CYIL vol. 11 (2020)

CYIL 11 (2020) CULTURAL RIGHTS RELATED TO CULTURAL HERITAGE AND THEIR PROTECTION … elaboration and development of cultural heritage and in the reformulation of their cultural identities. 22 According to the presented concept, we can understand cultural heritage in all of its forms as a precondition to exercise the rights listed in the quoted paragraph. It means that any damage to cultural heritage constitutes damage to cultural rights. 23 Under the holistic approach to cultural heritage, it is not possible to claim that some forms of cultural heritage are less important than others. They all together create one living environment for individuals and communities, and damage to any aspect of this environment inflicts harm to the whole. The intentional destruction of cultural heritage that has taken place in the Middle East region in the last years undermines a number of rights – the right to freedom from discrimination; the right to freedom of thought, conscience and religion; and the right to take part in cultural life, including the right to maintain and develop the cultural practices of one’s choice, and to access cultural heritage including one’s own history; and the right to freedom of artistic expression and creativity. 24 Those events illustrate that it is not entirely correct to speak about an attack against property in such cases – in fact it is an attack against persons. An attack against cultural heritage is a violation of human rights. The final outcome might look like protection of cultural heritage, but the protection itself is only a tool to protect human rights. This attitude has been growing in importance, as attacks against cultural heritage have become a weapon of war 25 and law has to adequately respond to this threat. The position of Cultural Rights under International Criminal Law The aim of the second part of this article is to examine the relationship between cultural rights and International Criminal Law (ICL). Does ICL consider cultural rights in its rulings? And does it provide potential grounds for prosecution of violation of cultural rights? Those are the fundamental questions that will be answered in this section of the article. Cultural rights are an undervalued category of human rights. Comparing to civil and political rights they are underdeveloped and their violation is often played down. The complications in the relation of cultural rights and ICL originate in their very nature. Cultural rights are a subset of human rights, whereas ICL is derived from Criminal Law. It is not surprising that these two categories are often poorly connected and use different wording. An apparently fundamental and insurmountable disparity stems from the fact that ICL is based on the principle of legality: 26 crimes have to be clearly defined and interpretation of such definition has certain limits. But then, does the issue of cultural rights have any grounds in the field of ICL? Does not this very idea violate the principle of legality? To answer these questions, we have to focus on the way ICL treats cultural rights.

22 Report of the independent expert in the field of cultural rights, Farida Shaheed. UN Docs. A/HRC/31/59. Art. 9. 23 Report of the Special Rapporteur in the field of cultural rights. UN Docs. A/71/317. Art. 7. 24 Ibid. Art. 34. 25 TURKU, Helga. The Destruction of Cultural Property as a Weapon of War: ISIS in Syria and Iraq. Washington DC: Palgrave Macmillan, 2018. pp 1-26. 26 See Rome Statute of International Criminal Court. Art. 22.

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