Cultural Heritage in Human Rights and Humanitarian Law

INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW, pp.250-302, O. Ben-Naftali, ed., Oxford University Press, 2011

53 Pages Posted: 8 May 2009 Last revised: 23 Jan 2014

See all articles by Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

University of Technology Sydney, Faculty of Law

Date Written: May 8, 2009

Abstract

The exceptionalism originally afforded cultural heritage in international humanitarian law arose from its perceived significance to humanity through its advancement of the arts and sciences, and knowledge. By the mid-twentieth century, and the rise of human rights in international law, this rationale was recalibrated to emphasise its importance to the enjoyment of human rights and promotion of cultural diversity. This shift in rationale manifested itself most clearly in the articulation and prosecution of war crimes, crimes against humanity and genocide. Cultural heritage and its protection was no longer based on its exclusivity but its intrinsic importance to people and individuals, to their identity and their enjoyment of their human rights. It has become fundamental in establishing cases of violations of international humanitarian law and international criminal law, and assessing the claims of victims of gross violations of human rights.

In examining the protection of cultural heritage in this chapter, I focus on this shifting rationale to highlight the ever-present interplay and interdependence between international humanitarian law and human rights law. First, I outline the exceptional treatment of cultural heritage in general international humanitarian law instruments including those covering non-international armed conflicts, and its overlap with international human rights law. Then, I detail how this protection has been built upon by the specialist regime for the protection of cultural heritage during armed conflict and belligerent occupation developed under the auspices of UNESCO. Finally, I analyse international criminal law jurisprudence from the International Military Tribunal, Nuremberg to the International Criminal Court for the former Yugoslavia, to show how efforts to prosecute violations of the laws and customs of war relating to cultural heritage have been intrinsic to articulation and prosecution of crimes against humanity and genocide.

Keywords: Cultural Heritage, Cultural Sites, Monuments, International Humanitarian Law, Human Rights Law, War Crimes, Crimes Against Humanity, Genocide, Armed Conflict, Belligerent Occupation

JEL Classification: K33, K42

Suggested Citation

Vrdoljak, Ana Filipa, Cultural Heritage in Human Rights and Humanitarian Law (May 8, 2009). INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW, pp.250-302, O. Ben-Naftali, ed., Oxford University Press, 2011, Available at SSRN: https://ssrn.com/abstract=1401231

Ana Filipa Vrdoljak (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

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