Criminal protection of cultural heritage in the event of armed conflict: error of fact in war crime against cultural heritage assets Luciano Pereira de Souza, Washington Luiz Pereira Soares, Carlos Alexandre Muniz Faorlin, Mauricio Fernando Rollenberg Faro Melo, Lígia Maria Comis Dutra

Abstract

The objective of this study is to assess the admissibility of an error regarding the constitutive element of the criminal offense (error of fact) in the crime defined in items “b” and “e” of paragraph 2 of Article 8 of the Rome Statute. In order to be considered a crime, the perpetrator must have intentionally attacked specially protected cultural assets, while being aware of the quality of these assets. Could the perpetrator of the crime be exempt from criminal liability by claiming to be unaware that the objects and sites affected by the attack constitute specially protected cultural heritage? Initially, the aim is to identify in the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (1972), in the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954) and in the Second Protocol relating to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1977) the elements for the formation of an international information system on cultural heritage assets. Next, it seeks to demonstrate the obligation of the subject to inform himself about the protection rules and about the targets against which he directs an attack, especially in view of the precautions that he must take before carrying out the attack. In view of this, it is concluded that it is very difficult to recognize the error of fact as excluding criminal liability, when it comes to attacks on cultural heritage assets, especially those protected by the 1954 Hague Conventions and their Protocols, as well as by the 1972 UNESCO Convention.