CYIL vol. 11 (2020)

CYIL 11 (2020) CULTURAL RIGHTS RELATED TO CULTURAL HERITAGE AND THEIR PROTECTION … The Trial Chamber noted that when the destruction of religious sites is committed with the discriminatory intent, it constitutes an attack on religious identity of people. 71 According to the Court opinion, this “manifests nearly pure expression of crimes against humanity”. 72 Similar approach has been used in other cases, most notably in Blaškić, Plavšić and Stakić . Although the Court does not speak about ‘cultural rights’ it clearly pays attention to some of them in its decision policy. This approach could be seen as protection of property through rights of persons. The Court takes the rights into account, despite its decisions have to follow the system of crimes developed in its statute. It is not possible to apply elements of crimes without speaking about the rights that are being violated, since the underlying purpose is the protection of personal rights. From the point of view of ICL, it is important to mention that prosecuting destruction of cultural property as a crime against humanity brings certain advantages: there is no need for war nexus – crimes against humanity can be committed even during peace time. 73 Furthermore, it is a more efficient way of protection of the local population since it allows to consider the issues that are irrelevant under war crimes, such as cultural rights. The most important element in such cases is the link between the local population and its cultural heritage, which is the base for protection of certain rights. The link however creates certain limits of protection. Not all cultural heritage necessarily fulfills the requirement of being a vital condition for life of a community. A good example of this phenomenon might be ancient ruins or archaeological sites that represent evidence of existence of an ancient civilization but have no importance for the population currently living in the area. In those cases, it is not possible to apply the human rights based approach and prosecute destruction of such sites as a crime against humanity, since there is no link between a targeted site and a local population. We can assume that in certain cases ICL considers and protects cultural rights, although it does it through a different wording and the whole outcome highly depends on the interpretation of certain terms by the court. However with development of human rights protection and the whole field of cultural rights, we can expect that the future interpretation of key terms by the court might be more favorable to protect values under the notion of cultural rights. The judgments of the ICTY represent a stable base for the further development of this issue and it is only up to the ICC, whether it will follow this direction in the future. Conclusion Although cultural rights have been neglected for a long time, their importance has been rapidly growing in the last decades. Cultural rights have been becoming recognized as something important for people, as their scope is expanding and getting clarified. One of the areas where we can witness this rapid development is the relationship between cultural heritage and human rights protection. Under the human rights protection agenda, cultural heritage is seen as a crucial element for enjoyment of a number of relevant rights. The concept of cultural heritage is no longer limited to objects of artistic beauty, but regarded as an element that helps individuals and communities to maintain and protect their identity, traditions, and

71 Ibid. Para. 207. 72 Ibid. 73 Compare Rome Statute of Interantional Criminal Court, art. 7.

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