Genocide and Restitution - European Journal of International Law

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34 EJIL 22 (2011), 17–47 reflecting its ‘specificity’, it was distinguishable from other property. 110 However, while interpretation of the Protocol is necessarily informed by the 1954 Hague Convention, the deliberate division of restitutory relief from the body of the Convention enables states to sign it independently of that instrument. 111 Furthermore, the Protocol curbs key principles laid down in post-war restitution schemes. It does not obligate neutral states to indemnify bona fide purchasers; 112 and its obligations apply to international armed conflicts. 113 Despite these limitations, by codifying these principles the Protocol has become an important template for subsequent restitution initiatives. 114 4 The Post-Cold War Period The end of the Cold War precipitated and coincided with various events which led to the revisiting of the limitations of international law covering genocide, human rights and minorities, and the protection and restitution of cultural property, none more so than the dissolution of Yugoslavia. However, unlike the coordinated and complementary approach of the preceding international efforts after World Wars I and II, the establishment of various tribunals, with differing yet overlapping mandates, addressing the Yugoslav conflicts and their aftermath, whilst substantiating these individual strands of international law, has endangered their vital interconnectedness through this lack of coherence. A The International Criminal Tribunal for the Former Yugoslavia Parties to the Yugoslav conflict deliberately targeted the cultural (and religious) property of the opposing sides. 115 In response, the international community under the auspices of the United Nations quickly resolved to investigate and prosecute those responsible for these acts. 116 The work of the resultant ad hoc International Criminal 110 Para. 3 of the Hague Protocol, supra note 109; and Records of the Conference convened by the United Nations Educational, Scientific and Cultural Organization held at The Hague from 21 Apr. to 14 May 1954 (1961), at 256. 111 Records, supra note 105, at paras 1645 and 1750–1756. 112 Records, supra note 105, at paras 1630 and 1637. 113 See Art. 19 of the Hague Convention, supra note 1; Ch. V, Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict, 26 Mar. 1999, in force 9 Mar. 2004, 38 ILM (1999) 769; and UNESCO, Circular Letter regarding Draft Convention for the Protection of Cultural Property in the Event of Armed Conflict, 5 Feb. 1953, UNESCO Doc. CL/717, Annex, at 47. 114 E.g., SC Res. 661, 6 Aug. 1990, and SC Res. 1483, 22 May 2003, at para.7 concerning Iraq; and the Declaration of Principles relating to Cultural Objects Displaced in connection with the Second World War, 31 July 2009, UNESCO Doc. 181/EX/53 Add. 115 See Interim Report of the Commission of Experts Established Pursuant to UNSC Resolution 780(1992), UN Doc. S/1993/25274; M. Kéba M’Baye, Final Report of the UN Commission of Experts Established Pursuant to SC Res. 780(1992), UN Doc. S/1994/674, Annex XI: Destruction of Cultural Property Report, at 66–68, paras 285–297; and European Community Monitoring Mission, Cultural Heritage Report No.2 (1995), at 2. 116 Statute of the International Criminal Tribunal for the Former Yugoslavia, GA Res. 827 (25 May 1993), amended by GA Res. 1166 (13 May 1998), 1329 (30 Nov. 2000), 1411 (17 May 2002), 1431 (14 Aug. 2002), and 1481 (19 May 2003), 1597 (2005), and 1668 (2006), 1775 and 1789 (2007), and 1800 (2008). Downloaded from http://ejil.oxfordjournals.org/ by guest on January 18, 2014
Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity 35 Tribunal for the former Yugoslavia (ICTY) has elaborated upon the interrelation between the protection of cultural property and the criminalization of persecution and genocide in international law. 1 Crimes against Humanity of Persecution The establishment of the ICTY, a half century after Nuremberg, reopened the examination of persecution as it related to cultural heritage. During the first years of the Yugoslav conflicts, the International Law Commission in its 1991 Report on the Draft Code of Crimes Against Peace and Security noted that the systematic destruction of monuments, buildings, and sites of highly symbolic value for a specific social, religious, or cultural group amounted to persecution. 117 Moreover, like the UNWCC before it, the ILC extended this definition to intangible elements of heritage including the suppression of language, religious practices, and detention of community or religious leaders. 118 In the ICTY Statute, crimes against humanity are covered by Article 5. This provision does not list acts against cultural property, nor does it define ‘persecution’. However, the tribunal has held that the destruction or damaging of the institutions of a particular political, racial, or religious group is a crime against humanity of persecution under Article 5(h). 119 The Trial Chamber in Kordić and Čerkez expounded that such acts ‘amount[ed] to an attack on the very religious identity of a people’, adding: As such, it manifests a nearly pure expression of the notion of ‘crimes against humanity’, for all humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects. 120 The ICTY has stated that the attacks must be directed against a civilian population, be widespread or systematic, and perpetrated on discriminatory grounds for damage inflicted to cultural property to qualify as persecution. 121 While the actus reus of persecution may be identical to that of other crimes against humanity, it was distinguishable because of the discriminatory intent ‘on political, racial or religious’ grounds. 122 This requirement is intended to ensure that crimes of a collective nature are penalized because individuals are victimized because of their ‘membership of a targeted civilian population’. 123 Downloaded from http://ejil.oxfordjournals.org/ by guest on January 18, 2014 117 Report of the International Law Commission on the Work of its Forty-Third Session, UN Doc. A/46/10/ suppl. 10 (1991), at 268. 118 Ibid. 119 Prosecutor v. Kordić and Čerkez, Judgment, No. IT-95-14/2-T, Trial Chamber ICTY (26 Feb. 2001), at para. 207. 120 Ibid., at paras 206 and 207. 121 Prosecutor v. Kupreškić et al., Judgment, Case No. IT-95-16-T, Trial Chamber ICTY (14 Jan. 2000), at para. 544; and Prosecutor v. Blaškić, Judgment, Case No. IT-95-14-T, Trial Chamber ICTY (30 Mar. 2000), at para. 207. 122 Ibid., Trial Judgment, at para. 283; Prosecutor v. Radislav Krstić, Judgment, Case No. IT-98-33, Trial Chamber ICTY (2 Aug. 2001), at para. 480; and Kordić and Čerkez, Trial Judgment, supra note 119, at paras 211 and 212. 123 Prosecutor v. Tadić, Opinion, Case No. IT-94-1-T, Trial Chamber ICTY (7 May 1997), at para. 644.
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