Military Necessity in International Cultural Heritage Law

391 Pages·2021·2.996 MB·English

by  Berenika Drazewska, British Institute of International and Comparative Law

Military Necessity in International Cultural Heritage Law
International Humanitarian

Law Series
Editor-i n- Chief
Professor Timothy L.H. McCormack
Editorial Advisory Board
Professor Georges Abi- Saab – H.E. Judge George H. Aldrich
Madame Justice Louise Arbour – Professor Ove Bring
Professor John Dugard – Professor Dr. Horst Fischer
Dr. Hans- Peter Gasser – Professor Christopher Greenwood
Professor Ruth Lapidoth – Professor Gabrielle Kirk McDonald
H.E. Judge Theodor Meron – Captain J. Ashley Roach
Professor Michael Schmitt
volume 61
The International Humanitarian Law Series is a series of monographs and edited volumes which
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national legal regulation of armed conflict.
The series explores substantive issues of International Humanitarian Law including:
– Protection for victims of armed conflict and regulation of the means and method of warfare
– Questions of application of the various legal regimes for the conduct of armed conflict
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national law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and
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The titles published in this series are listed at brill.com/ihul
Military Necessity in

International Cultural
Heritage Law
By
Berenika Drazewska
LEIDEN | BOSTON
Cover illustration: The newly- restored Vijećnica, which holds the National and University Library of Bosnia
and Herzegovina, in Sarajevo, Sept. 18, 2015. Destroyed in 1992, it has been painstakingly reconstructed.
Having witnessed humankind’s capacity for violence, Sarajevo is demonstrating the capacity to rebuild
with art that nourishes and heals (Copyright: anp/ Todd Heisler/ The New York Times Syndication).
Library of Congress Cataloging-in-Publication Data
Names: Drazewska, Berenika, author.
Title: Military necessity in international cultural heritage law /
by Berenika Drazewska.
Description: Leiden ; Boston : Brill Nijhoff, [2022] | Series: International
humanitarian law series, 1389-6776 ; volume 61 | Based on author’s thesis
(doctoral - European University Institute, 2016) issued under title: Military
necessity in international cultural heritage law : lessons learned from
international humanitarian law, international criminal law and international
environmental law. | Includes bibliographical references and index.
Identifiers: LCCN 2021046276 (print) | LCCN 2021046277 (ebook) |
ISBN 9789004432550 (hardback) | ISBN 9789004432567 (ebook)
Subjects: LCSH: Convention for the Protection of Cultural Property in the
Event of Armed Conflict (1954 May 14) | Cultural property–Protection
(International law) | War (International law)
Classification: LCC KZ6535.A61954 D73 2022 (print) | LCC KZ6535.A61954 (ebook) |
DDC 344/.094–dc23/eng/20211105
LC record available at https://lccn.loc.gov/2021046276
LC ebook record available at https://lccn.loc.gov/2021046277
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-t ypeface.
issn 1389- 6776
isbn 978- 90- 04- 43255- 0 (hardback)
isbn 978- 90- 04- 43256- 7 (e- book)
Copyright 2022 by Berenika Drazewska. Published by Koninklijke Brill nv, Leiden, The Netherlands.
Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink,
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This book is printed on acid- free paper and produced in a sustainable manner.
Contents

F oreword x
A cknowledgments xii
P rincipal Abbreviations xiii
C ases xvi
I nternational Instruments xxiii
I ntroduction 1
1 T he Development of the Treaty Framework for the Protection of
Cultural Heritage 12
1.1 A Historical Perspective 12
1.2 T he Birth of a Specific Treaty Regime for the Protection of Cultural
Property 16
1.3 T he Road to the Hague Convention (1949– 1954) 22
1.3.1 The Hague Convention for the Protection of Cultural Property in
the Event of Armed Conflict (cpc) (1954) 23
1.3.2 The Changing Interplay of Military Realism and Cultural
Considerations between the oim Draft of 1938 and the Hague
Convention of 1954 29
1.3.3 The Issue of Military Necessity during the Hague
Conference 32
1.3.3.1 Military Necessity in the Preamble of the Hague
Convention 32
1.3.3.2 Military Necessity vis- à- vis the General Protection
Regime 33
1.3.3.3 Military Necessity vis- à- vis the Special Protection
Regime 38
1.4 T he World Heritage Convention (1972) 40
1.5 T he Additional Protocols to the Geneva Conventions (1977) 42
1.6 T he Second Protocol to the Hague Convention (1999) 49
1.7 T he unesco Declaration Concerning the Intentional Destruction of
Cultural Heritage (2003) 52
1.8 C onclusions 54
2 T he Concept and Scope of Military Necessity 57
2.1 I ntroduction: Problems Related to Military Necessity 57
2.1.1 The Elusive Definition 57
vi Contents
2.1.2 Risk of Abuse 59
2.1.3 Conflicting Discourses on Military Necessity 63
2.2 M ilitary Necessity vis- à- vis the Laws of War 66
2.2.1 16th–1 8th Century 66
2.2.2 Kriegsraison 67
2.2.3 Post- War Scholarship and Judicial Practice 72
2.2.4 Military Necessity and Military Advantage 74
2.3 T he Conceptual Framework for Military Necessity 85
2.3.1 The Principle of Military Necessity 85
2.3.1.1 Manifestations of the Principle of Military Necessity
in Treaties 88
2.3.2 Military Necessity as an Exception 89
2.3.2.1 M anifestations of the Exception for Military
Necessity in Treaties 90
2.4 M ilitary Necessity: Excuse or Justification? 92
2.5 L imits to Military Necessity 95
2.6 C onclusions 97
3 M ilitary Necessity within the Framework for the Protection of Cultural
Heritage in Armed Conflicts: A Dynamic Interpretation 100
3.1 I ntroduction 100
3.2 I nterpretation of the Hague Convention over 60 Years on 101
3.2.1 Recognition of the Concern for Cultural Heritage of All
Humankind 101
3.2.1.1 A Dynamic Evolution of a Concept: from ‘Cultural
Property’ to ‘Cultural Heritage’ 105
3.2.2 T he Change in the Concept and Scope of Military Necessity
Following the Adoption of the Hague Convention 109
3.2.2.1 T he Contribution of the 1977 Additional
Protocols 109
3.2.2.2 Military Necessity in the Second Protocol to the
Hague Convention 114
3.2.3 C ustomary International Law 125
3.2.3.1 Respect for Cultural Property and Its Emergence
into International Customary Law 126
3.2.3.2 E nforcement of the Duty of Respect as
International Custom 130
3.2.3.3 The icrc Study on Customary ihl 136
Contents vii
3.2.3.4 T he Manual on Air and Missile Warfare Produced
by the Program on Humanitarian Policy and
Conflict Research (hpcr Manual) at Harvard
University 137
3.2.3.5 T he 1999 Bulletin of the UN Secretary General 138
3.2.4 Dynamic Interpretation of Treaties and the Hague
Convention 139
3.3 C onclusions 149
4 T he Impact of Individual Criminal Responsibility for Offences against
Cultural Property on Military Necessity 152
4.1 I ntroduction 152
4.1.1 Offences against Cultural Property and the Development of
Individual Criminal Responsibility 152
4.1.2 The Civilian vs. Cultural Property Approach to the Protection of
Cultural Property 158
4.1.2.1 S tatutes of International and Internationalised
Criminal Tribunals 160
4.1.2.2 W ork of the ilc: The 1996 Draft Code of Crimes
against the Peace and Security of Mankind 170
4.2 M ilitary Necessity in International Criminal Trials 172
4.3 M ilitary Necessity as a Plea for Excluding Responsibility Compared to
the Defences Set Out in the icc Statute 184
4.3.1 Superior Orders 184
4.3.2 Duress 188
4.3.3 Necessity in Individual Criminal Responsibility 189
4.3.4 Lawful Defence of Oneself and Others 190
4.3.5 Defences of Insanity, Intoxication and Error Juris 192
4.3.6 E rror Facti 192
4.3.6.1 Monte Cassino: A Case of Putative Military
Necessity? 193
4.3.7 Military Necessity and the Burden of Proof 198
4.4 D estruction of Cultural Property vis- à- vis War Crimes, Crimes against
Humanity, and Genocide 200
4.5 C onclusions 208
5 M ilitary Necessity vis- à- vis the Protection of Cultural Heritage in
Non- International Armed Conflicts 211
5.1 I ntroduction 211
5.2 T he Treaty Framework: A Change of Focus 211
viii Contents
5.2.1 Additional Protocol ii 217
5.2.2 Second Protocol to the Hague Convention 220
5.3 C ustomary International Law and the icc Statute 223
5.4 D estruction of the Sufi Mausolea in Timbuktu: Al Mahdi before the
icc 227
5.5 D iscussion and Conclusions 237
6 M ilitary Necessity and the Responsibility of States 242
6.1 I ntroduction 242
6.2 R equirements of Necessity 243
6.2.1 The Essential Interest 243
6.2.2 The Balancing of Interests 248
6.2.3 T he ‘Only Way’ to Safeguard the Essential Interest 249
6.2.4 Grave and Imminent Peril 250
6.2.5 Lack of Contribution to the State of Necessity 251
6.3 N ecessity vis- à- vis Other Circumstances Precluding
Wrongfulness 252
6.4 O nus Probandi in Invoking Necessity 255
6.5 R esponsibility of a State for Unlawful Destruction of Cultural
Property during Armed Conflict 257
6.5.1 The Co- Existence of State Responsibility and Individual
Criminal Responsibility 257
6.5.2 Rules on State Responsibility for Acts against Cultural
Property 259
6.5.2.1 B reach of an International Obligation of the
State 259
6.5.2.2 A ttribution 262
6.5.3 Responsibility of a State for Failure to Prevent Violations and
Punish Perpetrators 263
6.5.4 State Responsibility for Violation of the Obligation to Respect
Cultural Heritage 264
6.5.4.1 C onsequences of Destruction of Cultural Heritage
as an Internationally Wrongful Act 275
6.6 R esponsibility for the Destruction of Property and the Plea of
Military Necessity 281
6.7 C onclusions 285
7 L essons on Necessity Resulting from the Interplay of Environmental
Protection and Armed Conflict 290
7.1 I ntroduction 290
Contents ix
7.2 T he Martens Clause as a Consequence of the Common
Concern 298
7.3 T reaty Framework for the Protection of the Environment – An
Overview 302
7.4 S tate Responsibility for Environmental Damage: Lessons from the
uncc 307
7.4.1 The Review of Claims and the Agency Approach 308
7.4.2 The Compensability of Environmental Damage 311
7.4.2.1 Loss of Cultural Heritage as Part of Environmental
Damage 312
7.4.3 Partial Conclusions on the Contribution of the uncc 314
7.5 N ecessity in International Environmental Law 314
7.5.1 Environmental Necessity as a Balancing Factor 315
7.5.2 Environmental Necessity as a Circumstance Precluding
Wrongfulness 318
7.5.2.1 Environmental Necessity and Forcible
Measures 319
7.6 C onclusions 322
8 C oncluding Remarks 326
R eferences 333
I ndex 361
Foreword

The second part of the 20th century saw an unprecedented effort at building
a rule based mechanism to protect cultural property in time of war. unesco
has been at the forefront in developing treaty regimes on this subject, and
international humanitarian law has evolved so as to include specific provi-
sions to safeguard cultural property in the event of armed conflicts. Yet, rem-
nants of the old ‘military necessity’ clause are still present in the two most
important legal instruments concerning war and cultural property, the 1954
Hague Convention, and the 1999 Second Protocol to this Convention. During
the negotiations of the latter instrument, strong arguments were made in favor
of the elimination of this clause. Such a solution would have been in line with
the model of the 1977 humanitarian law Protocol i and ii whose articles 53
and 16, respectively, do not mention military necessity as a possible exception
to the general prohibition of acts of hostility against cultural property. As we
know, this model was not adopted in the final text of the Second Protocol to
the Hague Convention. So, now we are faced with the apparent paradox of a
well developed treaty law, and also of customary law, which, while protecting
cultural property against violence of war and even making attacks against such
property war crimes and crimes against humanity, still continues to recognize
military necessity as an overriding exception to the obligation to prevent and
avoid destruction of cultural property.
With this monograph Berenika Drazewska addresses this paradox with a
thorough investigation on the legal foundation and limits of military necessity
in international cultural heritage law. She does so with correct method and rig-
orous analysis of the sources of the law, with a logical sequence of arguments
and writing skill. She does not hide her ethical preference for an international
regime that would shed the doctrine of military necessity from cultural herit-
age law. But she accepts that such preference does not entirely reflect the sta-
tus of international law today. Consequently, she focuses on the identification
of the elements that attest to a gradual shrinking of the concept and scope of
military necessity within the context of the dynamic evolution of international
cultural heritage law. At the same time, the results of her analysis are tested
against the corresponding evolution of the doctrine of military necessity in
the related fields of international humanitarian law, international criminal law
and the law on the protection of the environment.
The result is a valuable work that provides a fresh approach to the definition
of the scope of application of military necessity in the context of armed con-
flicts involving destruction of cultural property. It brings a welcome expansion