
INTRODUCTION
Cultural heritage, which encompasses historic structures, monuments, and invaluable artifacts, is integral to national identities but faces ongoing threats of theft, illicit trafficking, and destruction, especially during armed conflicts. Despite established international treaties and customary humanitarian law to protect cultural property, their consistent enforcement remains a challenge marked by violations. Conflict situations, often rooted in religious and ethnic tensions, frequently witness deliberate acts of demolition, with cultural property as a primary target. These actions harm not only a nation's cultural identity but also the historical legacy of opposing parties. While prioritizing the protection of civilians and those not directly involved in hostilities is paramount in any armed conflict, safeguarding civilian assets, including cultural heritage, remains a fundamental principle of humanitarian law.
Protecting cultural property in conflict is based on the principle that harm to the cultural assets of any group equates to “damage to the cultural heritage of all mankind,” as stated in the 1954 Hague Convention. This article explores the vital issue of preserving cultural heritage during armed conflicts, delving into the complex legal mechanisms and international agreements established to safeguard our shared legacy.
WHAT IS CULTURAL HERITAGE?
UNESCO defines cultural heritage as “the legacy of physical artefacts and intangible attributes of a group or society that are inherited from past generations, maintained in the present and bestowed for the benefit of future generations.” International cultural heritage can be classified into two realms: tangible cultural heritage and intangible cultural heritage. The former consists of concrete artistic expressions, encompassing historic structures, monuments, artwork, and archaeological sites. These are often described as “cultural assets” intricately linked to the identity of a nation. Conversely, intangible cultural heritage includes non-physical expressions like oral traditions, rituals, and intellectual property. While tangible cultural heritage is conventionally seen as a nation's inherent property, ongoing discussions among experts consider recognizing intellectual property, a subset of intangible cultural heritage, as a distinct form of cultural property.
INSTANCES OF DAMAGE TO CULTURAL HERITAGE
In recent years, armed conflicts have wrought devastating havoc upon cultural heritage in regions ensnared in violence. Syria, marred by a protracted and brutal war, has seen the widespread destruction of cultural property sites and artifacts. The deliberate obliteration of ancient temples, revered Christian monasteries, precious artistic relics, and millennia-old monuments by the Islamic State of Iraq and Syria (ISIS) has robbed humanity of cherished components of global cultural heritage.
Iraq, too, has borne the scars of conflict, with the 2003 war inflicting substantial damage upon both tangible and intangible cultural heritage. Historical museums, libraries, ancient book collections, and numerous invaluable cultural artifacts fell victim to destruction. Subsequently, ISIS intensified the devastation by looting cultural property in areas like Mosul, Nimrud, and Hatra. These actions further contributed to the annihilation of historic Christian and Muslim sites.
The aftermath of the overthrow of Moammar Qaddafi's regime in Libya witnessed another cultural tragedy. Civil strife damaged cultural property, and ISIS seized the opportunity to gain control in pursuit of safeguarding valuable cultural treasures and exploiting oil resources. Amid these ongoing threats, UNESCO recognized five historic cultural heritage locations in Libya, comprising Leptis Magna, Cyrene, Sabratha, Ghadames, and Tadrart Acacus, as being at significant risk of attack by ISIS. These sites, internationally acclaimed, stand as some of the most valuable historical cultural heritage locations, underlining the urgent need for global efforts to protect these irreplaceable treasures.
INTERNATIONAL LEGAL FRAMEWORK FOR CULTURAL HERITAGE PROTECTION
In the late 19th and early 20th centuries, efforts to protect cultural assets during armed conflicts took shape, notably with the Regulations related to the Laws and Customs of War on Land in the Hague Convention. These rules emphasized safeguarding religious, scientific, and historical structures, especially during sieges, by designating them as non-military targets. Article 56 of the 1907 Hague Regulations classified cultural property as “private property,” safeguarding it from confiscation or harm and imposing legal consequences for violations. However, during World War I, these regulations saw inconsistent adherence, resulting in significant damage to cultural property.
In 1935, the Roerich Pact aimed to bolster cultural property protection, making it an unconditional obligation and introducing a standardized emblem system. Yet, limited international adoption and the outbreak of World War II diverted state priorities from international cultural property preservation efforts, underscoring the challenges in consistently upholding the protection of cultural heritage during conflicts.
The 1954 Hague Convention: The 1954 Hague Convention offers extensive safeguarding measures for a broad spectrum of cultural assets, encompassing archaeological locations and artistic artifacts. As stipulated in Article 1 of this international treaty, it underscores the obligation of participating nations to ensure the preservation of cultural assets within their national boundaries, irrespective of whether it is a time of peace or conflict, acknowledging it as a heritage shared by humanity. Article 4 extends this protection to the cultural property of other contracting states, demanding respect and prevention of harm, especially during armed conflicts. Special safeguards are proposed for threatened cultural property, involving the creation of refuges, relocation of movable property under international supervision, and deployment of protective personnel for immovable sites without direct involvement in combat. Violators face sanctions under national laws, and each state is responsible for implementing these provisions. Additionally, UNESCO has the authority to convene a meeting of contracting states upon the request of at least one-fifth of them to address cultural property protection concerns.
Two Additional Protocols of 1977 to the Geneva Conventions of 1949: The four Geneva Conventions did not contain specific provisions for the safeguarding of cultural heritage and property. This gap was addressed in 1977 through the introduction of Additional Protocol I and Additional Protocol II. In these protocols, Articles 53 and 85, Paragraph 4, of the First Additional Protocol 1977 are dedicated to the protection of cultural property. Article 53 forbids the deliberate harm of historic sites, cultural property, monuments, religious and artistic places, as well as objects recognized as cultural heritage, and it also prohibits their military utilization. Paragraph 4 of Article 85 in Additional Protocol I identifies intentional damage to cultural property as a grave breach and a violation of the Geneva Conventions, with Paragraph 5 designating it as a war crime. This highlights that causing harm to cultural property in times of armed conflict is a severe war crime, compelling all parties to prevent damage to such property within the conflict zone. Furthermore, Article 16 of Additional Protocol II of 1977 prohibits causing damage to cultural property objects or heritage sites, which include historic monuments, artistic artifacts, statues, and religious places, during armed conflicts.
UNESCO Convention 1970: The primary focus of the 1970 UNESCO Convention is to combat the illicit trade, theft, looting, and plunder of cultural property. It explicitly forbids museums and institutions within a state from accepting cultural property objects that have been stolen from another state and recommends the return of stolen objects to their rightful owners. Additionally, in cases where cultural property in a state is at risk, that state can formally request assistance from other states to protect it. The treaty also supports the prosecution of individuals, including military personnel, who are involved in the illegal theft or smuggling of cultural property across international borders. In situations where cultural property is illicitly transported by military personnel during armed conflicts, the item must be confiscated and returned to its original location. Importantly, the convention places a responsibility on each state to ensure the protection of cultural property within its own borders. An interesting provision of the UNESCO Convention of 1970 is its recognition of a state's fauna and flora as integral components of its cultural property.
Article 18 and Article 19 of the International Covenant on Civil and Political Rights (ICCPR): Article 18 of the ICCPR guarantees every individual the freedom to practice their religion, express their thoughts, make choices, and engage in cultural practices in accordance with their beliefs, with this freedom applicable in both times of peace and armed conflicts. It expressly forbids any party involved in an armed conflict from infringing upon these rights, thus reinforcing the importance of respecting human conscience, religion, culture, and freedom during armed conflicts. Furthermore, Article 19 of the ICCPR underscores the significance of human freedom of expression, encompassing artistic, religious, and cultural expressions, which are integral components of intangible cultural heritage.
ADDRESSING THE GAPS IN PROTECTION OF CULTURAL PROPERTY
The protection of cultural assets during armed conflicts entails significant financial investments, covering the deployment of specialized military units, the establishment of protective shelters, and the marking of registered properties with unique identifiers. These resource-intensive processes become even more financially challenging during conflicts, particularly for countries in prolonged conflicts and developing nations, which may hesitate to commit to such obligations. While Protocol II foundations can provide support, their effectiveness is limited due to the high costs and logistical complexities involved.
Furthermore, the Second Protocol stipulates that Parties should appoint specialized personnel for cultural property protection, but some countries fail to adhere to this requirement. For instance, Belgium delegates this responsibility to its Law of Armed Conflict advisor, seen as evading their duty. Additionally, the Hague Convention mandates that States Parties must provide reports on the preservation of cultural property at four-year intervals, yet adherence to this obligation is inadequate, highlighting the need for enhanced monitoring measures to encourage States Parties to bolster their implementation efforts.
The current international humanitarian law concerning cultural property protection lacks provisions for ratification, implementation, monitoring, or sanctions. To address these issues, it is advisable to streamline legal instruments while introducing innovative monitoring mechanisms to facilitate ratification and enforcement capabilities. The proliferation of international legal instruments can exacerbate deficiencies by introducing intricate and varied standards. Instead, creative solutions should be explored, taking into account the unique characteristics of contemporary armed conflicts and the underlying motives behind cultural property attacks.
In this context, a pertinent example can be drawn from the International Court of Justice's scrutiny of the interconnection between cultural property and genocide, as demonstrated in cases such as Bosnia and Herzegovina v. Serbia and Montenegro. This legal precedent highlights how the intentional destruction of cultural property can serve as proof of the systematic eradication of an ethnic group during instances of genocide. While the existing international legal structure for the protection of cultural property in times of armed conflict has its constraints, past instances suggest that it is continuously evolving. The most effective approach to address current gaps is to strengthen ratification and implementation, especially in conflict-prone countries, particularly in developing nations, and to establish monitoring and penalty mechanisms.
CONCLUSION
Over the past two centuries, the framework for safeguarding cultural property during armed conflicts has undergone significant evolution, transitioning from a mere guiding principle to a comprehensive system of obligatory substantive and procedural regulations applicable to the parties engaged in armed conflicts. While commendable, it is crucial to tackle ongoing difficulties related to compliance and the execution of the Convention to guarantee the all-encompassing safeguarding of cultural property worldwide. Striking a delicate balance is crucial between the necessity for a more robust international institution capable of overseeing enforcement and the preservation of states' sovereignty over their territorial affairs.
Author:
Nileena Bannerjee is a Third year Law Student at NUALS, Kochi.
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