Protection of Cultural Heritage in Armed Conflicts: Follow-up questions

On 29 September, Kristin Hausler, Dorset Senior Research Fellow in Public International Law at the British Institute of International and Comparative Law (BIICL), provided a comprehensive overview of the existing legal frameworks that protect cultural heritage during both international and non-international armed conflict. In addition to the questions from participants answered during the live Q&A (which you can listen to in the event recording), you can read additional follow-up questions from participants here.

 

"Are there any provisions for restitution on the part of a government that suffers loss of its cultural property? Who compensates in this case, for example in the Al Mahdi case?"
- Legal Practitioner, Nigeria

If a state has violated an international obligation (e.g. in an international armed conflict), it then has an obligation to repair the harm suffered. However, in cases when a non-state actor is involved, such as in the case of Timbuktu, the criminal tribunal which prosecuted the perpetrator may award reparations. The reparations decision in the Al Mahdi case will be issued in 2017 by the ICC.

 

"What monitoring and review mechanisms exist for The Hague Convention and its protocols?"
- Coordinator, India

The Hague Convention did not establish a monitoring mechanism but the Second Protocol did (Art 24). It consists of an intergovernmental committee of 12 members, which is responsible for the granting, suspension, or cancellation of enhanced protection; the supervision of the implementation of the Second Protocol; and consideration and distribution of international assistance from, and the use of, the Fund for the Protection of Cultural Property in the Event of Armed Conflict.

 

"What can individual States Parties to the 1954 Convention do to assist areas of destroyed or damaged heritage once hostilities have ended?"
- Cultural Heritage Protection Adviser, United Kingdom

State parties to the Hague Convention have several obligations in time of peace, i.e. when hostilities have ended. They must prosecute the alleged perpetrators of violations of the Convention. In addition, they have a number of safeguarding obligations, such as dissemination information about the Convention, training troops, conducting inventories, etc. According to its Regulations, state parties may also request the technical assistance of UNESCO to protect their cultural heritage. Of course, states can in general provide a lot more assistance to those that have been affected by an armed conflict (support reconstruction, provide technical assistance, funding, etc). However, any such measure would not be tied to membership to the Hague Convention. Another way states, in general, may assist is by adopting import bans for objects coming from conflict areas which may be prone to looting, even when an armed conflict has ceased. Again, this would not stem from an obligation enshrined in the Hague Convention.

 

"What happens in cases of low-intensity conflicts or cases of internal disturbances when looting of property is easily committed and they even sell cultural goods abroad and the protection by the Hague Convention cannot be triggered?"
- Teaching Fellow, Greece

International law also protects moveable cultural heritage outside of armed conflicts. In particular with regard to looting, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property requires states parties to protect cultural objects on their territory against looting and illicit export through preventive measures. Many states, even those that are not party to this Convention have adopted domestic provisions against looting of cultural heritage.

When there is a particular risk of pillage, the 1970 Convention also foresees specific import and export controls. The Convention also seeks to strengthen cooperation between state parties, in particular with regard to restitution as there is a duty to return an object which has been stolen or illegally exported at the request of its state of origin.

See also the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which is not as well ratified as the 1970 Convention.
  

"Does any legal instrument list evidence that must be provided for the justification of military necessity against cultural property?"
- Student, United Kingdom

A number of requirements were added in the 1999 Second Protocol to the 1954 Hague Convention (Art 6) to invoke military necessity (and thus it is only in force with regard to those States that have ratified this protocol). Accordingly, with regard to a direct act of hostility against cultural property, it may be invoked only if the object has been made into a military objective and if there is no alternative available to obtain a similar military advantage; advance warning must be given when circumstances permit.

With regard to using cultural property in a way that may expose it to destruction or damage, when there is no other feasible method to obtain a similar military advantage, Art 6 adds that the decision to invoke military necessity must be taken by a commanding officer.

 

"Is there any country in the world where its historical places are contaminated by anti-personal mines?"
- Area Manager on Mine Action, Afghanistan

There have been media reports of ISIL planting mines in Palmyra. There have also been media reports of mines still being found around the temple of Preah Vihear in Cambodia. According to UNESCO, there are also mines in the Bamiyan Valley in Afghanistan.

 

"Has the United States failed to ratify any of the treaties protecting cultural property? If so, why?"
- Legal Fellow, United States

The US ratified the 1954 Hague Convention in 2009. While it had helped to draft the 1954 Convention and signed it when it was adopted, it was not ratified for several decades because of alleged fears of how this could have affected US policy during the Cold War. It was finally the looting that took place during the Iraq war that led to renewed interest in the Convention and its ratification. However, the US has ratified neither its First nor its Second Protocol.

 

"What is required in order for the destruction of cultural property to become an international crime?"
- Lawyer, Greece

Within the core international crimes, the destruction of cultural heritage has already been considered as a crime against humanity by the International Criminal Tribunal for the former Yugoslavia (ICTY), in cases involving widespread and systematic destruction and damage of institutions dedicated to Muslim religion or education. In the cases of Kordič and Čerkez, the Trial Chamber stated that these attacks could amount to an act of persecution, which is a form of crime against humanity, if those acts were conducted with a discriminatory intent.

 

"Do you have comments on the tangible versus intangible debate in cultural heritage and whether conventions appropriately define 'cultural heritage'?"
- Practitioner, United Kingdom

The positive aspect of the definition adopted by the 1954 Hague Convention is its vagueness and thus the fact it may apply to almost any form of tangible cultural heritage. However, it does not apply to intangible cultural heritage. Intangible cultural heritage is protected, even in times of armed conflict, by international human rights law, in particular Art 15 International Covenant on Economic, Social and Cultural Rights (ICESCR). The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage is of course relevant. There are talks at present in strengthening the synergies between the Hague system of protection and the intangible cultural heritage convention. In 2015, the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage adopted 12 principles to prevent disrespect and misappropriation of such heritage and one of them regarded the protection of intangible cultural heritage in times of armed conflict.

I think that more and more attention will be paid to the protection of intangible cultural heritage in armed conflict in the coming years, creating synergies between the various conventions. It will also be interesting to see the reparations decision in the Al Mahdi case before the ICC and how the Court will assess the damage caused to cultural heritage by those attacks as it may take into consideration some intangible aspects of the heritage attacked.

In terms of definition, perhaps the most interesting definition of cultural heritage, which encompasses both tangible and intangible heritage, can be found in the 2005 Council of Europe Faro Convention, which defined it as “a group of resources inherited from the past which people identify, independently of ownership, as a reflection and expression of their constantly evolving values, beliefs, knowledge and traditions. It includes all aspects of the environment resulting from the interaction between people and places through time.”

 

"Is there any particular best practice related to the protection of cultural heritage carried out by specific countries that you would highlight?"
- Consultant, Ethiopia

Some countries, even if they are not party to the Hague Convention, have developed good practices in this area. This was for example the case of the UK which, before the invasion of Iraq, sought the advice of cultural heritage professionals, including archaeologists in order to identify the areas that should be protected.

 

"Are there any cases of humanitarian agencies/groups damaging cultural heritage? If so, have these cases resulted in legal action?"
- PhD Candidate, Hong Kong

Not that I am aware of.

 

"Regarding Mali, do you happen to know how legal counsel on the protection of cultural heritage was integrated in the Mali peacekeeping mission (MINUSMA) - as in training staff, military on conventions and customary IHL?"
- Student, Germany

Following the UNSC Resolution 2100, UNESCO provided training to MINUSMA personnel and distributed the so-called "heritage maps and passports" it developed in 2012, which include information about the treaties ratified by Mali. Click here for the French version of the Passeport pour le Patrimoine. It also developed a brochure called Protecting cultural heritage in Mali for them.

 

"What happens in cases when "replicas" have been destroyed?"
- Student, Germany

It is difficult to assess and would depend if the destruction occurred because the object in question was a replica or if it was destroyed without the perpetrator knowing it was a replica. For example, with regard to the destruction of certain statues by ISIL at the Mosul museum which have been reported to be replicas, the group seemed not to have known they were replicas. It that case, it was just fortunate the originals had been placed in a secure location before their attacks.

 

"What is the difference between cultural property and icons and symbols of state/political symbols, buildings, etc.?"
- Consultant, United States

Under the Hague Convention, to qualify as a cultural property, an object must be of great importance to the cultural heritage of every people. This could be the case of icons and symbols of state power, etc. Therefore, in such instances, these objects would be considered as "cultural property" and there is no difference. With regard to listing cultural properties under enhanced protection, it is for the State in question to make that determination, i.e. if a particular object falls within the category of cultural property.

 

"Can you please provide details on which non-state actors have committed to protect cultural property in NIAC? Have other countries set up collaborations between museum professionals and customs officials as in the new US Bill on preventing trafficking?"
- Legal Adviser, Australia

I have listed them in ‘Culture under Attack: The Destruction of Cultural Heritage by non-State Armed Groups’ in the Santander Art & Culture Law Review 2/2015, pp. 133 et seq.

They include the Sudan People’s Liberation Movement and Army (SPLM/A) which stated, in its 1983 Manifesto and a resolution on human rights and civil liberties adopted in 1991 by the Politico-Military High Command of the SPLM/A, that “cultural objects which include religious monuments, buildings such as mosques and churches and various icons are respected by the SPLM/A.” In their Guidelines on the Law of Armed Conflict, the National Transitional Council/Free Libyan Army (NTC/FLA) has adopted guidelines prohibiting it to “harm cultural, educational and religious buildings and historic sites unless Qadhafi forces are using them for hostile purposes, and such harm is absolutely necessary.” In the Philippines, the National Democratic Front of the Philippines (NDFP) agreed to be bound by the “generally accepted principles and standards of international humanitarian law”, including those regarding the protection of “historic monuments, cultural objects and places of worship.” According to its Code of War, the Colombian Ejército de Liberación Nacional (ELN) shall not attack religious sites or cultural objects.

 

"You mentioned that UNESCO usually assesses the destruction after the conflict – how do they determine who destroyed the properties?"
- Teacher, Cameroon

The UNESCO World Heritage Centre conducts those kinds of assessments, often in cooperation with other bodies, in order to limit further damage (conservation) and prepare for reconstruction. Assessment is now routinely made through satellite imagery by bodies such as UNOSAT for example (UNESCO has an agreement with UNITAR on this matter). However, it is not the role of UNESCO to identify who destroyed the properties as this should be determined by a court of law or another type of decision body. In some instances, it is an easy determination: in Timbuktu for example, there was a lot of video evidence of the destruction and the perpetrators talked to the media about the attacks. In Syria, given that some of the damage to historic places could have only been made from air, it rules out the involvement of rebels groups which do not have any air force. In many other instances, it is well-known what party to a conflict conducted a particular attack which led to the destruction of cultural heritage (see for example the attack of Dubrovnik in 1991).

 

"I see that art. 56 of HC IV Regs. 1907 is 'doit être poursuivie' (must be pursued), which I read differently than the current 'should be made the subject of proceedings.' I seem to recall that the French was original in the 1907 Conventions, but I could be wrong.  Any thoughts on this?"
- Legal Adviser, United States

Very interesting point! I think it would be true to say that, given the authority of the French text, there was an obligation to prosecute (poursuivre en justice) “All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science.” I believe the issue is that, formulated as such, this provision was likely not precise enough to be implemented effectively domestically. The same criticism could be made in relation to Art 28 Hague Convention, with the added issue associated with the discrepancy in the translation. The lack of "teeth" of the Hague Convention with regard to prosecution was one of the reasons behind the adoption of the Second Protocol and its Articles 15 et seq.

You can access the rest of the Q&A as well as further resources on the event page.