gentium (1680), translated by J. P. Bate (1916), chap. 18, ¶33.
21
O’Keefe, supra note 4, 7.
22
O’Keefe, supra note 4, 8.
23
O’Keefe, supra note 4, 8.
24
O’Keefe, supra note 4, 12.

5
1790,25 exceptions were made to not destroy monuments when ordering decrees for attacking
property and destruction of such properties was penalized.26

The laws underwent a series of developments until the signing of several treaties to
protect artistic structures. To begin with, the Brussels Declaration, 1874,27 laid the foundation
stones for the laws governing war on land, which was followed by the first and the second Hague
Peace Conference in 1899 and 1907 respectively. Article 27 of the Hague Rules stated that the
parties engaging in sieges should take steps ‘as far as possible’ to ‘spare’ ‘buildings dedicated to
religion, art, science, or charitable purposes, [and] historic monuments, . . . provided they are
not being used at the time for military purposes’.28 These words clearly show that neither a direct
attack on such properties was permissible nor was any damage due to attacks on nearby
properties, lawful. However, the words as far as possible clearly show how unavoidable
damages would not be taken as being unlawful. The meaning of military purposes is not very
clear from the text of the Convention. The travaux preparatoires lend some assistance in
reaching the meaning of the term. It was agreed between the parties that military purposes would
include the use of buildings as quarters or offices, and also for observing the enemy
movements.29 Then again, Article 23(g) of the Hague Rules permit the destruction of buildings
only if ‘demanded by the necessities of war’.30 This implies, that the mere use of a building for
military purposes will not justify attacking it; the attack should be one which is necessary and it
is justified only to the extent of that necessity. It is important to note here that there is no
prohibition on the use of cultural property for military purposes.

This brings us to the Convention for the Protection of Cultural Property in the Event of
Armed Conflict, 1954, popularly referred as the Hague Convention, which requires the
contracting states to respect cultural property by refraining from using it and its vicinity in any
such way which may expose it to damage in case of an armed conflict. 31 The waiver of this
requirement can be made in case of a military necessity. Examples of this military necessity may
25
Françoise Choay, The Invention of the Historic Monument, translated by L. M. O’Connell (2001), p. 195;
O’Keefe, supra note 4, 13.
26
O’Keefe, supra note 4, 14.
27
European Union, Brussels Declaration on Preventing and Combating Trafficking in Human Beings, 29 November
2002, 14981/02.
28
Hague Rules, Article 27.
29
Sir James Edward Edmonds & Lassa Oppenheim, Land Warfare, ¶136 (1912); O’Keefe, supra note 4, 25.
30
Hague Rules, Article 23(g).
31
Hague Convention, Article 4(1).

6
include, as given in a UK Manual, using a historic bridge which is the only way to cross a river. 32
Another example, given by a German manual is that of a place in the vicinity of a culturally
protected property, which is the only place from which the enemy post can be targeted. 33 Further,
the Hague Convention provides guidelines on military purposes by stating that the armed
patrolling of property and presence of police forces in its vicinity, for the purpose of maintaining
order, does not amount to use for military purposes.34 Thus, the laws protecting cultural property
have developed over hundreds of years to be finally codified in Conventions governing
international affairs.

IV. The 1954 Hague Convention

The Hague Convention is the first treaty which exclusively focuses on protecting cultural
property in the situation of an armed conflict. It is supplemented by two protocols, in 1954 and
1999, which together form a part of international humanitarian law and make a comprehensive
code which defines the boundaries of warfare pertaining to cultural property.

A. Special and General Protection

The Hague Convention creates a distinction between general and special protection
afforded to cultural property.35 Certain scholars view this distinction to be merely an
impressionistic one without properly demarcated legally enforceable standards.36 Distinctions in
the text of the Convention can be seen from the wording of Articles 1 and 8 wherein the former
affords protection to cultural property of great importance while the latter protects cultural
property of very great importance.37 This clearly does not establish a clear demarcation between
the two. It is highly unlikely that a State would object to affording protection to a monument by
claiming that it was a greatly important but not a very greatly important structure.38

However, there are certain severe restrictions placed under Article 8 for cultural property
to be eligible for special protection, such as, the structure should be ‘situated at an adequate

32
UK Manual, ¶5.25.3, 1 July, 2004,
33
Federal Ministry of Defence Publication, Zdv 15/9 (1964), p. 16; A.P.V. Rogers, Law on the Battlefield, 144-5
(1996).
34
Hague Convention, Article 8(4).
35
Hague Convention, Articles 1 & 8.
36
O’Keefe, supra note 4, 144.
37
Hague Convention, Articles 1 & 8.
38
Hague Regulations, 1954, Article 14.

7
distance from any large industrial centre or from any important military objective constituting a
vulnerable point’.39 The inadequacy of clarity in the word ‘adequate’ in this provision did not
attract a major discussion among the drafters. In fact, quite surprisingly, the ‘technical advisory
committee’ which was required to be formed in order to reconcile and harmonize the differences
between the different contracting States as to the meaning of the ‘adequate distance’ never came
to be established.40 The only idea that the travaux seems to suggest is that while interpreting the
ambit of this term, the purpose of the Convention should be kept in mind which is to give the
widest protection to different types of cultural property all across the world.41

Subsequent practice of the States does not provide much clarity either, other than
suggesting that it is only under exceptional situations that cultural property shall be robbed of its
protection under the excuse of it not being at an adequate distance.42 Very few States even
planned on getting culturally important structures within their territories registered under the
‘International Register of Cultural Property under Special Protection’ 43 and those who did,
thwarted their plans. For example, Italy planned on getting certain structures in the center of
Florence and the Aurelian Walls within the List but abandoned the plans. 44 The same happened
with Austria’s list of 21 items. 45 Poland and Switzerland have also not included any structures in
the list of specially protected cultural property due to the strict requirements of Article 8(1)(a)
and because almost all museums are near/around stations/bridges/lines of communication. 46 A
similar debate exists about the vagueness of the term ‘large’ industrial center. Overall, this
distinction between general and special protection is a highly unused one, as it is well established
that protection given to cultural property is a part of customary international law, with custom
itself providing certain conditions when the protection can be waived off.

B. Lacunae in the Enforcement Mechanism of the 1954 Convention

Scholars have often criticized the lack of adequate enforcement mechanisms under the

39
Hague Convention, Article 8(1)(a).
40
O’Keefe, supra note 4, 167.
41
O’Keefe, supra note 4, 167.
42
O’Keefe, supra note 4, 167.
43
Hague Convention, Article 8(6).
44
Information on the Implementation of the Convention for the Protection of Cultural Property in Case of Armed
Conflict, 1967 Reports, UNESCO Doc. SHC/MD/1, p. 27.
45
Id.
46
Information on the Implementation of the Convention for the Protection of Cultural Property in the Event of
Armed Conflict, 1979 Reports, UNESCO Doc. CC/MD/41.

8
1954 Convention. It has repeatedly failed to protect cultural property. Its provisions have been
termed as being merely ‘theoretical’ without having any real ground-level implications. The two
most prominent issues that have come to light are first, the misuse of the exception of military
necessity and second, the lack of adequate mechanisms to enforce sanctions against the law-
breakers. The conflict in former Yugoslavia has been termed as one of the gravest examples of
the weakness of the 1954 Convention.

In the 1990s, a review of the Convention was carried out, in order to add teeth to it. 47 This
was done with the aim of addressing its gaps. 48 A notable recommendation made by the
Committee was a change in the ‘military necessity’ exception, which, was omitted from the final
document drafted by the Government of Netherlands.49 Several deliberations and discussions
finally led to the adoption of the Second Protocol of the Convention in 1999. This led to the
formation of a Committee of Experts which would perform a variety of functions such as
reviewing the Reports from the States as to their work towards the protection of cultural
property, managing the voluntary monetary contributions from states and planning for
emergency situations.50 However, certain important inadequacies that were addressed by the
Second Protocol were removal of the exception of attacking cultural property in the vicinity of a
military target. This is because superior technology enabled states to target places accurately.
Further, the Protocol curtailed the means by which applications could be objected to. It
streamlined the military necessity exception to bring it in line with the developments in the
humanitarian law.51

The 1954 Convention created a distinction between general protection and special
protection and afforded a lower degree of protection to the former. The Second Protocol
removed this distinction entirely to afford the same protection to all types of cultural property.
The only difference that was maintained was that of the defender’s obligations, that is, the
defendant is permitted to use property under general protection for military purposes, but that
47
Review of the application of the Convention for the Protection of Cultural Property in the Event of Armed
Conflict, UNESCO doc. 140 EX/26, Paris, September 11, 1992.
48
Id.
49
David Keane, The Failure to Protect Cultural Property in Wartime, DePaul Journal of Art, Technology and
Intellectual Property Law, Vol. 14(1) (2004).
50
Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,
The Hague, March 26, 1999, Article 29 (hereinafter, Additional Protocol II). 
51
Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the Event of Armed
Conflict (1993). 

9
under special protection cannot be used for the same. Further, the Convention only ascribed
individual criminal responsibility to the accused persons but did not have any list of specific
offences so that individuals could be charged. The Second Protocol also introduced a list of
specific acts which would amount to crimes under the Convention. 52 This Protocol imposes
duties on the States that are party to it to introduce domestic laws in order to penalize the
commission of these offences, something which the Convention lacked. Thus, while the 1954
Convention did not have a very strong mechanism for the enforcement of the principles that it
enshrines, most of these weaknesses were overcome by the Second Protocol.

The international character of the Convention does not allow the enforcement of the
Convention in case of local conflicts. Several cases in the past have highlighted this issue.
Article 1 of the Convention itself states that it applies to only properties which hold great
importance to the cultural heritage of all the people.53 This character, popularly framed as,
cultural internationalism, has led to the non-enforcement of the Convention in many cases of
cultural destruction.54 This was especially witnessed in former Yugoslavia; wherein Catholic and
Muslim sites were seen as military targets. 55 Another gap in the Convention can be witnessed in
the attack in the city of Gradacac, in the Federation of Bosnia and Herzegovina. 56 Reports
highlighted that the city witnessed a deliberate attack against the mosques which was a part of a
wider agenda of ethnic cleansing.57 Here, while the all elements of the crime had been fulfilled, it
still failed to attract the protection afforded under the 1954 Convention by virtue of the fact that
it does not cover locally situated religious sites.58

Thus, while the 1954 Convention has played a significant role in preserving cultural
property since its inception, it still has certain weaknesses which need to be addressed.

V. Types of Crimes against Cultural Property

It is very important to note that there are different types of crimes of varying severity
52
Additional Protocol II, Article 15.
53
Hague Convention, Article 1.
54
Gregory M. Mose, The Destruction of Churches and Mosques in Bosnia-Herzegovina: Seeking a Rights-based
Approach to the Protection of Religious Cultural Property, 3 BUFF. J. INT'L L. 180 (1996).
55
Keane, supra note 49.
56
Keane, supra note 49.
57
Report on a Fact-finding Mission on the Situation of the Cultural Heritage in Bosnia-Herzegovina and Croatia,
June 1994, Doc. AS/CULT/AA.
58
Mose, supra note 54.

10
under international law that can be committing against cultural property. While the crime of
destroying such property during an armed attack forms the crux of this paper, this Part shall
briefly throw light on certain crimes such as Genocide (A), War Crimes (B) and Crimes against
Humanity (C) and expound their meanings with respect to cultural property.

A. Genocide
The crime of genocide has been described in the Convention on the Prevention and
Punishment on the Crime of Genocide (“Genocide Convention”) as an act “which is committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”
followed by examples of certain physical and biological acts which would constitute the said
crime.59 Here, we notice a widely criticized lacuna in the law such that the Genocide Convention
fails to include crimes committed against cultural property, which are committed with the
intention of destroying certain groups, under the crime of genocide.60

The initial drafts of the Genocide Convention had included the destruction of cultural
property as a genocidal crime, defining it as destroying the cultural institutions of a group with
the intention to destroy its culture.61 However, this was explicitly rejected by the framers who
wanted to restrict the crime to physical and biological crimes only. 62 The concept of cultural
genocide was further rejected in 1996 by the International Law Commission which rejected the
concept of destruction of religious and national interests to be included in the definition of
genocide.63 The ICTY, in the Krstic case, has also noted that in case of attacks which are
restricted to the sociological and cultural aspects of a select group, the crime of genocide would
not be invoked.64 However, an interesting point noted by the tribunal was that while the actus
reus of destroying cultural heritage could not form a part of genocide, it could be used to show
mens rea for committing the crime, which is usually accompanied with other physical or
biological destructive acts. Thus, while it does not do justice entirely, it is arguably a step

59
UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948, United Nations, Treaty Series, vol. 78, Article 2.
60
Leora Bilsky and Rachel Klagsbrun, The Return of Cultural Genocide?, The European Journal of International
Law Vol. 29 no. 2 (2018).
61
Draft Convention on the Prevention and Punishment of the Crime of Genocide (UN Doc. E/794), Article 3(2),
United Nations Economic and Social Council, Third Year, Seventh Session, Supplement No. 6, Annex.
62
United Nations. Official Records of the Third Session of the General Assembly, Part I. Sixth Committee,
Summary Records of Meetings 21 September-10 December 1948, p. 202.
63
Report of the International Law Commission on the work of its forty-eighth session (1996).
64
Prosecutor v. Krstic´, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, ¶580.

11
forward in recognizing the gravity of such crimes. While the Nuremburg trials dealt with a
classic case of attacks against a particular ethnic group with an intent to destroy the same, it
failed to elaborate on the concept.65 This was because of the rule against the retroactivity and the
trials’ supreme focus on war crimes and crimes against humanity. 66 However, it was in response
to these trials that Professor Raphael Lemkin coined the term genocide which means ’killing of
the tribe’.67

The case of Prosecutor v. Al Mahdi, adjudicated by the International Criminal Court, is

entirely based on destruction of cultural property.68 While the judgment is a celebrated one as it
elaborately deals with cultural destruction and draws out a link between the attack on a group’s
cultural property and destruction of its heritage, it is also criticized for not holding the accused
responsible for cultural genocide.69 The accused was a member of an extremist Islamic group
linked to the Al-Qaeda and was charged with the war crime of unlawful attack on historic
monuments.70 The Court in its judgment explicitly recognized that attacks on religious and
cultural heritage are some of the most serious crimes concerning the international community. 71
Yet, it fell short of charging the accused for committing the crime of cultural genocide. However,
the Court cannot be criticized for not holding the accused liable for cultural genocide as the
recognition of this crime has been explicitly rejected several times under international law.

Thus, there is a clear lacuna in the law, such that destruction of cultural property is one of
the prominent ways by which an entire race or ethnic group can be extinguished from the society
and while the crime of genocide means the same (attacks with the intent of destroying a group),
it is only surprising for this crime to not include such destructions.

B. Destruction of Cultural Property as War Crimes

The war crime of attacks against cultural property comprises a requisite mens rea and

65
L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (2001).
66
Id.
67
Raphael Lemkin, Axis rule in occupied Europe: Laws of Occupation, Analysis of Government, Proposals for
Redress, The Lawbook Exchange Ltd. (2005).
68
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi (ICC-01/12-01/15–171), Trial Chamber VIII, 27
September 2016.
69
Id.
70
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998,
Article 8(2)(e)(iv).
71
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi (ICC-01/12-01/15–171), Trial Chamber VIII, 27
September 2016, ¶72.

12
actus reus. The actus reus is derived from the substantive rules governing attacks against cultural
property. The two justifications under custom for attacking cultural property are when the
property is used for military purposes and also when the property, by virtue of its use, location,
nature or purpose, makes it a strategic contribution to military acts and its weakening or
neutralization adds to military advantage.

When damage is willfully caused to structures dedicated to religion, arts, education or

historic monuments, it amounts to a war crime under Article 3(d) of the Statute of the ICTY. 72
The Strugar case stated that war crimes can be committed in both domestic as well as
international conflicts.73 The ICC Statute also holds a similar definition for the war crime of
intentionally attacking cultural property, provided such property was not being for military
purposes.74 However, it is important to note the difference between the two statutes when it
comes to the nature of attack against property. The ICTY requires real damage or destruction of
cultural property in order for the crime to be a war crime, while the ICC requires only the attack
to be directed against such property. The latter is considered to be a better position, reflective of
custom.75

The requirement of mens rea requires the accused to attack cultural property with the
intention or knowledge that such circumstances or structures exist. 76 This intention or knowledge
can be imputed to the accused from surrounding facts and circumstances. For example, in the
Strugar case, the fact that the distinctive emblem of the Old Town was visible from the position
of the accused was enough to show that he had knowledge of his act causing destruction to
cultural property.77 Even incidental damage caused to such property due to unlawful attacks is a
war crime if the damage caused is excessive when compared to the directly anticipated benefit.
The war crime of destroying cultural structures is one which is considered to be an attack against
the international community at large.78 Tribunals have stated that this crime is even more grave

72
UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17
May 2002) 25 May, 1993, Article 3(d).
73
Strugar, Trial Chamber Judgment, ¶230
74
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998,
Articles 8(2)(b)(ix) and 8(2)(e)(iv).
75
O’ Keefe, supra note 4.
76
Strugar case, Trial Chamber Judgment, ¶312.
77
Strugar, Trial Chamber Judgment, ¶329.
78
Prosecutor v. Jokic´, IT-01-42/1-S, Trial Chamber Sentencing Judgment, 18 March 2004, ¶46.

13
than attacking civilian objects.79 This is because all these historic structures are such, that if once
destroyed, it is almost impossible to regain their original form, as some part of the structure is
always completely lost.80

Thus, individual criminal responsibility is held for attacks against cultural property as a
war crime.

C. Destruction of Cultural Property as Crimes against Humanity

Certain forms of war crimes may also amount to crimes against humanity. Similarly,
attacks against cultural property may also be crimes against humanity, as has been held by the
ICTY in several cases.

One of the fundamental features of crimes against humanity is that it should be directed
against civilian population, irrespective of whether this population belongs to an occupied
territory.81 Further, in case of destruction of cultural heritage during an armed conflict, it is only
if the attack is a part of a systematic or a widespread attack against a civilian population that it
amounts to crimes against humanity.82 Isolated acts cannot amount to such a crime. 83 Thus,
sporadic attacks on cultural sites cannot amount to a crime against humanity. Also, it is
important to note that it is not necessary that a crime against humanity can only be committed
during an armed conflict. 84 It can be a systematic attack even during non-conflict
circumstances.85 The mens rea of this crime requires the intent and knowledge to carry out such
an attack on civilians.86

Three cases have primarily addressed the issue of attack against cultural property
amounting to a crime against humanity, namely, the Blaskic, Kordic and Brdjanin cases. Article
5 of the ICTY Statute enshrines the persecution on religious and racial grounds as a crime

79
Id., ¶46.
80
Id.; O’ Keefe, supra note 4.
81
UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17
May 2002) 25 May, 1993, Article 5.
82
Report of the Secretary-General pursuant to ¶2 of Security Council resolution 808 (1993), UN Doc. S/25704, 3
May 1993, ¶48; Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law
Commission on the work of its forty-eighth session, UN Doc. A/51/10, 6 May (1996).
83
Kunarac, Appeals Chamber Judgment, ¶96.
84
Report of the Secretary-General pursuant to ¶2 of Security Council resolution 808 (1993), ¶47.
85
Tadic´, Trial Chamber Judgment, ¶713.
86
Kunarac, Appeals Chamber Judgment, ¶102.

14
against humanity.87 In the Blaskic judgment, the Trial Chamber held that this provision also
included attacks against targeted properties such that the victims were chosen on the basis of
their community.88 Thus, persecution was held to include the destruction of symbolic structures
belonging to the Muslim community.89 The Kordic and Brdjanin judgments also held that
discriminatory and willful damage of religious structures would be a crime against humanity. 90 In
fact, in all these cases, the same conduct of the accused was held to be both a war crime as well
as a crime against humanity.91

Thus, tribunals have explicitly dealt with attacks against cultural structures, symbolic of
the heritage of one particular community and held the accused liable for a crime against
humanity. These kinds of attacks can thus amount to such a crime, provided the other criteria
such as the attack being a systematic one aimed against civilians and the requirement of mens
rea, are fulfilled.

VI. The concept of ‘Proportionality’

The recent developments, from a military perspective, are when cultural sites are used by
armies to gain strategic advantage over the enemy. Say if towers, ancient fortifications or castles
are used as lookout positions.92 This was the case in 2005 when US soldiers were using a minaret
in Iraq as a fort to keep an eye on the enemy.93 This tower was then blown by the insurgents.94
Since the tower was used for ‘military purposes’, the insurgents should ideally not have been
held guilty. One can fairly argue that in an armed conflict, keeping an eye on the enemy is as
much a military activity as planning your defense. However, this act can classify as a crime
under several Conventions such as the Hague Convention. 95 This is because of the concept of
proportionality. It compares the excessiveness of an attack with the military or strategic

87
UN Security Council, Statute of the International Criminal Tribunal for the Former Yugoslavia (as amended on 17
May 2002) 25 May, 1993, Article 5.
88
Prosecutor v. Blaskic´, IT-95-14-T, Trial Chamber Judgment, 3 March 2000, ¶233.
89
Id.
90
Prosecutor v. Kordic´ and Cˇerkez, IT-95-14/2-T, Trial Chamber Judgment, 26 February 2001, ¶207; Prosecutor
v. Brdjanin, IT-99-36-T, Trial Chamber Judgment, 1 September 2004, ¶1022.
91
Id.
92
Kila & Balcells, supra note 11, 185.
93
Al Jazeera, Top of ancient Iraq minaret blown up, April 1, 2005, available at
https://www.aljazeera.com/archive/2005/04/2008410131746158914.html (Last visited on 31 October, 2020).
94
Id.
95
Kila & Balcells, supra note 11, 186.

15
advantage that it seeks to gain. Factors guiding this principle are first, if there was a military
necessity and second, if the property had been made a military target.96 Thus, if temples are being
used to fire missiles at the enemy, there is a high chance that an attack on the temple would not
amount to an international crime. However, if a fort (which is a cultural property) is used to store
food for the soldiers of an enemy, an attack on such a fort would not be justified. Another classic
example of the application of the rule of proportionality is of the Gulf War, 1991, wherein Iraq
placed fighter aircrafts in the vicinity of a historic ziggurat. 97 The Coalition fighter thereby
decided to not attack the two aircrafts as they compared the military advantage gained from two
aircrafts which did not have runways, with the damage which could have been caused to the
temple.98 Since the risk of the latter clearly outweighed the benefit from the former, they did not
attack the area. Thus, we can say that there was no ’military necessity’ to attack the vicinity of a
cultural property in this case. The concept of military necessity has been discussed in the next
part of the paper.

VII. Military Necessity

Military necessity is a defense which can be claimed for attacking cultural property. It is
a part of the just war theory, which has three components, namely, jus ad bellum (justice in going
to war), jus in bello (means of conducting war) and jus post bellum (means of concluding war in
peace).99 It provides for justifications to attacking civilian or non-military areas which normally
would not be justified, but in certain situations can be valid. 100 It believes that that the army can
take into account the practicalities of a situation in order to win the war. It acknowledges the
motive of winning a war as a legitimate factor to be considered in determining the laws of war.
However, this defense also has its limitations, as follows:

1. An attack which is being justified to be a military necessity is one which should have the
intent of destroying or defeating the enemy. If it does not have such an intent, there
cannot be a military purpose to it;101
2. If the attack is not aimed at defeating the enemy but only at weakening it, then the harm

96
Kila & Balcells, supra note 11, 186.
97
Kila & Balcells, supra note 11.
98
Id.
99
Kila & Balcells, supra note 11, 194.
100
Kila & Balcells, supra note 11, 194.
101
Kila & Balcells, supra note 11, 195.

16
 which is caused to civilians or civilian objects should be comparable to the ‘concrete and
direct military advantage’;102
3. Other rules of humanitarian law should be respected in addition to the above
limitations.103

The concept of proportionality, in a way highlighted above, is thus which should be

followed in respect of cultural property. These two rules of proportionality and military necessity
guide the principles underlying the laws on protection of cultural property.

VIII. Prosecutor v. Strugar (Pavle)

Facts of the Case
Pavle Strugar (‘the accused’) was the Commander of an Operational Group of the
Yugoslav People’s Army (‘the YPA’).104 The Operational Group was formed to carry out a
military activity against Croatia.105 On December 6, 1991, the YPA shelled the Old Town, a
location in Dubrovnik, Croatia.106 This attack led to killing two people, injuring others and at the
same time, destroyed several buildings of historic and cultural importance.107

While the ICTY in this case dealt with five issues, this paper shall deal with just the
following ones, with more focus on the latter issue:

1. Whether an attack against civilians could be justified by military necessity.

[This is being discussed, only for the purpose of shedding light on the concept of military
necessity with respect to civilian objects, as cultural property is a smaller subset of the
general term ‘civilian objects’.]
2. Whether special protection given to cultural property was lost if the said property was in
the immediate vicinity of military objectives.

102
Kila & Balcells, supra note 11, 195.
103
Kila & Balcells, supra note 11, 195.
104
Strugar case.
105
Strugar case.
106
Strugar case.
107
Strugar case.

17
Whether an attack against civilians could be justified by military necessity?
Arguments of the Prosecution
The Prosecution argued that the people who had died due to injuries caused by the
shelling were civilians and hence charged the accused with attack on civilians and civilian
objects.108 It argued that the exception of ‘military necessity’ did not exist for killing civilians. 109
The shelling on the Old Town and other areas amounted to direct and intentional attacks on
civilian objects.

Arguments of the Defense

The Defense disputed the civilian nature of the people who had been killed and also the
Old Town and other buildings that were destroyed.110 Its argument with respect to the latter was
that those structures were non-civilian as they provided ‘administrative and logistical support’111
for military acts. This gave rise to a military necessity to destroy them as their destruction could
give strategic advantage to them.

Tribunal’s holding
The ICTY rejected the argument of the Defense.112 It held that the Old Town was
occupied by civilians and any attack on the Old Town would cause civilian deaths. This fact was
known to the YPA and hence the shelling of the Old Town caused the murder of civilians which
was a violation of custom and the laws of war. They had knowledge of the civilian occupation of
the Old Town and hence the bombing was intentional. The argument of military necessity was
rejected because there was no proof of ‘overt military act’ being carried out by any of those
civilians. While the Tribunal accepted the plausibility of some civilians being connected to the
Croatian army, that could not suffice to justify their killing as being a ‘military necessity’. There
were no firing points or other armed objectives in the town.113

The ICTY recognized the prohibition against the attack on civilians to be a custom under
international law.114 It recognized the humanitarian nature of such a prohibition by highlighting

108
Strugar case.
109
Strugar case.
110
Strugar case.
111
Strugar case.
112
Strugar case.
113
Strugar case.
114
Strugar case.

18
how these laws draw a fundamental distinction between combatants and non-combatants. Any
attack on or near civilians jeopardizes the health of peaceful people who are not even involved in
active combat. Prohibition of attack against civilians is not simply to save their lives but also to
spare them from the risk of being exposed to armed atrocities. The risk or fear in their minds of
being attacked can anyway not be removed completely. 115 Hence such international laws are a
step towards protecting such civilians.

Whether special protection given to cultural property was lost if the said property
was in the immediate vicinity of military objectives?
Arguments of the Prosecution
The Prosecution claimed that there was an intentional attack on buildings which were
dedicated to arts, charity, religion or education.116 This destruction of cultural property, it
claimed, could not be justified by military necessity as the attack was a willful one which had
caused destruction.117

Arguments of the Defense

The defense made a contested argument in response to this issue. It claimed that the fact
that the cultural property was in the vicinity of the military activities, destruction of the same was
justified.118 Thus, its argument was that the location of a cultural property could be a factor to
determine whether an attack on it could be justified or not.

Tribunal’s holding
The Tribunal again rejected the argument of the defense.119 It stated that the location of
cultural property could not be a reason to justify its destruction. It is only if the property in
question was being used for military purposes that an attack on the property could be justified.
The term ‘military purposes’ can be understood from Article 52 of the Additional Protocol I
which defines it as those objects which due to their nature, use or location contribute to military
strategic actions and the destruction, whether total or partial, is giving a definite military

115
Strugar case.
116
Strugar case.
117
Strugar case.
118
Strugar case.
119
Strugar case.

19
advantage to the enemy.120 The ICTY elucidated on Article 3(d) of the Statute of the ICTY to
hold that the following elements comprised the crime of ‘destruction’ or ‘willful damage’ of
cultural property:121

1. Destruction of property which is a part of spiritual or cultural heritage of the people.

2. The damaged property should not have been used for military purposes at the time when
it was attacked.
3. There should be an intent to destroy or damage the property.

The Tribunal held that all three elements were satisfied in the present case and hence the
accused was held to be guilty of committing this crime.122

The ICTY also recognized the act of attacking civilian objects as being a violation of
international humanitarian law. The formulation of this custom was proven by reference to other
Conventions. The ICTY highlighted how such crimes are regarded to be of a very serious nature.
While the crime of attacking civilian objects is already a grave one, any attack on culturally or
historically protected sites is even worse.

IX. Custom
Customary international law can be defined as general practice of the states which is
coupled by opinio juris which shows the acceptance of the practice as law. 123 It is one of the
sources of identification of international law under the ICJ Statute.124

Direct attack
In 2003, the UNESCO had declared that the laws governing protection of cultural
property in the event of an armed conflict were a part of customary international law (hereinafter,
‘CIL’).125 However, when considering the actual practice of the states to contribute to the making
of this custom, we find it to be very rare.126 However, there is an overwhelming consensus of the

120
International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August
1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article
52.
121
Strugar case.
122
Strugar case.
123
UN General Assembly, Report of the International Law Commission, 2015 A/CN.4/682.
124
United Nations, Statute of the International Court of Justice, 18 April 1946, Article 38.
125
UNESCO (United Nations Educational Scientific and Cultural Organization), 27 C/Resolution 3.5.
126
O’Keefe, supra note 4, 317.

20
states on this matter, which is evidenced from the large number of states which are a party to the
Additional Protocol I and the repetition of the general principles in multiple treaties. 127
Additionally, scholars have also argued that cultural property is protected under the broader
custom which prohibits attacks on civilian objects during times of war. 128 However, the mere fact
that a large number of parties are signatories to a treaty is not in itself an indication to prove the
customary nature of such laws. In fact, the large number of signatories makes it difficult to prove
opinio juris as that is usually derived from the conduct of non-parties to the treaty and the fewer
its number, the tougher it is to establish. This difficulty in proving such laws to be custom is not
only because of the dual requirements of state practice and opinio juris which needs to be shown
to prove CIL but also because of the lack of a fundamentally norm-creating character of these
laws.129

Addressing the judgments given in this context, tribunals, even while accepting the
customary nature of laws protecting cultural property, have been noticed to not give a proper
reasoning behind reaching that conclusion. An example could be the judgment given the Trial
Court of the ICTY in the Strugar case discussed above. The tribunal first analyses Article 27 of
the Hague Rules and the exception it provides in case of a military use of cultural property and
then explains it with the help of the Hague Convention which makes an exception in case of a
military necessity.130 It is imperative to understand the difference between the two wherein in the
former case, the military use of cultural property legitimizes an attack on it by the enemy and in
the latter case, in case there is military necessity to destroy a structure, then only is the attack not
unlawful. In fact, subsequent practice clearly showed that the Hague Rules prohibit
bombardment of heritage structures even when not demanded by military necessity.131

Further, there exists a debate regarding whether customary law permits attacking works
of art, religion, etc. due to their location, nature or purpose. Majority of the states, in the 1999
Diplomatic Conference at Hague, were against making the ‘use’ of cultural property as the sole

127
O’Keefe, supra note 4, 317.
128
O’Keefe, supra note 4, 320; Prosecutor v. Kordic´ and Cerkez, IT-95-14/2-T, Trial Chamber Judgment, 26
February 2001.
129
UN General Assembly, Report of the International Law Commission, 2015 A/CN.4/682; O’Keefe, supra note 4,
320.
130
Strugar case.
131
O’Keefe, supra note 4, 321.

21
criteria to make it a ‘military objective’. 132 Thus, it could be inferred that parties may invoke the
location or nature of the property as a waiver which validates an attack on such property.
However, the Second Protocol gives an enhanced level of protection to cultural property by
disallowing location, nature and purpose to be used as exceptions for these purpose.133

Thus, it can be concluded that custom protects cultural property in the same way as it
protects civilian objects, by permitting an attack when by doing so, a distinct military benefit is
obtained and when the property in question contributes to military action. Military necessity
requires that there be no other alternative for obtaining a similar advantage over the enemy. 134
The law is almost the same for non-international armed conflicts.135

Collateral damage
While laws governing a direct attack on cultural have been discussed, those governing
incidental damage are also equally important. Drawing a parallel from civilian objects, the
principle of proportionality applies, which means that if the damage caused far exceeds the
military advantage gained, the attack cannot be justified. The customary nature of this rule has
been evidenced in several documents.136 Additional Protocol I sheds light on the law relating to
incidental harm, which is a custom recognized in international law.137 A similar principle is
upheld by the Second Protocol which additionally requires a party to suspend an attack if it
becomes clear that it would incidentally harm cultural property. 138 Although the US has not
ratified it, it had shown similar practice in several instances. For example, in the Gulf War, the
US made a ’No-Fire Target List’ which included cultural sites as places which were not
supposed to be attacked, and the same was repeated by them in 2003 in Iraq.139

X. Conclusion
While this paper focuses on protection of heritage structures during an armed conflict, it
is important to highlight how these structures face a constant threat in several parts of the world
132
O’Keefe, supra note 4, 344.
133
Additional Protocol II.
134
Additional Protocol II, Article 6.
135
O’Keefe, supra note 4, 348.
136
O’Keefe, supra note 4, 325; Department of Defense, Conduct of the Persian Gulf War, Appendix O.
137
Additional Protocol I, Article 51(5)(b); Prosecutor v. Galic, IT-98-29-T, Trial Chamber Judgment, 5 December
2003; Eritrea v Ethiopia, Partial award, ICGJ 356 (PCA 2005), 19th December 2005.
138
Additional Protocol II, Article 7(d).
139
M. W. Lewis, The Law of Aerial Bombardment in the 1991 Gulf War, (2003) 97 AJIL 481.

22
in non-armed conflict situations as well. An Asian perspective is provided by Raghavi Viswanath
regarding the same. The author states that China, for example, is reported to have constantly
destroyed mosques and other religious places of the Uighur Muslims in its attempt to target the
community as a terror threat.140 Even the Rohingyas, Bengali Muslims in Myanmar, are facing
persecution at the hands of the Rakhine State since the 1960s.141 While human rights
Conventions such as International Covenant on Civil and Political Rights and International
Covenant on Economic, Social, and Cultural Rights could have come to the aid of such
minorities, they have not been successful so far. 142 This is because of a myriad reasons such as
China and Myanmar not having ratified the Optional Protocols to these Covenants, lack of their
consent to the compulsory jurisdiction of the International Court of Justice and the straddled
place of the individual between human rights and international criminal law. 143 While each of
these issues is worth discussing in detail, it is beyond the scope of this paper. Suffice to say,
international law has failed to come to the aid and rescue of these communities.

The law on preservation of cultural property is quite ancient and developed. It evolves
from mankind’s respect and worship towards works of art and fineness, which dates back from
the 16th century. Since then, man’s appreciation for not only beauty but also spirituality and its
past has only arisen. Laws protecting cultural institutions help man to preserve his history and
deserve all the more special attention during pressing times such as war. Thus, the respect for
such laws in the global relations is also paramount. Today, it is not just states which have the
obligation of respecting international laws but also inter-governmental organizations such as the
UN. Further, bodies such as the UNESCO and the Red Cross are crusaders in this fight to protect
our rich cultural heritage. It is about time that all these bodies come together to effectively
enforce laws protecting the cultural history of all of mankind.

140
Josh Rogin, Ethnic Cleansing Makes a Comeback—in China, The Washington Post, August 3, 2018, available at
https://www.washingtonpost.com/opinions/global-opinions/ethnic-cleansing-makes-a-comeback--in-
china/2018/08/02/55f73fa2-9691-11e8-810c-5fa705927d54_story.html (Last visited on 31 October, 2020).
141
William A. Schabas, Nancie Prudhomme, and Joseph Powderly, Crimes against Humanity in Western Burma:
The Situation of the Rohingyas, National University of Ireland, Galway, Irish Centre for Human Rights (2010).
142
Raghavi Viswanath, Elevating Cultural Rights Using International Criminal Law—The Asian Story, Asian
Journal of International Law, Cambridge University Press (2020).
143
Id.

23
 XI. References

Primary Sources

Conventions
1. UN Educational, Scientific and Cultural Organisation (UNESCO), Convention for the
Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954.
2. UN Educational, Scientific and Cultural Organisation (UNESCO), Convention for the
Safeguarding of the Intangible Cultural Heritage 2003, 17 October 2003.
3. International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of International
Armed Conflicts (Protocol I), 8 June 1977.
4. International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and
Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of
War on Land, 18 October 1907.
5. Second Protocol to the Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict, The Hague, March 26, 1999.
6. UN General Assembly, Rome Statute of the International Criminal Court (last amended
2010), 17 July 1998.
7. UN Security Council, Statute of the International Criminal Tribunal for the Former
Yugoslavia (as amended on 17 May 2002) 25 May, 1993.
8. UN General Assembly, Convention on the Prevention and Punishment of the Crime of
Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78.
9. United Nations, Statute of the International Court of Justice, 18 April 1946.

Cases
1. Prosecutor v Strugar (Pavle), Judgment, Case No IT-01-42-T, ICL 976 (ICTY 2005), 31st
January 2005.
2. Prosecutor v. Galic, IT-98-29-T, Trial Chamber Judgment, 5 December 2003.
3. Eritrea v Ethiopia, Partial award, ICGJ 356 (PCA 2005), 19th December 2005.
4. Prosecutor v. Kordic´ and Cerkez, IT-95-14/2-T, Trial Chamber Judgment, 26 February
2001.
5. Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi (ICC-01/12-01/15–171),
Trial Chamber VIII, 27 September 2016.
6. Prosecutor v. Blaskic´, IT-95-14-T, Trial Chamber Judgment, 3 March 2000.
7. Prosecutor v. Brdjanin, IT-99-36-T, Trial Chamber Judgment, 1 September 2004.
8. Prosecutor v. Jokic´, IT-01-42/1-S, Trial Chamber Sentencing Judgment, 18 March 2004.
9. Prosecutor v. Krstic´, IT-98-33-T, Trial Chamber Judgment, 2 August 2001.

24
Secondary Sources

Treatises
1. Roger O’Keefe, The Protection of Cultural Property in Armed Conflict, 25 (2006).
2. Irini A. Stamatoudi, Cultural Property and Restitution, 4 (2011).
3. Askerud Pernille & Etienne Clément, Preventing the Illicit traffic in Cultural Property: a
resource handbook for the implementation of the 1970 UNESCO Convention, CLT.97 /
WS / 6 (1997).
4. Joris D. Kila & Marc Balcells, Heritage and Identity: Issues in Cultural Heritage Protection,
Vol. 3 181 (2014).
5. Hugo Grotius, On the Law of War and Peace, Book 3, chap. 12, s. 6 (1626).
6. Albericus Gentili, Three Books on the Law of War (1598), translated by J. C. Rolfe (1933),
book 2, chap. 23.
7. J. W. Textor, Synopsis Juris Gentium (1680), translated by J. P. Bate (1916), chap. 18, ¶33.
8. Françoise Choay, The Invention of the Historic Monument, translated by L. M. O’Connell
(2001), p. 195.
9. Sir James Edward Edmonds & Lassa Oppenheim, Land Warfare, ¶136 (1912).
10. Patrick J. Boylan, Review of the Convention for the Protection of Cultural Property in the
Event of Armed Conflict (1993).
11. Raphael Lemkin, Axis rule in occupied Europe: Laws of Occupation, Analysis of
Government, Proposals for Redress, The Lawbook Exchange Ltd. (2005).
12. L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the
Holocaust (2001).

Journal Articles
1. M. W. Lewis, The Law of Aerial Bombardment in the 1991 Gulf War, (2003) 97 AJIL 481.
2. David Keane, The Failure to Protect Cultural Property in Wartime, DePaul Journal of Art,
Technology and Intellectual Property Law, Vol. 14(1) (2004).
3. Gregory M. Mose, The Destruction of Churches and Mosques in Bosnia-Herzegovina:
Seeking a Rights-based Approach to the Protection of Religious Cultural Property, 3 BUFF.
J. INT'L L. 180 (1996).
4. Leora Bilsky and Rachel Klagsbrun, The Return of Cultural Genocide?, The European
Journal of International Law Vol. 29 no. 2 (2018).
5. William A. Schabas, Nancie Prudhomme, and Joseph Powderly, Crimes against Humanity
in Western Burma: The Situation of the Rohingyas, National University of Ireland, Galway,
Irish Centre for Human Rights (2010).
6. Raghavi Viswanath, Elevating Cultural Rights Using International Criminal Law—The
Asian Story, Asian Journal of International Law, Cambridge University Press (2020).

Other Documents
1. General Conference, World Heritage Committee, UNESCO, 27 C/Resolution 3.5, preamble,
Recital (b) (2003).

25
2. Department of Defense, Conduct of the Persian Gulf War, Appendix O, at 622.
3. European Union, Brussels Declaration on Preventing and Combating Trafficking in Human
Beings, 29 November 2002, 14981/02.
4. UK Manual, ¶5.25.3, 1 July, 2004,
5. Federal Ministry of Defence Publication, Zdv 15/9 (1964), p. 16
6. A.P.V. Rogers, Law on the Battlefield, 144-5 (1996).
7. Information on the Implementation of the Convention for the Protection of Cultural Property
in Case of Armed Conflict, 1967 Reports, UNESCO Doc. SHC/MD/1, p. 27.
8. Information on the Implementation of the Convention for the Protection of Cultural Property
in the Event of Armed Conflict, 1979 Reports, UNESCO Doc. CC/MD/41, p. 27.
9. Review of the application of the Convention for the Protection of Cultural Property in the
Event of Armed Conflict, UNESCO doc. 140 EX/26, Paris, September 11, 1992.
10. Report on a Fact-finding Mission on the Situation of the Cultural Heritage in Bosnia-
Herzegovina and Croatia, June 1994, Doc. AS/CULT/AA.
11. UN General Assembly, Report of the International Law Commission, 2015 A/CN.4/682.
12. United Nations. Official Records of the Third Session of the General Assembly, Part I. Sixth
Committee, Summary Records of Meetings 21 September-10 December 1948, p. 202.
13. Report of the International Law Commission on the work of its forty-eighth session, pp. 90-
91 (1996).
14. Report of the Secretary-General pursuant to ¶2 of Security Council resolution 808 (1993),
UN Doc. S/25704, 3 May 1993.
15. Draft Code of Crimes against the Peace and Security of Mankind, Report of the International
Law Commission on the work of its forty-eighth session, UN Doc. A/51/10, 6 May (1996).

Online Resources
1. Al Jazeera, Top of ancient Iraq minaret blown up, April 1, 2005, available at
https://www.aljazeera.com/archive/2005/04/2008410131746158914.html (Last visited on 31
October, 2020).
2. Josh Rogin, Ethnic Cleansing Makes a Comeback—in China, The Washington Post, August 3,
2018, available at https://www.washingtonpost.com/opinions/global-opinions/ethnic-cleansing-
makes-a-comeback--in-china/2018/08/02/55f73fa2-9691-11e8-810c-5fa705927d54_story.html
(Last visited on 31 October, 2020).

26