Chapter

The criminalization and prosecution of attacks against cultural property

Andrea Carcano

War crimes and the conduct of hostilities : challenges to adjudication and investigation

Cheltenham ; Northampton : E. Elgar, 2013

p. 78-97

English

Andrea Carcano discusses the status of cultural property in the context of international criminal law (ICL). Through an examination of case law and statutory analysis, the author outlines how the statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the statute of the International Criminal Court (ICC), and other ICL instruments have approached cultural property. The author argues that neither the ICTY’s nor the ICC’s statute criminalize attacks against cultural property, but that they criminalize attacks against a range of civilian objects, many of which could fit within the definition of cultural property. The author discusses the ICTY’s and ICC’s practices of prosecuting the destruction of protected objects with discriminatory intent as a crime against humanity. He argues that this approach has the advantage of enabling prosecution of attacks against cultural property in peacetime, but that it also dilutes IHL norms protecting cultural property as part of the cultural heritage of “every people.” Ultimately, the author argues that the trend to criminalize attacks on cultural property in ICL has been conservative and that ICL does not yet provide a comprehensive regime by which to prosecute offences against cultural property. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

• War crimes and the conduct of hostilities : challenges to adjudication and investigation / ed. by Fausto Pocar, Marco Pedrazzi, Micaela Frulli