Military Necessity in International Cultural Heritage Law: International Humanitarian Law Series, cartea 61
Autor Berenika Drazewskaen Limba Engleză Hardback – 8 dec 2021
Drazewska’s Military Necessity in International Cultural Heritage Law engages a significant issue in this rapidly evolving field of international law, the inclusion of necessity in regulation of the protection of cultural heritage during armed conflict after 1945. Its very inclusion was viewed as a major concession, which is only multiplied because of the difficulties of its application on the ground. This thorny issue has come to the fore again with large-scale cultural losses inflicted during recent armed conflicts. Elegantly written and scholarly in its approach, this book places this question and possible answers to it within the broader sweep of international law and recent developments not only in international humanitarian law, but state responsibility, international criminal law and international criminal law. It offers a significant and timely reexamination and reconceptualization of this important topic.
Prof. Ana Filipa Vrdoljak (UNESCO Chair in International Law & Cultural Heritage, Faculty of Law, University of Technology, Sydney)
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Specificații
ISBN-13: 9789004432550
ISBN-10: 9004432558
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Humanitarian Law Series
ISBN-10: 9004432558
Dimensiuni: 155 x 235 mm
Greutate: 0 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Humanitarian Law Series
Cuprins
Foreword
Acknowledgments
Principal Abbreviations
Cases
International Instruments
Introduction
1The Development of the Treaty Framework for the Protection of Cultural Heritage
1.1 A Historical Perspective
1.2 The Birth of a Specific Treaty Regime for the Protection of Cultural Property
1.3 The Road to the Hague Convention (1949–1954)
1.3.1The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (cpc) (1954)
1.3.2The Changing Interplay of Military Realism and Cultural Considerations between the oim Draft of 1938 and the Hague Convention of 1954
1.3.3The Issue of Military Necessity During the Hague Conference
1.3.3.1 Military Necessity in the Preamble of the Hague Convention
1.3.3.2 Military Necessity vis-à-vis the General Protection Regime
1.3.3.3 Military Necessity vis-à-vis the Special Protection Regime
1.4 The World Heritage Convention (1972)
1.5 The Additional Protocols to the Geneva Conventions (1977)
1.6 The Second Protocol to the Hague Convention (1999)
1.7 The unesco Declaration Concerning the Intentional Destruction of Cultural Heritage (2003)
1.8 Conclusions
2The Concept and Scope of Military Necessity
2.1 Introduction: Problems Related to Military Necessity
2.1.1The Elusive Definition
2.1.2Risk of Abuse
2.1.3Conflicting Discourses on Military Necessity
2.2 Military Necessity vis-à-vis the Laws of War
2.2.116th–18th Century
2.2.2Kriegsraison
2.2.3Post-War Scholarship and Judicial Practice
2.2.4Military Necessity and Military Advantage
2.3 The Conceptual Framework for Military Necessity
2.3.1The Principle of Military Necessity
2.3.1.1 Manifestations of the Principle of Military Necessity in Treaties
2.3.2Military Necessity as an Exception
2.3.2.1 Manifestations of the Exception for Military Necessity in Treaties
2.4 Military Necessity: Excuse or Justification?
2.4.1.1 Limits to Military Necessity
2.5 Conclusions
3Military Necessity within the Framework for the Protection of Cultural Heritage in Armed Conflicts A Dynamic Interpretation
3.1 Introduction
3.2 Interpretation of the Hague Convention 60 years on
3.2.1Recognition of the Concern for Cultural Heritage of All Mankind
3.2.1.1 A Dynamic Evolution of a Concept: from “Cultural Property” to “Cultural Heritage”
3.2.2The Change in the Concept and Scope of Military Necessity Following the Adoption of the Hague Convention
3.2.2.1 The Contribution of the 1977 Additional Protocols
3.2.2.2 Military Necessity in the Second Protocol to the Hague Convention
3.2.3Customary International Law
3.2.3.1 Respect for Cultural Property and Its Emergence into International Customary Law
3.2.3.2 Enforcement of the Duty of Respect as International Custom
3.2.3.3 The icrc Study on Customary ihl
3.2.3.4 The Manual on Air and Missile Warfare Produced by the Program on Humanitarian Policy and Conflict Research (hpcr Manual) at Harvard University
3.2.3.5 The 1999 Bulletin of the UN Secretary General
3.2.4Dynamic Interpretation of Treaties and the Hague Convention
3.3 Conclusions
4The Impact of Individual Criminal Responsibility for Offences Against Cultural Property on Military Necessity
4.1 Introduction
4.1.1Offences against Cultural Property and the Development of Individual Criminal Responsibility
4.1.2The Civilian vs. Cultural Property Approach to the Protection of Cultural Property
4.1.2.1 Statutes of International and Internationalised Criminal Tribunals
4.1.2.2 Work of the ilc: 1996 the Draft Code of Crimes against the Peace and Security of Mankind
4.2 Military Necessity in International Criminal Trials
4.3 Military Necessity as a Plea for Excluding Responsibility Compared to the Defences Set out in the icc Statute
4.3.1Superior Orders
4.3.2Duress
4.3.3Necessity in Individual Criminal Responsibility
4.3.4Lawful Defence of Oneself and Others
4.3.5Defences of Insanity, Intoxication and Error Juris
4.3.6Error Facti
4.3.6.1 Monte Cassino: A Case of Putative Military Necessity?
4.3.7Military Necessity and the Burden of Proof
4.4 Destruction of Cultural Property vis-à-vis War Crimes, Crimes against Humanity, and Genocide
4.5 Conclusions
5Military Necessity vis-à-vis the Protection of Cultural Heritage in Non-international Armed Conflicts
5.1 Introduction
5.2 The Treaty Framework: A Change of Focus
5.2.1Additional Protocol ii
5.2.2Second Protocol to the Hague Convention
5.3 Customary International Law and the icc Statute
5.4 Destruction of the Sufi Mausolea in Timbuktu: Al Mahdi before the icc
5.5 Discussion and Conclusions
6Military Necessity and the Responsibility of States
6.1 Introduction
6.2 Requirements of Necessity
6.2.1The Essential Interest
6.2.2The Balancing of Interests
6.2.3The ‘Only Way’ to Safeguard the Essential Interest
6.2.4Grave and Imminent Peril
6.2.5Lack of Contribution to the State of Necessity
6.3 Necessity vis-à-vis Other Circumstances Precluding Wrongfulness
6.4 Onus Probandi in Invoking Necessity
6.5 Responsibility of a State for Unlawful Destruction of Cultural Property During Armed Conflict
6.5.1The Co-Existence of State Responsibility and Individual Criminal Responsibility
6.5.2Rules on State Responsibility for Acts against Cultural Property
6.5.2.1 Breach of an International Obligation of the State
6.5.2.2 Attribution
6.5.3Responsibility of a State for Failure to Prevent Violations and Punish Perpetrators
6.5.4State Responsibility for Violation of the Obligation to Respect Cultural Heritage
6.5.4.1 Consequences of Destruction of Cultural Heritage as an Internationally Wrongful Act
6.6 Responsibility for the Destruction of Property and the Plea of Military Necessity
6.7 Conclusions
7Lessons on Necessity Resulting from the Interplay of Environmental Protection and Armed Conflict
7.1 Introduction
7.2 The Martens Clause as a Consequence of the Common Concern
7.3 Treaty Framework for the Protection of the Environment – An Overview
7.4 State Responsibility for Environmental Damage: Lessons from the uncc
7.4.1The Review of Claims and the Agency Approach
7.4.2The Compensability of Environmental Damage
7.4.2.1 Loss of Cultural Heritage as Part of Environmental Damage
7.4.3Partial Conclusions on the Contribution of the uncc
7.5 Necessity in International Environmental Law
7.5.1Environmental Necessity as a Balancing Factor
7.5.2Environmental Necessity as a Circumstance Precluding Wrongfulness
7.5.2.1 Environmental Necessity and Forcible Measures
7.6 Conclusions
8Concluding Remarks
References
Index
Acknowledgments
Principal Abbreviations
Cases
International Instruments
Introduction
1The Development of the Treaty Framework for the Protection of Cultural Heritage
1.1 A Historical Perspective
1.2 The Birth of a Specific Treaty Regime for the Protection of Cultural Property
1.3 The Road to the Hague Convention (1949–1954)
1.3.1The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (cpc) (1954)
1.3.2The Changing Interplay of Military Realism and Cultural Considerations between the oim Draft of 1938 and the Hague Convention of 1954
1.3.3The Issue of Military Necessity During the Hague Conference
1.3.3.1 Military Necessity in the Preamble of the Hague Convention
1.3.3.2 Military Necessity vis-à-vis the General Protection Regime
1.3.3.3 Military Necessity vis-à-vis the Special Protection Regime
1.4 The World Heritage Convention (1972)
1.5 The Additional Protocols to the Geneva Conventions (1977)
1.6 The Second Protocol to the Hague Convention (1999)
1.7 The unesco Declaration Concerning the Intentional Destruction of Cultural Heritage (2003)
1.8 Conclusions
2The Concept and Scope of Military Necessity
2.1 Introduction: Problems Related to Military Necessity
2.1.1The Elusive Definition
2.1.2Risk of Abuse
2.1.3Conflicting Discourses on Military Necessity
2.2 Military Necessity vis-à-vis the Laws of War
2.2.116th–18th Century
2.2.2Kriegsraison
2.2.3Post-War Scholarship and Judicial Practice
2.2.4Military Necessity and Military Advantage
2.3 The Conceptual Framework for Military Necessity
2.3.1The Principle of Military Necessity
2.3.1.1 Manifestations of the Principle of Military Necessity in Treaties
2.3.2Military Necessity as an Exception
2.3.2.1 Manifestations of the Exception for Military Necessity in Treaties
2.4 Military Necessity: Excuse or Justification?
2.4.1.1 Limits to Military Necessity
2.5 Conclusions
3Military Necessity within the Framework for the Protection of Cultural Heritage in Armed Conflicts A Dynamic Interpretation
3.1 Introduction
3.2 Interpretation of the Hague Convention 60 years on
3.2.1Recognition of the Concern for Cultural Heritage of All Mankind
3.2.1.1 A Dynamic Evolution of a Concept: from “Cultural Property” to “Cultural Heritage”
3.2.2The Change in the Concept and Scope of Military Necessity Following the Adoption of the Hague Convention
3.2.2.1 The Contribution of the 1977 Additional Protocols
3.2.2.2 Military Necessity in the Second Protocol to the Hague Convention
3.2.3Customary International Law
3.2.3.1 Respect for Cultural Property and Its Emergence into International Customary Law
3.2.3.2 Enforcement of the Duty of Respect as International Custom
3.2.3.3 The icrc Study on Customary ihl
3.2.3.4 The Manual on Air and Missile Warfare Produced by the Program on Humanitarian Policy and Conflict Research (hpcr Manual) at Harvard University
3.2.3.5 The 1999 Bulletin of the UN Secretary General
3.2.4Dynamic Interpretation of Treaties and the Hague Convention
3.3 Conclusions
4The Impact of Individual Criminal Responsibility for Offences Against Cultural Property on Military Necessity
4.1 Introduction
4.1.1Offences against Cultural Property and the Development of Individual Criminal Responsibility
4.1.2The Civilian vs. Cultural Property Approach to the Protection of Cultural Property
4.1.2.1 Statutes of International and Internationalised Criminal Tribunals
4.1.2.2 Work of the ilc: 1996 the Draft Code of Crimes against the Peace and Security of Mankind
4.2 Military Necessity in International Criminal Trials
4.3 Military Necessity as a Plea for Excluding Responsibility Compared to the Defences Set out in the icc Statute
4.3.1Superior Orders
4.3.2Duress
4.3.3Necessity in Individual Criminal Responsibility
4.3.4Lawful Defence of Oneself and Others
4.3.5Defences of Insanity, Intoxication and Error Juris
4.3.6Error Facti
4.3.6.1 Monte Cassino: A Case of Putative Military Necessity?
4.3.7Military Necessity and the Burden of Proof
4.4 Destruction of Cultural Property vis-à-vis War Crimes, Crimes against Humanity, and Genocide
4.5 Conclusions
5Military Necessity vis-à-vis the Protection of Cultural Heritage in Non-international Armed Conflicts
5.1 Introduction
5.2 The Treaty Framework: A Change of Focus
5.2.1Additional Protocol ii
5.2.2Second Protocol to the Hague Convention
5.3 Customary International Law and the icc Statute
5.4 Destruction of the Sufi Mausolea in Timbuktu: Al Mahdi before the icc
5.5 Discussion and Conclusions
6Military Necessity and the Responsibility of States
6.1 Introduction
6.2 Requirements of Necessity
6.2.1The Essential Interest
6.2.2The Balancing of Interests
6.2.3The ‘Only Way’ to Safeguard the Essential Interest
6.2.4Grave and Imminent Peril
6.2.5Lack of Contribution to the State of Necessity
6.3 Necessity vis-à-vis Other Circumstances Precluding Wrongfulness
6.4 Onus Probandi in Invoking Necessity
6.5 Responsibility of a State for Unlawful Destruction of Cultural Property During Armed Conflict
6.5.1The Co-Existence of State Responsibility and Individual Criminal Responsibility
6.5.2Rules on State Responsibility for Acts against Cultural Property
6.5.2.1 Breach of an International Obligation of the State
6.5.2.2 Attribution
6.5.3Responsibility of a State for Failure to Prevent Violations and Punish Perpetrators
6.5.4State Responsibility for Violation of the Obligation to Respect Cultural Heritage
6.5.4.1 Consequences of Destruction of Cultural Heritage as an Internationally Wrongful Act
6.6 Responsibility for the Destruction of Property and the Plea of Military Necessity
6.7 Conclusions
7Lessons on Necessity Resulting from the Interplay of Environmental Protection and Armed Conflict
7.1 Introduction
7.2 The Martens Clause as a Consequence of the Common Concern
7.3 Treaty Framework for the Protection of the Environment – An Overview
7.4 State Responsibility for Environmental Damage: Lessons from the uncc
7.4.1The Review of Claims and the Agency Approach
7.4.2The Compensability of Environmental Damage
7.4.2.1 Loss of Cultural Heritage as Part of Environmental Damage
7.4.3Partial Conclusions on the Contribution of the uncc
7.5 Necessity in International Environmental Law
7.5.1Environmental Necessity as a Balancing Factor
7.5.2Environmental Necessity as a Circumstance Precluding Wrongfulness
7.5.2.1 Environmental Necessity and Forcible Measures
7.6 Conclusions
8Concluding Remarks
References
Index
Notă biografică
Berenika Drazewska, Ph.D. (European University Institute, 2016) is currently the Dorset Researcher in Public International Law at the British Institute of International and Comparative Law, and Research Affiliate at the School of Law of Singapore Management University. She has published scholarly articles on the protection of cultural heritage in international law.
Recenzii
Drazewska’s Military Necessity in International Cultural Heritage Law engages a significant issue in this rapidly evolving field of international law, the inclusion of necessity in regulation of the protection of cultural heritage during armed conflict after 1945. Its very inclusion was viewed as a major concession, which is only multiplied because of the difficulties of its application on the ground. This thorny issue has come to the fore again with large-scale cultural losses inflicted during recent armed conflicts. Elegantly written and scholarly in its approach, this book places this question and possible answers to it within the broader sweep of international law and recent developments not only in international humanitarian law, but state responsibility, international criminal law and international criminal law. It offers an significant and timely reexamination and reconceptualization of this important topic.
Prof. Ana Filipa Vrdoljak, (UNESCO Chair In International Law & Cultural Heritage, Faculty of Law, University of Technology, Sydney)
Prof. Ana Filipa Vrdoljak, (UNESCO Chair In International Law & Cultural Heritage, Faculty of Law, University of Technology, Sydney)