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ICLR, 2020, Vol. 20, No. 1.
Types of cultural property and their
protection under International Criminal Law
Ivan Ryška
Palacký University Olomouc, Czech republic
Ivan.Ryska@seznam.cz
RYŠKA, Ivan. Types of cultural property and their protection under Internati-
onal Criminal Law. International and Comparative Law Review, 2020, vol. 20,
no. 1, pp. 220–236. DOI: 10.2478/iclr-2020-0010
Summary: In this article we analyze the forms of protection of distinct types of cultural
heritage under International Criminal Law. Initially, we introduce the concept of catego-
rization 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 juris-
prudence arguments from case law treating the prosecution of destruction of cultural
heritage under International Criminal Law.
Keywords: International Criminal Law, cultural heritage, human rights, war crimes,
crimes against humanity
1 Introduction
It has been a while since the famous article ‘Two Ways of Thinking About
Cultural Property’ written by John Henry Merryman was published.1 In the
article, Merryman introduced two possible approaches to cultural property –
national and international.2 National attitude sees cultural property as a part of
cultural heritage related to a certain nation which exercises control over it. This
means that such nation controls export and can demand repatriation of its herit-
age.3 On contrary, international way of thinking about cultural property consid-
ers it a part of common heritage of mankind, independent of national jurisdic-
tion or property rights.4
1 The article was published in 1986.
2 MERRYMAN, John, Henry. Two Ways of Thinking About Cultural Property. The Ameri-
can Journal of International Law, 1986, Vol. 80, No. 4, pp. 831–853.
3 Ibid.
4 Ibid.
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The approach presented by Merryman reflects the understanding of the con-
cept of cultural property at the time the article was written. However, the term
‘cultural property’ is something dynamic that continuously evolves and its con-
tent changes. For instance, items which fall under the definition of cultural prop-
erty are currently preferably referred to by the term ‘cultural heritage’5. Another
aspect: the whole issue is related to and impacted by human rights protection,
which categorically changed the general approach proposed by Merryman. The
distinction between the national and international way of thinking is still rel-
evant, however new attitudes have been proposed. Human rights based approach
recognizes the importance of cultural heritage for both individuals and commu-
nities6 and connects it with cultural rights.
In this article, we will focus on those novel approaches and consequences
they have for the protection of cultural property under International Criminal
Law (ICL). It might seem that ICL is too rigid to reflect these rapid changes in the
understanding of the term ‘cultural property’, but we will see that the contrary
is true. Although the legal grounds for court decisions do not reflect the recent
changes, the same does not apply to the decisions themselves.
2 Types of Cultural Heritage
Based on the human rights approach, we can distinguish two types of cul-
tural heritage: the first can be called the ‘common heritage of mankind’. Such
heritage has importance for humanity as a whole, because it serves as evidence
of an important period of human history, it is related to human evolution or
includes sites or items of an outstanding universal value.7 The second category
covers the heritage which is closely related to a local community. Such heritage
is not of a great importance for humanity as a whole, however its value is mani-
fested in the link between the heritage and the corresponding local community.
It might be said that in many cases this kind of heritage creates vital conditions
for the further existence and development of a specific community8, and that is
the reason why it should be protected.
The expression ‘common heritage of mankind’ has been used in several legal
documents, and UNESCO in particular greatly developed this concept. The
Convention Concerning the Protection of the World Cultural and Natural Herit-
age (the Convention) says “that parts of the cultural or natural heritage are of an
outstanding interest and therefore need to be preserved as part of the world her-
5 PROTT, Lyndel, O´KEEFE, Patrick. ‘Cultural Heritage’ or ‘Cultural Property’? Interna-
tional Journal of Cultural Property, 1992, Vol. 1, No. 2, pp. 307–320.
6 Report of the independent expert in the field of cultural rights, Farida Shaheed. UN docs.
A/HRC/17/38.
7 Convention Concerning the Protection of the World Cultural and Natural Heritage. Art. 1.
8 Report of the independent expert in the field of cultural rights, Farida Shaheed. UN docs.
A/HRC/17/38. Para. 6.
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itage of mankind as a whole”.9 This clearly indicates that although the common
heritage of mankind covers all of cultural heritage, only certain parts of cultural
heritage are protected under the Convention. The decisive value is the ‘outstand-
ing interest’ that indicates that importance of such heritage is truly exceptional
for a reason. Later in the Convention we can find the expression ‘effective system
of collective protection of the cultural and natural heritage of an outstanding
universal value’.10 The term ‘outstanding universal value’ refers to both types of
protected heritage – cultural (monuments, group of buildings, sites) and natural
(natural features, geological and physiographical formations, natural sites).11
But what does it mean exactly? To explain this term we have to focus on the
document The Criteria for Selection contained in Operational Guidelines for the
Implementation of the World Heritage Convention (the Criteria). The Criteria
are the most important working tool on world heritage after the Convention12
itself, because they define the conditions for inclusion of certain heritage into the
List of World Heritage. At least one of ten listed conditions must be met to ensure
the recognition of such heritage as the common heritage of mankind. All the ten
alternative criteria share a similar wording. The most common expressions are
‘outstanding example’, ‘unique’, or ‘the most important’.13 That clearly shows that
protection of cultural heritage is highly selective. The heritage that does not meet
any of the mentioned conditions cannot be included into the World Heritage List
and does not fall under the protection of the Convention. At the same time, it is
evident that the protection covers only the most important heritage. However,
such protected heritage is just a very small part of the whole cultural heritage.
Does it mean that less important cultural heritage remains unprotected?
Speaking about the protection of cultural heritage, we can distinguish two
basic categories: the protection during peacetime and the protection during
armed conflict. The UNESCO World Heritage Convention (the UNESCO Con-
vention) is an example of the first category. The second category is represented
by the Hague Convention for the Protection of Cultural Property in the Event
of Armed Conflict from 1954 (the 1954 Hague Convention). It is not surprising
that the approach is different, since the protection during war time requires dif-
ferent measures. The 1954 Hague Convention provides its own definition of cul-
tural property in the first article; this definition differs from the definition men-
tioned in the UNESCO Convention. Still, the elementary requirement remains
the same – protected cultural property has to be of a ‘great importance’14 to the
cultural heritage of all people. The 1954 Hague Convention represents a widely
9 Convention Concerning the Protection of the World Cultural and Natural Heritage. Preamble.
10 Ibid.
11 Ibid. Art. 1., 2.
12 UNESCO, The Criteria for Selection. [online]. Available Accessed 10.03.2020.
13 Ibid.
14 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Art. 1.
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respected tool of protection of cultural heritage during armed conflict, and with
the high number of state parties15 it is almost universally recognized.
It might seem that there is no international way to protect less important
cultural heritage both during peacetime and event of armed conflict. As long
as the heritage is not of an outstanding universal value, it is not covered by the
instruments mentioned earlier. On the other hand, with the rapid development
of human rights protection over the last decades, the general approach towards
cultural heritage protection has changed and new tools have appeared.
The common idea of new approaches to cultural heritage protection is the
recognition of the link between a certain type of cultural heritage and the com-
munities and individuals related to it. It means that a certain type of cultural
heritage is protected for the value it has specifically for a certain community or
individuals, rather than for the recognized universality of its value. This attitude
is part of a wider understanding of human rights protection, which recognizes
the relationship between human rights and cultural heritage. In recent years, cul-
tural heritage has also become more closely related to cultural rights16, although
the extent of those rights is still not clear.
This tendency was partly paved by two important documents – the United
Nations Declaration on the Rights of Indigenous People (the Indigenous People
Declaration) and the Convention for the Safeguarding of the Intangible Cultural
Heritage (the Intangible Heritage Convention). Both documents recognize and
develop the link between a certain group of people and its heritage.
First, the Intangible Heritage Convention clearly recognizes the link between
tangible and intangible heritage and between such heritage and a community.17
When the text of the Heritage Convention speaks about protection of heritage, it
does not require any ‘outstanding value’18 like the UNESCO Convention of 1972.
It sees intangible heritage as something that provides a community with a ‘sense
of identity and continuity’19, and is important for its sustainable development.
The protection of intangible heritage of a community represents the protection
of the community itself due to the link between the community and its heritage.
The link between the community and its heritage is even more obvious and
important in the case of indigenous people, as recognized in the Indigenous Peo-
ple Declaration. In this case, the deeper connection between the heritage and
the people is based on the fact that the indigenous people live in a traditional
way and their cultural heritage is part of their daily lives. The Article 12 of the
15 In total 193 states in this moment.
16 Report of the independent expert in the field of cultural rights, Ms. Farida Shaheed, submit-
ted pursuant to resolution 10/23 of the Human Rights Council. UN docs. A/HRC/14/36.
17 Convention for the Safeguarding of the Intangible Cultural Heritage. Preamble.
18 Ibid.
19 Ibid. Art. 2.
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Indigenous People Declaration mentions maintenance and access to cultural and
religious sites in relation to their traditions, customs, and ceremonies.20 Similar
applies to their ‘traditionally occupied lands’ according to the article 25. The arti-
cle 31 directly refers to cultural heritage of indigenous people; it recognizes their
right ‘to maintain, control, protect and develop their cultural heritage’.21 The
mentioned articles represent an important shift in the legal approach towards
cultural heritage protection. Certain objects are protected not only for their out-
standing universal value and beauty but also because they form a significant part
of life of certain people, and create conditions for future well-being of these peo-
ple. This shift recognizes the ‘human element’ in cultural heritage protection and
marks a paradigm shift in the approach.
3 Cultural Heritage and International Criminal Law
Let us consider practical applications of law in the area of cultural property
protection under the scope of ICL. To understand the way law protects cultur-
al property, we will examine two documents: The Statute of the International
Criminal Tribunal for the Former Yugoslavia (the Statute of the ICTY) and the
Rome Statute of the International Criminal Court (the Rome Statute).
The general idea of both documents is based on the 1907 Hague Regulations
, more precisely on the Articles 27 and 56 which deal with the protection of cul-
tural property during armed conflict. The Article 27 lists the protected property
as “buildings dedicated to religion, art, science or charitable purposes, historic
monuments, hospitals and places where wounded and sick are collected…”22
and the Article 56 extends this list by “institutions dedicated to religion, charity
and education, the arts and sciences, even when State property, shall be treated as
private property”. Those two articles represent two important elements specific
for the protection of cultural property under Hague Law. First, cultural property
should be protected for the same reason and in the same way as private property
of civilians. This reflects the idea that the utmost effort must be made to spare
civilian population from impact of military operations and war. The mentioned
articles neither employ the term ‘human rights’ nor establish the cultural link
between the people and their property. The reason of the protection is purely
economical, humanitarian, and aesthetic. Second, there is no requirement for
the uniqueness of protected property. The Articles list the types of protected
property without the condition of an outstanding value. This could lead to a con-
clusion that even less important monuments can be protected under Hague Law,
although the 1907 Hague Convention does not operate with the term ‘human
rights’.
20 United Nations Declaration on the Rights of Indigenous People. Art. 12.
21 Ibid. Art. 31.
22 Hague Convention of 1907. Art. 27.
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The Statute of the ICTY deals with the destruction of cultural property in
several articles. Either directly, when it uses a wording similar to the 1907 Hague
Convention , or indirectly, when it speaks about ‘buildings’ or ‘property’. The
attacks against cultural property can be subsumed under the Articles 2, 3, 5,
and in a certain way also under the Article 4. The Article 2 deals with the Grave
breaches of the Geneva Conventions of 1949 and in para. (d) mentions “exten-
sive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly”23. Similarly, the Article 3 describes the
Violations of the laws or customs of war. In para. (b) it specifies that it includes
“wanton destruction of cities, towns or villages, or devastation not justified by
military necessity”24 and the para. (d) is directly related to cultural property and
states “seizure of, destruction or willful damage done to institutions dedicated
to religion, charity and education, the arts and sciences, historic monuments
and works of art and science”25. However, the ICTY declares in its jurisprudence
that the prosecution of deliberate attacks against cultural property is not limited
to this narrow definition. In several cases26, it prosecuted such attacks against
cultural property which were committed on discriminatory grounds and outside
military operation; those attacks were prosecuted as the crime against human-
ity of persecution under the Article 5 para. (h). In such cases, the Court con-
sidered the ‘human element’ of cultural heritage protection and although the
targeted property was not of an outstanding value, the attack against it was con-
sidered sufficiently grave to appear before the Court. Targeted buildings con-
stitute cultural heritage of a community, and the cultural link between the two
is the crucial argument in the Court’s reasoning. A shift from the old ‘Hague
approach’ towards the human rights based approach is obvious. Certain build-
ings (mosques of the local Muslim community in the following exemplary case)
might have high significance for the existence and stability of the whole commu-
nity. The Court repeated this view once again in the Krstić case, where it ruled
that the deliberate destruction of the cultural property belonging to the targeted
community demonstrates the genocidal intent of the perpetrator27 under the
Article 4 of the Statute of the ICTY.
Unlike the ICTY, the International Criminal Court (the ICC) has not dealt
with many cases of attacks against cultural property so far. In fact, there was
only one case – Al Mahdi case. In this famous case, an Islamist militant was
prosecuted for the deliberate destruction of mausoleums of Muslim saints in the
city of Timbuktu, Mali. Al Mahdi was tried for the war crimes of “intentionally
directing attacks against buildings dedicated to religion, education, art, science
or charitable purposes, historic monuments, hospitals and places where the sick
23 Updated Statute of the International Criminal Tribunal for the Former Yugoslavia. Art. 2.
24 Ibid. Art. 3.
25 Ibid.
26 Most notably cases Blaškić, Kordić & Čerkez, Brdanin.
27 Krstić case, IT-98-33-T. Judgement 2 August 2001, Trial Chamber. Para. 580.
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and wounded are collected, provided they are not military objectives”28 under
the Article 8 (2)(e)(iv) of the Rome Statute. The ICC decision was disputed by
many legal scholars since it did not account for the ‘human element’.29 However,
the situation is not that simple.
The majority of the attacked buildings were listed as a UNESCO World
Heritage and as such recognized as the common heritage of mankind. On the
other hand, during the hearings, the prosecutor put stress on the importance
of the affected property for the local community, its traditions, and daily life.30
Although the prosecutor dedicated a significant time to explain the importance
of the targeted structures for the locals, it was not considered by the ICC in its
final decision. Many scholars see this as a missed opportunity31; comparing to
the jurisprudence of the ICTY, the decision in Al Mahdi case looks like a step
back.
4 International Criminal Law Approach
As presented, the approach of ICL towards the protection of cultural prop-
erty might vary. Two most important aspects of the prosecuted acts are the cir-
cumstances under which the property was attacked and the relationship between
the property and the local community. Based on those two aspects, a court can
determine the crime under ICL, under which it subsumes the behaviour. The
issue is detailed in Table 1.
Table 1
Cultural war crime against
genocide
property type crime humanity
universal value yes no no
value for local
yes yes no with reservation
community
both yes yes no with reservation
In Table 1, the first column determines the type of cultural property which
was targeted in an attack. We can distinguish between the property of universal
value (the common heritage of mankind), property of value for a local commu-
28 Rome Statute of the International Criminal Court. Art. 8.
29 See e.g. GREEN MARTÍNEZ, S. A. Destruction of Cultural Heritage in Northern Mali. A
Crimes Against Humanity? Journal of International Criminal Justice, 2015, Vol.13, No. 5,
pp. 1073–1097.
30 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the
opening of Trial in the case against Mr Ahmad Al-Faqi Al Mahdi. [online]. Available
Accessed
12.03.2020.
31 See e.g. DRUMBL, Mark. From Timbuktu to The Hague and Beyond. The War Crime of
IntentionallyAttacking Cultural Property. Journal of International Criminal Justice, 2019,
Vol. 17, No. 1, pp. 77–99.
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nity and property that includes both of these elements. Guided by this classifica-
tion, we can match specific acts to the corresponding crimes under ICL.
4.1 War Crimes
We can now examine the relationship between different categories of crimes
and different types of property. The second column of table 1 summarizes the
relationship between applicability of war crimes and the type of affected cultural
property. This relationship represents the oldest situation regulated by law; cul-
tural property is damaged or destroyed during military operations in context
of ongoing hostilities. As shown in Table 1, any attack against cultural prop-
erty constitutes a war crime, independently of the property type. An important
exception for a case of military necessity is considered in all the relevant docu-
ments.32 This exception allows an attack on cultural property if it represents a
military objective and if several other conditions are met. Although the 1954
Hague Convention speaks about the ‘property of great importance to the cultural
heritage of every people’33, in practice law is not that selective. Neither the Statute
of the ICTY nor the Rome Statute of the ICC (the Statutes) requires ‘great impor-
tance’ or any other kind of uniqueness34 of the targeted property. This means
that, if the attacked cultural property has no universally recognized value, but
has a crucial cultural importance for local communities, it can be prosecuted
under the Statutes. The most important drawback of this approach is the need
of war nexus. The crime has to be committed in context of an armed conflict of
international or non-international character,35 which implies that the discussed
approach is void in peacetime or in case the relationship between the conflict
and the attack against cultural property cannot be established. Conveniently,
when treating attacks against cultural property as war crimes, they can be often
recognized as a violation of customary law. The discussion about the extent of
protection of cultural property under customary law still continues among legal
scholars, the majority however agree, that at least the rules mentioned in the
Hague Conventions and the Geneva Law are part of customary law. The rules
established by the 1954 Hague Convention are partially accepted as customary,
but most of them only reflect customary law.36
32 Most notably: Hague Convention of 1907, Rome Statute of the International Criminal
Court, Statute of the International Criminal Tribunal for the Former Yugoslavia, Hague
Convention for the Protection of Cultural Property in the Event of Armed Conflict.
33 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
Art. 1.
34 See Rome Statute of the International Criminal Court and Statute of the International
Criminal Tribunal for the Former Yugoslavia.
35 Ibid.
36 FORREST, Craig. International Law and the Protection of Cultural Heritage. New York:
Routledge, 2010, p. 284.
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The most famous case tried before the ICTY regarding war crimes committed
against cultural property was the case against Miodrag Jokić and Pavle Strugar.
The case was related to shelling of the historical city of Dubrovnik, also known as
the ‘Pearl of the Adriatic’. The city used to be an important Mediterranean pow-
er of glorious and colourful past, which is demonstrated by many exceptional
buildings spanning several historical periods.37 Due to its outstanding universal
value, the city was included into the UNESCO World Heritage List in 197938 and
there is no doubt that it represents the common heritage of mankind.
Jokić was the commander of the Ninth Naval Sector of Bosnian Serb Army
and the head of the military campaign to take Dubrovnik. On December 6, 1991
the forces under his command shelled the Old Town of Dubrovnik as part of the
campaign. Jokić admitted that he had been aware of the protected status of the
city. The Tribunal stressed that the Old Town of Dubrovnik was an “especially
important part of the world cultural heritage”39 so the Chamber concluded that
the “shelling attack on Old Town was not only attack against the history and herit-
age of the region but also but also against the cultural heritage of humankind”.40
The defendant was found guilty under the Article 3, Section (d) of the Statute of
the ICTY the “seizure of, destruction or wilful damage done to institution dedi-
cated to religion, charity and education, the arts and sciences, historic monuments
and works of art and science”.41 The same applies to the second defendant, Pavle
Strugar, who was also charged under the Article 3, Section (d) of the Statute of
the ICTY.42
The case of the Old Town of Dubrovnik serves as a good example of the cur-
rent approach towards war crimes committed against the property of universal
value. However, as mentioned earlier, the Statutes extend the protection of cul-
tural property beyond the property of universal value. In the same way, attacks
against property of local communities can be prosecuted.
4.2 Crimes against Humanity
The third column of Table 1 explores the relationship between the type of
crime against cultural property and crimes against humanity. To distinguish this
particular situation, it is crucial to examine the link between a community or
individual and their cultural heritage: the cultural property must constitute a
vital part of lives of the members of a community or individuals. The cultural
property must be important for their identity, daily life, common memory, and
37 UNESCO, Old City of Dubrovnik. [online]. Available
Accessed 13.03.2020.
38 Ibid.
39 Jokić case, IT-01-42/1-A. Judgement on Sentencing Appeal, 30 August 2005, Appeals
Chamber. Para. 51.
40 Ibid.
41 Jokić case, IT-01-42/1-S. Judgment, 18 March 2004, Trial Chamber.
42 Strugar case, IT-01-42-T. Judgment, 31 January 2005, Trial Chamber.
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development. If such link exists, then attacks directed against cultural property
constitute a crime against humanity.
Conversely, in case of an attack against cultural property of universal value
(and only universal value), this link is absent, and so the attack does not consti-
tute a crime against humanity. However, there are other tools outside the scope
of ICL to deal with such acts.
In 2001, the world was shocked by the intentional destruction of the rock
sculptures of Buddhas in Bamiyan, Afghanistan. This case has several special fea-
tures. First, the destruction was executed by the Taliban43 that ruled Afghani-
stan at the time. It happened during peacetime and the destruction was carefully
planned and recorded.44 The reason behind the decision to destroy the stat-
utes was ideological.45 For the fundamentalist Taliban government, the Bud-
dha statues represented idolatry symbols that had to be removed. The Bamiyan
Buddhas were a testament of the colourful past of the region and its pre-Islamic
history. However, for the present day Muslim inhabitants of the Bamiyan val-
ley, those statues were only remains of a very distant past with no link to their
daily lives. Since the link between the local population and the statues cannot be
established, we cannot subsume those acts under the category of crimes against
humanity. However, we still speak about an intentional destruction of cultural
heritage of a great importance which cannot be simply ignored.
The destruction of the statues in March 2001 caused a large public outcry
and also highlighted an important issue of International Law and cultural her-
itage protection. The situation was simply not expected by the relevant legal
documents and the international community was unable to find an appropriate
response to such act. Cultural property has been destroyed throughout the his-
tory under various circumstances – during military operations or occupation,
or looted during a conflict. However, International Law does not expect a situ-
ation where a state government in its official capacity deliberately destroys its
own cultural property. In spite of the wide consensus that such behaviour cannot
be tolerated and should be prevented in the future, it was difficult to find legal
grounds to substantiate such motion.
No customary rule prohibits a state from destroying its own cultural prop-
erty during peacetime.46 This is in stark contrast to the situation where cultural
property is attacked during armed conflict, because many of the Hague rules are
recognized as customary law. After a series of meetings, UNESCO drafted the
43 FRANCIONI, Francesco, LENZERINI, Federico. The Destruction of the Buddhas of
Bamiyan and International Law. European Journal of International Law, 2003, Vol. 14, No.
4, pp. 619–651.
44 Ibid.
45 Ibid.
46 NAFZIGER, James, SCOVAZZI, Tullio (eds). The Cultural Heritage of Mankind. Leiden:
Martinus Nijhoff Publishers, 2008. pp. 428–432.
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Declaration concerning the Intentional Destruction of Cultural Heritage (the
Heritage Declaration), that includes similar principles of protection of cultural
heritage like the treaties that protect cultural heritage during armed conflict.
UNESCO clearly intended to link the Heritage Declaration to other treaties
related to the protection of cultural property, but also to ICL and human rights
protection.47 According to the Heritage Declaration, each state bears the respon-
sibility for protection of cultural heritage from intentional destruction and is
held responsible for failing to take the appropriate measures to “prohibit, pre-
vent, stop, and punish any intentional destruction of cultural heritage of great
importance to humanity”48; the extent of this responsibility is determined by
International Law.49
State should also establish its jurisdiction over those who commit an act
of destruction of cultural heritage of a great importance to humanity.50 That
means that the individuals responsible for such acts are prosecuted under the
national jurisdiction of states and not directly under International Law. That is a
big difference comparing to the situation when the same acts are committed dur-
ing armed conflict, where the perpetrators can be prosecuted directly under ICL.
However, there is a theoretical obstacle: the Heritage Declaration speaks only
about a ‘heritage of great importance to humanity’51. Does it mean that the herit-
age that does not meet this requirement is not protected at all during peacetime?
Some heritage is not of a great importance to humanity but is significant to a
local community. This type of heritage is protected even during peacetime under
the legal instruments of crimes against humanity. Furthermore, there is a whole
category of heritage which is not of a great importance to humanity and is not
linked to a local community either. This category still seems to be vulnerable,
since its protection during peacetime is limited. Neither the Heritage Declara-
tion nor the scope of crimes against humanity protect it.
Cultural property linked to a local community is simpler to asses. Because of
the link between the two, we can subsume the protection of property under the
protection of the community and its human rights. Such situation is covered by
the scope of crimes against humanity. Following this argumentation, we need to
emphasize two features.
First, this type of protection applies both during event of armed conflict
and during peacetime. The scope of crimes against humanity is not limited to a
period of ongoing hostilities52 and that is the reason why it provides an effective
protection of human rights of both individuals and communities.
47 See Preamble of treaty.
48 Declaration concerning the Intentional Destruction of Cultural Heritage. Art. VI.
49 Ibid.
50 Ibid. Art. VII.
51 Ibid.
52 See Rome Statute of the International Criminal Court. Art. 7.
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Second, the protection applies to both property of universal importance and
property of local communal significance. Because the decisive factor is the link
between the property and the community, the protection does not depend on
the type of property. If the property with universal value has a relationship to the
community, attacks against it could be prosecuted under the legal framework of
crimes against humanity.
The ICTY has already established a rich practice of prosecution of destruc-
tion of cultural property as the crime against humanity of persecution. Conflict
in the former Yugoslavia brought large scale destruction of cultural heritage in
the country, with some regions being severely affected. In the majority of cases,
the destruction was not a result of military operations but a systematic policy.
Cultural property was targeted as part of an ethnic cleansing campaign whose
purpose was to create ethnically monolithic areas.53 The destruction was not a
result of the war, it was its objective.54 The reasons behind such acts were clear –
to remove the roots of local communities and ensure that their members will not
return after the war.55 The perpetrators were well aware of the link between the
cultural property and the community – its importance for community’s continu-
ity, stability, and general well-being. The attacks against cultural property were
clearly attacks against the community itself and were recognized accordingly by
the ICTY.
The most famous case tried before the ICTY regarding this policy was the
case of Kordić & Čerkez. Both defendants were political and military leaders of
the Croatian Defense Council – the organization that was responsible for the
military operations in Bosnia and Herzegovina in 1993. During the military
campaign in the Lašva valley in Bosnia, a systematic destruction of mosques and
houses of local Muslim population was carried out.56 Among other crimes, the
defendants were convicted of persecution as crime against humanity.57 Court
stated that the act “perpetrated with the requisite discriminatory intent, amounts
to an attack on the very religious identity of a people”58 and that is why “coupled
with the requisite discriminatory intent, may amount to an act of persecution”.59
In this decision, the ICTY clearly recognized the importance of a certain type
of cultural property for a local community. A similar approach was also used in
other cases, most notably the Blaškić case and the Stakić case.60
53 WALASEK, Helen. Bosnia and the Destruction of Cultural Heritage. New York: Routledge,
2016. p. 23.
54 Ibid. p. 109
55 BEVAN, Robert. The Destruction of Memory. Architecture at War. London: Reaktion
Books, 2016. pp. 39–82.
56 Kordić & Čerkez case, IT-95-14/2-T. Judgement 26 February 2001, Trial Chamber. para.
804.
57 Ibid. para. 827.
58 Ibid. para. 207.
59 Ibid.
60 Stakić case IT-97-24-T and Blaškić case IT-95-14-T.
Published by Palacký University Olomouc, Czech Republic, 2020.
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231ICLR, 2020, Vol. 20, No. 1.
As a result, it might seem that ICL clearly recognizes the link between a local
community and its cultural property. However, in the most recent case related
to destruction of cultural property, the ICC applied a different approach. The Al
Mahdi case has been celebrated as the very first case when the defendant was
prosecuted solely for attacking cultural property. Yet the case also attracted many
objections from legal scholars.
As a result of the non-international armed conflict in Mali in 2012, the
ancient city of Timbuktu fell under the control of several militant groups – most
notably the Islamist group Ansar Dine.61 Ahmad Al Mahdi was recognized by
the leaders of the group as a specialist for religious matters and was appointed
a leader of the morality brigade, Hesbah.62 In June and July 2012 he organized
the destruction of ten buildings of religious and historical character – mostly
mausoleums of local saints.63 Under the strict interpretation of Islamic law, it is
not allowed to build structures over a grave and so the mausoleums were viewed
as idolatrous.
The city of Timbuktu is famous as the crossroads of ancient African trade
routes and also as a Medieval centre of education, from where Islam spread to
Western Africa.64 It hosts several important mosques and many mausoleums of
local saints for which it is known as the ‘city of 333 saints’. The mausoleums
remain to be places of pilgrimage and are highly respected among the local
people. For its uniqueness, the city was listed as a UNESCO World Heritage in
1988.65
Despite being a place of an outstanding universal value, the city is still a living
place. The mausoleums are an important part of lives of the local people66 and
their regular maintenance is a large social event for the whole community.67 It
is clear that the community is closely bound to those structures and traditions
connected to them.
In her statement, the prosecutor paid large attention to the importance of the
destroyed structures to the local community. She explained that they “continued to
play a fundamental, even foundational, role in both the life within the city’s gates and
beyond the city’s borders”68 and “continue to play an important religious role in the
61 ICC, Situation in Mali. 16 January 2013.
62 Al Mahdi case, ICC-1/12-1/15. Judgment 27 September 2016, Trial Chamber. para. 33.
63 Ibid. para. 10.
64 UNESCO, Timbuktu. [online]. Available Accessed
18.03.2020.
65 Ibid.
66 Al Mahdi case, ICC-1/12-1/15. Judgment 27 September 2016, Trial Chamber. para. 34.
67 OULD SIDI, Ali. Monuments and Traditional Know-how: the Example of Mosques in
Timbuktu. Museum International, 2006, Vol. 58, No. 1–2, pp. 49–58.
68 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the
opening of Trial in the case against Mr Ahmad Al-Faqi Al Mahdi. [online]. Available Accessed 10.03.2020.
Published by Palacký University Olomouc, Czech Republic, 2020.
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232ICLR, 2020, Vol. 20, No. 1.
daily lives of the city’s inhabitants. Mausoleums are sacred places of worship. They are
frequently visited by the city’s residents. Pilgrims would also come from distant places
to pay their respects and to pray. Going to the mausoleums was and still is an expres-
sion of one’s faith and religious piety”69. She also stressed the importance of the local
maintenance event for the local community: “Additionally, the mausoleums played
a key role in fostering the social cohesion that is so characteristic of Timbuktu”70.
Finally, she summarized that “It is the destruction of the roots of an entire people,
which irremediably affects its social attitudes, practices and structures”71.
However, this human rights based approach is not reflected in the final deci-
sion at all. Al Mahdi was found guilty of the war crime of attacking protected
objects under the Article 8(2)(e)(iv) of the Rome Statute.72 This decision has
been widely criticized73 since it does not provide any consideration of the human
element of the case. Although the prosecutor put stress on the importance of the
destroyed property to the local community, the legal scope of war crimes does
not take such aspect into account. Comparing to the jurisprudence of the ICTY,
the Al Mahdi case seems to be a missed opportunity or even a step back. On one
hand, the ICC mentioned the link between the local community and its property
as something significant, but on the other hand it did not consider this link in its
final decision at all.
4.3 Genocide
Finally we will examine the relationship between the crime of genocide and
cultural property (the last column of Table 1). Because the idea of cultural geno-
cide proposed by Lemkin74 was removed from the draft of the Convention on
the Prevention and Punishment of the Crime of Genocide, it is not possible to
prosecute attacks against cultural property as an act of genocide.
It is the same situation as in the case of crimes against humanity. It is neces-
sary to keep in mind that there is a link between certain types of cultural prop-
erty and the people related to it. Some types of cultural property constitute a
significant part of lives of communities and individuals and are closely related to
their cultural rights, which means that the destruction of cultural property has
its place in the crime of genocide.75 This obviously does not apply to property
with universal value but no importance to the local community.
69 Ibid.
70 Ibid.
71 Ibid.
72 Al Mahdi case, ICC-1/12-1/15. Judgment 27 September 2016, Trial Chamber. para. 11.
73 ROSSI, Pierfrancesco. The Al Mahdi Trial Before the International Criminal Court: Attacks
on Cultural Heritage Between War Crimes and Crimes Against Humanity. Diritti umani e
diritto internazionale, 2017, Vol. 11, No. 1, pp. 87–100.
74 Draft Convention on the Crime of Genocide. UN docs. E/447. p. 26.
75 Report of the independent expert in the field of cultural rights, Farida Shaheed. UN docs.
A/HRC/17/38.
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233ICLR, 2020, Vol. 20, No. 1.
The link between a community and its cultural property was examined by the
ICTY in the Krstić case. Although the ICTY once again repeated that the attacks
against cultural property cannot be recognized as genocide, because the current
definition of genocide comprises only the physical and biological genocide,76 it
stated that:
“The Trial Chamber however points out that where there is physical or biologi-
cal destruction there are often simultaneous attacks on the cultural and religious
property and symbols of the targeted group as well, attacks which may legitimately
be considered as evidence of an intent to physically destroy the group. In this case,
the Trial Chamber will thus take into account as evidence of intent to destroy the
group the deliberate destruction of mosques and houses belonging to members of
the group.”77
There are two important elements in this statement. First, although the ICTY
cannot prosecute the deliberate destruction of cultural property by itself, it says
that it can take it into account as the evidence of genocidal intent. This implies
that the ICTY recognizes the connection between a community and its cultural
property. That is particularly important for ICL, which still uses the older word-
ing, which brings certain limits to the practical recognition of current develop-
ment in human rights protection. However the decision in the Krstić case serves
as an example that those shortcomings can be overcome by careful interpretation
of the existing rules.
Second, it points out that attacks against cultural property and symbols of
a targeted group often happen together with physical and biological destruc-
tion. It is noteworthy that all large genocides committed over the last century
were accompanied by systematic destruction of cultural property of a persecuted
group. The two most representative examples of this phenomenon are the Arme-
nian genocide committed by the Ottoman Empire and the Nazi genocide of the
European Jews. In both cases, especially the cultural property of religious char-
acter was targeted.78 A large Armenian community used to live in the region of
Cilicia in present day Turkey; barely any evidence of its presence can be found
nowadays.79 The goal of the Nazi policy towards the Jews was the same – to erase
any evidence of the existence of this group. To this end, cultural property includ-
ing synagogues, religious schools, and libraries was systematically razed.80
76 Compare definitions in Rome Statute of ICC and Genocide Convention.
77 Krstić case, IT-98-33-T. Judgment 2 August 2001, Trial Chamber. para. 580.
78 BEVAN, Robert. The Destruction of Memory. Architecture at War. London: Reaktion
Books, 2016. pp. 39–82.
79 DEMIRDJIAN, Alexis. The Armenian Genocide Legacy. Palgrave Studies in the History of
Genocide. Palgrave Macmillan, 2015.
80 BEVAN, Robert. The Destruction of Memory. Architecture at War. London: Reaktion
Books, 2016. pp. 39–82.
Published by Palacký University Olomouc, Czech Republic, 2020.
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234ICLR, 2020, Vol. 20, No. 1.
Although these attacks against cultural property cannot be directly prosecut-
ed under the scope of the crime of genocide, it is clear that deliberate attacks of
such nature have significance for the whole concept of genocide. This example
illustrates the trend of human rights protection getting increasingly important
in the field of ICL.
5 Conclusion
Deliberate attacks on cultural property are related to all three crimes exam-
ined under ICL. Although they can be prosecuted only under the framework of
war crimes and crimes against humanity, a clear link to genocide also exists. The
crucial aspect for the classification of a certain behaviour is the character of the
targeted property and the intent of the perpetrator. As presented, attacks against
different types of cultural property have to be treated differently. To do so, it is
fundamental to recognize the potential link between the affected cultural prop-
erty and the community related to it. The recent development of human rights
protection have had a profound impact on the protection of cultural property,
because the property can be intrinsically connected to certain rights of commu-
nities or individuals.
The cases dealing with an intentional destruction of cultural property were
mostly tried in the scope of war crime. In many cases, such practice did not
reflect the reality, since the true purpose of those acts was persecution of a cer-
tain community. The human element of those cases was ignored or marginalized.
It is unclear how the future practice of the ICC will develop, however the high
profile Al Mahdi case seems to be more of a step back. Nevertheless, with the
rapid development of human rights protection, the human element could soon
be handled better even by ICL.
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