The Protection of Cultural Property during Armed Conflict under IHL: Past, Present, Future?

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The law of armed conflict has developed into a complex field of international law, with several treaties regulating its various aspects; one area of which is that relating to cultural heritage and property. The term ‘cultural property’ encompasses a wide range of both moveable and immoveable property that is deemed to have ‘great importance to the cultural heritage’ of a people.1UNESCO, Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, S. Treaty Doc. 106-1; 249 U.N.T.S. 216., Article 1 These include monuments of architecture, art, religion, history, archaeology, literature and science.2ibid Property that falls under the scope of this term is deemed worthy of protection under international humanitarian law in situations of armed conflict. Within the larger ambit of human rights, such protection is also crucial to the protection of the right to participate in cultural life,3UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)., article 27 as well as to the enjoyment of one’s own right to life.4Ibid, Article 3 This essay will examine how this domain of international humanitarian law has developed over time; how it currently operates; and whether the regime is sufficient in actually protecting cultural property during armed conflict.

History and Evolution of the Regime

In the past, the protection of cultural property and heritage during armed conflict was found in historical customary international law with state practice recognizing such a need. With the advent of the Renaissance, the value of “monuments and works of art” was recognised as a “distinct category of property”, therefore not falling within the ambit of property that may be acceptably destroyed during war.5Roger O’Keefe, “From the High Renaissance to the Hague Rules,” The Protection of Cultural Property in Armed Conflict (Cambridge University Press 2006) 9 Essentially, such protection was informed largely by ideals of justice and fairness in natural law. Examples include that of only targeting those actively involved in hostilities, rather than targeting civilians (now known as the ‘principle of distinction’). Similarly, any destruction to such property would only be acceptable under the doctrine of necessity.6ibid 11 This exempts a State from the obligation of protecting property in situations where a State feels it necessary to achieve their overall military aims.

In the Enlightenment, the doctrine gained greater substance, whereby the destruction of cultural property was seen as  not being conducive to the strategic ends of a conquest,7ibid 10 and recognized as distinct from military objects – emphasized by scholars such as Emerich de Vattel, who claimed that the ‘wilful destruction of public monuments, places of worship, tombs, statues, paintings, etc.’ was ‘absolutely condemned, even by the voluntary law of nations, as never being conducive to the rightful object of war.’8Emerich. de Vattel, The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, text of 1758 (Washington, DC: Carnegie Institution, (1916), book 3, chap. 9, paras 173 Nevertheless, cultural property could still be attacked for reasons of military necessity without the attacking State incurring much condemnation – legally or normatively.9O’Keefe, 13

The 19th century saw even further progression in the protection of cultural property during armed conflict, with the first instances of international cooperation for this protection. Although the just war doctrine began to diminish, the protection of cultural property gained legal credence through its identification as civilian property: belligerents were (and still are) bound to distinguish between civilian objects and military objects, and to not harm civilian objects during conflict. This principle of distinction is the cornerstone of international humanitarian law and was later codified in Article 48 of Additional Protocol I to the Geneva Conventions. It forms the basis for the protection of cultural property during armed conflict at this point in time.

The first attempts at codifying a structured protection of cultural property in armed conflict were seen during the latter half of the 19th century. Examples of these include the Lieber Code of 1863; the Oxford Manual of the Institut de Droit International, the 1874 Draft International Regulations on the Laws and Customs of War (the Brussels Declaration), among others. Although these were non-binding documents, they indicated the growing normative credence of the notion that such property required extra or special protection.

Attempts at Codification

This notion was finally codified in 1899 under the Regulations concerning the Laws and Customs of War on Land, which were annexed to the Hague Convention on the Laws and Customs of War on Land. As part of the Hague Conventions, the rule to protect cultural property crystallised from a customary norm to a lex specialis treaty-based norm. The rule to protect cultural property during armed conflict is embodied in Article 27 of the Regulations, which provides that during sieges and bombardments, ‘all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, [and] historic monuments, . . . provided they are not being used at the time for military purposes’.10Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Article 27

Article 27 recognizes that cultural property may be used by a hostile state, in whose territory a conflict is taking place, for their own military advantage. In such cases, an exception to the norm is created, and the protection of said cultural property is suspended. Furthermore, the invocation of the doctrine of necessity creates an obligation of conduct, rather than of result: ‘all necessary steps must be taken’ indicates that there is no blanket ban on destruction of cultural property. Rather, participating states must only ensure to take ‘all measures necessary’ to avoid damage to cultural property. Under Article 27, it is also incumbent upon States who are under attack to mark any buildings that are to be protected as cultural property. This is to distinguish them as non-military objects and to ensure their protection during hostilities.

Another provision in the 1907 Hague Regulations is that of Article 56, which states that:

[t]he property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art, is forbidden, and shall be made subject to legal proceedings.

This provision clearly establishes cultural property as ‘private property’, carrying forth the tradition of distinguishing cultural property from military objects as the basis for their protection under IHL. The provision also mandates that state parties create a legal framework for the initiation of legal proceedings in the event of a breach of this provision, thereby making this an actionable offence at the domestic level in the interests of harmonizing domestic law with international legal commitments.

Nevertheless, the First World War showed that the Hague Conventions and their Regulations were not well-respected enough as binding legal commitments during interstate hostilities, as several states witnessed significant damage to cultural properties and artefacts. As a result, the Roerich Pact11Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact), 167 L.N.T.S. 289, entered into force 26 Aug 1935. was signed in 1935 which provided greater depth to the rule in Article 27 of the Hague Conventions. The Pact made the protection of cultural property unconditional, thereby an obligation of result. It also introduced the uniform emblem system of distinctively marking buildings and sites of cultural property during armed conflict12Article 3, Roerich Pact – a mechanism carried forward in the 1954 Hague Convention as well. Although the use of distinctive signs to demarcate cultural property was mandated in the Hague Regulations, the standardized and uniform symbol to be used across state parties was a step forward in the harmonization of IHL. However, the Roerich Pact did not receive the same level of international recognition as the Hague Conventions and was only signed by the USA and a few Latin American states.13International Committee of the Red Cross, ‘State Parties: Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments’, Treaties, State Parties and Commentaries. (ICRC). Attempts to codify a new convention with much wider application were further stalled due to the breakout of the Second World War and State parties’ priorities shifted towards their war efforts.

The 1954 Hague Convention

With the creation of the United Nations after the Second World War, and its mandate for ensuring world peace and security, there was greater demand for clearer codification of rules of conflict. The damage inflicted upon cultural property in several European countries during the Second World War made a convention for cultural property protection a pressing need. Cultural property destruction was a key strategy opted for by the German army, which appropriated several “cultural objects, library materials, and artworks” during its occupations of various European countries.14Laila Hussein Moustafa, ‘Cultural Heritage and Preservation: Lessons from World War II and the Contemporary Conflict in the Middle East’, (2016) 79.2 The American Archivist 320, 322

Thus, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954 (“Convention”) was proposed under the United Nations Educational, Social and Cultural Organisation (UNESCO). The Convention forms a lex specialis regime in requiring State parties to commit to the protection of cultural property in situations of armed conflict. The Convention is supplemented by two protocols15First Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954, S. Treaty Doc. 106-1; 249 U.N.T.S. 358. and was drafted by UNESCO. This Convention is now widely considered as the authoritative body of law regulating the specific objective of safeguarding cultural property in situations of armed conflict and has been ratified by 133 state parties.

The primary obligations under the Convention are to safeguard and respect cultural property during armed conflict. Under Article 3, ‘safeguarding’ cultural property entails taking active measures during times of peace to take reasonable efforts to protect such property from foreseeable damage should a situation of conflict arise. Under Article 4, ‘respecting’ cultural property entails refraining from using such property for any purposes that may lead to its damage or destruction in the event of any conflict, except in cases of imperative military necessity.16Hague Convention 1954, Article 4(2) Along with general obligations included in the first chapter, the Convention and its two Protocols detail certain specific obligations, amounting to a far more detailed explication on the rules of cultural property protection during armed conflict than its predecessors.

The Effectiveness of the Regime

While there has been considerable development in the regime of cultural property protection under IHL, one must look at whether this regime has been successful. The necessity exception provided by the Hague Convention can also give rise to the increased misuse of cultural property as military objectives. While the Roerich Pact did not provide an exception for military necessity, the 1954 Hague Convention essentially allows States to target cultural property if they are legitimate military targets. Therefore, necessity acts as a waiver for the protection granted to cultural property. However, with no clear definition of ‘necessity’ under the Convention, this exception creates opportunities for abuse and circumvention of legal obligations. In 2003, Iraqi forces utilized the Iraq Museum in Baghdad as a military position during the US invasion.17Ashlyn Miligan, ‘Targeting Cultural Property: the Role of International Law’ (2008) 19 Princeton Journal of Public and International Affairs 91, 97 Whether this was legal under the Convention or not was contingent upon a determination of ‘military necessity’; nevertheless, once Iraq used the museum as a military position, the US could legitimately target the museum as a military objective.18ibid 97

The existence of this exception was disputed at the drafting stage of the Convention for fear of abuse. In response to this, Article 6(a) of the Second Protocol was adopted. This article narrowed the scope of ‘imperative military necessity’ as an exception. Under the narrowed definition of necessity, an act of hostility can only be made against a cultural object if said object has been converted into a military objective. Furthermore, such an act of hostility can only be made if there is no feasible alternative available to achieve a similar military advantage.19Second Protocol to the Hague Convention 1954, Article 6(a) This narrowing of scope is a positive response to the criticism raised against the exception embodied in Article 4(2) of the Convention. This development means that it is more difficult for states to claim the ‘necessity’ defence in judicial or arbitral proceedings following a conflict. More broadly, it is a positive step in reinforcing greater limitations on abuses of power during armed conflict. However, whether this has actual ramifications in preventing the exploitation of this exception is uncertain.

The Second Protocol also introduced the concept of ‘enhanced protection’ which did away with the distance requirement under Article 8 of the Convention, i.e., the ‘special protection’ criteria. The distance requirement dictated that, to qualify for special protection under Article 8 of the Convention, a limited range of eligible cultural property (defined in paragraph 1) must be situated ‘at an adequate distance from any large industrial center or from any important military objective constituting a vulnerable point’.20Hague Convention 1954, Article 8(1)(a) This restricted the range of cultural property that could be eligible for special protection to “only Vatican City and a small number of refuges.”21Kristin Hausler, Pascal Bongard and Marina Lostal, ‘20 Years of the Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict: Have All the Gaps Been Filled?’ (EJIL: Talk!, 29  May 2019), https://www.ejiltalk.org/20-years-of-the-second-protocol-to-the-1954-hague-convention-for-the-protection-of-cultural-property-in-armed-conflict-have-all-the-gaps-been-filled/, 15 December 2021 Article 10 of the Second Protocol does not provide any limitations as to the types of cultural property that are eligible for protection, nor does it stipulate a distance requirement from industrial centers or other military objectives. As a result, ten States parties have listed properties under enhanced protection, including seventeen sites and monuments in total”.22ibid While this is still a low number, it nevertheless highlights significant progress in the regime’s aim towards protecting particularly vulnerable cultural heritage sites. This recognition of the failure of the ‘special protection’ mechanism exemplifies the continued efforts that are made towards improving protection under the Convention system, facilitated by the Second Protocol.

On the other hand, in modern history, there have been several instances where the obligation to protect cultural property has been violated. These violations are often politically motivated denials of recognition of cultural history of certain groups of the population. For example, in the 1998-1999 Kosovo war, Yugoslav Serb forces destroyed several Albanian mosques, Islamic architecture and libraries within Kosovan territory.23David Keane, ‘The Failure to Protect Cultural Property in Wartime’, (2004) 14.1 DePaul Journal of Art, Technology and Intellectual Property Law 23 This was an extension of the Yugoslav ethnic cleansing mission of the region’s Muslims. In particular, the targeted destruction of entire towns, such as Dubrovnik, highlighted how the deliberate targeting of cultural property was an important element in the ultimate genocide strategy.24ibid According to several reports, several targeted buildings were carrying the blue-and-white flag as mandated under Article 17 of the 1954 Convention.25ibid, 24 This example highlights how the emblem system acts as a double-edged sword and at times, more to the detriment of the party invoking its protection. This is because where hostilities are targeted towards the destruction of an ethnic group of people, the protection afforded to cultural property, in the form of a blue emblem, merely allows for it to be singled out for attack in order to further destroy their cultural identity.

A Way Forward?

As a treaty, the 1954 Hague Convention must be appreciated for codifying a structure to the international protection of cultural property during armed conflict. The history of the regime marks the transformation of the norm from being a moral consideration to a legally binding set of rules respected by many States. The fact that such a Convention was codified highlights the importance given to the notion of protecting cultural property during armed conflict: in an era defined by the principles of the United Nations Charter and the Universal Declaration of Human Rights, it is even more important to give credibility to these principles by incorporating them into various treaty regimes.

However, the current system is still not perfect, as evident by continued breaches of its provisions by State parties. The system needs a mechanism to hold state parties acting in breach accountable for their actions, beyond providing the ICC and other criminal tribunals the jurisdiction to try military leaders for their war crimes to cultural property. One tentative solution is a reporting and monitoring mechanism, whereby individual States submit biannual reports on the status of cultural property in their respective jurisdictions. Should a State report damage to its cultural property, a committee can be set up to investigate the extent of the damage; the causes of the damage; and the overall situation in which the damage occurred. The latter would entail an investigation into whether said cultural property was deliberately targeted by the belligerent State, or whether the defending State was utilizing said property as a military objective.

Conclusion

The regime on the protection of cultural property during armed conflict has developed considerably over the last two centuries. It has developed from a mere principle to a system of binding substantive and procedural rules applicable to parties involved in an armed conflict. While this development is commendable, there are still pressing issues in the compliance and enforcement of the Convention that must be tackled in order to fulfil the complete protection of cultural property around the world. A balance must be struck between the need for a stronger international institution that can take charge of enforcement, and the need for states to retain a degree of sovereignty over their own territorial activities.

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Raas Nabeel
Raas Nabeel is currently a student at the University of Cambridge, pursuing his LLM with a specialization in International Law as a member of Downing College. He graduated from the Lahore University of Management Sciences in 2021 with high distinction. His specific interests lie in international human rights law, international humanitarian law, international environmental law, international intellectual property law and jurisprudence.

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