Intentional Destruction of Cultural Property: Sentencing and Reparations

Vrdoljak, AF

Intentional Destruction of Cultural Property: Sentencing and Reparations

Vrdoljak, AF

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Publisher:: Brill Nijhoff
Publication Type:: Chapter
Citation:: Heritage Destruction, Human Rights and International Law, 2023, pp. 112-141
Issue Date:: 2023-07-22

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Field	Value	Language
dc.contributor.author	Vrdoljak, AF
dc.contributor.editor	Strecker, A
dc.contributor.editor	Powderly, J
dc.date.accessioned	2023-11-06T21:24:32Z
dc.date.available	2023-11-06T21:24:32Z
dc.date.issued	2023-07-22
dc.identifier.citation	Heritage Destruction, Human Rights and International Law, 2023, pp. 112-141
dc.identifier.isbn	9004433996
dc.identifier.isbn	9789004433991
dc.identifier.uri	http://hdl.handle.net/10453/173069
dc.description.abstract	A decade and a half after its establishment the permanent International Criminal Court (icc) was called to reflect upon the role of international responsibility – whether it be individual criminal responsibility, State responsibility, and the responsibility of international organisations arising from the intentional destruction of cultural heritage. The tensions manifest in the first case before the Court addressing war crimes against cultural property represent the intersection between international criminal law, human rights law and international cultural heritage law, highlighting their nascent nature and competing rationales, and exposing the various fault lines within contemporary international law.1 In international law, as in domestic law, law and lawyers are understandably focussed on the development of substantive rules in addressing issues and concerns and perceived gaps. What occurs after these rules are implemented, including sentencing and reparations, are in practice, comparatively speaking, an afterthought. These twin initiatives are inextricably linked and should be mutually self-reinforcing or at the very least noncompeting or consistent. Yet the icc’s jurisprudence shows this is not the case. The Prosecutor v Ahmad Al Faqi Al Mahdi delivered in 2016 and 2017 was the first time the icc found a defendant responsible for intentionally attacking protected cultural and religious sites. It is also the first time that an international criminal court (indeed the same court) has delivered an order for reparations pertaining to this international crime.2 This conflux has taken over a century to come to fruition. The overlap between the prohibition against the destruction of cultural property, individual criminal responsibility and reparations evolved in lockstep with international humanitarian law and international criminal law generally. It is contained in the earliest binding formulations of the rules of armed conflict in contemporary international law. The Regulations of the 1899 Hague ii and 1907 Hague iv Conventions provide that during belligerent occupation:
dc.format.extent	15
dc.language	en
dc.publisher	Brill Nijhoff
dc.relation.ispartof	Heritage Destruction, Human Rights and International Law
dc.rights	info:eu-repo/semantics/closedAccess
dc.title	Intentional Destruction of Cultural Property: Sentencing and Reparations
dc.type	Chapter
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
utslib.copyright.status	closed_access	*
pubs.consider-herdc	true
dc.date.updated	2023-11-06T21:24:30Z
pubs.publication-status	Published

Abstract:

A decade and a half after its establishment the permanent International Criminal Court (icc) was called to reflect upon the role of international responsibility – whether it be individual criminal responsibility, State responsibility, and the responsibility of international organisations arising from the intentional destruction of cultural heritage. The tensions manifest in the first case before the Court addressing war crimes against cultural property represent the intersection between international criminal law, human rights law and international cultural heritage law, highlighting their nascent nature and competing rationales, and exposing the various fault lines within contemporary international law.1 In international law, as in domestic law, law and lawyers are understandably focussed on the development of substantive rules in addressing issues and concerns and perceived gaps. What occurs after these rules are implemented, including sentencing and reparations, are in practice, comparatively speaking, an afterthought. These twin initiatives are inextricably linked and should be mutually self-reinforcing or at the very least noncompeting or consistent. Yet the icc’s jurisprudence shows this is not the case. The Prosecutor v Ahmad Al Faqi Al Mahdi delivered in 2016 and 2017 was the first time the icc found a defendant responsible for intentionally attacking protected cultural and religious sites. It is also the first time that an international criminal court (indeed the same court) has delivered an order for reparations pertaining to this international crime.2 This conflux has taken over a century to come to fruition. The overlap between the prohibition against the destruction of cultural property, individual criminal responsibility and reparations evolved in lockstep with international humanitarian law and international criminal law generally. It is contained in the earliest binding formulations of the rules of armed conflict in contemporary international law. The Regulations of the 1899 Hague ii and 1907 Hague iv Conventions provide that during belligerent occupation:

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http://hdl.handle.net/10453/173069