A/71/317 26. Individual criminal responsibility arises from serious offences against cultural heritage. 12 Under the Rome Statute, intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments and hospitals, provided they are not military objectives, in either international or non-international armed conflict, may be tried as a war crime. 13 27. In addition, the destruction of cultural property with discriminatory intent can be charged as a crime against humanity and the intentional destruction of cultural and religious property and symbols can also be considered evidence of intent to destroy a group within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred to as the Genocide Convention) (A/HRC/17/38 and Corr.1, para. 18). In 2014, the Office on Genocide Prevention and Responsibility to Protect developed a new “Framework of analysis for atrocity crimes: a tool for prevention” to assess the risk of genocide, war crimes and crimes against humanity, in which destruction of property of cultural and religious significance is considered a significant indicator within the context of prevention of atrocity crimes. 28. The Genocide Convention as originally drafted included clauses related to vandalism. Rafael Lemkin, whose conceptualization underpins the Convention, directly linked “barbarity”, conceived as “the premeditated destruction of national, racial, religious and social collectivities”, with “vandalism”, the “destruction of works of art and culture being the expression of the particular genius of these collectivities”. A group could be annihilated if its identity, its collective memory, has been erased, even if many of its individual members remain alive. “It takes centuries, sometimes thousands of years to create a … culture,” Lemkin wrote, “but genocide can destroy a culture instantly”. 14 However, as finalized, the Convention did not include the cultural aspects. The significance of Lemkin ’s concept of cultural genocide lies in its direct linkage of cultural heritage and human rights. 15 29. The concept of cultural genocide should be given serious consideration, “perhaps not to explicitly incorporate it as a form of genocide, but … to modify the existing barriers to effective deterrence to the destruction of cultural heritage ”. 16 It bears remembering that the Genocide Convention incorporates as genocide acts “committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group” including “(d)eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”. The idea is not to “set ‘cultural genocide’ on a par with systematic mass murder” or “dilute (its) unique nature … as ‘the gravest and greatest of crimes against humanity’”, but rather to recognize “that the task of destroying a group” also aims at destroying “identity as expressed through language, customs, art and … architecture”. 17 Within a broader context of genocide, as Patty Gerstenblith has written, destruction of cultural heritage becomes an act of genocide, as well as evidence of genocidal __________________ 12 13 14 15 16 17 16-13742 See, e.g., the statute of the International Tribunal for the Former Yugoslavia, article 3 (d). Rome Statue of the International Criminal Court, article 8 (2) (b) (ix) and (e) (iv). Rafael Lemkin, as cited in Robert Bevan, The Destruction of Memory: Architecture at War (London, Reaktion Books, 2006), p. 271. Bevan, The Destruction of Memory, pp. 270-271. Patty Gerstenblith, “The destruction of cultural heritage: a crime against property or a crime against people?”, John Marshall Review of Intellectual Property Law, vol. 15, No. 336 (31 May 2016), p. 344. Bevan, The Destruction of Memory, p. 270. 9/24