Crimes of War
Definition of a War Crime
August 1998
(The following was published in “The Crimes of War: What the Public Should Know,” a handbook about war crimes.)
The mosque was on death row. An execution date had not been pronounced, of course, but the Ferhad Pasha mosque was living on borrowed time when I walked through its front gate in the summer of 1992. Nationalist Serbs controlled Banja Luka and were well on their way to destroying all symbols of Muslim culture, and none was as historic or as important as Ferhad Pasha, built in 1583 during the Ottoman empire.
It was one of the oldest mosques in Bosnia, and it was beautiful, and because of that, it was in greater peril than the handful of frightened Muslims who had just ended an afternoon prayer session. “Yes, I will talk to you,” one of them told me. “But please, we must leave this place now.” The mosque had survived four centuries of Balkan tumult, but it would be best not to linger in its doomed shadow.
A few months later, on May 7, 1993, people who lived near the mosque were woken from their sleep by an explosion that made the earth tremble under their homes. Antitank mines were detonated under the ancient building’s foundations, turning it to rubble, which was carted away to a secret dump. All that was left behind was a blackened patch of ground. The “ethnic cleansers” hoped that destroying the spiritual heart of their community would ensure Muslims would leave their homes and never return. Across Bosnia this was done, as one mosque after another turned to pebbles and dust. With each explosion, a war crime was committed.
International guidelines protecting cultural property against damage and theft date back to the American Civil War. The carnage of that war led to the 1863 Lieber Code, which gave protected status to libraries, scientific collections and art works. The code applied only to American troops but influenced a series of international accords leading to the 1954 Convention for the Protection of Cultural Property. The convention’s definition of cultural property is broad, including significant architectural monuments, art works, books or manuscripts of artistic or historical significance, museums, large libraries, archives, archaeological sites, and historic buildings. The convention was strengthened by the Additional Protocols of 1977, of which Article 53 prohibits “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.” It’s important to note that the protocols established protections against the destruction of other types of civilian property not linked to military actions or uses.
Article 53 also prohibits the use of cultural property “in support of the military effort”—for example, using a national historical building as a command center. In such cases, destruction or damage of cultural property is not necessarily a war crime. The 1954 convention states that the obligation to not harm cultural property “may be waived only in cases where military necessity imperatively requires such a waiver.” The phrase “military necessity” is not defined in the convention, though it would likely apply, for example, to a church damaged during a bombing raid on an adjacent weapons factory, or a museum destroyed because it was being used as an arms depot.
The Nuremberg Trials after World War II marked the first time that individuals were held accountable for cultural war crimes. Several Nazi officials were sentenced to death for a panoply of violations that included the destruction of cultural property. Following that precedent, the Yugoslavia War Crimes Tribunal was empowered to prosecute individuals deemed responsible for the “seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science.” However, the conventions related to cultural war crimes do not spell out the penalties that should be handed down for violations.
The destruction of the Ferhad Pasha mosque easily qualifies as a war crime. At the time, Banja Luka was under the firm political and military control of Serbs, and there was no fighting in the city or in the area immediately around it. The historic mosque could not be regarded as a military target; the few Muslims who remained in Banja Luka were using it only as a house of worship. Nonetheless, it was destroyed.
