This article seeks to locate the destruction of the Bamiyan Buddhas within the framework of the post-World War II international laws that were developed to prevent the loss, damage, and destruction of cultural property, defined generally as the tangible constituents of cultural heritage. This article argues that the destruction of the Bamiyan Buddhas was a crime under international law and assesses two possible approaches that have been proposed for criminal prosecution of individuals involved in their destruction. One approach would argue that the destruction of the Bamiyan Buddhas violated the human rights of a particular culture or people; the other would argue that the destruction of the Buddhas was a crime against humanity (crimina juris gentium). After offering an historical overview of cultural-property protections under international law, this article will place the destruction of the Bamiyan Buddhas in its historical and political context before testing the “rights-based” and “crimes-against-humanity” theories for criminal prosecution of the responsible actors by briefly applying each theory to the facts and circumstances surrounding the destruction of the Buddhas. The article will conclude that a “crimes-against-humanity” approach to prosecutions for willful destruction of cultural property offers greater potential to strengthen the protections afforded to cultural property under international law.
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