The Prosecution of War Crimes for the Destruction of

Libraries and Archives during Times of Armed Conflict

Sanja Zgonjanin

Libraries & Culture, Volume 40, Number 2, Spring 2005, pp. 128-144 (Article)

Published by University of Texas Press

DOI: https://doi.org/10.1353/lac.2005.0041

For additional information about this article

https://muse.jhu.edu/article/185014

[ Access provided at 25 Oct 2020 08:40 GMT from Fondren Library, Rice University ]
 128 L&C/The Prosecution of War Crimes

The Prosecution of War Crimes for the

Destruction of Libraries and Archives during
Times of Armed Conflict

Sanja Zgonjanin

The twentieth century witnessed some of the worst destruction of li-

braries and archives during armed conflicts. Ad hoc tribunals created
to try war crimes have made some progress in establishing individual
criminal responsibility for crimes against cultural property. However,
crimes that involve the destruction of libraries and archives are not
prosecuted as separate incidents due to the courts’ failure to specifi-
cally list such crimes as separate counts of indictment. The lack of the
prosecution of the individuals responsible for crimes of library and
archive destruction is one of the reasons why the assault on the docu-
mentary heritage of the world continues.

Never before in the history of mankind has there been a century as

destructive to books as the twentieth. . . . Library historians appar-
ently are not much inclined to study what has been lost, yet this is a
subject that the world can hardly afford to ignore. It reminds us how
fragile a thing our intellectual heritage really is and it is an incentive
to all concerned to further appropriate measures to preserve as much
as is humanly possible for future generations.
Hans van der Hoeven, “Memory of the World Programme”1

The destruction of cultural property and of libraries in particular

is as old as the concept of culture. The purpose of cultural property
destruction is common throughout history: to erase ethnic, religious,
and cultural memories and therefore to undermine or eliminate
groups’ identities and existence. Whether exercised as a part of
planned military operations or carried out by belligerents, the de-
struction of cultural property plays a significant role in the annihila-
tion of an enemy. Libraries and archives as repositories of collective
and individual memories, knowledge, and achievements have been
specifically targeted during armed conflicts.

Libraries & Culture, Vol. 40, No. 2, Spring 2005

©2005 by the University of Texas Press, P.O. Box 7819, Austin, TX 78713-7819

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The destruction of libraries and archives did not receive adequate

attention during past prosecutions for crimes committed during armed
conflicts. Such destruction usually fell within a broad category of
crimes against cultural property and was not addressed as a separate
count of any indictment by the courts, as was often the case in the
destruction of museums, historical monuments, and religious institu-
tions. The lack of an explicit count of library or archive destruction
in an indictment renders restitution for the loss difficult. Libraries
and archives lose visibility in an overall devastation during armed
conflict, and the memory of their destruction fades with time.
In order to preserve this memory and prompted by the destruc-
tion of libraries in the 1980s and 1990s, UNESCO established the
Memory of the World Programme to safeguard the documentary
heritage of the world. 2 The goal of this program is to ensure the pres-
ervation of and access to a rapidly disappearing fragile documentary
heritage and to raise the awareness of the public about the value of
libraries and archives. However, efforts such as UNESCO’s are not
sufficient to prevent future destruction. The 1954 Hague Conven-
tion for the Protection of Cultural Property in the Event of Armed
Conflict is the main legal instrument safeguarding cultural heritage
during a war. But enforcing the Hague Convention has proved to be
an extremely difficult task. When libraries and archives are destroyed
during armed conflicts the library community usually focuses on re-
building efforts. Rarely are pleas made to the war crime tribunals
trying war crimes to hold accountable individuals who are respon-
sible for destroying libraries and archives.
The lack of prosecution for these specific crimes is a contributing
factor to the ongoing assault on libraries and archives in the twenty-
first century. The most recent looting and burning of libraries and
archives in Iraq demonstrate the need to prosecute in order to pre-
vent future crimes. Justice attained by prosecuting and punishing
those responsible for the destruction of libraries and archives is a
necessary step in a larger effort to secure peace and stability and in
educating the public about the value of libraries and archives.
The first part of this essay reviews the place of libraries and archives
in the context of cultural property definitions provided by various in-
ternational legal instruments. The second part shows examples of the
destruction of libraries and archives and how they were treated by
three major ad hoc tribunals of the twentieth century. The following
cases of destruction will be analyzed: the Oriental Library in Shang-
hai, the Archives of Angevine in Naples, and the National and Univer-
sity Library of Bosnia and Herzegovina in Sarajevo. The third part
looks at the most recent destruction of Iraqi libraries. The conclusion

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 130 L&C/The Prosecution of War Crimes

summarizes the basic argument that making separate charges of librar-

ies and archives destruction rather than treating them as part of a
broader concept of cultural property destruction is a key to acknowl-
edging the value that libraries and archives have for society. Timely
prosecution and punishment are important factors in educating the
public and in preventing future crimes.

Part 1: The Place of Libraries and Archives in the Definition of

Cultural Property

The understanding and definition of cultural property in various

international conventions continue to change. The evolution of this
understanding can be observed in the development of international
legal instruments that protect cultural property. 3 One of the early
laws that served as a foundation for international cultural property
protection during armed conflict was the “Instructions for the Gov-
ernment of Armies of the United States in the Field by Order of the
Secretary of War,” known as the Lieber Code of 1863. The Lieber
Code provided a limited but important list of cultural property ob-
jects that included libraries and scientific collections as well as their
handling during armed conflict. 4 Another document significant for
the understanding of cultural property was a result of the “Project of
an International Declaration Concerning the Laws and Customs of
War,” known as the Brussels Declaration of 1874. This declaration
recognized cultural property as private property and therefore es-
tablished a link between the notions of culture and property owner-
ship. It also made clear that any acts against such property would be
considered illegal and therefore prosecuted. 5
In 1935, on the initiative of the Roerich Museum of New York, a
treaty known as the “Roerich Pact” was signed by twenty-one nations
of the Americas to preserve cultural treasures in times of danger. This
document demanded the designation of objects considered by govern-
ments as cultural treasure and stated that such objects were to be
considered neutral, unless used for military purposes. The list was com-
prised of historic monuments, museums, and scientific, artistic, educa-
tional, and cultural institutions.6
Perhaps the most important of all international initiatives pro-
tecting cultural property was the “Convention for the Protection of
Cultural Property in the Event of Armed Conflict,” known as the
1954 Hague Convention. 7 One of the leading scholars in the field of
cultural property, John H. Merryman, indicates several factors of this
convention that would impact future international legal instruments
for cultural property protection: recognition of the global character

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of cultural property, recognition of the need for special legal provi-

sions to preserve cultural property, recognition of individual respon-
sibility for crimes against cultural property, and the extension of
jurisdiction to try such crimes. 8 The 1954 Hague Convention pro-
vided a more comprehensive definition of cultural property than
previous instruments. It encompassed manuscripts, collections of
books or archives, as well as buildings housing these items such as
large libraries and depositories of archives and shelters where those
items might be stored in the event of armed conflict. 9 Another con-
vention from 1970 known as the “UNESCO Convention on the Means
of Prohibiting and Preventing the Illicit Import, Export and Transfer
of Ownership of Cultural Property” emphasized the nation-oriented
character of cultural property, leaving it to the states to determine its
scope. 10 This convention provided an even more detailed descrip-
tion of cultural property items, specifically listing incunabula, old
books and documents, and publications of special interest, both sin-
gly and in collections. In addition, under archives, it included sound,
photographic, and cinematographic archives.
Despite attempts to broaden the understanding of cultural property
in order to encompass its tangible and intangible representation, all
these definitions remained unable to capture the unique character of
culture that escapes the words and categorization of what is today widely
understood as cultural property. Nevertheless, the ad hoc tribunals cre-
ated to try war crimes would operate within the realm of definitions
provided in the legal instruments protecting cultural property. The next
part will show examples of library and archive destruction during armed
conflict and how this destruction was treated by the three major war
crime tribunals: the International Military Tribunal for the Far East,
the International Military Tribunal, and the International Criminal
Tribunal for the Former Yugoslavia.

Part 2: Three Examples of Library and Archives Destruction

The Oriental Library in Shanghai

Although the thirty-three days (28 January–2 March 1932) of Japa-

nese aggression on China resulted in the death of thousands of civil-
ians and a tremendous loss of property and educational and cultural
establishments, that short part of history seemed to be blurred by the
more elaborate events of the Sino-Japanese War that started in 1937.
As Donald A. Jordan points out, “A second huge battle at Shanghai in
1937 further confused the 1932 memories of even the residents.” 11 The
account of the losses from 1932 is documented in Symposium on Japan’s

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Undeclared War in Shanghai, published by the Chinese Chamber of

Commerce in Shanghai the same year. This document described how
on 28 January 1932 Japanese planes bombed the Commercial Press,
causing the company and nearby homes to catch fire. The Commer-
cial Press, founded in 1896, had become the largest publisher in China
as well as the main supplier of textbooks and reference books from
kindergarten to university level. The company took a lead in preserv-
ing Chinese culture by publishing Chinese classics, and it also intro-
duced Western literature and science to this part of the world. The
editorial division of the Commercial Press, which at the time of bom-
bardment had about 300 employees, was housed in the Oriental
Library. The library, created initially as a reference resource for the
editorial team, later became one of the best libraries open to the pub-
lic in China. The figures from the 1932 Symposium show that the li-
brary subscribed to more than 700 periodicals and had more than
600,000 volumes in various languages and a significant number of rare
book collections. Many invaluable first editions from the Sung
Dynasty as well as one of the most important collections in China—the
Yen Feng Lau classics collection—were lost.12
The International Military Tribunal for the Far East (IMTFE), es-
tablished by the Potsdam Declaration in 1945 to prosecute major
Japanese war criminals, tried twenty-eight persons between 1946 and
1948 for the following categories of crimes under the IMTFE char-
ter: crimes against peace, conventional war crimes, and crimes against
humanity. Although not specifically mentioned, the court treated
crimes against cultural property as conventional war crimes defined
by the charter as violations of the laws or customs of war. 13 The court
was established by an agreement between China, Great Britain, the
United States, and the Soviet Union to determine individual respon-
sibility for major war crimes committed in the Far East. The IMTFE
charter, drafted solely by the Americans, did not specify a time frame
for the crimes it was prosecuting. 14 Twenty-eight persons were in-
dicted on fifty-five counts, most of which were violations of interna-
tional law, treaties, agreements, and assurances against the Allied
powers. The accusations included the destruction of property with-
out military justification or necessity and pillage, in violation of the
Hague Convention. 15 The destruction of the Oriental Library was
not explicitly mentioned. Sixteen individuals were sentenced to life
imprisonment and two to lesser terms, but Japan had released all of
them by 1953. 16
The Allied powers and Japan signed a peace treaty in 1951 that
did not include China. The treaty stated that Japan should pay the
Allied powers for the damage caused during the war. At the same

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time, the Allied powers recognized the insufficiency of Japanese re-

sources to repay such damages, therefore rendering reparation vir-
tually impossible and reducing Japanese liability to a minimum. Al-
though the treaty specified the rights of the Allied powers to seize,
retain, and liquidate certain properties, it also included a waiver of
all reparation claims other than those specified by Article 14. 17 A
separate peace treaty was signed by China and Japan in 1952 that
had no provision for restitution. 18 Clearly, the intention of both trea-
ties was to secure future peace and economic cooperation with Ja-
pan and not to foster justice by insisting on Japanese accountability
for the committed crimes and full responsibility for the reparations
of damages. As a consequence of the tribunal’s failure to specify this
particular loss and the lack of reparation efforts, the Oriental Li-
brary was never restored. The memory of the loss faded. The Japa-
nese public was never educated about the scope of the civilian and
property casualties of the 1932 Japanese bombardments of Shang-
hai. Similarly, the Chinese public remained largely unaware of the
scope of the devastation caused during the Shanghai war due to the
subsequent Communist Party’s interpretation of the events and the
roles that different powers played at the time of destruction. Only
recently have scholars started addressing the 1932 events in a more
in-depth manner, analyzing among other costs the cost of the Shang-
hai war. 19

The Archives of Angevine in Naples

One of the most disturbing accounts of the wanton destruction of

libraries and archives, given by Count Filangieri of the Royal State
Archives in Naples, was published in the American Archivist in October
1944.20 In this eyewitness report Count Filangieri describes the destruc-
tion of the Naples State Archives by German soldiers on 30 September
1943. Fearing that the Allied bombardments would damage the ar-
chives, the Italian Ministry of the Interior ordered the transfer of some
866 cases of volumes containing the most precious archives housed in
the buildings of the Abbey of San Severino to the Montesano Villa
outside of Naples. On 28 September 1943 three German soldiers ar-
rived at the villa and discovered the archives. A German officer did a
thorough examination of the documents the next day. Suspicious that
the Germans might have mined the villa, Count Filangieri, who lived
nearby, immediately sent a letter to the German commander, calling
attention to the historical nature of the collection, but his letter was
ignored. Two days later three soldiers arrived with an order to set fire
to the collection, making sure that everything was destroyed. Peasants

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 134 L&C/The Prosecution of War Crimes

who happened to be in the area at the time saved eleven cases before
the flames destroyed the villa. The Archives of Angevine in Naples
contained 85,978 archive units going back to 1239–40, including 375
large parchment registers.21 Many of these registers represented the
most precious historical documents of the Middle Ages, not only of
the kingdom of Sicily but of other parts of Europe, Asia, and Africa.22
Fortunately, the complete list of lost material was saved and served as
a starting point for reconstruction.
Reconstructing the archives was the result of a tremendous effort
and collaboration of various parties to gather copies of as many docu-
ments as possible from the original collection. Many of the copies
have been published in periodicals and other works. Some private
family and religious archives contained copies of documents. Some-
times the originals from which the registers were made were located.
Gathering copies from various sources allowed for the reconstruc-
tion of the lost registers. All the copies were then arranged in chro-
nological order. Finally, in 1964 nineteen volumes comprising about
two thirds of the entire collection that was lost were assembled. 23
On 8 August 1945 the governments of the United States, France,
Great Britain, and the Soviet Union established an International
Military Tribunal (IMT) to prosecute and punish major war crimi-
nals of the European Axis. The tribunal tried individuals respon-
sible for three groups of crimes: crimes against peace, war crimes,
and crimes against humanity. The IMT charter provided that there
was no impunity, but Article 8 provided a possible consideration for
mitigating punishment for those who acted pursuant to the orders of
their government or superiors. Article 28 deprived the convicted
of any stolen property. As in the IMTFE charter, the destruction of
cultural property fell under war crimes as violation of the laws or
customs of war. 24 The Nuremberg Trial held in 1945–46 tried twenty-
two leading Nazis, nineteen of whom were found guilty on one or
more counts. Given the vast scale of the atrocities committed during
the worst war in the history of humankind and the staggering num-
ber of deaths, it was not possible to list everything that was destroyed.
One of the significant moments of the Nuremberg trial was that in the
Alfred Rosenberg judgment there was recognition of the destruction of
libraries by listing the plunder of museums and libraries and the confis-
cation of art treasures and collections under the war crimes and crimes
against humanity charges. Rosenberg was the Nazi Party’s ideologist and
the Reich minister for the Occupied Eastern Territories. In January 1940
he organized Einsatzstab Rosenberg as part of Hitler’s order to establish
a Hohe Schule, the Center of National Socialistic Ideological and Educa-
tional Research. Einsatzstab Rosenberg carried out the plunder of

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museums and libraries, the looting of art treasures and collections, and
the pillage of private property in all occupied territories.25
The destruction of religious, cultural, scientific, and educational
institutions received particular attention from the tribunal. However,
as the tribunal noted, it was not possible to provide detailed accounts
of all the crimes committed during the war. 26 Systematic attempts to
eradicate certain groups of people such as Jews, Slavs, Gypsies, and
others resulted in an equally brutal attempt to eliminate their heri-
tage by destroying everything embodying those cultures. Libraries
and archives suffered tremendous losses during World War II through-
out the world. 27 Reconstructing damaged and lost libraries was
almost an impossible task due to the lack of catalogs and library hold-
ings, which perished alongside the contents of the libraries, among
other factors. Although the world had never before seen such de-
struction of cultural property as during World War II, the breakaway
of former Yugoslavia would bring one of the worst library destruc-
tions ever known in history.

The National and University Library of Bosnia and Herzegovina in Sarajevo

During the night between 25 and 26 August 1992 the National

and University Library of Bosnia and Herzegovina in Sarajevo
(NULBH) was heavily bombarded and burned. An estimated 90
percent of the library collection as well as the library catalog were
destroyed. The loss included around 1.5 million books; 155,000 rare
books, including incunabula; collections of manuscripts in different
languages; the National Archive; the Collection of the University of
Sarajevo; Bosnian periodicals published since the middle of the nine-
teenth century; as well as other material pertaining to history, re-
search, development, and education in Bosnia and Herzegovina. 28
The NULBH had also served as a depository library since 1945, col-
lecting all books published in Bosnia and Herzegovina and other
parts of the former Yugoslavia. The variety of languages of the col-
lection was the main characteristic of the library, representing the
history of Bosnia and Herzegovina. The collection included works
written in Latin, English, Russian, Arabic, German, Italian, Spanish,
Turkish, Hebrew, Persian, and other languages. Different scripts were
also represented such as Latin, Cyrillic, old Bosnian, Glagolitic, and
Church Slavonic. Especially valuable were aljamiados, works writ-
ten in a special script known as aljamia, or Spanish written in Arabic
or sometimes Hebrew characters.
The international library community initiated a project to re-
create the catalog and rebuild the collection of NULBH shortly after

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 136 L&C/The Prosecution of War Crimes

its destruction while the war was still going on. Identifying exactly
what was destroyed was the biggest challenge, since the library cata-
log—the only record of the library’s contents—was destroyed. In 1996
librarians from Harvard, Yale, and OCLC (Online Computer Library
Center, Inc.) decided to start a project to create a database that would
gather all documents in all formats written in any language on or
about Bosnia and Herzegovina. 29 The project was named Bosniaca,
and the OCLC Online Union Catalog WorldCat served as the basis
for its creation. Libraries were encouraged to donate duplicate cop-
ies of any material that would fall within the scope of this project.
The rebuilding efforts were led by two prominent librarians at
Harvard’s Fine Arts Library, András Riedlmayer, bibliographer in
Islamic art and architecture, and Jeffrey Spurr, cataloger for Islamic
art in the Agha Khan Program. These and many other librarians de-
voted their time to preserving the cultural heritage of the peoples of
Bosnia and Herzegovina. Riedlmayer, testifying before the 104th
Congress in 1995, called for establishing a precedent by specifically
prosecuting and punishing individuals for crimes against culture. 30
UNESCO endorsed rebuilding the NULBH with Resolution 4.8,
which mandates international assistance in the restoration of the
NULBH. The resolution strongly condemned the perpetrators of this
crime and invited member countries to make contributions in cash,
equipment, and services to the NULBH. Most importantly, it invited
the director-general to “appeal to all intellectuals, artists, writers,
historians, sociologists and all whose work it is to inform—journal-
ists, columnists, professionals of the press, radio, television and cin-
ema—to help to develop awareness of the problem by the public in
all countries.” 31 The University of Michigan Library’s project to pre-
pare a comprehensive bibliography of Bosniaca holdings of the
University of Michigan further expanded the rebuilding efforts. 32
The destruction of libraries was just one of many widespread de-
structions of cultural property that took place on the soil of the former
Yugoslavia. As Karen Detling explains, “It is not merely the fate of
cultural property during these conflicts that is disturbing. Rather, it
is the fact that many of the ‘victims’ were not unavoidable casualties,
but were deliberately damaged or destroyed by opposing forces,
despite international conventions that explicitly prohibit such ac-
tions.” 33 It is ironic that the National and University Library of
Sarajevo, identified as an enemy target allegedly by Bosnian Serb
forces, contained the history and cultural heritage of all the peoples
who lived in Bosnia and Herzegovina: Muslims, Serbs, Croats, Jews,
and others. Destroying one’s own cultural heritage because it is part
of the cultural pluralism that existed on that territory for centuries

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 137

seemed to be cultural suicide and at the same time exposed the intri-
cate nature of culture. This was an exemplary case showing that cul-
ture is not an isolated entity and that by destroying other people’s
culture one destroys one’s own at the same time, for all cultures are
interwoven and depend on each other.
The International Criminal Tribunal for the Former Yugoslavia
(ICTY) was established by the U.N. Security Council Resolution 827
(25 May 1993) for the purpose of prosecuting persons responsible
for serious violations of international humanitarian law committed
in the territory of the former Yugoslavia since 1991. The statute of
the ICTY is comprised of thirty-four articles and states that the tri-
bunal shall prosecute persons responsible for serious violations of
international humanitarian law for the following offenses:

Article 1: Serious violations of international humanitarian law

Article 2: Grave breaches of the Geneva Conventions of 1949
Article 3: Violations of the laws or customs of war
Article 4: Genocide
Article 5: Crimes against humanity

The penalty imposed by the tribunal is limited to imprisonment and

return of any property as decided by the Trial Chamber (Article 24). 34
The ICTY Rules of Procedure and Evidence contain a provision
for the restitution of property in Article 105. This article provides
for the Trial Chamber to hold a special hearing determining the
restitution of the property or the proceeds. Although entitled Resti-
tution of Property, the article is limited only to the specifics of Judg-
ment Sub-rule 98(B) governing the unlawful taking of property by
the accused. It provides for the restitution of unlawfully taken but
not destroyed property. Furthermore, it states that in the case of the
Trial Chamber’s inability to determine ownership the Trial Cham-
ber shall notify competent national authorities to do so. It continues
with Rule 105 (F), which provides for the Trial Chamber to order the
restitution or the proceeds upon an affirmative determination by the
national authorities. Despite this provision, the inability to compen-
sate victims for destroyed cultural property is obvious. In the case of
ICTY the victim is defined in Rule 2 as “a person against whom a
crime over which the Tribunal has jurisdiction has allegedly been
committed.” 35 As such, a victim is entitled to compensation accord-
ing to Rule 106. This rule allows a victim or persons claiming through
the victim to obtain compensation for the injuries of the victim. The
question remains: How can anyone compensate for injuries to vic-
tims of cultural property destruction?

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 138 L&C/The Prosecution of War Crimes

Rule 47 of the Rules of Procedure and Evidence empowers the

prosecutor to present an indictment to the registrar for confirmation
by the judge if he or she is satisfied that there is sufficient evidence
to provide reasonable grounds to believe that a suspect committed a
crime. This requirement is legally called prima facie. 36 Although not
defined in the ICTY statute, prima facie means that the prosecutor
must establish acceptable evidence sufficient to raise a presumption
of fact or to establish the fact in question. This will form the base of
the case of the crime for which the accused will be tried.
The magnitude of cultural destruction in the former Yugoslavia
prompted the ICTY to establish that prima facie existed and to pros-
ecute for crimes against cultural property. For the first time since the
Nuremberg and Tokyo trials such crimes were included in the counts
of the indictment of 22 February 2001. Among other counts, the per-
petrators Strugar, Jokić, and Zec were indicted for participating during
the 1991 attacks on Dubrovnik on the following counts: grave breach
of the Geneva Convention of 1949 for the extensive, unlawful, and
wanton destruction of property not justified by military necessity; and
violations of the laws or customs of war for destruction or willful dam-
age to educational or religious institutions as well as plunder of public
or private property.37 Article 3(b) of the ICTY statute on the wanton
destruction of cities or devastation not justified by military necessity
and Article 3(d) on seizure, destruction, or willful damage of educa-
tional, religious, artistic, and scientific institutions were particularly
important.38 They showed the willingness of the international commu-
nity to establish individual criminal responsibility specifically for cul-
tural property crimes, treating them much more seriously than similar
tribunals had in the past. The inclusion of these articles into the ICTY
statute not only reflects the level of development of international hu-
manitarian law but also affirms that the protection of the aforemen-
tioned institutions makes an integral part of customary international
law. The U.N. Security Council, in “The Destruction of Cultural Prop-
erty Report,” referring to the destruction of Dubrovnik, already
acknowledged that there is room to bring sufficient charges against
certain individuals.39 The specific inclusion of the cultural property
destruction in the counts of an indictment was a step in the right direc-
tion for international criminal law.
Several indictments have been issued to date by the ICTY against
persons responsible for crimes committed in Sarajevo, including Pros-
ecutor v. Gali c´ and Milo sevi
+ c´ (IT-98-29) and Prosecutor v. Kraji snik
+ and
Plav si+c´ (IT-00-39 and 40). Some of the accused remain at large (Pros-
ecutor v. Karad zi+ c´ and Mladi c,´ IT-95-5/18). In the plea agreement of 3
September 2002 by Biljana Plavs i+ ć in Prosecutor v. Kraji snik
+ and Plav sic,
+´

03 Zgonjanin 138 6/20/05, 5:01 PM

 139

Mrs. Plavs i+ ć pleaded guilty to persecutions as per Count 3 of the

indictment. 40 In exchange, the judge granted the prosecution’s mo-
tion to dismiss all other counts, including genocide, extermination
and killing, crimes against humanity, and violation of the laws or
customs of war. Although customary, plea agreements like the one
of Mrs. Plavs i+ ć undermine the process of justice and decrease the
chance of determining the individual responsibility for many crimes
whose perpetrators consequently remain unpunished. Such is the case
in the shelling of the NULBH in Sarajevo, which was one of many
criminal acts committed while Mrs. Plavs i+ ć was one of the three
members of the Presidency of the Bosnian Serb Republic. There is
no doubt of the existence of command responsibility for the
August 1992 shelling of the city of Sarajevo that destroyed the li-
brary. It is a matter of time and the willingness of the international
criminal justice system to prosecute and punish individuals respon-
sible for this crime.
The destruction of cultural property in the former Yugoslavia had a
major impact on the further development of the international instru-
ments for cultural property protection. It brought worldwide attention
to the failure of the provisions of the 1954 Hague Convention to pro-
tect cultural property. For the first time since its creation, UNESCO
became directly involved in an armed conflict. Recommendations were
made to strengthen and revise the 1954 Hague Convention governing
cultural property protection in armed conflicts in the 1993 “Report by
the Director-General in the Reinforcement of UNESCO’s Action for
the Protection of the World Cultural Heritage and Natural Heritage.”41
The 1954 Hague Convention fell short of adequately addressing many
important issues, including criminal responsibility and jurisdiction over
cultural crimes in internal conflicts, enforcement of the convention, a
provision for restitution or sanctions, as well as the interpretation of
imperative military necessity. The “Second Protocol to the Hague Con-
vention of 1954 for the Protection of Cultural Property in the Event of
Armed Conflict,” adopted during the Hague Conference in March 1999,
expanded the original 1954 Hague Convention by providing some ad-
ditional measures.42 These measures include guidelines for protection
in time of peace, the creation of funds for the protection of cultural
property during times of armed conflict, limiting conditions of mili-
tary operations strictly to imperative military necessity, and clearly
imposing individual criminal responsibility for violations of the
Second Protocol. 43
More than ten years have passed since the NULBH was destroyed.
The beautiful Moorish-style building that hosted the library still lies in
ruins. The library has received donations of books from various

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 140 L&C/The Prosecution of War Crimes

organizations, including universities, worldwide. Unfortunately, the

efforts to rebuild the library have been hindered by a lack of funding
and by the local government’s dispute about the ownership of the build-
ing. Faced with this dispute, anticipated by ICTY in its statute, the
United Nations decided to support the rebuilding of the sixteenth-
century Old Bridge in Mostar instead of the library.44 The bridge was
reopened in July 2004, while the library is still waiting for support.

Part 3: Iraq’s National Library and Archives in Baghdad

Not surprisingly, after U.S. troops entered Baghdad in April 2004,

the looting and burning of museums and libraries containing centu-
ries’ worth of cultural heritage spread very quickly throughout Iraq.
The National Library and National Archives, housed in the same
building, were burned by two fires caused by incendiary materials
between 10 and 14 April 2004. 45 Other libraries across Iraq suffered
similar fates. 46 According to a Library of Congress report, the
National Library and Archives were not completely lost due to the
diligent efforts of library staff to remove some of the materials to a
safe location before the war. The National Library collection is esti-
mated to have held around 1 million items, 30 percent of which were
lost. The archives that were burned covered the period from 1977 to
the present. The rest of the archives survived as well as the library
catalog. However, material that was relocated for safekeeping suf-
fered water damage while stored at the Board of Tourism building. 47
The question of responsibility for the burning and looting of the
Baghdad Museum and National Library remains open. Although the
evidence suggests that the destruction of cultural property in Baghdad
was committed by a local mob, the failure of the U.S. forces to pro-
tect these sites seems to be inexcusable. Warned by the curators and
archaeologists about the potential of looting and the destruction of
Iraq’s cultural heritage in January 2003, the U.S. Department of
Defense called for securing at least the museum site. While provid-
ing protection to the Ministry of Oil, the Palestine Hotel, the airport,
and other strategic locations, U.S. forces neglected to act when it
came to protecting Iraq’s cultural heritage from burning and loot-
ing. 48 The failure of the United States to act was condemned by Mar-
tin Sullivan in his letter of resignation as chairman of the President’s
Advisory Committee on Cultural Property. He stated that the tragic
looting of the National Museum of Antiquities was both foreseeable
and preventable and that “the tragedy was not prevented, due to our
nation’s inaction.” Criticizing U.S. Secretary of Defense Donald
Rumsfeld for underestimating the loss caused by the looting, Sullivan

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 141

emphasized the international character of Iraq’s cultural heritage and

the responsibility of the administration, which chose a preemptive
action, to prevent the looting and destruction. 49
Others have also called attention to the legal responsibility for the
destruction of cultural property in Baghdad. Amnesty International
has indicated that the occupying forces of the United States and Great
Britain had an obligation under international law to protect the areas
over which they exercised military control.50 Who will be held respon-
sible for the destruction of Iraq’s National Museum and National
Library and Archives has yet to be seen.
In the meantime, UNESCO has made some recommendations
concerning the safeguarding of the cultural heritage of Iraq. Some of
the objectives include enforcing and strengthening national legisla-
tion on cultural heritage, libraries, and archives and creating an in-
ternational network that will support the rebuilding of the National
Library and Archives as well as other libraries in Iraq. 51 However,
the UNESCO document falls short of calling for the prosecution of
those responsible for the looting and destruction. As neither Iraq
nor the United States is a member of the International Criminal Court,
it is most likely that the national courts will have jurisdiction to pros-
ecute crimes committed during the armed conflict in Iraq. The loot-
ing and destruction of the National Museum and National Library
and Archives in Baghdad illustrate how important it is to prosecute
individuals responsible for such crimes before memories fade and
before more destruction takes place.

Conclusion

Despite efforts of the international community and all the devel-

opments that have taken place in the last decades in the field of cul-
tural property protection and the protection of libraries and archives
in particular, one element remains common to all cases of destruc-
tion: the failure of the justice system to prosecute and punish those
who are responsible. International criminal trials become extremely
lengthy and politicized. Many crimes, for a variety of reasons, fade
away with time or fall into general oblivion, as if they never took
place. Although some progress has been made in the international
legal instruments governing the protection of cultural property dur-
ing armed conflict, that by itself has not been sufficient to deter the
military or belligerents from further destruction. Without efficient
and speedy prosecution of the individuals responsible explicitly for
the crimes of library and archive destruction the assault on the docu-
mentary heritage of the world will continue.

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 142 L&C/The Prosecution of War Crimes

Notes
I would like to thank Lara Christianson and Phil Greene for their help and
my mother, Nada, and son, Teo, for their love.
1. “Lost Memory—Libraries and Archives Destroyed in the Twentieth
Century,” 1996, http://www.unesco.org/webworld/mdm/administ/en/
detruit.html (accessed 28 August 2004).
2. See “Memory of the World Programme,” http://www.unesco.org/
webworld/mdm/en/index_mdm.html (accessed 28 August 2004).
3. For the definition of cultural property by various conventions see http://
www.unesco.org/culture/legalprotection/html_eng/convention.shtml (accessed
28 August 2004).
4. “Instructions for the Government of Armies of the United States in the
Field by Order of the Secretary of War,” http://www.civilwarhome.com/
liebercode.htm (accessed 28 August 2004).
5. “Project of an International Declaration Concerning the Laws and Cus-
toms of War, Brussels, 1874,” http://www1.umn.edu/humanrts/instree/1874a.htm
(accessed 28 August 2004).
6. For information about the Roerich Museum see http://www.roerich.org/
index.html (accessed 28 August 2004); “Protection of Artistic and Scientific In-
stitutions and Historic Monuments,” http://www.roerich.org/nr.html?mid=pact
(accessed 28 August 2004).
7. “Convention for the Protection of Cultural Property in the Event of Armed
Conflict,” http://www.unesco.org/culture/laws/hague/html_eng/page1.shtml
(accessed 28 August 2004).
8. John Henry Merryman, “Two Ways of Thinking about Cultural Prop-
erty,” American Journal of International Law 80 (1986): 831–53.
9. “Convention for the Protection of Cultural Property in the Event of Armed
Conflict,” Article 1, http://www.unesco.org/culture/laws/hague/html_eng/
page2.shtml#Article1 (accessed 28 August 2004).
10. “Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property,” http://www.unesco.org/
culture/laws/1970/html_eng/page1.shtml, Article 1, http://www.unesco.org/culture/
laws/1970/html_eng/page2.shtml (accessed 28 August 2004).
11. Donald A. Jordan, China’s Trial by Fire: The Shanghai War of 1932 (Ann
Arbor: University of Michigan Press, 2001), ix.
12. Symposium on Japan’s Undeclared War in Shanghai (Shanghai: Chinese Cham-
ber of Commerce, 1932), 34, 80.
13. Trial of Japanese War Criminals (Washington, D.C.: U.S. Government Print-
ing Office, 1946), 40.
14. Yves Beigbeder, Judging War Criminals: The Politics of International Justice
(New York: St. Martin’s Press, 1999), 72–73.
15. Trial of Japanese War Criminals (Washington, D.C.: U.S. Government Print-
ing Office, 1946), app. D, sec. 11, p. 96.
16. “Basic Facts on the Nanking Massacre and the Tokyo War Crimes Trial,” http:/
/www.arts.cuhk.edu.hk/NanjingMassacre/NMNJ.html (accessed 28 August 2004);
M. Cherif Bassiouni, “Combating Impunity for International Crimes,” University of
Colorado Law Review 71 (2000): 415.
17. “Treaty of Peace with Japan,” http://www.taiwandocuments.org/
sanfrancisco01.htm (accessed 28 August 2004).

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18. “Treaty of Peace between the Republic of China and Japan,” http://
www.taiwandocuments.org/taipei01.htm (accessed 28 August 2004).
19. Jordan, China’s Trial by Fire, xii, xiii–xiv.
20. Count Filangieri was a Neapolitan author of books and articles about
medieval and modern Italian history. M. Riccardo Filangieri, “Report on the
Destruction by the Germans, September 30, 1943, of the Depository of Priceless
Historical Records of the Naples State Archives,” American Archivist 7, no. 4
(October 1944): 252–55.
21. “The Archives of Angevine Naples—A Reconstruction,” Journal of the
Society of Archivists 3, no. 4 (October 1966): 192–94.
22. M. Riccardo Filangieri, “Un essai de reconstitution des Archives Angevines
de Naples,” Archivum: Revue Internationale des Archives 1, no. 1 (1951): 135–37.
23. “The Archives of Angevine Naples,” 194.
24. “Judgement: War Crimes and Crimes against Humanity,” http://
www.yale.edu/lawweb/Avalon/imt.htm (accessed 28 August 2004).
25. “Judgment: Rosenberg,” http://www.yale.edu/lawweb/avalon/imt/proc/
judrosen.htm (accessed 28 August 2004).
26. “Judgement: War Crimes and Crimes against Humanity,” http://
www.yale.edu/lawweb/avalon/imt/proc/judwarcr.htm#general (accessed 28
August 2004).
27. See Hilda Uren Stubbings, Blitzkrieg and Books: British and European Librar-
ies as Casualties of World War II (Bloomington, Ind.: Rubena Press, 1993);
Barbara Bienkowska, Losses of Polish Libraries during World War II (Warsaw:
Wydawn, 1994); “Lost Memory.”
28. András Riedlmayer, “Libraries Are Not for Burning: International Librarianship
and the Recovery of the Destroyed Heritage of Bosnia and Herzegovina,” http://
www.fh-potsdam.de/~IFLA/INSPEL/96-1riea.pdf (accessed 28 August 2004).
29. Edward T. O’Neill et al., “The Bosnian National Library: Building a
Virtual Collection,” http://www.openbook.ngo.ba/quarterly/no2/bosnia1.htm
(accessed 28 August 2004).
30. András Riedlmayer, “Killing Memory: The Targeting of Bosnia’s
Cultural Heritage,” http://www.haverford.edu/relg/sells/killing.html (accessed
August 2004).
31. “Revival of the National and University Library Bosnia and Herzegovina
in Sarajevo,” http://www.unesco.org/webworld/sarajevo/sarajevo.htm (accessed
28 August 2004).
32. “Bosniaca: A Bibliography of University of Michigan Library Holdings
Related to Bosnia and Herzegovina,” http://www.unesco.org/webworld/sarajevo/
cover_page.htm (accessed 28 August 2004).
33. Karen J. Detling, “Eternal Silence: The Destruction of Cultural Property
in Yugoslavia,” Maryland Journal of International Law and Trade 17, no. 1 (Spring
1993): 44.
34. “Statute of the Tribunal,” http://www.un.org/icty/legaldoc/index.htm
(accessed 28 August 2004).
35. “Rules of Procedure and Evidence,” http://www.un.org/icty/legaldoc/
index.htm (accessed 28 August 2004).
36. For a discussion about prima facie and ICTY see David Hunt, “The Mean-
ing of a ‘prima facie Case’ for the Purposes of Confirmation,” in R. May et al.,
Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald (The
Hague: Kluwer Law International, 2001), 137–49.

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 144 L&C/The Prosecution of War Crimes

37. See Prosecutor v. Strugar et al., Initial Indictment IT-01-42 (27 February
2001), http://www.un.org/icty/indictment/english/str-ii010227e.htm (accessed 28
August 2004).
38. “Statute of the Tribunal,” http://www.un.org/icty/legaldoc/index.htm
(accessed 28 August 2004).
39. Security Council, S/1994/674/Add.2 (Vol. V) (28 December 1994).
40. Prosecutor v. Plav s +i c,´ Plea Agreement, IT-00-40 PT (14 September 2002),
http://www.un.org/icty/krajisnik/trialc/plea-300902e.pdf (accessed 28 August
2004); Prosecutor v. Kraji s +nik and Plav s +i c´ (IT-00-39 and 40-PT) (7 March 2002),
http://www.un.org/icty/indictment/english/kra-cai020307e.htm (accessed 28
August 2004).
41. “Report by the Director-General in the Reinforcement of UNESCO’s
Action for the Protection of the World Cultural Heritage and Natural Heritage,”
UNESCO 142 EX/15 (Paris, 18 August 1993).
42. “Second Protocol to the Hague Convention of 1954 for the Protection of
Cultural Property in the Event of Armed Conflict,” http://www.unesco.org/
culture/laws/hague/html_eng/protocol2.shtml (accessed 28 August 2004).
43. See Jean-Marie Henckaerts, “New Rules for the Protection of Cultural
Property in Armed Conflict,” International Review of the Red Cross 835 (September
1999): 593–620.
44. See Burton Bollag, “Barely Salvaged Sarajevo,” Chronicle of Higher Educa-
tion 49, no. 49 (15 August 2003): A40–41.
45. See Library of Congress and the U.S. Department of State Mission to
Baghdad, Report on the National Library and the House of Manuscripts, 27 October–3
November 2003, http://www.loc.gov/rr/amed/iraqreport/iraqreport.html; Nabil al-
Tikriti, Iraq Manuscript Collections, Archives & Libraries Situation Report 8 June 2003,
http://oi.uchicago.edu/OI/IRAQ/docs/nat.html (accessed 28 August 2004).
46. Jean-Marie Arnoult, Assessment of Iraqi Cultural Heritage: Libraries & Ar-
chives, 27 June–6 July 2003 (by UNESCO contract), http://www.ifla.org/VI/4/
admin/iraq2207.pdf (accessed 28 August 2004).
47. Library of Congress and the U.S. Department of State Mission to Baghdad,
Report.
48. al-Tikriti, Iraq Manuscript Collections.
49. Sullivan quoted in Richard H. Curtiss, “The Tragic Saga of Iraq’s National
Museum,” Washington Report on Middle East Affairs 22, no. 5 ( June 2003): 1415.
50. Amnesty International, “Iraq: Responsibilities of the Occupying Powers,” http:/
/web.amnesty.org/library/index/engmde140892003 (accessed 28 August 2004).
51. “International Coordination Committee for the Safeguarding of the Cul-
tural Heritage in Iraq: Seven Recommendations 26 May 2004,” http://
portal.unesco.org/en/ev.php-U RL_I D=20649&U RL_D O=D O_TOP IC
&URL_SECTION=201.html (accessed 28 August 2004).

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