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International criminal law as a tool for enhancing the protection of cultural heritage

Final Report Summary - CULTURAL HERITAGE (International criminal law as a tool for enhancing the protection of cultural heritage)

The main objective of the research project titled "International criminal law as a catalyst for the protection of religious and cultural rights" is twofold: 1) to evaluate the impact of international criminal law on the protection of cultural property, more specifically on that segment commonly referred to as cultural heritage; and 2) to assess the influence of international criminal law on the protection of human rights, more specifically cultural and religious rights of minority groups. In order to pursue this objective, the starting point has been the collection and examination of relevant documents, legislation and case-law, both national and international. In particular: international treaties dealing with this topic, domestic implementing legislation (specifically internal laws implementing the Second Protocol to the 1954 Hague Convention that criminalizes serious acts against cultural heritage), international criminal tribunals' case-law (with specific reference to the jurisprudence of the International Criminal tribunal for the Former Yugoslavia), relevant legal doctrine. The analysis of this vast material revealed several gaps and inconsistencies in the evolution of the penalization of acts against cultural heritage committed in times of war and the researcher tried to elaborate on possible suggestions and solutions to fill these gaps and foster consistency and effectiveness (see forthcoming publication in the European Journal of International Law: "The criminalization of offences against cultural heritage: the quest for consistency").
The researcher, while continuing to explore the issued discussed above (in particular domestic implementing legislation of the Second Protocol) also delved into the impact of international criminal law on the human dimension of cultural heritage. In particular, the case-law of the International Criminal Tribunal for the former Yugoslavia (ICTY) was taken into consideration. Human rights and minority rights considerations underlying the protection of cultural property may be better advanced through the category of crimes against humanity. More specifically persecution may be the category that is better suited to criminalize acts against intangible cultural heritage. In this respect it is interesting to follow the work of the Extraordinary Chambers of Cambodia, the mixed court establushed in rder to prosecute international crimes committed during the Khmer rouge regime. The category of genocide as well may be useful, as the ICTY case-law clearly showed (and the International Court of Justice relied on these findings) that acts against cultural heritage may be useful to prove the mental element of genocide. The researcher is carrying on the research and is evalutaing the possibility to write a monograph on this topic.