The second part of the 20th century saw an unprecedented effort at building a rule based mechanism to protect cultural property in time of war. unesco has been at the forefront in developing treaty regimes on this subject, and international humanitarian law has evolved so as to include specific provisions to safeguard cultural property in the event of armed conflicts. Yet, remnants of the old ‘military necessity’ clause are still present in the two most important legal instruments concerning war and cultural property, the 1954 Hague Convention, and the 1999 Second Protocol to this Convention. During the negotiations of the latter instrument, strong arguments were made in favor of the elimination of this clause. Such a solution would have been in line with the model of the 1977 humanitarian law Protocol i and ii whose articles 53 and 16, respectively, do not mention military necessity as a possible exception to the general prohibition of acts of hostility against cultural property. As we know, this model was not adopted in the final text of the Second Protocol to the Hague Convention. So, now we are faced with the apparent paradox of a well developed treaty law, and also of customary law, which, while protecting cultural property against violence of war and even making attacks against such property war crimes and crimes against humanity, still continues to recognize military necessity as an overriding exception to the obligation to prevent and avoid destruction of cultural property.
With this monograph Berenika Drazewska addresses this paradox with a thorough investigation on the legal foundation and limits of military necessity in international cultural heritage law. She does so with correct method and rigorous analysis of the sources of the law, with a logical sequence of arguments and writing skill. She does not hide her ethical preference for an international regime that would shed the doctrine of military necessity from cultural heritage law. But she accepts that such preference does not entirely reflect the status of international law today. Consequently, she focuses on the identification of the elements that attest to a gradual shrinking of the concept and scope of military necessity within the context of the dynamic evolution of international cultural heritage law. At the same time, the results of her analysis are tested against the corresponding evolution of the doctrine of military necessity in the related fields of international humanitarian law, international criminal law and the law on the protection of the environment.
The result is a valuable work that provides a fresh approach to the definition of the scope of application of military necessity in the context of armed conflicts involving destruction of cultural property. It brings a welcome expansion
Francesco Francioni
European University Institute, Florence
April 2021