The Buddhas of Bamiyan, Timbuktu, Palmyra: What next?

Earlier this year, the French President Francois Hollande, along with UNESCO’s Director General, said “We stand together” in an effort to express solidarity to people that suffer the destruction of their cultural heritage (see here). But where do we really stand, if not passively watching the destruction of the world’s cultural elements?

Since 2001, when the international community witnessed the Bamiyan statues blown up by Taliban forces, cultural heritage has been under deliberate attack. Libya, Mali, Iraq, Syria, and, less known, Yemen are some of the countries that face extensive loss of their heritage which threatens cultural diversity, plurality and richness. On the other hand, there are positive developments in the field of international criminal justice – the International Criminal Court (‘ICC’) opened its first case on cultural heritage destruction a few days ago.

Why does culture matter?

Cultural heritage is often under threat during an armed conflict, for two reasons: on the one hand, trafficking of cultural property remains a source of finance for terrorist organizations as acknowledged in Resolution 2199 (2015) on terrorists acts  (see also recent statement by UNODC Executive Director); on the other hand, the destruction of cultural heritage aims to eradicate the culture of local communities.

Τhe extensive destruction and looting during World War II led to the adoption of the Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954 (the Hague Convention 1954) as a specialized protective regime.  In the 90s, cultural protection gained particular focus during the armed conflict in former Yugoslavia. Cultural property, secular and religious, was directly targeted in order to attack minorities, which was later acknowledged as “cultural persecution” in the Mladić and Karadžić  cases. In fact, the ICTY concluded that the destruction of cultural elements on a discriminatory basis may constitute persecution against the said group or even an attempt to physically eradicate a certain group.

Summing up, the protection of material cultural elements is inextricably linked to people, as “the product and witness of the different traditions and of the spiritual achievements of the past and thus is an essential element in the personality of the peoples of the world” (1968 UNESCO Recommendation). Thus, their protection gains particular significance during an armed conflict as a symbol of identity for people and minorities whilst ensuring post bellum peaceful coexistence and intercommunity reconciliation.

International (re)action: lessons to be learnt?

The latest incidents in Palmyra brought along extensive discussions on international action. Italy proposed last week to deployUN peacekeepers, inspired by World War II action as in  the Hollywood film ‘The Monuments Men’, to ensure world heritage protection; a proposal supported by 53 UNESCO member states including members of the Security Council (see here). Following the Bonn Declaration by World Heritage Committee which recommends a heritage protection mandate in peacekeeping missions, effective protection becomes impossible without concrete measures and coordinated action under the UN Charter.

This is not the first time that the “Cultural Blue Helmets” proposal has been made. An extensive analysis goes beyond the scope of this short comment, although it should be noted that the protection of cultural property by the UN forces has been on the international agenda since 1954, when the Greek delegation proposed, at the Hague Conference, the inclusion of a clause regarding the application of the Convention during collective action upon UN authorization. In the 90s, Italy introduced the idea of an international organ with direct access and extensive competencies for heritage sites at stake, for which the International Atomic Energy Agency (‘IAEA’) could serve as a model.

In practice, despite the absence of explicit provisions under Chapter VI and VII of UN Charter, the UNSC has regarded cultural destruction as a threat against peace and security. As a result, it has entrusted ad hoc fact-finding organs with competences on violations against cultural heritage whilst it has incorporated heritage considerations in UN operations (monitoring, peace-keeping or peace-building operations).

To this end, the United Nations Interim Administration Mission in Kosovo (‘UNMIK’) was explicitly entrusted with the protection of “patrimonial sites” under Security Council Resolution 1244. Further, the NATO-led international peacekeeping force in Kosovo, KFOR, undertook, as a security force, the protection of significant cultural places such as Pejë/Peć Patriarchate, Visoki Dečani, Gorioč, Budisalc/Budisavci and Sokolica Monasteries, the protection of which is gradually delegated to the local police force.

Also, Resolution 2056 (2012) on Mali condemned the desecration, damage and destruction of sites of religious, historic and cultural significance, especially but not exclusively those designated UNESCO World Heritage sites, including the city of Timbuktu. Under chapter VII, the Security Council urged all parties to ensure protection of World Heritage Sites. Further, the UNSC entrusted MINUSMA (The United Nations Multidimensional Integrated Stabilisation Mission in Mali) with cultural preservation competencies.

The UN General Assembly has also expressed its concern on various occasions. During the Cold War the UNGA condemned acts of plundering the Palestinian cultural heritage and called upon Israel to make full restitution through UNESCO (A/RES/37/123) while it remains active on the trafficking of cultural heritage. “Alarmed by the increasing number of intentional attacks against and threats to the cultural heritage of countries affected by armed conflict as well as the organized looting of and trafficking in cultural objects, which occurs on an unprecedented scale today,” the UNGA condemned in particular the latest cultural destruction in Iraq and called for intensified efforts by States, UNSC, UNESCO, INTERPOL and UNODC to protect Iraqi heritage (see A/RES/69/281).

However, in the case of Iraq, the function of multinational operations in the field was rather problematic. On the one hand, Poland used military archaeologists for the protection of important cultural elements under their jurisdiction, with a view to record, store and preserve them.  On the other hand, part of the coalition forces have caused damage to important cultural sites; the wider area of the archaeological site of Babylon served as a military zone which resulted in the direct and indirect loss of important cultural elements (see Report on Damage Assessments in Babylon, CLT/EO/CIP/2009/RP/114).

The Iraqi case also highlights another dimension of the cultural heritage regime, namely, sanctions. Under Chapter VII, the UNSC called for “the safe return…of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution 661 (1990) of 6 August 1990,…and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph.” It also issued a general prohibition on trade or transfer of such items, which has been implemented though the enactment of domestic laws by various states, including the market economies such as USA and Switzerland. Given the binding effect of the Resolution, states and UN organs are obliged to cooperate for the protection of Iraqi heritage and take all necessary measures for its safe restitution.

Based on these considerations, the UN political organs not only proclaimed culture as a universal value inextricably linked to peace and security, but they have also proved their competence to safeguard cultural heritage in the event of armed conflicts and/or terrorism in the context of peace and security.

Cultural destruction before ICC: Recent developments

On 26 September 2015, Ahmad Al Mahdi Al Faqi was handed over to the ICC by the authorities of Niger concerning the alleged commission of the war crime of attacking religious and historical buildings, namely intentional direct attacks against the following:

  • the mausoleum of Sidi Mahmoud Ben Omar Mohamed Aquit,
  • the mausoleum of Sheikh Mohamed Mahmoud al-Arawani,
  • the mausoleum of Sheikh Sidi Mokhtar Ben Sidi Muhammad Ben Sheikh Alkabir,
  • the mausoleum of Alpha Moya,
  • the mausoleum of Sheikh Sidi Ahmed Ben Amar Arragadi,
  • the mausoleum of Sheikh Muhammad El Micky,
  • the mausoleum of Cheick Abdoul Kassim Attouaty,
  • the mausoleum of Ahamed Fulane,
  • the mausoleum of Bahaber Babadié, and
  • Sidi Yahia mosque

(see the Case Information Sheet here).

According to the Office of the Prosecutor on the situation in Mali, wide scale and direct attacks against religious and historical buildings on Timbuktu which belong to the World Heritage List constitute war crimes and the gravity of their destruction justified the Court’s action. However, allegations of acts of pillaging against places of worship could not be fully supported by the evidence and further information was needed specifically with regard to the presence of a plan or policy (analytically see the report here).

These developments come at a very crucial point; they bring heritage protection into the spotlight almost 15 years after the ICTY trials. Indeed, the Krstic Case on heritage destruction as an act of persecution along with the “Dubrovnik” Cases regarding the shelling attack on the Old Town protected not only under the 1954 Hague Convention, but also the UNESCO World Heritage Convention advanced the legal regime of heritage protection the last two decades. Therefore, there is hope that this case could lead to the referral of ISIS to the ICC for the attacks against the cultural heritage not of a sole state, but of humankind as a whole.

The road to the future: Cultural heritage protection as a shared responsibility?

So, do we need more rules? The answer is tricky and we have to ask what we need the rules for. Generally speaking, cultural heritage protection faces many challenges. However, there is a rather rigid legal regime for cultural heritage protection against intentional destruction. The duty to safeguard cultural heritage is part of the prohibition of intentional destruction of cultural elements. Protection of cultural heritage is a general principle of law since all  states recognize the need to protect culture as parties to international cultural conventions and specialized organizations, like UNESCO. Moreover, no state explicitly discards or questions the protection of cultural heritage or advocates for its destruction. Given that protection rests on the legal qualification of material elements as cultural ones under domestic law, what states do is declassify elements as cultural ones and justify their subsequent destruction. The much debated 2003 UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage acknowledges state responsibility for intentional destruction or failure to take appropriate measures to prohibit, prevent, stop, and punish any intentional destruction of cultural heritage of great importance for humanity, whether or not it is inscribed on a list maintained by UNESCO or another international organization both during armed conflict and times of peace.

The 1954 Hague Convention sets the foundation of specialized protection while international humanitarian law (Geneva Conventions and the Additional Protocols) and customary rules supplement the protective regime. Given that violations against cultural heritage may constitute a war crime and even a crime against humanity when it comes to the systematic destruction of a cultural group, states, both individually and as a whole, have the responsibility to protect cultural heritage.

In addition, the general protective regime does not cease in case of an armed conflict. The UNESCO Conventions contain no escape clause. The 1970 UNESCO Convention entrusts states with the duty to ensure the protection of their cultural property against illicit import, export and transfer of ownership (art.6), while it explicitly provides that the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit (art.11).  The World Heritage Convention also remains in force even in times of conflict. Under the WHC regime, the state bears advanced responsibilities for the protection, conservation, presentation and rehabilitation of world heritage in its territory, while it entrusts the international community with the duty to cooperate in order to protect world heritage (article 6). Also worth noting is that cultural elements are indispensable for the enjoyment of culture as a human right, thus their protection could be further reinforced under human rights law (see for instance ICESCR art.15.1, particularly General comment No. 21: Right of everyone to take part in cultural life, E/C.12/GC/21 ).

Given the crucial role of cultural heritage in the development,  advancement and existence of people, the preservation and transmission of common heritage to future generations needs to be ensured. Consequently, what is missing is the enforcement of the existing legal regime. To this end, the United Nations should affirm in practice our shared responsibility for cultural heritage protection and take immediate measures for the protection of cultural heritage through joint state cooperation, on site UN missions and sanctions against illicit trafficking, etc.

 

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