Cultural Issues

Natural or cultural heritage is traditionally considered an “asset” or a “good” of property of the State and as such protected. However, the idea of ​​a human rights-based approach in cultural heritage and environment has been germinating for some time – and therefore worthy of protection and safeguarding, via legislation in the first place. This approach takes on a more defined form only after the Second World War, with the consequent need to define new crimes in the event of devastation or ruin, further highlighting the existence of a tight knot between cultural/natural heritage and human rights.

By taking a look at the Preamble to the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (sponsored by United Nations Educational, Scientific and Cultural Organization (UNESCO)), the dramatic nature of damage to cultural property as “damage to the cultural heritage of all mankind” can be confirmed. Nonetheless, the World Heritage Convention (adopted at the UNESCO General Conference in 1972) demonstrates, with its 194 ratifications, the relevance and global resonance of cultural heritage that goes beyond not only territorial boundaries, but involves humanity throughout its existence, and therefore the safeguarding of cultural heritage becomes a duty for current generations also towards future generations in order to be able to pass on “this common heritage”. In similar fashion, the Stockholm Declaration, of the same year, shapes the principle of responsibility to protect and improve the environment for present and future generations. At the same time, the Rome Statute of the International Criminal Court contemplates, among the war crimes over which the Court has jurisdiction, the deliberate attack against historical monuments and buildings dedicated to religion, education, science or charitable purposes which do not constitute military objectives, both in an international conflict (Art. 8, para. 2, lett. b, no. ix), as well in case of attacks causing widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (Art. 8, para. 2, lett. b, no. iv).

Over the decades Europe has set in motion a law-making process that culminated, as for EU, in the EU Security Union Strategy 2020-2025 and the EU Strategy to Tackle Organised Crime 2021-2025 with respect to cultural crimes, as well as Directive 2008/99/EC on the protection of the environment through criminal law, referring to the environmental ones. Additionally, the Council of Europe adopted in 2017 the Convention on Offences Relating to Cultural Property which aims to prevent and combat the illicit trafficking and destruction of cultural goods, in the framework of the Organisation’s action to fight terrorism and organised crime. In 1998 the Council of Europe adopted the Convention on the Protection of the Environment through Criminal Law, that with only 3 ratifications seems only to confirm the idea of environmental protection being assured through other legal texts, such as the European Convention on Human Rights (1950), the European Social Charter (1961) the Bern Convention on the Conservation of European Wildlife and Natural Habitats (1979), and the Nicosia Convention on the offences against cultural heritage (2017) Nonetheless quoting the beforementioned conventions, the European Court of Human Rights has so far ruled on about 300 environment-related cases, applying concepts such as the right to life, free speech and family life to a wide range of issues including pollution, man-made or natural disasters and access to environmental information.

The protection of cultural and natural heritage in international and European law is therefore a concept with a thriving tradition, but at the same time somewhat unresolved. For this reason, IECLO focuses its attention on the topic, with the idea of monitoring the impact of crimes on cultural and natural heritage, cultural rights, cultural goods, with a specific look at the international criminal law development, with a special focus given to the European context.