Protecting Cultural Property in NIACs
The destruction of cultural heritage has been a common feature of conflicts in the past.1Recognizing that national and international definitions of cultural property or the broader term of cultural heritage might vary, this essay uses the two terms interchangeably to refer to cultural property as defined in Article 1 of the 1954 Convention on Protection of Cultural Property in the Event of an Armed Conflict. This defines cultural property as moveable or immovable property of great cultural importance, including buildings, monuments, books and pieces of artistic, historic, or religious significance. It is often used as a tool of war to pursue ideological agendas and to harm local communities. The law of armed conflict protects cultural heritage from intentional destruction during armed conflicts, however, it remains at risk in part because the nature of warfare has evolved significantly. Non-state armed groups (NAGs) have emerged as prominent actors in modern warfare and most conflicts nowadays are of a non-international character. The emergence of NAGs has posed a novel threat to cultural heritage. Some destroy cultural heritage as a tool of war to gain international prominence and to emotionally target minority groups. For instance in 2001, the hard-line Taliban regime destroyed the 6th Century Bamiyan Buddha Statues located in Afghanistan, after they had labelled them idols and unacceptable in Islam.2‘Taliban Make Ancient Buddhas They Destroyed into a Tourist Attraction’ (NBC News) <https://www.nbcnews.com/news/world/taliban-destroyed-afghanistans-ancient-buddhas-now-welcoming-tourists-rcna6307> accessed 5 January 2022. Moreover, between 2014 and 2015, the Islamic State of Iraq and Levant (ISIL) launched a campaign in which militants systematically and deliberately destroyed cultural property of various minorities in Iraq and Syria.3Filippo Ristoldo, ‘Attacks against Cultural Property as a Weapon of War: An Exploratory Case Study’ 28, available at <https://www.ibei.org/ibei_studentpaper34_105354.pdf> accessed 5 January 2022. During this campaign sledges, hammers, explosives, and bulldozers were used to destroy monuments affiliated with local Shia, Sufi, Christian, and Yazidi communities.4ibid
This essay focuses on investigating the various legal lacunas that emerge when the current international framework is extended to non-international armed conflicts (NIACs) to hold NAGs responsible for the destruction of cultural heritage. Furthermore, it identifies the legal grounds for holding NAGs responsible, and suggests improvements that can further consolidate the protection of cultural heritage in NIACs.
International Frame on Protection of Cultural heritage and NIACs
The need to protect cultural property was first formalised in the nineteenth century when the international humanitarian regime recognized the need to distinguish between civilian and military objects.5Kristin Hausler, ‘Culture under Attack: The Destruction of Cultural Heritage by Non-State Armed Groups’ (2016) 2015 Santander Art and Culture Law Review 117. Over the past two centuries a number of international conventions have been formulated which have provisions that protect cultural heritage. These include the Hague Regulations, the Geneva Conventions and their Additional Protocols. However, with the exclusion of Common Article 3 to the Geneva Conventions and the Second Additional Protocol to the Geneva Conventions, these conventions mostly regulate only international armed conflicts. Common Article 3, which deals with NIACs, does not spell out the protection of cultural heritage as a minimum standard that NAGs are bound to follow.6‘Common Article 3 Of Geneva Conventions, 1949 In The Era Of International Criminal Tribunals –  ISILYBIHRL 11’ <http://www.worldlii.org/int/journals/ISILYBIHRL/2001/11.html> accessed 7 January 2022. There are specific provisions regarding cultural heritage in the Additional Protocols to the Geneva Conventions which prevent parties from committing hostile attacks on historic monuments, works of art and worship places (Article 53 of Additional Protocol I)7‘Treaties, States Parties, and Commentaries – Additional Protocol (I) to the Geneva Conventions, 1977 – 53 – Protection of Cultural Objects and of Places of Worship – Commentary of 1987’ <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=501D619BA5E17158C12563CD00434AF5> accessed 7 January 2022. and using these places as military purposes (Article 16 of Additional Protocol II).8‘Treaties, States Parties, and Commentaries – Additional Protocol (II) to the Geneva Conventions, 1977 – 16 – Protection of Cultural Objects and of Places of Worship’ <https://ihl-databases.icrc.org/ihl/WebART/475-760022> accessed 7 January 2022. Additional Protocol II governs NIACs, however, it does not cover all NIACs because it is only applicable when the conflict is taking place on the territory of a state which is party to the protocol.9‘How Is the Term “Armed Conflict” Defined in International Humanitarian Law?’ <https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf> accessed 7 January 2022.
Customary international humanitarian law has, however, filled some of the gaps in the conventional law. According to Rule 38 of the ICRC IHL Customary Database, all parties to the conflict are to respect cultural property, avoid damage to such protected buildings unless they are military objectives and not attack cultural property unless required by military necessity.10ICRC, Customary International Humanitarian Law Database, Rule 38. Attacks Against Cultural Property, <https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule38> However, in terms of specific safeguards and protection in which criminal accountability is also carefully delineated – these are all absent from the customary humanitarian law which applies in non-international armed conflicts.
It is found in conventional law applicable – namely, the Second Protocol of the Hague Convention known as the Protection of Cultural Property in the Event of an Armed Conflict.11‘Treaties, States Parties, and Commentaries – Additional Protocol (II) to the Geneva Conventions, 1977’ <https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475> accessed 7 January 2022. Article 18, 19 and 22 extends the scope of the protocol to times of peace, to NIACs, and to International Conflicts respectively.12ibid Apart from a wider scope, the protocol also states that parties are not to simply ‘ensure respect’ for cultural property but must ‘do everything feasible’ to verify objectives are not cultural property, take feasible precautions to minimise damage, and refrain from attacks that would cause incidental damage. It also provides for enhanced protection to cultural property through an inter-government committee. This committee maintains a permanent list of cultural property for enhanced protection and prevents states from using listed heritage as a military base or to shield for military objects. Most importantly, the Second Protocol also includes measures for the enforcement of those violating the protections afforded to cultural property. It defines five violations for which individual criminal responsibility is established and States are to adopt legislation to make these offences under their domestic criminal law and provide appropriate penalties for their breach.13Article 15, Second Protocol of the Hague Convention known as the Protection of Cultural Property in the Event of an Armed Conflict (1999) Furthemore, Article 33 also allows for State parties to call upon UNESCO for technical assistance in protecting its cultural property.
Applying the Cultural Property Protection Regime on NAGs
This section focuses on NAGs’ obligations under the international legal framework for the protection of cultural heritage. Three legal frameworks apply to the NAGs: Customary IHL, the Hague Convention, and the Second Protocol of the Hague Convention for the Protection of Cultural Property in the Event of an Armed Conflict.
NAGs are bound by Article 19(1) of the Hague Convention and Article 22 of the Second Protocol of the Hague Convention. Article 19(1) of the Hague Convention requires parties to a NIAC to apply the provisions of the convention with regards to cultural property as a minimum standard to protect cultural heritage. Although, Article 22 of the Second Protocol offers grounds to hold NAGs responsible, its application is rather narrow as it only applies in situations where a High Contracting Party is in conflict with a NAG or the NAG exercises effective control on some territory of the state. It does not cover situations where NAGs are in conflict with other NAGs.
In order to invoke responsibility under these obligations two prerequisites must be fulfilled. Firstly, a conflict must qualify as a NIAC and secondly, the damage to cultural property must be in connection to the conflict.14For a conflict to qualify as a Non-International Armed Conflict, it must fulfil certain conditions. These include: firstly, the conflict with non-state armed groups must be protracted; and secondly, the armed group must have a certain degree of organization. Thus, most internal conflicts between certain groups do not qualify as NIACs under International Humanitarian Law. The practice of declaring an internal disturbance as a NIAC is also very inconsistent, hence its mostly difficult to ascertain the exact status of the ongoing conflict. If both these requisites are not met, NAGs cannot be held accountable for war crimes. For instance, the Taliban cannot be held accountable for war crime for destroying the aforementioned Buddha statues. This is because the situation in Bamiyan did not qualify as a NIAC. Moreover, the destruction of the statues was not linked with the ongoing disturbances in Afghanistan.15Kristin Hausler, ‘Culture under Attack: The Destruction of Cultural Heritage by Non-State Armed Groups’ (2016) 2015 Santander Art and Culture Law Review 117. Another limitation to the application of the aforementioned provisions is that they only apply when the State upon whose territory the NIAC is taking place has ratified the Second Protocol. As neither Iraq nor Syria have ratified this Protocol, it is not applicable on their territories, therefore, the more specific obligations pertaining to protection of cultural property are not enforceable.
Moreover, only State parties to the Second Protocol are able to call upon UNESCO for technical assistance which has resulted in many missed opportunities to aid NGAs who are willing to protect cultural heritage.16EJIL Talk! 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? May 29, 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/ For example, an NGA in Mali issued a communiqué to UNESCO announcing they had intercepted boxes of manuscripts during hostilities with Islamist fighters in 2012.17ibid The NGA requested UNESCO’s support in authenticating the manuscripts and returning them to their rightful owners but received no reply and the manuscripts were taken back by the Islamists.18ibid The fact that UNESCO’s assistance is so unidirectional and only available to State parties is problematic in a world which sees more NIACs than IACs and conflicts in which non-state groups are increasingly involved.
Suggestions and Reforms
As discussed above, many legal gaps emerge as the application of the international regime for cultural protection is extended to NAGs in NIACs. These concerns can be resolved by taking the following steps.
The practices in law must change with the changing nature of war. In doing so, bodies such as UNESCO must be available to non-state groups which are willing and able to enact legal protection to cultural heritage and reach out to the organisation for support in doing so. Moreover, awareness of the law pertaining to cultural heritage must be enriched among non-state groups, as research indicates that many did not know of or had not even heard of the blue shield emblem which signals the presence of cultural property.19Marina Lostal, Kristin Hausler & Pascal Bongard, ‘Armed Non-State Actors and Cultural Heritage in Armed Conflict’ (2017) 24 IJCP 407 The international community must raise awareness about the rules and customs regarding the protection of cultural heritage among militants to ensure they understand the legality of the situation.
It is important to have international supervisory mechanisms that can monitor and supervise both states and NAGs and how they are protecting cultural heritage in the world. For this, UNESCO must also engage with NAGs like it is currently engaging with states, requiring annual updates from both parties regarding the steps they have taken to protect cultural property. Currently, most international efforts are focusing on inducing compliance by States. These efforts must also target NAGs, relying on the understanding that NAGs are equally relevant in protecting cultural heritage in today’s era. Cultural property must be protected through the assistance of NGAs, especially in projects like ‘safe havens’, which are places where important, movable cultural heritage can be shifted during the armed conflict.20ibid
It is also integral to develop quick accountability and proper enforcement mechanisms to ensure protection of cultural property. Globally there have been many instances where there has been no or delayed individual accountability for the destruction of cultural heritage. For instance, the Timbuktu Mosque was destroyed by Al-Qaeda and the Movement of Oneness and Jihad in West Africa in 2012 during the military coup in Mali.21Kristin Hausler, ‘Culture under Attack: The Destruction of Cultural Heritage by Non-State Armed Groups’ (2016) 2015 Santander Art and Culture Law Review 117. The perpetrators were held responsible after nearly five years in 2017 by the ICC in its reparations order.22‘Al Mahdi Case: ICC Trial Chamber VIII Issues Reparations Order’ <https://www.icc-cpi.int/pages/item.aspx?name=pr1329> accessed 13 January 2022. To ensure quick accountability UNESCO must support State parties to not only introduce substantive domestic laws and policies but also ensure enforcement that speeds the trial process for preparators that destroy cultural property. UNESCO must also devise direct channels of communication with NAGs to influence their actions by persuasion and negotiations in situations where cultural heritage is at threat. It did so when the Taliban threatened to destroy the Buddha Statues of Bamiyan.23Marina Lostal, Kristin Hausler & Pascal Bongard, ‘Armed Non-State Actors and Cultural Heritage in Armed Conflict’ (2017) 24 IJCP 407 Such channels must be permanently established and efforts must be made to make them more effective.
The nature of war in today’s era is rapidly changing. The risk and threat to cultural property during non-international armed conflicts is aggravated by the fact that there are many legal lacunas in the current customary legal framework for the protection of cultural property. Moreover, since the current regime is non-inclusive of NAGs it is often difficult to apply international conventions to them in a way which promotes accountability and offers them support. Recognizing the threat to cultural property, the international community must take necessary steps to not only raise awareness amongst NAGs regarding the protection of cultural heritage, but also to build effective and direct channels of communication with them to negotiate, persuade or influence their actions regarding the destruction of cultural property.
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Syed Qasim Abbas
Syed Qasim Abbas is a student of Law and policy at the Lahore University of Management Sciences. His primary areas of interest are International Law and Diplomacy. He also focuses on Pakistan’s policy and legislative compliance with its international obligations.