Destruction or willful damage done to institutions dedicated to education

Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ

92. The Appeals Chamber cannot see how all educational buildings fulfil these criteria [of Article 1 of the Hague Convention of 1954]. Therefore, the Appeals Chamber finds that the Trial Chamber erred when it considered that “educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples”.[1] The Trial Chamber did not consider whether and under which conditions the destruction of educational buildings constituted a crime qua custom at the time it was allegedly committed. Although Hague Convention IV is considered by the Report of the Secretary-General as being without doubt part of international customary law,[2] it does not explicitly refer to buildings dedicated to education.  The same applies to Article 53 of Additional Protocol I and it is suggested that the adjective “cultural” used in Article 53 applies to historic monuments and works of art and cannot be construed as applying to all institutions dedicated to education such as schools. Schools are, however, explicitly mentioned in Article 52 of Additional Protocol I, which relates to schools, places of worship and other civilian buildings. Article 23(g) of the Hague Regulations states that it is especially forbidden to “destroy (…) the enemy’s property, unless such destruction (…) is imperatively demanded by the necessities of war.” The Report of the Secretary-General states that the above instrument and the Regulations annexed thereto have beyond doubt become part of international customary law.[3]  There is no doubt that the crime envisaged of destruction of educational buildings was part of international customary law at the time it was allegedly committed.

[1] Trial Judgement, para. 360.

[2] Report of the Secretary-General, para. 35.

[3] Report of the Secretary-General, para. 35.

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Other instruments Additional Protocol I;
Article 52;
Article 53