Does International Criminal Law protect culture in times of trouble? Defining the scope

• Author: Hirad Abtahi
• Position: Diplome d'Etudes approfondies Droit international
• Pages: 180-201

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Deliberate attacks against culture have often constituted an important element of an attack against one's enemy. It will suffice to mention a few examples for the point to become clear: from the destruction of the First Temple by Babylonia's King Nabuchodonosor to iconoclastic movements such as the late antiquity and seventh century's alteration of Pagan images, the icon mutilations in ninth-century Byzantium, and the Reformation's iconoclastic depredations; and, on the other hand, from the ravages inflicted by Ghenghis Khan and later Tamerlane, to the Conquistadores' annihilation of the so-called "Pre-Colombian" cultures, the French and Soviet revolutions' destruction of religious icons and the recent destruction of the twin Buddhas of Bamiyan, History abounds with cases of ravage inflicted on culture.

International criminal law is an area of international law that is developing rapidly. With the creation of the world's first permanent criminal court, all eyes are on the now active International Criminal Court (ICC) to see what developments and innovations it wiil bring: this is the current reality and the immediate future of international criminal law.

In order to analyse whether international criminal law provide protection for culture in times of trouble, it is necessary to define what is meant by culture. This is unusually difficult from a legal perspective, since whereas normally terms are defined in statutes and similar legal instruments, whether national, regional or international, it has proved very difficult to find a single universally accepted definition of culture.² This is no doubt because the notion of culture is inherently-personal - personal to individuals and to groups and societies. It can truly be said that this is "a word that means all things to all men"³ Page 181Trying to establish an agreed definition of culture which refers to interests and value of groups of people (and in some cases, the whole of makind) is not within the scope of this paper. However, in order to progress the debate, it is crucial to set out clearly some of the definitions and establish a working definition. For these purposes, this paper will examine the most common concepts- culture, cultural property and cultural heritage (I) as well what is meant by a victim of violations of international criminal law (II).

I Definitional issues

A Defining culture

This is perhaps the most difficul of all the terms to define. Should a survey be taken in the streets, there would undoubtedly be as many definitions of culture as people taking part. This is not just confined to popular opinion either; any at attempt to limit the scope of the word appears to result also in academic controversy⁴.

1. Where the definitions come from

There are numerous definitions to choose from, but for the purposes of this paper, setting out definitions from two of the most commonly used English-culture as:

The way of life, especially the general customs and beliefs, of a particular group of people at a particular time or music, art, theatre, literature etc.

The Oxford English Dictionary defines cultura as:

The arts an other manifestations of human intellectual achievement regarded collectively or the customs, institutions and achievements of particular nation, people or group.

For comparative purposes, it may be interesting to look at the definition of culture as given by an anthropologist, as many of the concepst associated with cuture are not originally legal in nature:

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A totalising concept because everything becomes, or is considered, culture. There are material culture, ritual culture, symbolic culture, social institutions, patterned behaviour, language-as-culture, values, beliefs, ideas, ideologies, meaning and so forth. Second, not only is almost everything in a society culture, but the concept is also totalising because everything in the society is supposed to have the same culture (as in the concept of culture as shared values).⁵

2. Common elements of the definitions

Although there is no single accepted definition, it does appear that there are generally two elements involved in "culture". First of all there is the element of tangible movable and immovable property, which may be religious or secular, relating to religion, charity and education, thearts artdsciences, historic monuments and works of art and science which characterise a given people. Secondly, there is a more intangible element based on ethnocentric factors which contribute to the cultural identity of that people, such as language, religion, traditions and belief systems. Culture is a very wide notion, open to unending interpretations, which is not always helpful when considering legal issues. Therefore international law has qualified the concept of culture in two different ways - cultural property and cultural heritage,

B Defining cultural property

1. Where the definitions come from

The first place to look for definitions of specific legal terms is In legal instruments, and in this context, international legal instruments are the first port of call. Protection of cultural property in national humanitarian law can be traced back to the Lieber Code of 1863⁶ which stressed that "classical works of art, libraries, scientific collections or precious instruments such as astronomical telescopes, as well as hospitals" must be protected from injury even when fortified places were being bombarded.⁷ Similar terminology appeared in the 1874 International Declaration of Brussels which refers to "institutions dedicated

Page 183to religion, charity and education, the arts and sciences"⁸, and the 1880 Oxford Code which protects "buildings dedicated to religion, art, science and charitable purposes'? International humanitarian law finally codified these principles in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention) and provided a thorough definition of cultural property. Including both movable and immovable property, protection is provided for cultural propertyofartistic, historical, scientific, archaeological and architectural importance whether such property is religious or secular in nature. Although the term "cultural property" did not appear in an international legal instrument until the 1954 Hague Convention, earlier legal texts do contain references to what are arguably the components of cultural property.

2. International instruments referring to the components of cultural property

a) Hague Convention II and Regulations

The Convention with Respect to the Laws and Customs of War on Land 189⁹ (Hague Convention II) sets out its aims in its preamble as being "the desire to serve, even in this extreme hypothesis, the interest of humanity and the ever increasing requirements of civilization" and to this end, the annexed Regulations first introduced the concept of the cultural property on the larger international scene by providing that:

In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes.¹⁰

It is interesting to note that even in the very early days of international humanitarian law the protection of components of cultural property was put in the same category as the protection of hospitals and the sick and wounded, leaving no doubt as to the importance of such property.

b) Hague Convention IV and Hague Regulations

The Hague Convention (IV) Respecting the Laws and Customs of War on Land of 18 October 1907 (Hague Convention IV) and the Regulations annexed thereto (Hague Regulations) widened the definition provided by the Hague Convention II. Article 56 of the Hague Regulations provides that:

The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions ofPage 184this character, historic monuments, works of art and science, is forbidden. Article 27 of the Hague Regulations articulates further that:

In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes, historic monuments, hospitals and places where the sick and...