War threatens people more than just physically; it threatens their lifestyles, livelihoods, and their cultural identity. In a world which has witnessed a rise in ethnocultural civil conflicts and where cultural heritage is at increasing risk of targeted attack, its protection is more important than ever. The protection of cultural property enshrined in the 1954 Hague Conventions and its Protocols equates the damage to the cultural property of any people as ‘damage to the cultural heritage of all mankind’. While cultural heritage is often understood as something more concrete and tangible, regardless of it being movable or immovable, it is actually more broad and abstract, and can include a wide array of tangible and intangible aspects. Intangible cultural heritage includes that which is passed down intergenerationally from ancestors to descendants, including oral traditions, rituals, social practices, knowledge, performing arts, or even language.1“What Is Intangible Cultural Heritage?” UNESCO, https://ich.unesco.org/en/what-is-intangible-heritage-00003. It is important to protect both as armed conflict can impact intangible cultural heritage and often the destruction of tangible cultural property often results in the destruction of intangible heritage.
The importance of intangible heritage was not fully appreciated until 2003 when the United Nations Scientific, Educational, and Cultural Organization (UNESCO) adopted the Convention for the Safeguarding of Intangible Cultural Heritage. This Convention finally addressed the issue of safeguarding intangible cultural heritage; however, it did not elaborate upon the types and methods of harm which it may be subjected to during an armed conflict. The issue with the protection of intangible cultural heritage lies in the inability to clearly delineate what items or characteristics of a cultural identity constitute a part of its heritage and in what ways they may be harmed during armed conflict. Even the laws provided under International Humanitarian Law for its protection are unable to sufficiently describe and protect intangible cultural property during an armed conflict, the destruction of which may lead to the destruction of a culture. This article explores these issues and offers recommendations to sufficiently protect intangible cultural heritage.
The Difference between Cultural Property and Intangible Cultural Heritage
The 1954 Hague Convention defines cultural property to be movable or immovable items such as historic monuments, works of art, museums, archaeological sites, libraries, depositories, archives, buildings and places of worship, and scientific collections etcetera.2Article 1; Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 (entered into force 7 August 1956) It is prohibited to use protected cultural property in a way which may expose it to damage or destruction, pillage theft, vandalism or make it an object of hostility. As per the 1954 Hague Conventions, the 1977 Additional Protocols, and customary international humanitarian law, the protection of cultural property is to be carried out by avoiding the placement of military objectives near them or by removing – if possible – these properties from places of military action. Moreover, incidental damage is to be avoided, unless in case of military necessity as guided by principles of international law, at all costs to such protected properties which may bear a distinctive marking as held by Article 6 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict.3“Protection of Cultural Property in the Event of Armed Conflict.” International Committee of the Red Cross, 9 Feb. 2017, https://www.icrc.org/en/document/protection-cultural-property-armed-conflict.4“Distinctive Marking of Cultural Property.” Treaties, States Parties, and Commentaries – Hague Convention for the Protection of Cultural Property, 1954 – 6 – Distinctive Marking of Cultural Property, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=DC989B0262FE7AC7C12563CD0051CA8F.
The difficulty lies in applying these regulations to ‘intangible’ cultural heritage, a form of heritage which cannot be seen, cannot be held, and is not in the form of a ‘property’. Unlike tangible cultural heritage/property, intangible cultural heritage is historic and contemporary at the same time i.e. it is not only an heirloom from the past but something which is in present use and evolving.5“What Is Intangible Cultural Heritage?” UNESCO, https://ich.unesco.org/en/what-is-intangible-heritage-00003. Its evolution also stems from its more inclusive nature in the sense that it is constantly impacted and influenced by those who inherit and interact with it, whether they are from a neighboring village or the opposite end of the world. In this regard, the inclusivity of intangible cultural heritage makes it a force of cohesion for a large part of the global population.6Ibid.
Other than that, in contrast with tangible cultural heritage, intangible cultural heritage tends to possess more of a representative and community-based character. It is representative in the sense that it holds value dependent on those who use and practice it, rather than the item of cultural heritage itself being of value.7Ibid. For example, the celebration of religious and cultural festivals, such as the religious holiday of Eid or the holy month of Ramadan celebrated among Muslim communities across the Middle East, qualify as intangible cultural heritage due to the historical, religious and cultural value they hold and the way they are observed, celebrated and practiced. Intangible culture also tends to be community-based because it is entirely dependent on its recognition by that community which is to inherit, create, transmit, or maintain it. In the absence of recognition by a community or if the community itself disappears or flees due to conflict, intangible cultural heritage ceases to have any value or meaning and may be lost forever.8Ibid. Intangible cultural heritage would include festivals or events dedicated to celebrating traditional cuisines, literature, music, and arts. For instance, rebuilding a mosque in a place where all the Muslims have left or been killed as a result of conflict is a symbolic act but one which cannot replace the displaced community. Seddon states that “[i]n such cases the physical scenery may be rebuilt and replaced post-war, but without the same cultural significance as before, because the cultural practices which formerly defined its purpose cannot be reconstructed in the same way”.9“What Is Intangible Cultural Heritage?” UNESCO, https://ich.unesco.org/en/what-is-intangible-heritage-00003.
Impact on Intangible Cultural heritage during Armed Conflict
War disrupts lives and brings ways of life to a halt. It is not always as easily discernible when war destroys culture, traditions, rituals, and cultural habits as opposed to actual physical property. However, what needs to be realized is how dangerous armed conflicts are to intangible cultural heritage in the absence of proper legal institutions and regulations protecting it. The cancellation of Eid-ul-Fitr celebrations in Gaza, just a couple of months back in May 2021, due to Israeli bombardments, presents just one of the many examples of how intangible culture is impacted due to armed conflict.10Samra, Qais Abu. “Palestinian President Cancels Eid Al-Fitr Celebrations.” Anadolu Ajansı, 11 May 2021, https://www.aa.com.tr/en/middle-east/palestinian-president-cancels-eid-al-fitr-celebrations/2236379. Although with the signing of the 2003 Convention for the Safeguarding of Intangible Cultural Heritage, some attention was finally brought towards intangible heritage; however, it still lags far behind the attention and care that is given to the protection of cultural property or tangible cultural heritage during armed conflict under the 1954 Hague Convention for the Protection of Cultural Property in Armed Conflict and its two Additional Protocols.
The lack of attention paid to intangible cultural heritage is often because it is commonly thought that tangible cultural heritage is subject to more direct destruction during the conduct of hostilities than intangible heritage and that the damage inflicted on intangible cultural heritage is mostly a byproduct of that inflicted on tangible cultural heritage.11Chainoglou, Kalliopi. “The Protection of Intangible Cultural Heritage in Armed Conflict: Dissolving the Boundaries Between the Existing Legal Regimes?” Santander Art and Culture Law Review, no. 2, 2017, https://doi.org/10.4467/2450050xsnr.17.025.8426. This is often true; as identified in the 2016 cultural rights Special Rapporteur’s report, historical languages and religious practices were lost because of their connection with the tangible cultural sites and spaces of Northern Iraq and the Syrian Arab Republic, the displacement of populations, and the destruction of objects, historical structures, and texts.12UN Human Rights Council, Paragraph 77, Report of the Special Rapporteur in the field of cultural rights, 3 February 2016, A/HRC/31/59, available at: https://refworld.org/docid/56f174dd4.html This example presents a case of the destruction of intangible cultural heritage that is dependent on tangible cultural property for its practice. However, intangible cultural heritage can become a victim of destruction without being dependent on cultural property. In 2012, a report by the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) illustrated this with an example from the Swat Valley. It included pictures of the damaged face of a Buddha statue in the town of Barikot in Pakistan’s Swat Valley during the 2007-2011conflict; alongside which was displayed a picture of the undamaged Grand Shrine in Saidu Sharif, Swat Valley, the caption read that “people stopped coming to Grand Shrine in Saidu Sharif, fearing for their security”.13Lambert, S., and C. Rockwell. Protecting Cultural Heritage in Times of Conflict Contributions from the Participants of the International Course on First Aid to Cultural Heritage in Times of Conflict. ICCROM, 2012, Academia.edu, https://www.academia.edu/1545965/Protecting_Cultural_Heritage_in_Times_of_Conflict. It is precisely such examples that uncover the often under-appreciated way war damages intangible culture. Despite there being a lack of tangible damage to the shrine, the intangible cultural practice of paying visits to the shrine came to a halt due to conflict. However, unfortunately, the overwhelming connection often drawn between the damage of intangible cultural heritage as a byproduct of the damage inflicted upon tangible cultural property almost completely eclipses the disruption subjected upon intangible heritage.
As it can be taken from two dimensions of intangible cultural heritage acknowledged in the 2003 Convention, intangible cultural heritage is dependent on its intergenerational and community-based character. Article 2 of the 2003 Convention explains that it is “transmitted from generation to generation” and has to be “constantly recreated by communities and groups”.14“Article 2, Text of the Convention for the Safeguarding of the Intangible Cultural Heritage.” UNESCO, https://ich.unesco.org/en/convention. The lifecycle of intangible cultural heritage is dependent on its continuity down hereditary lines. Any disruptions caused to the practicing of intangible cultural heritage, such as armed conflict, endanger it as intangible cultural practices are threatened by the disentanglement of their socio-cultural values from the lives of those who practice them.15Chainoglou, Kalliopi. “The Protection of Intangible Cultural Heritage in Armed Conflict: Dissolving the Boundaries Between the Existing Legal Regimes?” Santander Art and Culture Law Review, no. 2, 2017, https://doi.org/10.4467/2450050xsnr.17.025.8426. Thus, the damage caused by war to intangible cultural heritage may not, unlike the destruction of tangible cultural heritage, have the visual imagery that evokes the feeling of loss and tragedy; however, that does not make it any less of a loss. After all, without the intangible meanings attached to tangible property, the latter may lose a substantial portion of its significance.
The Insufficiency of IHL in Protecting Intangible Cultural Heritage
The law of armed conflict contains various regulations and clauses that can be applied to the protection of intangible cultural heritage, but it contains none that are explicitly specified for it. For instance, Article 27 of the Fourth Geneva Convention, Article 75 and Article 4(1) of its Additional Protocol 1 and 2, respectively; and Article 46 of The Hague Regulations all oblige parties to the conflict to respect the freedom of religious and cultural practice of prisoners of war and protected persons.16“Article 27, Geneva Convention Relative to the Protection of Civilian Persons in Time of War.” ICRC, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=78EB50EAD6EE7AA1C12563CD0051B9D417“Article 75, Protocol Additional to the Geneva Conventions of 12 August 1948 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.” ICRC, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=086F4BB140C53655C12563CD0051E02718“Article 4(1), Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.” ICRC, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=F9CBD575D47CA6C8C12563CD0051E78319“Article 46, Annex to the Convention: Regulations Respecting the Laws and Customs of War on Land. The Hague, 18 October 1907.” ICRC, https://ihl-databases.icrc.org/ihl/WebART/195-200056#:~:text=Treaties%2C%20States%20parties%2C%20and%20Commentaries%20-%20Hague%20Convention,War%20on%20Land.%20The%20Hague%2C%2018%20October%201907. Similarly, human rights law also protects cultural rights under Article 15 of the ICESCR and Article 27 of the ICCPR, which mandate the freedom to practice and express culture and religion and ‘preserve languages, art forms and ways of life’, for the protection of intangible cultural heritage during armed conflict.20“Article 15, International Covenant on Social Economic, Social and Cultural Rights.” UNHR Office of the High Commissioner, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx21“Article 27, International Covenant on Civil and Political Rights.” UNHR Office of the High Commissioner, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx Yet, none of these regulations expressly address the need for the protection of intangible cultural heritage during armed conflict, much less provide regulations on how to prevent the harm that may be inflicted upon it during conflict. Even the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, much lauded as a landmark achievement for the recognition of intangible cultural heritage, while bringing much-needed attention to the subject of intangible cultural heritage, exclusive from cultural property and human rights, falls short of examining the attention it requires in instances of armed conflict. By providing an elaborate document on the nature, description, and the distinctive features of intangible cultural heritage, the 2003 Convention has unquestionably added a dimension to how cultural heritage is to be examined, yet it disappoints by not providing any mechanisms that may be applied for the protection of intangible cultural heritage in armed conflict. Further, although recommending the creation of a fund for the protection of intangible cultural heritage, the document makes no mention of the ways it may be endangered during an armed conflict, nor does it provide regulations as to how to protect intangible heritage during war.
Additionally, as pointed out by Johannot-Gradis, the law of armed conflict, while providing special protection to religious and spiritual leaders under the Geneva Conventions and the Additional Protocols, remains insufficient in providing legal protection to those who carry out or practice intangible cultural heritage such as story-tellers, painters, musicians, and writers, despite them being protected as civilians.22“Practice Relating to Rule 27. Religious Personnel.” Customary IHL – Practice Relating to Rule 27. Religious Personnel, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule27.23Johannot-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, 2015, pp. 1253–1275., https://doi.org/10.1017/s1816383115000879. She explains how protection to such actors needs to be carried out in two stages – first, the preservation of the knowledge connected to the cultural expression, and second, the guarantee of carrying out or performing the actual activity.24Ibid. Yet, the law of armed conflict remains insufficient in granting either. As carriers of culture, such persons should be granted special provisions and protections akin to those given to religious or spiritual leaders during armed conflict.
Intangible cultural heritage is just as vulnerable to the dangers of armed conflict as tangible cultural heritage. Unfortunately, the recognition of the damage caused to intangible cultural heritage as an actual threat to cultural heritage remains inadequate. The lack of physical presence of intangible cultural heritage should not be a reason for its underrepresentation in the law of armed conflict. While intangible cultural heritage practices are damaged far less ‘dramatically’ than tangible ones they continue to remain a genuinely irreplaceable loss that cannot be reconstructed in the same way again.25Seddon, Robert. “Subtle Casualties: Conflict and Intangible Cultural Heritage.” Stockholm Centre for the Ethics of War and Peace, 19 Sept. 2016, http://stockholmcentre.org/subtle-casualties-conflict-and-intangible-cultural-heritage/. As aptly put by Robert Seddon, “ways of life never lie smashed on some museum floor; they come to a silent stop.”26Ibid.
The opinions expressed in the articles on the Diplomacy, Law & Policy (DLP) Forum are those of the authors. They do not purport to reflect the opinions or views of the DLP Forum, its editorial team, or its affiliated organizations. Moreover, the articles are based upon information the authors consider reliable, but neither the DLP Forum nor its affiliates warrant its completeness or accuracy, and it should not be relied upon as such.
The DLP Forum hereby disclaims any and all liability to any party for any direct, indirect, implied, punitive, special, incidental or other consequential damages arising directly or indirectly from any use of its content, which is provided as is, and without warranties.
The articles may contain links to other websites or content belonging to or originating from third parties or links to websites and features in banners or other advertising. Such external links are not investigated, monitored, or checked for accuracy, adequacy, validity, reliability, availability or completeness by us and we do not warrant, endorse, guarantee, or assume responsibility for the accuracy or reliability of this information.