David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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The public outcry in response to the looting of the Baghdad Museum following the 2003 invasion of Iraq and the bombardment of the historic city of Dubrovnik in 1991 are contemporary examples of international condemnation of attacks upon cultural heritage during armed conflict and belligerent occupation. This international concern has manifested itself since the earliest codification of the laws of war which provided cultural heritage with a protection regime distinct from other civilian property, and state categorically that violations shall be subject to legal sanctions. These general international humanitarian law instruments are augmented by a specialist multilateral framework which governs the protection of the cultural heritage in preparation for armed conflict, during armed conflict and belligerent occupation. International humanitarian law was the first specialist field within international law to afford cultural heritage such exceptionalism. The rationale underlining this protection - its importance to all humanity - has evolved and spread beyond armed conflict and belligerent occupation. The exceptionalism originally afforded cultural heritage in international humanitarian law arose from its perceived significance to humanity through its advancement of the arts and sciences, and knowledge. By the mid-twentieth century, and the rise of human rights in international law, this rationale was recalibrated to emphasise its importance to the enjoyment of human rights and promotion of cultural diversity. This shift in rationale manifested itself most clearly in the articulation and prosecution of war crimes, crimes against humanity and genocide. Cultural heritage and its protection was no longer based on its exclusivity but its intrinsic importance to people and individuals, to their identity and their enjoyment of their human rights. It has become fundamental in establishing cases of violations of international humanitarian law and international criminal law, and assessing the claims of victims of gross violations of human rights. In examining the protection of cultural heritage in this chapter, I focus on this shifting rationale to highlight the ever-present interplay and interdependence between international humanitarian law and human rights law. First, I outline the exceptional treatment of cultural heritage in general international humanitarian law instruments including those covering non-international armed conflicts, and its overlap with international human rights law. Then, I detail how this protection has been built upon by the specialist regime for the protection of cultural heritage during armed conflict and belligerent occupation developed under the auspices of UNESCO. Finally, I analyse international criminal law jurisprudence from the International Military Tribunal, Nuremberg to the International Criminal Court for the former Yugoslavia, to show how efforts to prosecute violations of the laws and customs of war relating to cultural heritage have been intrinsic to articulation and prosecution of crimes against humanity and genocide.
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