Summary

76 . Chapter VII Operations were deployed in Korea (SC Res. 83 of 27 June 1950-US Command and control); Iraq (SC Res 678 of 29 November 1990-US Command and Control, Democratic Republic of Congo (SC Res. 1484 of 30 May 2003 – French Command and Control).

77 . Chapter VIII Operations were deployed in Liberia (ECOMOG) (SC Res. 813 of 6 March, 1993 – ECOWAS Command and Control) Sierra Leone (SC Res. 1132 of 8 October, 1997 – ECOWAS Command and Control.

78 . In 1993, the UN-led protection force in Bosnia and Herzegovina saw its mandate enlarged to encompass the authorization to use force in order to protect the Bosnia Muslin population placed in „safe areas‟ and to ensure compliance with the fight ban (SC Res. 836 of 3 June 1993, SC Res.

844 of 18 June 1994 and SC Res. 816 of 31 March 1993). The same year, in Somalia, UNOSOM II was created offer the failure of UNOSOM I and US led UNITAF, with an enlarged mandate that involved the authorization to use coercive power in order to respond aggressively to attacks that were being perpetrated against UN troops by some Somali factions (SC Res. 814 of 26 March, 1993)

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The most comprehensive regime protecting cultural property was set up in 1954 with the Hague cultural property convention, and complemented in 1999 by the Second Hague Protocol⁷⁹. These treaties apply to a particular category of objects that are deemed to be of „great importance to the cultural heritage of every people⁸⁰. Within this regime, a line is drawn between a general category of objects and a special category of very important objects that benefit from so-called „special‟ or „enhanced‟ protection provided they are marked and registered as such with the appropriate authority. As one author explains, the registration of an object is comparable to an internationally recognized declaration establishing a non-defended locality⁸¹. Basically, the holder of the property registers or certifies a commitment not to use the property for military purposes, thereby signaling to potential adversaries that they need to be particularly aware of this fact.

The 1999 Second Hague Protocol makes it possible for other parties to recommend specific cultural property to be included in the registry but, as of yet, no one can impose the registration of an object on an unwilling state⁸². A state that wishes to can therefore set about destroying cultural property located within its borders. In light of the universal importance of certain sites and objects, this is an unfortunate gap in the law, which leaves the door open for tragic developments such as the destruction of the Banniyan Buddhas by the Taliban regime in Afghanistan, in the spring of 2001.⁸¹

79 . Second Protocol to the convention for the Protection of Cultural Property in the event of Armed Conflict the Hague, 14 May, 1954, the Hague, 26 March 1999 (hereinafter 1999 second Hague protocol) reprinted in Roberts 8 Guelft, supra note 3 at 699.

80 . For the purpose of both these treaties 1 of the 1954 Hague cultural property convention.

81 . J M. Henckaerts, “New Rules for the protection of cultural property in Armed Conflict: The significance of the Second protocol to the 1954 Hague Convention for the protection of cultural property in the event of armed conflict” 81-835. International review of the Red Cross (1999), 593 at 611.

82 . 1999 Second Hague Protocol, art. 11(3)

81 . The two Buddhas were destroyed on the basis that they were offensive to Islam. The earliest of the two statues is thought to have been carved into the sandstone cliffs of Bamigam in the third century A.D. at 53 Meters and 36 meters, the statues were the Tallest Standing Buddhas in the world.

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The First Additional Protocol sets up what seems to be a separate regime covering three categories of objects; historic monuments, works of art, and places of worship, provided they constitute the cultural or spiritual heritage of „people‟s (i.e Mankind)⁸². The criterion of spirituality was added in order to cover „objects whose true value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of people⁸³. Whereas the scope of the Hague convention and its second protocol extends to property that form part of the cultural heritage of “every people”, the property covered by the First Additional Protocol must be of such importance that it will be recognized by everyone, even without without being marked or registered as such.

Each party to the conflict must respect cultural property. Special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are military objectives. Property of great importance to the cultural heritage of every people must not be the object of attack unless imperatively required by military necessity⁸⁴.

To the extent that cultural property is civilian, it may not be made the object of attack, it may only be attacked in case it qualifies as a military objective. The statute of the International Criminal Court, therefore, stresses that intentionally directing attack against building dedicated to religion, education, art, science or charitable purposes or historic monuments is a war crime in both international and non-international armed conflicts “provided they are not military objectives”⁸⁵. The obligation to take special care

82 . APL Article 53.

83 . ICRC Commentary APL 13 at para. 2064.

84 . The preamble to the 1954 Hague Cultural property convention

85 . ICC Statute, Article 8(2)(b)(ix) and (e) (iv)

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to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historical monuments, provided they are not used for military purposes, is set forth in many military manuals⁸⁶.

Cultural property is seen as a symbol of the collective memory of people. In armed conflict, it is protected from incidental damage and, most importantly, it is protected from those who might seek to destroy it in order to harm the population whose identity is tied to its preservation. All too often, destruction is deliberate with damage being inflicted on present generations in order “to orphan future generations and destroy their understanding of who they are and from where they come⁸⁷. The identity-based violence that took place in the former Yugoslavia in the 1990s extended to cultural property⁸⁸. An essential part of the policy of ethnic cleansing included the repeated destruction of educational institutions and places of worship. The Trial Chamber of the ICT for the Former Yugoslavia found that destruction and damage of religious or educational institutions was evidence of the crime of persecution⁸⁹. In a compelling passage of the Kordic decision, the chamber wrote;

This act, when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people. As such, it manifests a nearly pure expression of the notion „crimes against humanity‟, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects. The Trial Chamber therefore finds that the destruction and willful damage of

86 . See. E.g Military manuals of Argentina, Section. 40, Burkina Faso Section. 47 Cameroon , Section.49, Congo Section. 53, Mali Section. 74 and Australia Sections. 41-42)

87 . H Abthi “The protection of cultural property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the Former Yugoslavia” (2001) 14 Harvard Human Rights Journal, 1 at 2.

88 . The most extensive attacks to have been perpetrated against cultural property during 1991-1995 wars in the Former-Yugoslavia were those that destroyed the old town of Dubrovnile in Croatia and the Mostar Bridge in Bosnia-Herzegovina.

89 . See. Blaskic.case (op,cit) at 48 and ICTY, Prosecutor V. Dario Kordic & Mario Cerkez, IT-95-14/2-T, Judgment, 26 February, 2001 (hereinafter Kordic).

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institutions dedicated to Muslim religion or education coupled with the requisite discriminatory intent, may amount to an act of persecution⁹⁰.

The laws of international armed conflict prohibit the targeting of cultural property and provide special protection to objects falling within this category. One of the main challenges of this area of the law is the identification of what constitutes cultural property. Indeed, not only is cultural and spiritual value often established according to subjective criteria, but the relative importance of an object within a given community may change overtime or in light of certain circumstances. For example, a school with little artistic or historic value, which contains no significant collection of books or documents is unlikely to constitute cultural property. However, if its destruction fits within a systematic campaign of destroying places of education in order to annihilate the possibility for a people to learn its language and history, the school may be deemed to be cultural property because of the function it serves in preserving the identity of a

“targeted” community. It becomes immediately apparent that the subjectivity and contextual analysis involved in determining when an object constitutes cultural property affects the ability of the law to be clear and predictable⁹¹. For this reason, it is imperative to understand the scope of application of existing conventional instruments; only then is it possible to identify the targeting rules that have arguably become customary in nature.

90 . Prosecutor v.Kordic & Mario Cerkez, IT-95-14/2-T. Judgement,26 February,2001 at 207. For an analysis of the relationship between the crime of persecution and damage inflicted to cultural property in the context of the work done by the ICTY, Se Abtahi, Supra note 253 at 20ff.

91 Alexandra Bolvan “The legal regime applicable to targeting military objectives” 63.

163 CHAPTER 6

OBJECTS FOR HUMANITARIAN OBJECTIVES AS TARGETS

Certain categories of objects benefits from special measure of protection under the Laws of War. By virtue of Article 57 (2)(a) API, those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives , and that it is not prohibited by the provisions of this protocol to attack them and to take all feasible precautions in the choice of means and methods with a view to avoiding, and in any event to minimizing damage to civilian objects.

What the law seeks to protect is the civilian population because, it is more likely to be harmed as a result of certain objects being targeted. Consequently, objects used for humanitarian purposes enjoy special protection from targeting during armed conflict.

Thus, individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function, hence have lost the special protection he is entitled to.

6.1 Objective Necessary for the Provision of Medical Care and Humanitarian