Wars have often involved the destruction of cultural heritage sites and looting of cultural property to demonstrate the might of the winning party, demoralise a population, and fund future conflicts.1Gerstenblith, Patty. “Protecting Cultural Heritage in Armed Conflict: Looking Back, Looking Forward.” Cardozo Public Law, Policy, and Ethics Journal, vol. 7, no. 3, Summer 2009, p. 677-708. This is especially so for armed conflicts which occur on ethnic, cultural or religious lines, wherein individuals are vulnerable physically and as well as in terms of their cultural identity.2Johannot-Gradis, Christiane. “Protecting the past for the future: How does law protect tangible and intangible cultural heritage in armed conflict?” International Review of the Red Cross, vol. 97, no. 900, Winter 2015, p. 1253-1276. Many recent conflicts have entailed damage and destruction of cultural heritage sites which have received much media attention. For instance, in Syria, cultural heritage was destroyed or damaged in the old city of Aleppo, shrines were attacked in Raqqa, and the world heritage site of Palmyra was attacked twice by ISIS.3Lostal, Marina, et al. “Armed Non-State Actors and Cultural Heritage in Armed Conflict.” International Journal of Cultural Property, vol. 24, no. 4, November 2017, p. 407-428. Similarly, in Iraq shrines and museums were attacked by ISIS who even filmed their attempts to devastate the city of Mosul and in Mali, Timbuktu was attacked leading to the destruction of manuscripts, mausoleums, and mosques.4ibid. IHL protects cultural heritage and property on the basis that they are the heritage of humankind and must be saved for future generations.5Wolfrum, Rudiger. “Protection of Cultural Property in Armed Conflict.” Israel Yearbook on Human Rights, 32, 2002, p. 305-338.
This month, the Diplomacy, Law and Policy Forum will be exploring the theme of armed conflict and cultural heritage and the ways in which the law protects objects that define who we are and how we live as people.6O’Connell, Mary Ellen. “Occupation Failures and the Legality of Armed Conflict: The Case of Iraqi Cultural Property.” Art Antiquity and Law, vol. 9, no. 4, December 2004, p. 323-362. The articles for this theme analyse the protections afforded to cultural heritage and property and their effectiveness, the law governing tangible and intangible cultural heritage, and the law as it relates to non-state armed groups. This editorial will focus on the main issues relating to definitions, accountability, and applicability to non-state entities and the ways in which the law is evolving to meet these changing demands.
IHL and Cultural Heritage
IHL protects cultural heritage during armed conflicts through the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocols.7Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 (entered into force 7 August 1956) (1954 Convention); The Hague Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 (entered into force 7 August 1956); the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999 (entered into force 9 March 2004) The Hague Convention was the first treaty to deal exclusively with cultural property and its Preamble underlies its rationale in stating that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind” and the preservation of cultural heritage is of great importance for all peoples in the world and so requires international protection. Article 1 of the Hague Convention defines cultural property as “movable or immovable property of great importance to the cultural heritage of every people.” This includes monuments, sites, groups of buildings, works of art or manuscripts. Articles 3 and 4 include the core obligations of States to protect their cultural property in case of future conflict and, during conflict, to avoid using cultural property in a way that may endanger it and avoid intentionally targeting it, unless imperative military necessity exists to do so. The military necessity waiver has been criticised as it is difficult to define exactly what an ‘imperative’ military necessity requires. An issue arises as to when decisions which overstate the necessities of war result in unjustified destruction of cultural property, where this annihilation would also be irreparable.8Wolfrum, Rudiger. “Protection of Cultural Property in Armed Conflict.” Israel Yearbook on Human Rights, 32, 2002, p. 305-338. Moreover, it has been argued that weighing the damage to cultural heritage with possible military advantage is very difficult and not comparing like with like.
The Hague Convention also protects buildings whose aim is to preserve or exhibit cultural property such as museums and libraries. Article 16 also allows for the use of the following blue shield emblem to signal the presence of cultural property:
The Convention prohibits the use of cultural property and its immediate surroundings for purposes that are likely to expose it to destruction or damage in an armed conflict, except in cases of military necessity; acts of hostility cannot also be directed against cultural property unless required by military necessity; acts of vandalism or theft, pillage or misappropriation are prohibited against cultural property; and acts of reprisal cannot be directed against cultural property.
The Second Protocol of 1999 extends the application of the Hague Convention to non-international armed conflicts after the Balkan wars where cultural property was intentionally damaged.9Gerstenblith, Patty. “Protection of Cultural Heritage during Armed Conflict, The.” ILSA Quarterly, vol. 20, no. 4, May 2012, p. 27-33. Under Article 6(b), it also clarifies the military necessity waiver, stating that it can only be invoked for as long as “that cultural property has, by its function, been made into a military objective” and “there is no feasible alternative available to obtain a similar military advantage”. Under Article 6(c), this waiver can only be invoked by the commanding officer of a battalion-size element or higher, unless there are extenuating circumstances. Although the Protocol is also significant in that it creates a criminal offence for violations, it does not establish any modes for penalisation and some argue this is why it has not been successful in protecting international cultural heritage in Iraq and Syria.10See Qureshi, Waseem Ahmad. “The Protection of Cultural Heritage by International Law in Armed Conflict.” Loyola University Chicago International Law Review, vol. 15, no. 1, Fall 2017, p. 63-100. Moreover, the narrowing of the military necessity waiver is a welcome amendment in the law, however, adding a functional use criterion is still rather indeterminate.
For States which have not ratified these treaties, other IHL treaties as well as customary IHL would apply. Whilst the Geneva Conventions themselves do not incorporate any protections for cultural property, such protection can be found in the Additional Protocols. Articles 53 and 85(4) of Additional Protocol I prohibits the directing of hostilities towards any historic site, cultural property, monument, religious place, artistic place, or object that is considered cultural heritage. It also prohibits the use of such objects in support of the military effort and rendering such sites the object for reprisals. Article 85(4)(d) considers a breach of Article 53 to be a grave breach and thus a war crime. The prohibition is also found for non-international armed conflicts in Article 16 of Additional Protocol II.
Jurisprudence has also established that most treaty rules regarding cultural heritage and States’ obligations towards it are customary international law. The International Criminal Tribunal for the Former Yugoslavia held that the criminalisation of the intentional destroying of cultural heritage is custom.11Prosecutor v. Kordić and Cerkez, ICTY Case No. IT-95-14/2-T, Judgment of the Trial Chamber, 26 February 2001, para. 206 Moreover, the Eritrea-Ethiopia Claims Commission held that Ethiopia’s destruction of an archeological monument in occupied Eritrea was a violation of customary IHL; neither country was party to the Hague Convention.12Claims Commission for Eritrea and Ethiopia, Partial Award, Central Front, Eritrea’s Claims 2, 4, 6, 7, 8 & 22, 28 (2004), 43 I LM (2004) 1249, para. 113. It held that Ethiopia was obliged to apologise to Eritrea and pay compensation for the destruction.13ibid.
The Rome Statute lists “intentionally directing attacks” against protected sites as a war crime thus giving the International Criminal Court jurisdiction over crimes against cultural property. Moreover, the provisions prohibiting acts against cultural property, namely Article 8(2)(b)(ix) and 8(2)(e)(iv) are identical for international and non-international armed conflicts. In September 2016, the ICC sentenced Ahmad Al Faqi Al Mahdi to nine years in prison for having intentionally directed attacks against cultural heritage sites in Timbuktu in Mali.14International Criminal Court, “Situation in Mali: Article 53(1) Report,” Office of the Prosecutor report, 16 January 2013, paras. 154-60. Rome Statute on the International Criminal Court, 17 July 1998, 2187 UNTS 90. This remains the only case in the history of international criminal law which is solely about the destruction of cultural heritage, which has until now even rarely been prosecuted nationally. The ICC Prosecutor’s Office relied on the world heritage status of Timbuktu when arguing that the incidents met the gravity threshold under the Rome Statute.15ibid.
The Jokić case before the International Criminal Tribunal for the former Yugoslavia involved prosecuting the shelling of the Old Town of Dubrovnik, the Trial Chamber stated that “the Old Town [of Dubrovnik] is also legally distinct from the rest of the wider city because the Old Town … enjoys a World Heritage listing and the protections and immunities that are consequent on that listing.”16Prosecutor v. Jokić, Judgment, Case No. IT-01-42/1, Trial Chamber, 18 Mar. 2004 The Trial Chamber held that: “[T]he Old Town was a “living city” (as submitted by the Prosecution) and the existence of its population was intimately intertwined with its ancient heritage … since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town, constituted of civilian buildings and resulting in extensive destruction within the site.”17ibid at paras 51-54.
However, there have been many criticisms as to the lack of accountability for States in failing to protect cultural heritage during times of armed conflict. For instance, in the Iraq War of 2003, US forces converted the Babylon archeological site into a military base with a helipad which resulted in considerable damage to cultural property.18Johannot-Gradis, Christiane. “Protecting the past for the future: How does law protect tangible and intangible cultural heritage in armed conflict?” International Review of the Red Cross, vol. 97, no. 900, Winter 2015, p. 1253-1276. Vestiges from thousands of years ago were destroyed and sands which contained information on past civilizations were lost.19ibid. The UN Security Council has passed resolutions to protect cultural property and heritage in Iraq and Syria. Under Resolution 1483, coalition parties in Iraq were to ensure the protection of Iraqi cultural heritage and property and return the property that had been removed from Iraq’s National Library and Museum since the first Gulf War.20UN Security Council Resolution 1483, S/RES/1483 (2003) It also directed the forces to prevent the illegal trade and sale of Iraqi cultural property.21ibid. A similar direction was made in Resolution 2199 regarding the illegal trade of Syrian and Iraqi cultural property, but here States were to prohibit and report any such trade at their borders to ensure no property was removed from its country of origin.22UN Security Council Resolution 2199, S/RES/2199 (2015); See also Qureshi, Waseem Ahmad. “The Protection of Cultural Heritage by International Law in Armed Conflict.” Loyola University Chicago International Law Review, vol. 15, no. 1, Fall 2017, p. 63-100. However, Gerstenblith states that “there seems to be no example of a nation that is a party to the Protocol taking action to prohibit trade in cultural objects removed from occupied territory”.23Gerstenblith, Patty. “Protecting Cultural Heritage in Armed Conflict: Looking Back, Looking Forward.” Cardozo Public Law, Policy, and Ethics Journal, vol. 7, no. 3, Summer 2009, p. 677-708.
Non-State Armed Groups
Many non-international armed conflicts between non-state groups and States can occur on ideological, ethnic, cultural or religious lines. In such conflicts, the intentional destruction of cultural heritage may be a tactic of warfare in order to enact a form of “cultural cleansing” in which the identity of a people is erased and diversity is replaced with a homogenous cultural or religious outlook.24Lostal, Marina, et al. “Armed Non-State Actors and Cultural Heritage in Armed Conflict.” supra n.3 These actions may even lead to the cultural annihilation of peoples and the Special Rapporteur in the field of cultural rights has said that they are “part of the ‘cultural engineering’ sought by diverse extremists who, rather than preserving tradition as some claim, seek to radically transform it, erasing what does not concur with their vision”.25United Nations General Assembly, Report of the Special Rapporteur in the Field of Cultural Rights, 3 February 2016, A/H RC/31/59, paras. 66-81 Examples of this include the Taliban in Afghanistan in 2001 which intentionally destroyed two Buddha statues that had been carved into the cliffs at Bamiyan in the sixth century, claiming they were against the Islamic faith.26Gerstenblith, Patty. “Protecting Cultural Heritage in Armed Conflict: Looking Back, Looking Forward.” supra n.23 (this damage did not, however, occur during an armed conflict) Cultural property can also be a tactic of war through which cultural property is sold in order to fund future conflicts. ISIS has even established an ‘Antiquities Division’ which raises funds by issuing licenses and collecting taxes for digging and trafficking Iraqi and Syrian artefacts.27Lostal, Marina, et al. “Armed Non-State Actors and Cultural Heritage in Armed Conflict.” supra n.3 However, it would be erroneous to believe that all non-state actors aim to attack cultural heritage. The Sudan People’s Liberation Movement/Army stated in its 1983 manifesto that cultural objects and buildings are respected by the group.28[ibid./mfn]
A key issue with non-state groups remains that of lack of awareness of the law relating to cultural property during an armed conflict. Studies have shown that many non-state actors when interviewed had no awareness of the blue shield emblem.28ibid. Non-state groups have also used cultural heritage for military purposes, such as a French colonial fortress being used in Mali by a non-state group as they were unsure if it constituted cultural property and because it offered a military advantage.29ibid. Moreover, under Article 23 of the Hague Convention, States may directly call upon UNESCO for technical assistance in organising the protection of cultural property or for any other problem relating to the application of the Convention.30ibid. However, this support is not available for non-state armed groups which is an issue where they require assistance or advice in protecting cultural property under their effective control.31ibid. The Rojava Antiquities Authority has requested technical support to conserve heritage sites but these requests have not been successful.32ibid.
Safe Havens for Cultural Property
UNESCO has also considered establishing safe havens or cultural protected zones in conflict areas under Article 19(2) of the Hague Convention under which parties to the conflict endeavour to contract special agreements to apply the Convention. In 2017, the Security Council through Resolution 2347 encouraged states to establish safe havens in their countries to protect cultural property.33United Nations Security Council Resolution No. 2347, 24 March 2017, S/RES/2347 (2017) It also encourages States to establish inventories of cultural property and items of archaeological, historical, cultural, rare scientific and religious importance which have been illegally removed, displaced or transferred from armed conflict areas, and coordinate with relevant UN entities and international actors, in order to ensure the safe return of all listed items.34ibid. States have established extraterritorial safe havens with the help of museums and non-governmental organisations, for instance, the “evacuation of the collection of the National Library of Lebanon to Verdun in France (1979) during the first years of the Civil War (1975-90); and the preservation of various collections from Iraq in the US, Syria, Kuwait, and Saudi Arabia during the recent armed conflicts in that country”.35Jakubowski, Andrzej. “International Protection of Cultural Heritage in Armed Conflict: Revisiting the Role of Safe Havens.” Indonesian Journal of International Law, vol. 16, no. 2, 2019, p. 169-190. The most extensive such case was that of Afghanistan where an “Afghan Museum in Exile” was created in Switzerland and pieces held in museums in Paris.36ibid. However, it is important to note that even at the time of negotiation of the Security Council Resolution, countries such as Egypt expressed their reservations regarding the establishment of safe havens.37ibid. The representative for Egypt stipulated that this should only occur with the consent of the country of origin of the cultural heritage, transferring cultural property out of a territory on the pretext of protecting it must be rejected and that there was a risk that this property may not be restored to its country of origin.38ibid.
Cultural heritage and cultural property is of importance to humankind as it defines who we are and represents our past. It is a basic element of civilization that must be preserved and protected during an armed conflict. The laws of war relating to cultural heritage are both treaty-based and customary and therefore offer a rather comprehensive codification of the protection afforded to such sites during conflict. However, issues remain. These mostly relate to the waiver for military necessity which can be especially problematic when old cultural sites such as fortresses are used as military objects. Moreover, it is also complex to apply the functional use criteria when deciding whether an attack should be directed against such a protected object. In addition, the issue of non-state groups which, on ideological grounds, destroy cultural heritage, and their accountability is one that international law continues to grapple with. It is yet to be seen whether the law will evolve to focus on criminal accountability for non-state groups and States for violating the law relating to cultural heritage, or whether policy decisions, such as the establishment of extra-territorial safe havens, are preferred instead.