Th e Old Bridge of Mostar and Increasing Respect for Cultural Property in Armed Confl ict International Humanitarian Law Series VOLUME 40 Editors-in-Chief H.E. Judge Sir Christopher Greenwood 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 H.E. Judge Geza Herczegh Professor Frits Kalshoven Professor Ruth Lapidoth Professor Gabrielle Kirk McDonald H.E. Judge Th eodor Meron Captain J. Ashley Roach Professor Michael Schmitt Professor Jiří Toman Th e International Humanitarian Law Series is a series of monographs and edited volumes which aims to promote scholarly analysis and discussion of both the theory and practice of the international legal regulation of armed confl ict. Th e series explores substantive issues of International Humanitarian Law including, – protection for victims of armed confl ict and regulation of the means and meth- ods of warfare – questions of application of the various legal regimes for the conduct of armed confl ict – issues relating to the implementation of International Humanitarian Law obli- gations – national and international approaches to the enforcement of the law and – the interactions between International Humanitarian Law and other related areas of international law such as Human Rights, Refugee Law, Arms Control and Disarmament Law, and International Criminal Law. Th e titles published in this series are listed at brill.com/ihul Th e Old Bridge of Mostar and Increasing Respect for Cultural Property in Armed Confl ict by Jadranka Petrovic Department of Business Law and Taxation Monash University LEIDEN • BOSTON 2013 Library of Congress Cataloging-in-Publication Data Petrovic, Jadranka. The old bridge of Mostar and increasing respect for cultural property in armed conflict / by Jadranka Petrovic. p. cm. -- (International humanitarian law series ; v. 40) Includes bibliographical references and index. ISBN 978-90-04-21028-8 (hardback : alk. paper) -- ISBN 978-90-04-23554-0 (e-book) 1. Cultural property--Protection (International law) 2. Cultural property--Protection--Law and legislation. 3. War--Bosnia and Hercegovina--Mostar. 4. Yugoslav War, 1991-1995. I. Title. K3791.P48 2013 341.6’9--dc23 2012041628 issn 1389-6776 isbn 978-90-04-21028-8 (hardback) isbn 978-90-04-23554-0 (e-book) Copyright 2013 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints brill, Global Oriental, Hotei Publishing, idc Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Printed on acid-free paper. We note with sadness the passing of two esteemed members of our Editorial Advisory Board – Antonio Cassese (01 January 1937 - 21 October 2011) and Leslie C Green (06 November 1920 - 27 November 2011). Antonio and Leslie were outstanding scholars and enthusiastic supporters of the IHL Series and both will be sorely missed. Table of Contents Foreword xiii Acknowledgements xv Abbreviations xvii Chapter 1 Introduction 1 I Area of Research 1 II Focus 2 III Research Gap 3 IV Aims and Scope 5 V Methodology 7 VI Structure 9 Chapter 2 Setting the Context 11 I An Overview 11 II Th e Meaning of the Term ‘Cultural Property’ 13 A Th e Diff ering Terminology 13 1 International Legal Instruments 13 2 Scholarly Writing 14 B Th e State-Based Regulation of Cultural Property 17 C Th e Diff ering Understanding of What Makes Property ‘Cultural’ 20 III Importance of Cultural Property 25 A Th e Benefi ts of Cultural Property 25 B Th e Rationales for the International Protection of Cultural Property 32 1 Universal Value and Concern 32 2 National Value and Concern 33 3 Future Generations 34 IV Armed Confl ict as a Th reat to the Survival of Cultural Property 39 A Cultural Property as the Target of Warfare 39 B Why is Cultural Property Targeted in Armed Confl ict? 42 V Th e Necessity for Justice for Cultural Property-Related Wartime Atrocities 44 viii Table of Contents A Th e Benefi ts of International Justice 44 B Cultural Property at the International Criminal Tribunals 50 1 Historical Antecedents 50 (a) Th e Leipzig Trials 50 (b) Th e IMT 51 2 Th e ICTY 53 3 Th e ICC 54 VI Summary and Observations 58 Chapter 3 Th e Old Bridge: Knowing the Facts 61 I An Overview 61 II Construction of the Old Bridge 65 A Mostar: Geography, Demography and History of the Place 65 B Building the Old Bridge 67 1 Architecture and Engineering 67 2 Aesthetics 69 III Destruction of the Old Bridge 71 A Th e First Siege 71 B Th e Second Siege 73 IV Motives Behind the Destruction 76 A Th e Ancient Hatreds Argument 76 B Th e Rural v Urban Argument 78 C Th e Territorial Grab Argument 79 V Eff ects of the Destruction 84 A Citizens of Mostar 84 B Other Citizens of the Former Yugoslavia 85 C Th e International Community 85 VI Summary and Observations 87 Chapter 4 International Law Protecting Cultural Property in Armed Confl ict 89 I An Overview 89 II International Rules on Wartime Protection of Cultural Property 96 A Th e State of International Law before Adoption of the 1954 Convention 96 B Th e 1954 Convention 99 C Th e State of International Law after the Adoption of the 1954 Convention 103 III Th e Nature of the Confl ict in Mostar 107 A Th e Direct Intervention Test 111 B Th e Overall Control Test 113 IV Th e Law Applicable to the Destruction of the Old Bridge 115 A Customary IHL 115 Table of Contents ix B Treaty IHL 117 V Summary and Observations 118 Chapter 5 Th e Legal Nature of the Destruction of the Old Bridge 119 I An Overview 119 II Applying the Law 121 A Was the Old Bridge a Protected Object? 121 1 Dual Immunity 121 (a) Th e Old Bridge as a Civilian Object - Indirect Protection 121 (b) Th e Old Bridge as an Object of Cultural Property - Direct Protection 128 2 Physical Protection 143 (a) Distinctive Marking 143 (b) Protective Measures 148 B Was the Old Bridge a Legitimate Military Target? 153 1 Respect for Cultural Property 155 (a) Th e Prohibition of the Use of Cultural Property for Military Purposes 156 (b) Th e Prohibition of an Attack 160 (c) Th e Exception of Military Necessity 161 2 Respect or Disrespect for the Old Bridge? 169 III Issues 183 A Th e Defi nition of a Military Objective 183 1 ‘Eff ective’ Contribution and ‘Defi nite’ Advantage 183 2 Decision-Making Level 184 3 Temporal Issues 184 4 Issue of Location 185 B Advance Warning 186 C Th e Rule of Distinction 186 D Guarding of Cultural Property 188 E State Sovereignty 191 F Indeterminacy on the Battlefi eld 193 IV Summary and Observations 193 Chapter 6 Th e Question of Justice for the Destruction of the Old Bridge 197 I An Overview 197 II Applicable Law 199 A 1907 Regulations 199 B 1954 Convention 200 C Protocol I Additional to the 1949 Geneva Conventions (Additional Protocol I) 202 x Table of Contents III Venues for Prosecution 204 A Croatia 206 B Bosnia and Herzegovina 206 1 Rules of the Road 207 C Th e ICTY 209 IV Th e ICTY’s Approach to Cultural Property 211 A Th e ICTY Statute 211 1 Defi nition of Cultural Property 211 2 Crimes 214 (a) Provisions Dealing with Cultural Property Indirectly 215 (b) Provisions Dealing with Cultural Property Directly – Article 3(d) of the ICTY Statute 215 (i) Prerequisites Common to All Article 3 Off ences 216 (ii) Th e Four Tadić Conditions relating to Article 3(d) of the ICTY Statute 216 (iii) Elements of the Crime of the Destruction or Wilful Damage of Cultural Property 220 3 Modes of Liability 222 (a) Individual Criminal Responsibility under Article 7(1) of the ICTY Statute 222 (b) Superior Responsibility under Article 7(3) of the ICTY Statute 222 B Application of the ICTY Statute to the Old Bridge 224 1 Was the Destruction of the Old Bridge a Proscribed Act? 224 2 Evidence of the Crime 228 3 Who is Responsible for the Destruction of the Old Bridge? 230 (a) Superior Responsibility 239 V Issues 242 A Invisibility of Cultural Property in the ICTY Statute 242 1 Primacy of Crimes against Persons 242 2 Cultural Property in the ‘Hierarchy’ of Crimes 244 3 Bypassing the 1954 Convention 246 (a) Defi nition of Cultural Property 246 (i) Which Objects Constitute Cultural Property? 246 (ii) Terminology 247 (b) Acts that are Criminalised 248 B Cultural Property in Indictments and Decisions of the ICTY 250 1 Th e Non-Existence of Cases Relating Solely to Cultural Property 250 C Th e Prlić et al Case 251 1 How Does the Old Bridge Rank in the Indictment? 251 (a) Lost in the Ocean of Charges 251 (b) Religious v Secular Cultural Property 251 2 Th e Mega Trial 252 Table of Contents xi 3 Liability 253 (a) Joint Criminal Enterprise 255 4 Th e Timing 257 D Future Prospects 259 1 Th e ICTY’s Completion Strategy 259 (a) Time Pressure 259 (i) Th e Security Council Time Framework 259 (ii) Eff ect on the Old Bridge 260 VI Summary and Observations 261 Chapter 7 Conclusion 265 Cases 273 Legal Instruments 289 Select Bibliography 305 Index 347 Foreword It is with great pleasure that I have accepted the task of writing a foreword to the present book, written by a woman whom I have met once and have ever since regarded as a friend.