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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 so historic or 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 was 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 wilful 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.
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