A/HRC/17/38 IV. References in international law relating to the rights of individuals and communities in relation to cultural heritage, and initiatives at the national level 18. Because the destruction of cultural heritage can be used as a strategy to destroy the morale of the enemy, cultural heritage is firstly considered in international humanitarian law as requiring a special protection regime in times of conflict and war.13 According to international criminal law, individual criminal responsibility can include serious offences against cultural heritage.14 In particular, the destruction of cultural property with discriminatory intent against a cultural community can be charged as a crime against humanity, and the intentional destruction of cultural and religious property and symbols can be considered as evidence of an intent to destroy a group within the meaning of the Genocide Convention.15 19. Numerous international instruments on the protection of cultural heritage in times of peace have also been adopted. Besides a number of declarations and recommendations, Member States of UNESCO have adopted the Convention concerning the Protection of the World Cultural and Natural Heritage (1972); the Convention on the Protection of the Underwater Cultural Heritage (2001); and the Convention on the Safeguarding of the Intangible Cultural Heritage (2003). The widespread support for the 1972 and 2003 Conventions demonstrates the general agreement on the need to preserve/safeguard cultural heritage. Some instruments have also been adopted at the regional level.16 20. Although these instruments do not necessarily have a human rights approach to cultural heritage, in recent years, a shift has taken place from the preservation/safeguard of cultural heritage as such, based on its outstanding value for humanity, to the protection of cultural heritage as being of crucial value for individuals and communities in relation to their cultural identity. In particular, the addition of intangible heritage as a cultural object to be safeguarded has been instrumental to the increased emphasis on the link between cultural heritage and cultural identity. At the same time, the “deep-seated interdependence” between intangible and tangible heritage is increasingly being taken into consideration.17 Generally speaking, the more recent the instrument, the stronger the link with rights of individuals and communities. Notably, the UNESCO Declaration on the Intentional Destruction of Cultural Heritage, adopted in 2003, stresses that “cultural heritage is an 13 14 15 16 17 Hague Conventions and Regulations of 1899 and 1907; Geneva Convention IV of 1949 and its 1977 Additional Protocols I and II; 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and its two Protocols of 1954 and 1999. Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), art. 3 (d); Rome Statute of the International Criminal Court, arts. 8.2 (b) (ix) and 8.2 (e) (iv). For a detailed analysis of cultural heritage in International Humanitarian Law and in International Criminal Law, see: Forest, C., International Law and the Protection of Cultural Heritage, Routledge, London, 2010; Vrdoljak, A.F., "Cultural Heritage in Human Rights and Humanitarian Law", in O. Ben-Naftali (ed.), Human Rights and International Humanitarian Law, Oxford University Press, 2009. ICTY, Prosecutor v Dario Kordic and Mario Cerkez, Trial Judgment, Case No. IT-95-14/2-T, 26 February 2001, para. 206-207; ICTY, Prosecutor v Radislav Krstic, Case No. IT-98-33-T, Trial Chamber, 2 August 2001, para. 580, and affirmed by Appellate Chamber, 19 April 2004. In particular, Convention on the Protection of the Archeological, Historical, and Artistic Heritage of the American Nations (1976); Cultural Charter for Africa (1976); Charter for the Cultural Renaissance of Africa (2006); ASEAN Declaration on Cultural Heritage (2000); and among other instruments of the Council of Europe, the 2005 Framework Convention on the Value of Cultural Heritage for Society. See preamble of the Convention for the Safeguarding of the Intangible Cultural Heritage. Some instruments, such as the Faro Convention, do not distinguish between tangible and intangible heritage. 7