The Deliberate Targeting Trend

Over the past few years, cultural heritage has increasingly become the direct target of systematic and deliberate attacks by ANSAs. A notorious example is the Islamic State group, which since 2014 has intentionally damaged or destroyed cultural heritage in Iraq and Syria under the pretext that it regards it as heretical to Islam, even calling the targeted statues and shrines “false idols.” ^{Footnote 15} Its targets have included artifacts, religious sites, and ancient monuments, with some even being listed as world heritage sites. The Islamic State group has destroyed Byzantine mosaics and Assyrian statues as well as Sufi and Shia shrines in the region of Raqqa in Syria. ^{Footnote 16} It has also destroyed several mosques, churches, and Sufi and Shia shrines and tombs in Mosul in northern Iraq, the site of the ancient Assyrian capital of Nineveh. ^{Footnote 17} The video of the destruction of the Mosul Museum that went viral in February 2015 shows a representative of the group recalling how the Prophet Muhammad destroyed the idols in Mecca and adding: “These statues and idols, these artefacts, if God has ordered [their] removal, they [are] worthless to us even if they are worth billions of dollars.” ^{Footnote 18} In addition, the Islamic State group has been involved in the looting of several archaeological sites and even established an “Antiquities Department” to authorize their plunder and collect their proceeds methodically. ^{Footnote 19} However, its attacks on cultural heritage have not been limited to objects that have a religious meaning. Following its capture of the ancient city of Palmyra in May 2015, the Islamic State group dynamited several of its temples, including the Temple of Bel and the Temple of Baal Shamin, its Arch of Triumph, as well as its tetrapylon and part of its Roman theatre after recapturing the city in January 2017. ^{Footnote 20}

In Mali, Islamist ANSAs aimed to enforce their interpretation of Sharia law in the territories that were under their control in the north in 2012–13, which eventually led to the infamous attacks against the world heritage town of Timbuktu. ^{Footnote 21} In June 2012, Ansar Dine decided to destroy mausoleums of Sufi Muslim saints, which were used by the local population for prayers and as places of pilgrimage. ^{Footnote 22} This decision was taken in consultation with members of Al-Qaeda in the Islamic Magreb (AQIM). Ahmad Al Faqi Al Mahdi, who was at that time the head of the “Hesbah,” the morality brigade established by Ansar Dine, had confirmed that, under Islamic law, there should not be any construction over a tomb. ^{Footnote 23} He agreed to conduct the attacks, which were carried out between 30 June 2012 and 11 July 2012 against 10 of the most important religious and historic sites in Timbuktu. ^{Footnote 24} A spokesperson of Ansar Dine allegedly declared that “[t]here is no world heritage. It does not exist. Infidels must not get involved in our business.” ^{Footnote 25}

The ANSAs abiding by this destructive policy have regularly targeted world heritage sites, which are regulated by the World Heritage Convention and include monuments, sites, and groups of buildings of outstanding universal value—that is, of cultural “significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity.” ^{Footnote 26} Conscious of their importance, these ANSAs try to send a message of defiance to the rest of the world by attacking such recognizable sites. By the same token, the fact that a monument has been listed as a world heritage site seems to have also been taken into account by the Office of the Prosecutor of the ICC in selecting and pursuing the case against Al Mahdi. ^{Footnote 27} The Office of the Prosecutor largely relied on the world heritage status of the city of Timbuktu when arguing that the event met the gravity threshold required by the ICC Statute. ^{Footnote 28} In its discussion on aggravating circumstances, the Trial Chamber took into account that all sites destroyed but one (the Sheikh Mohamed Mahmoud Al Arawani Mausoleum) “were UNESCO World Heritage Sites and, as such, their attack appears to be of particular gravity as their destruction does not only affect the direct victims of the crimes, namely the faithful and inhabitants of Timbuktu, but also people throughout Mali and the international community.” ^{Footnote 29} More than 10 years before, in the trial against Pavle Strugar and Miodrag Jokić at the International Criminal Tribunal for the former Yugoslavia, which involved the shelling of the Old Town of Dubrovnik—also a world heritage site—the Trial Chamber already stated that “the Old Town [of Dubrovnik] is also legally distinct from the rest of the wider city because the Old Town … enjoys a World Heritage listing and the protections and immunities that are consequent on that listing.” ^{Footnote 30}

The common denominator to all of these ANSAs that have been directly involved in the intentional destruction of cultural heritage is that they have sought to deny existing beliefs and have imposed their own ideology and interpretation of religion. In the words of Karima Bennoune, the UN special rapporteur in the field of cultural rights, “fundamentalists often seek to erase the culture of others and the syncretic nature of culture and religion and stamp out cultural diversity. Such efforts represent the misuse of what is claimed to be culture against cultural rights.” ^{Footnote 31} The intentional destruction of cultural heritage may be related to a strategy of “cultural cleansing,” a term that was used by UNESCO Director-General Irina Bokova in relation to the situation in Iraq in 2014 to signify the tactic of erasing the unwanted history of a territory and the identity of its people by destroying its cultural heritage and, thus, any physical evidence of it. Cultural cleansing aims to eradicate cultural diversity and replace it with a single, homogeneous cultural and religious perspective.

The Other Trend

In contrast to the adoption of a clearly destructive policy, many ANSAs recognize and appreciate the value of cultural heritage, thus having a more positive attitude toward it. A number of ANSAs worldwide have bound themselves to respect cultural objects in their internal regulations and codes of conduct. ^{Footnote 32} For example, when it was a rebel group, the Sudan People’s Liberation Movement/Army (SPLM/A) stated, in its 1983 manifesto, that “cultural objects which include religious monuments, buildings such as mosques and churches and various icons are respected by the SPLM/A.” ^{Footnote 33} As another example, the Colombian Ejército de Liberación Nacional (ELN) stated in its Code of War that religious sites or cultural objects shall not be attacked. ^{Footnote 34} Also in Colombia, a guerrilla commander of the Fuerzas Armadas Revolucionarias de Colombia-Ejército del Pueblo (FARC-EP) dedicated himself to building a museum in the mountains of the department of Cauca. The museum, called “La Cristalina,” was allegedly created to protect cultural heritage from looters and, nowadays, houses more than 3,000 pieces. ^{Footnote 35}

Geneva Call’s study has nevertheless found that, while the interviewed ANSAs are willing to respect and even protect cultural heritage, they lack any knowledge whatsoever of the international legal standards for the protection of cultural heritage and, in many cases, capacity building to ensure its protection to the maximum extent feasible. According to Article 1 of the Hague Convention, cultural property refers to “movable or immovable property of great importance to the cultural heritage of every people.” This may include monuments of architecture, art, or history, whether religious or secular, archaeological sites, groups of buildings, and works of art or manuscripts. The Convention also extends protection to buildings whose main and effective purpose is to preserve or exhibit the movable cultural property, such as museums, libraries, and centers containing monuments. When Geneva Call enquired about the concept of cultural heritage, all of the ANSAs interviewed demonstrated an instinctively broad and sound understanding of the term. For example, the Partiya Karkerên Kurdistanê (PKK) responded that “culture comprises all of the products of thought and action throughout human history. Heritage is what is handed down to us and what we hand on to posterity.” ^{Footnote 36} The answer from the representative in Europe of the Mouvement National de Libération de l’Azawad (MNLA), a Malian Tuareg ANSA, went on to include intangible heritage. He defined cultural heritage as “what remains: material constructions but also morality, artisanship, and immaterial practices, such as proverbs, riddles, poesy, prose, songs, and language itself.” ^{Footnote 37}

As evinced by the Hague Convention, the IHL framework protecting cultural heritage in armed conflict has, to date, mostly focused on tangible cultural heritage, including monuments, archaeological sites, works of arts, and so on. ^{Footnote 38} Nevertheless, access to (or enjoyment of) all forms of cultural heritage, including its intangible manifestations, is also protected through the human right to participate in cultural life which states party to the relevant treaties must realize (Article 15 of the International Covenant on Economic, Social and Cultural Rights and Article 27 of the International Covenant on Civil and Political Rights). ^{Footnote 39} One must also take into consideration the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, which encompasses heritage such as traditions, language, songs, instruments, and the like “that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.” ^{Footnote 40} This Convention seeks the safeguarding and respect of such heritage as well as raising awareness of its importance. ^{Footnote 41} Although the international obligations enshrined in this Convention are directed at states, they can provide guidelines for those ANSAs that are willing to implement international standards, particularly with regard to some of the safeguarding measures contained therein, such as the need to adopt a general policy aimed at promoting the function of intangible cultural heritage in society; to designate or establish one or more competent bodies for the safeguarding of the intangible cultural heritage present in its territory; or to establish documentation institutions for the intangible cultural heritage and facilitating access to them. ^{Footnote 42} As the focus of this article is on the protection of tangible heritage, these instruments will not be considered further. However, they are worth noting given that ANSAs often refer to intangible cultural heritage when asked to define “cultural heritage.”

In some specific instances, the interviewed ANSAs had doubts as to what qualified as cultural heritage. For example, the MNLA representative admitted that it was unsure whether a fortress built by the French near Kidal qualified as cultural heritage because it perceived this building as a symbol of colonialism. The most concerning aspect that Geneva Call noted is that none of the interviewed ANSAs knew about, had seen, or had heard about the blue shield emblem, which is provided for in Article 16 of the Hague Convention and allows state parties to use it to signal the presence of cultural property falling under its protection. Some ANSAs recognized, and were even able to draw, the symbol used for world heritage sites, but these were very few in comparison with the wide range of objects that constitute cultural heritage and deserve protection under international law.

The Hague Convention further enunciates four basic obligations applicable to ANSAs: (1) the prohibition of the use of cultural property and its immediate surroundings or of the appliances in use for its protection for purposes that are likely to expose it to destruction or damage in the event of armed conflict (except in cases of imperative military necessity); (2) the prohibition of acts of hostility directed against cultural property (this obligation may also be waived where required by imperative military necessity); (3) the obligation “to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against cultural property”; ^{Footnote 43} and (4) the absolute prohibition of acts of reprisal directed against cultural property. At the time the interviews were conducted, none of the ANSAs had any specific knowledge of these rules or had received any training pertaining to them. As put by a commander of a Free Syrian Army (FSA) brigade: “We know the rules in general but not in detail. We are aware there is an international law but no idea about how it applies in details. However, these sites are part of the Syrian identity—everyone is eager to protect them.” ^{Footnote 44}

Despite their general lack of technical knowledge, some ANSAs have adopted measures, on a policy and/or practical level, to safeguard and respect cultural heritage in conformity with the obligation to prohibit, prevent, and put a stop to any form of theft, pillage, misappropriation, or vandalism. For example, in the Kurdish-populated areas of Syria, which are controlled by the People’s Protection Units (YPG)/Women’s Protection Units (YPJ), the de facto autonomous administration of Rojava has established an Antiquities Authority and, in 2015, passed an act on the protection of cultural heritage that prohibits destruction and damage of antiquities and archaeological sites and provides for sanctions in case of non-compliance. ^{Footnote 45} There have been many cultural sites under YPG/YPJ control where looting has increased dramatically since the outbreak of the war. ^{Footnote 46} The Asayish, the police force of the Rojava administration, has a special unit that deals with organized crime, including illicit trafficking and excavations, and it claims to have arrested 122 persons and confiscated many cultural objects (such as ancient statues, tablets, or coins, some dating back to 3,000 bc) (Figure 1). ^{Footnote 47} It has also deployed mobile patrols to inspect the main archaeological sites. Similarly, the YPG/YPJ have reportedly issued a command order to respect cultural property, though in some cases they have established military positions in the vicinity of cultural sites. ^{Footnote 48}

Figure 1.

Cultural artifacts guarded by the Asayish, the police force of the Rojava administration, in a special storage in Syria. Photograph courtesy of Geneva Call.

FSA brigade commanders interviewed in the context of Geneva Call’s study claimed to have taken measures to protect archaeological sites from plunder and theft, deploying guards to watch over sites in the areas under their control and to have arrested a gang involved in the theft of manuscripts in Aleppo. ^{Footnote 49} Geneva Call conducted two pilot trainings on the protection of cultural heritage with FSA commanders in December 2015 and June 2017 in Geneva. Following the first one, one brigade reportedly increased the protection of the Umayyad Mosque of Aleppo, especially of its sundial, also protecting the Zachariah’s mausoleum with sandbags and bricks. ^{Footnote 50} After learning that they could not use archaeological sites as military bases during their first pilot training, some FSA commanders, upon their return, began to raise awareness among the civilian population of the need to preserve Syrian heritage and gave advice on this subject to its chief of staff and his advisers. ^{Footnote 51} In northern Iraq, the various militias active in Mount Sinjar have posted guards to protect Yazidi temples from attacks from the Islamic State group. ^{Footnote 52} Several fighters of the Sinjar Resistance Units were reportedly killed in 2015 while defending the shrine of Sheikh Hassan in Gabara. ^{Footnote 53}

In Mali, the MNLA established a department in charge of culture, handcraft, and tourism, led by Ambéïry Ag Rhissa, which reportedly worked to raise awareness on the importance of protecting cultural heritage, including among MNLA fighters. ^{Footnote 54} The group was also involved in the protection of the Tomb of Askia in Gao in 2012, when it was in control of the town. ^{Footnote 55} In February 2013, during clashes with Islamist groups near Tessalit, the MNLA captured three boxes containing more than 1,000 ancient manuscripts. In a letter dated 22 March 2013, Ag Rhissa informed UNESCO about the seizure, providing a comprehensive list of the manuscripts and requesting support to return them to their owner (assumed to be the Ahmed Baba Institute of Higher Learning and Islamic Research in Timbuktu). ^{Footnote 56} According to Ag Rhissa, the manuscripts were ultimately recovered and destroyed by Islamist groups. ^{Footnote 57}

This episode highlights one of the major deficiencies of the Hague Convention in non-international armed conflicts: the structural deficit that plays against the technical assistance of ANSAs. According to Article 19(3), UNESCO may offer its services to all parties in a non-international armed conflict, including ANSAs. Yet, while the state parties may directly call upon UNESCO “for technical assistance in organizing the protection of their cultural property, or in connexion with any other problem arising out of the application of the … Convention,” the Hague Convention does not envisage the same possibility for ANSAs. ^{Footnote 58} The available means of communication between UNESCO and ANSAs is thus unidirectional, which is a problem in situations where ANSAs are in need of specialized advice or have requested assistance with regard to the protection of cultural property, which may be situated in the territory they control, as was the case with the ancient manuscripts in Mali. Similarly, the Rojava Antiquities Authority has reportedly tried to obtain technical support and equipment for conserving cultural and archeological sites, but their requests have remained unsuccessful to date.

In addition, lists of protected heritage or maps indicating their location are usually in the hands of the state’s central administration. This is the case in Syria where, at least during the first years of the conflict, the inventories of movable and immovable cultural property were housed in archives controlled by the Ministry of Culture. ^{Footnote 59} While all parties to the conflict must respect cultural property, knowing its location is a prerequisite for this to happen. However, the Hague Convention does not envisage the exchange of relevant information between warring parties. ANSAs are thus at a disadvantage when it comes to specialized capacity and access to readily available information and risk-preparedness protocols, which the state armed forces may have put in place. Although Article 19(2) encourages all parties to a conflict “to bring into force, by means of special agreements, all or part of the other provisions of the present Convention,” to date there is no record of an agreement of this sort ever being made. ^{Footnote 60}

The Second Protocol was drafted to update and improve the Hague Convention, and, while it did so in many respects, it maintains the structural deficit described above. ^{Footnote 61} According to Article 8(a) of the Second Protocol, ANSAs have a positive duty to remove, as far as possible, cultural property from the vicinity of military objectives in order to avoid its incidental damage. If this is not possible, ANSAs are requested to take in situ measures of protection to the maximum of their capacity. Nevertheless, the maximum extent feasible to which an ANSA may implement these precautions against the effect of hostilities may be compromised because only the state parties may call upon UNESCO for technical assistance. By contrast, it has been demonstrated that providing capacity building can yield very positive results. For example, the Smithsonian and other organizations trained heritage professionals in the use of sandbags and other in situ measures to safeguard ancient mosaics of the Ma’arra Museum in the Idlib Province, an area under the control of a Syrian ANSA. When the museum was bombarded by government forces in 2015 and 2016, most of the mosaics were left intact. ^{Footnote 62}

The attitude of ANSAs toward cultural heritage is more ambivalent when it comes to its use for military purposes, which could be a consequence of their lack of knowledge of legal standards. For example, the MNLA representative in Europe interviewed by Geneva Call suggested that the MNLA had used the French colonial fortress mentioned above because its location on the top of a hill amounted to a privileged military position and because it was unsure that the fortress constituted cultural heritage for the purposes of international law. He also admitted that the MNLA would attack cultural sites if there was no military alternative or if it was ignorant of its protected status. ^{Footnote 63}

During a Geneva Call meeting with FSA commanders, a commander, speaking for his own brigade in response to the question: “have your brigades used cultural sites in its military operations?” replied: “No, for example we have freed the Temple in the Harem District (within the Idlib Governorate), and now we protect and guard it. We have never occupied a historical site.” ^{Footnote 64} However, with respect to the targeting of cultural sites used by the enemy, the response was more ambiguous:

At Geneva Call’s 2017 meeting, a FSA brigade commander recounted that, toward the end of 2012, the government armed forces had placed snipers in a castle in Harem (Idlib) that was situated on the top of a hill. The commander affirmed that they had no alternative than to attack it but that they did so giving advance warning and without using heavy artillery. ^{Footnote 66}

Granted, these statements must be placed in contrast with independent reports. ^{Footnote 67} As mentioned earlier, “[t]he continuing armed conflict in Syria between the national armed forces and the Free Syrian Army (FSA) and the al-Nusra Front has also led to significant damage to, or destruction of, cultural heritage.” ^{Footnote 68} For example, in 2013, insurgents were reported to have established their headquarters near Aleppo’s Old Souk, turning its old town into a battleground. ^{Footnote 69} In 2014, the Umayyad Mosque in Aleppo was reportedly used by rebel snipers, which led to its shelling and eventual collapse. ^{Footnote 70} However, caution must be applied in qualifying such use or attack as a violation of IHL because, in some circumstances, the use of cultural sites for military purposes may be justified by imperative military necessity, which could have been the case with Aleppo’s Old Souk or its Umayyad Mosque and Idlib Harem castle.