Is individual criminal liability for damage to cultural heritage possible during an armed conflict? The case of the russian federation–ukraine conflict

Abstract

Currently, there is an international armed conflict taking place between the Russian Federation and Ukraine, during which cultural heritage is being destroyed. Although cultural heritage has been protected by various provisions of international law during armed conflicts since the 19th century, the current armed conflict between the Russian Federation and Ukraine shows that they are not deterrent and there is a lack of judicial practice and scientific research.

Crimes against cultural heritage during armed conflicts have often been relegated to the sidelines as secondary or less important, but changes are happening in the international community on this issue. In 2016, the International Criminal Court (ICC) in the Al Mahdi case for the first time in history raised war crimes related to the destruction of cultural heritage as the main charges in an international criminal case and applied individual criminal responsibility for these crimes. This was a very important step in establishing the practice of applying individual criminal responsibility for crimes that damage cultural heritage. However, the issue of compensation for damage caused to cultural heritage during armed conflicts is still not sufficiently defined in legal norms and judicial practice, and there is a lack of broader scientific research. The scale of cultural heritage destruction during the ongoing armed conflict between the Russian Federation and Ukraine shows that, although society understands its importance, not all states that support international norms protecting cultural heritage during armed conflict are adhering to their obligations and are not deterred.

Taking into account these facts, it was decided to conduct a study aimed at determining whether individual criminal responsibility is possible for damage caused to cultural heritage during the Russian Federation-Ukraine armed conflict. The study used descriptive, analysis, synthesis, comparative, logical, and generalization methods, with the help of which the concept, historical development, and situation of cultural heritage, theoretical and practical aspects of the application of individual criminal responsibility for damage caused to cultural heritage during the Russian Federation-Ukraine armed conflict were studied.

The investigation has established that damage has been caused to cultural heritage on the territory of Ukraine. Individual criminal liability is possible for damage to cultural heritage during the armed conflict between Ukraine and the Russian Federation. Individual criminal liability is enshrined in the 1954 Hague Convention and its protocols. Damage to cultural heritage during an armed conflict is considered a war crime and a crime against humanity. Under the 1954 Hague Convention and the Rome Statute, Ukraine should be able to hold responsible persons individually criminally liable for damage to cultural heritage during armed conflict in its national courts, but it has not yet fulfilled its obligation to adopt national legislation to do so. Ukraine could defend its rights in this matter before a special tribunal, if one was established and if the statute of that ad hoc court would include the possibility of prosecuting damage to cultural heritage. The study concluded that the most appropriate court is the International Criminal Court. By prosecuting an individual criminally, it would also be possible to demand compensation from that person.