Enhancing International Law with Respect to The Protection of Cultural Property in Times of Armed Conflict: A Comparative Analysis

Elekyabi, Salwa Youssef

doi:10.21608/jlaw.2021.207131

Enhancing International Law with Respect to The Protection of Cultural Property in Times of Armed Conflict: A Comparative Analysis

نوع المستند : المقالة الأصلية

المؤلف

Salwa Youssef Elekyabi

Associate Professor Faculty of Law – Zagazig University

10.21608/jlaw.2021.207131

المستخلص

Over the past years, the world has witnessed the loss of many intrinsic and invaluable cultural property during armed conflicts. Looting the invaluable artefacts of the National Museum of Iraq during the U.S invasion in 2003 is an example. More recently, the Islamic State in Iraq and Syria (ISIS) established, in 2015, a Ministry of Antiquities to officially control looting sites and facilitate both trafficking in cultural artefacts and direct selling. Examples on the destruction and other forms of attack against cultural property during armed conflicts are countless and terribly increasing, which demonstrates the failure of international law in protecting cultural property during times of armed conflict.
This issue has been addressed by the international jurisprudence, and many writings attributed the reason for this to poor compliance with the rules of international law or for the rules’ failure to provide sufficient protection. This Article claims that the absence of a unified and consistent "legal framework" for the protection of cultural property is another reason for the failure of international law in protecting cultural property during times of armed conflict. To this end, this Article focuses on examining this reason and tracing its impact on the protection of cultural property.
The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict along with its two additional protocols, up until the time of writing this article, were representing the main legal instruments devoted exclusively to the protection of cultural property during times of armed conflict. However, protection is also embedded in different subfields of international law as well as in international jurisdiction and international practice. Therefore, this Article will rely on the 1954 Hague Convention as the basis for cultural property protection, while comparing it with relevant provisions in related subfields of international law, international jurisdiction and international practice.
Accordingly, this article is divided into four parts. Part I exposes key provisions of cultural property protection in the main treaty with emphasis on their effectiveness and fitness for purpose. Part II explores the division of international law with respect to the protection of cultural property in times of armed conflict, with emphasis on the comparison between the main treaty and related subfields of international law. Part III elaborates on how this division affects the interpretation of the term “cultural property” in practice and impacts the applicability of international law.

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