The Protection of Cultural Heritage During Armed Conflict
by Patty Gerstenblith*
part of the conflict, Aprophe destroyed one of the temples in the Mai-Tocao Temple complex, a site located within its own terri- tory but of cultural and religious significance to both nations, as a stratagem to convince Ranta- nia to cease its attack. Rantania sued Aprophe before the Inter- national Court of Justice, alleg- ing, among other claims, that Aprophe violated international law in intentionally destroying the Temple. The problem raises interesting questions of inter- national law concerning the protection of cultural heritage during armed conflict. It is com- plicated by the fact that both nations are parties to only the 1972 UNESCO Convention on the Protection of World Cultural and Natural Heritage and are not parties to any of the other international conventions and instru- ments that protect the world’s cultural heritage. The problem also raises questions of the reach of international law concerning cultural heritage into the domestic affairs of individual nations.
T
Throughout the history of the development of international law, there were conflicting views as to whether nations had a responsibility dur- ing armed conflict to avoid intentional damage to
he 2012 Jessup International Law Moot Court Competition problem involves armed conflict between two neighbor- ing nations, Aprophe and Rantania. As
Only after World War II, with its massive destruction and looting of cultural objects and monuments, did the international community succeed in crafting a legal regime specifically for the protection of cultural heritage. The first international convention devoted
cultural sites, and whether cultural objects con- stituted legitimate war booty or were illegitimate pillage. Between the sixteenth and eighteenth centuries, legal commentators were divided as to whether cultural sites and objects are legitimate war booty or whether they are a distinct form of protected property. The legal right to claim prizes was justi- fied by the founder of modern international law, Hugo Gro- tius, writing in the early and mid-seventeenth century.
exclusively to cultural heritage was formulated in 1954 — the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
However, during this period, the concept of the just war developed. Any actions nec- essary to accomplish the pur- poses of a just war were legiti- mate, but most commentators seemed to agree that destruc- tion or appropriation of what we today call cultural property was not necessary to achieve these purposes.1
By the eigh- teenth century, the Swiss ju-
rist, Emmerich de Vattel, distinguished between cultural objects and other types of moveable property as legitimate war booty and singled out for protection “buildings … which are an honour to the human race and which do not add to the strength of the enemy, such as temples, tombs, public buildings and all edifices of remarkable beauty.”2
During the Napoleonic wars at the turn of the nineteenth century, the French victors removed
ILSA Quarterly » volume 20 » issue 4 » May 2012 27
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