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First, the recent crimes against cultural heritage have not always been committed in international armed conflicts involving acts that can be attributed to States. Second, it is disputable whether international responsibility can be effectively invoked when such acts were committed by a State against cultural heritage situated on its own territory, as happened in Syria when the Syrian Army attacked cultural heritage sites inscribed on the World Heritage List, such as Krak des Chevaliers. Thus the question arises whether a State or States other than an injured State may effectively invoke the responsibility of another State if the cultural heritage obligation breached is owed to the international community as a whole, as provided by Article 48 1 b of the Articles on Responsibility of States for Internationally Wrongful Acts ARSIWA.

Indeed, the existence of such obligations, even in relation to the World Heritage Sites, has not been yet widely and unanimously accepted by the international community. Finally, the recent attacks against cultural heritage have been committed by various non-State, extremist, and terrorist groups operating beyond the control of any State. The latter feature of the current crimes against cultural heritage in armed conflict raises the questions of efficient measures to counteract such offences and eliminate the impunity of perpetrators, thus also raising questions about international criminal liability rather than State responsibility for wrongful acts.

Rights and Obligations of Third Parties in Armed Conflicts - Oxford Scholarship

Since the horrifying experience of the wars in the former Yugoslavia, the regime of international criminal law has been significantly extended to cover cultural heritage crimes committed in armed conflict. The Second Protocol to the Hague Convention set up the most advanced and detailed regime of individual criminal responsibility for offences against cultural heritage committed in both international and non-international armed conflicts.

It is also the first time when an international criminal tribunal dealt exclusively with the crime of intentional deliberate attacks directed against protected cultural heritage sites. However, it needs to be emphasized that the ICC will very unlikely serve as the global forum for executing justice in respect of cultural heritage crimes. It also appears that the Al-Mahdi case, important and instructive as it is, does not provide any easy pathway for further prosecutions. The conviction of Al Mahdi was based on his guilty plea, which resulted in a rather quick and smooth trial and no lodging of appeals, but it is unlikely that future trials would go so smoothly.

Such circumstances are not likely to characterize other instances of cultural heritage crimes. Hence it remains the prime responsibility of States to prosecute international cultural heritage crimes before their respective domestic courts. To date no corporate entity non-State group has been prosecuted by any domestic or international court for any international cultural heritage crime. Furthermore, there is no such practice in relation to any other international crimes either. Importantly, the statutes of international criminal tribunals, including the Rome Statute, provide only for jurisdiction over natural persons — not their collectivities.

All the aforementioned shortcomings of the current international law system for the effective protection of cultural heritage in armed conflicts as well as the struggle against the violations of international obligations in this regard call for an enhanced international cooperation. This would involve the practical implementation of the principal of cooperation enshrined in the vast international law instrumentarium, both in the realm of cultural heritage protection as well as in novel methods of global governance, involving the coordination of actions of various stakeholders, including non-State actors.

The protection and enjoyment of cultural heritage are thus increasingly seen as crucial for effective global governance and indivisible from the development of a global civic society. Hence cultural belonging, cultural rights, cultural voice, and cultural inclusion — for both individuals and groups — now constitute claims which can be incorporated into demands for the realization of economic, political and social rights.

Liber Amicorum Rüdiger Wolfrum

One of the major concerns voiced in relation to the conflicts in Syria and Iraq is the struggle against illicit traffic in cultural objects and the facilitation of their return to the countries of origin. The conference gathered together the representatives of forty States, museum officials, heritage experts and non-governmental organizations.

The final declaration also envisages the creation of an international fund for the protection of endangered cultural heritage during armed conflict, which would help finance preventive and emergency operations, the fight against the illicit trafficking of cultural artefacts, as well as contribute to the restoration of damaged cultural property. Moreover, it foresees the creation of an international network of safe havens to temporarily safeguard cultural property endangered by armed conflicts or terrorism on the territory where it is located, or if it cannot be secured at the national level, in a neighbouring country, or as a last resort in another country, in accordance with international law at the request of the governments concerned, and taking into account the national and regional characteristics and contexts of the cultural property to be protected.

Such a cooperative, participatory method for the protection of cultural heritage has also been emphasized by UNESCO as a part of its role in global governance.

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The campaign, triggered by the destruction of cultural heritage in Syria and Iraq, invites people to change their profile on social networks to raise awareness about heritage destruction and to promote sustainable activities to enhance the societal values of heritage. Without doubt the protection of cultural heritage today constitutes a global imperative, calling for political, legal and technical cooperation among transnational actors, aimed at negotiating solutions intended to be implemented on an international scale. However, the value of cultural heritage for global development, the maintenance of peace, and the protection of all human rights is hampered by the weaknesses of the existing legal mechanisms on the one hand, and the evolving multipolar and multilevel initiatives and programmes on the other.

A more integrated approach and focused guidance are necessary. Unsurprisingly, the role of the UNSC can be viewed as paramount in these consolidating processes. Indeed, since the end of cold war the activity of the UNSC, as the core organ responsible for the maintenance of international peace and security, has intensified. This includes activities focused on the protection of cultural heritage. In the context of the armed conflicts in Kuwait [46] and Iraq [47] the UNSC has become an important cultural heritage law-maker. Acting under Chapter VII of the UN Charter, it has set up binding obligations supplementing and reinforcing the existing set of international cultural heritage obligations.

In particular, UNSC Resolution confirmed the binding obligation of the entire international community to counteract the crimes against cultural heritage committed in armed conflicts. In a similar vein, the series of resolutions adopted in relation to the situations in Mali, Syria and Iraq have widely addressed the binding nature of the prohibition of attacks directed against protected cultural heritage, including the plunder of cultural property.

In particular, UNSC Resolution , adopted in , [49] obliged all the States to take — in cooperation with Interpol, UNESCO and other international organizations — appropriate measures to counteract the trade in cultural, scientific and religious objects unlawfully removed from the territories of Iraq and Syria in order to disrupt terrorist financing through the illicit trafficking of antiquities. The UN Member States are thus obliged to prohibit the international trade in such materials and facilitate their safely return to the peoples of Iraq and Syria.

The implementation of these provisions has resulted in a set of national and regional instruments designed to control the cross-border circulation of cultural material originating from these conflict-ridden territories. According to Irina Bokova, Director General of UNESCO, nearly fifty States have already strengthened their legislation and are sharing information and data in order to dismantle trafficking routes and to facilitate the return of unlawfully removed and traded cultural property.

On the policy level, Resolution contributed to the already-mentioned Abu Dhabi Declaration of , which in turn accelerated the enactment of domestic regulatory frameworks e.

The principles of this declaration also had an important impact on the UNSC actions, which led to the adoption of Resolution Accordingly, the actions of the UNSC have thus brought together and bridged already existing international law frameworks for the protection of cultural heritage in armed conflicts, the anti-terrorist global agenda, and several newly developed policy initiatives.

Resolution has widely been acclaimed for being the first UNSC resolution dealing entirely with the protection of cultural heritage as a matter of international peace and security.

International Law Commission, Articles on State Responsibility

It reiterates that the destruction of cultural property hinders reconciliation among people, stymies or reverses development, and destroys cultural diversity. It also reaffirmed that such acts may constitute a war crime and that perpetrators must be brought to justice, linking cultural heritage crimes with threats to global peace. However, the significance of this resolution goes far beyond the enhancement of obligations imposed on all the UN members to prosecute and punish cultural heritage crimes. In fact, it may be argued that the UNSC has opted for mainstreaming of the protection of cultural heritage in armed conflicts within a broader global agenda.

First, it reaffirms that all UN Member States are bound to prohibit and counteract cultural heritage crimes committed in the event of an armed conflict paras It also emphasizes that illicit trafficking in cultural material may constitute an element of transnational organized crime, and that all Member States are bound under the UN Convention against Transnational Organized Crime [56] to provide adequate measures to counter such crimes para 9.

Accordingly, UN Member States are under a binding international obligation to cooperate in fighting against the impunity of perpetrators of crimes against cultural heritage. Next, Resolution emphasizes that no one should be permitted to engage in the trade of illegally-acquired cultural goods, ie that States should adopt appropriate national regulations to prevent such trafficking by private individuals and even treat such activities as one of the most serious transnational crimes. Moreover, if such objects were illegally exported they should be returned to their place of origin.

Thus, Resolution places a binding obligation upon the entire international community to ensure that cultural property illicitly transferred from conflict-ridden territories must be returned once the conflict is over. Resolution , the adoption of which was promoted by UNESCO and the governments of France and Italy which were already engaged in the protection of cultural heritage in Mali, Syria and Iraq , calls for enhanced multilevel cooperation between various States and non-State actors operating on both the international and national forums.

In this regard, the resolution refers to the Abu Dhabi Declaration. However, while the latter promoted the creation of a network of safe havens in the country of origin, and as a last resort in another country, Resolution stresses that Member States, rather than international bodies, have the primary responsibility for protecting dispersed cultural heritage through the creation of safe havens in their own territory.

Such a solution was aimed at respecting State sovereignty, as the establishment of safe havens for cultural heritage outside the country of origin was particularly troubling for some members of the UNSC, especially Egypt. The Draft Action Plan mentions various possible scenarios and recalls the set of operational guidelines adopted by the International Law Association in Thus, the UNSC, by obliging Member States to create inventories of unlawfully removed cultural property, de facto promotes the establishment of extraterritorial safe havens for cultural material unlawfully removed in connection with armed conflict and terrorism, thus challenging some of arguments against such facilities based on exclusive sovereign rights to cultural heritage.

Next, Resolution refers to the creation of an international fund for the protection of endangered cultural heritage, as had been announced at the Abu Dhabi Declaration. The creation of a separate new fund was not specifically envisaged, as various UNSC members indicated that UNESCO had already been engaged in various initiatives and funding projects for the protection of cultural heritage and a new international fund to safeguard endangered cultural heritage in areas of armed conflict would duplicate or even compete with the other UNESCO funding instruments.

The impact of Resolution has been further contextualized and implemented in distinct areas of international cultural law and policy. The same holds true for Common Article 1 of the Geneva Conventions. Both norms create third-party rights and obligations.

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However, structural deficits in the international legal order often hinder their effective enforcement. Moreover, recent state practice challenges certain obligations stemming in particular from the prohibition on the use of force. This chapter analyzes and compares the normative framework of both rules and examines recent contestations in state practice. Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

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