Introduction
In September 1914, one month after the outbreak of the First World War, Reims Cathedral in France was heavily bombed in an attack that endangered the building's very existence. In July 2014, mosques and sanctuaries in Iraq – including the prophet Jonah's tomb, a Muslim pilgrimage site – were destroyed along with other cultural property. In both cases, what was attacked was the cultural and religious heritage of the people affected by these conflicts. Through the destruction of their places of worship, thereby hindering them from celebrating their rituals and traditions, it is their both tangible and intangible heritage that was harmed. A century separates these two events – a period that has seen innumerable conflicts whose nature has continually changed, both in terms of the parties to the conflict and of the stakes involved, as these two examples illustrate. This century has also seen a major evolution in science and technology, and in their application to military means, which have become more and more sophisticated and accurate; and, at the same time, it has seen an important development in the law. Indeed, while in 1914 the law on cultural heritage was confined to a few rules of warfare, there is now a law of armed conflict that offers a vast array of norms, including those that protect cultural heritage in its many dimensions.
The recent events in Syria, coming on the heels of similar upheavals in Iraq and Mali, highlight the paradox that such conflicts now pose for the protection of cultural heritage. Exceptional components of these countries' heritage – most of them inscribed on the United Nations Economic, Social and Cultural Organization (UNESCO) World Heritage List – were deliberately destroyed, although the law that applies to them nowadays would provide a hitherto unequalled normative framework for their protection in these circumstances. Among many others, the destruction of Jonah's tombFootnote 1 and the Arch of Triumph in Palmyra, Syria,Footnote 2 unquestionably illustrates the deliberate character of Islamic State Group's destruction of the heritage of these countries. Such acts seem to reflect its members' intention not only to erase forever these vestiges of the region's past, but in so doing also to obliterate all traces of the cultural and spiritual identity of the populations concerned. This poses a major challenge to the international community, for it signifies a refusal to implement norms – many of which now have the status of customary rules – aimed at protecting both cultural heritage and people exposed to conflict.Footnote 3
In the string of wars throughout human history, the emergence of such trends in armed conflict is not, however, a new phenomenon. The obliteration of Carthage by the Roman troops, the sack of Constantinople by the Crusaders and the dismantling of the statuary ornamenting the cathedrals during the wars of the Reformation – as well as, more recently, the destruction of synagogues during the Second World War and of mosques during the conflict in the Balkans at the end of the last century – similarly reflect the attacking forces' intention to eradicate all traces of the cultural and spiritual identity of enemy populations by destroying their cultural heritage, the symbol of that identity.Footnote 4
Hence it must be recognized that in conflicts with a strong ethnic, cultural and religious character, the destruction of cultural heritage frequently becomes an issue. This cultural heritage is multiform. Where it exists mainly in the form of sites, buildings and objects, the heritage that comes under attack is largely “tangible”. Elsewhere, however, where structures are impermanent and the heritage is expressed more through orality, gesture and other forms of expression that individuals create using various media and instruments, the heritage is mainly “intangible”. In the latter case, it is not so much objects that are targeted but the individuals who are the bearers or interpreters of this heritage. The solutions that the law must provide to ensure the protection of cultural heritage must therefore also have multiple elements.
The law of armed conflict, a lex specialis in time of war, expressly regulates the protection of cultural property – that is, mainly “tangible” cultural heritage – through the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954 Convention).Footnote 5 This instrument, adopted shortly after the Second World War, enshrined the measures that the law must provide to prevent a recurrence of the unprecedented destruction and pillage to which the world's cultural heritage had been subjected during this conflict. It thus filled major gaps in the previous regulatory frameworks. The protection conferred in the event of armed conflict by – to this date – the only convention devoted exclusively to cultural property is of course essential. However, the Convention's impact is insufficient to protect the cultural heritage exposed to contemporary conflicts, which also includes its “intangible” dimension.
The “intangible” dimension of cultural heritage cannot in fact be protected solely on the basis of the 1954 Convention. To that end, other instruments must be applied, whether they belong to the law of armed conflict or to other legal regimes, such as international human rights law, the numerous conventions adopted within UNESCO's framework for the protection of cultural heritage, or the various relevant norms of instruments developed by the International Labour Organization (ILO) or even the World Intellectual Property Organization (WIPO). The material scope of application of these various treaties now makes it possible to extend the concept of cultural heritage to elements other than purely cultural property, which in fact is only one of its components. The definition of legally protected cultural heritage, both tangible and intangible, has thus been enriched by the major regulatory development seen in recent decades, particularly within the United Nations (UN) system, even if its exact contours are still left to a certain extent to the discretion of States.
In addition to the different facets of cultural heritage, the various types of harm to which such heritage may be subjected should be emphasized. Such harm differs considerably depending on the phases of the armed conflict. Indeed, the effects of active hostilities on cultural heritage concern more specifically the tangible heritage like Reims Cathedral, which was directly affected by the fighting.Footnote 6 This type of harm is distinguished from that which the heritage may also suffer in enemy hands, when the weapons have gone silent. Such situations, especially in the form of military occupation, can alter the daily life of the concerned population and may thereby also affect the expressions of a cultural heritage that is of a more intangible dimension. The disappearance of the practice of rituals in the sacred sites of Timbuktu during the Malian conflict in 2012 is one example among many.Footnote 7 The distinctions between the various types of harm that can affect the different components of cultural heritage are similarly reflected in the norms aimed at preventing them.
The purpose of this article is to demonstrate that cultural heritage as a whole continues to enjoy legal protection in all phases of an armed conflict, regardless of its character. This statement is not only based on the applicable legal norms, which are discussed below, but is also supported by the case law of the international criminal tribunals, State practice and doctrine. The article begins with a historical overview revealing the existence, since time immemorial, of customary norms under which belligerents are required to spare cultural heritage in such situations. This is followed by a discussion of the applicable law which protects that heritage, both during hostilities and once the heritage has fallen under the control of enemy forces. Such legal framework consists of the law of armed conflict and other norms affirmed in human rights instruments and UNESCO cultural heritage conventions, the applicability of which can also be claimed in the event of armed conflict.
History of the protection of cultural heritage in armed conflict
The obligation to protect cultural heritage in the event of armed conflict preceded the adoption of any regulations agreed upon by nations to preserve it. The prohibition against attacking a given site, building or object in such circumstances stemmed from the dictates of authorities, who were usually prompted by religious or sacred considerations.Footnote 8 This phenomenon is found in many civilizations that have shaped human history.
In view of the activities undertaken in armed conflict, particularly during the phase of active hostilities, which can lead to the destruction or burning of property, the obligation to protect cultural heritage focused mainly on buildings that were symbols of the values to be preserved or that housed ceremonies, festivals and rituals, together with the media and instruments required to perform them. The prohibition against harming such property therefore applied to the container, but by the same token, it often aimed to preserve the content as well.Footnote 9 Cultural heritage, then, formed a whole that was made up of tangible as well as intangible elements, the latter of which gave it life and ensured the transmission of the knowledge and components of the cultural identity of the populations affected by conflict.
The prohibition against harming cultural heritage has been handed down through the centuries, from one end of the globe to the other. Evidence of this in the West includes the protection often granted to the sacred sites of the ancient Mediterranean, or the temples and Christian churches spread throughout the Roman Empire and elsewhere, among other sites whose destruction would have met no military need, as Cicero emphasized.Footnote 10 During the Middle Ages, the obligation to protect such property was further formalized. On the initiative of the Christian Church in Europe, various codifications of measures to be respected by belligerents were adopted and enshrined in oaths taken by knightsFootnote 11 or in the capitularies signed by military leaders before entering battle; these agreements dictated that what was sacred must be preserved, be it tangible, intangible or human, and also prohibited the unnecessary (in relation to the main goals of a given conflict) destruction of property belonging to civilians who didn't take part in combat.Footnote 12 With the Renaissance, works of art – including those with no sacred characterFootnote 13 – and, when nation States arose, also buildings, such as historical monuments and property that symbolized the national values and history, were added to the category of such protected objects.Footnote 14
These rules, constituting customs of war and stipulated frequently in agreements between belligerents, were not set down in universally binding regulations until the end of the nineteenth century. By then, many international conferences had been held – such as in Saint Petersburg in 1868 and in Brussels in 1874 – that had culminated in declarations or draft conventions formalizing these rules.Footnote 15 It was only in 1899 that States formally adopted the first treaties on the law of war, of which some norms prescribe binding obligations with regard to cultural heritage in particular. These were the 1899 Hague Conventions, revised in 1907. While the norms they prescribe, which vary with the different phases of an armed conflict, refer mainly to tangible property – “buildings dedicated to religion, art, science, or charitable purposes” – the intangible element is clearly also present, even if only implicitly.Footnote 16 Thus, the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land, and its annexed Regulations (1907 Hague Regulations), definitively introduced into positive international law the customary rule that the elements of cultural heritage must be preserved. Under its provisions, furthermore, the heritage in question is shown to be both tangible and intangible.
These were the instruments that governed the two major conflicts which ravaged the globe in the twentieth century,Footnote 17 but after the Second World War the law of armed conflict underwent a major development, in particular with the adoption of the four Geneva Conventions of 1949, supplemented in 1977 by the two Additional Protocols.Footnote 18 This was complemented by the 1954 Convention,Footnote 19 which gave complete protection to cultural property and was in turn followed by the 1954 and 1999 Protocols.Footnote 20 This body of law is not, however, limited to preserving only the tangible elements of the cultural heritage – that is, cultural property. Indeed, many provisions of the law of armed conflict also contribute, particularly in conjunction with the 1949 Geneva Conventions, to protecting the intangible dimension of this heritage.Footnote 21 Such protection also derives from instruments developed under different legal regimes and subsequently adopted, such as the human rights treaties,Footnote 22 and the numerous UNESCO conventions on cultural heritage.Footnote 23 Together, these provisions constitute a formal codification expressly ensuring the protection of cultural heritage, both tangible and intangible, in armed conflict. The material scope of this normative framework now covers cultural heritage in its totality and is no longer limited solely to cultural property.
Cultural heritage during the conduct of hostilities
During any armed conflict, active hostilitiesFootnote 24 cause harm to the cultural heritage of the belligerents. At first sight it is the tangible heritage that is primarily affected by the fighting, but the damage caused to museums, theatres, cathedrals and other cultural sites can also affect the intangible dimension of this cultural heritage. The effects on cultural heritage during the conflict in Mali in 2012 illustrate this. While the international community remembers the physical destruction of the Timbuktu mausoleums, this was accompanied by the simultaneous, less visible harm caused to the intangible heritage at these sites.Footnote 25 The abrupt halt during the conflict to the practices and rituals, both cultural and spiritual, that had gone on in these places demonstrates this.Footnote 26 While some performances and ceremonies that have been deprived of their usual settings can be held elsewhere temporarily, this may not be true for others. Certain rituals and celebrations, like those that were practised in the mausoleums, have to be held in specific places.
The conduct of hostilities is regulated exclusively by the law of armed conflict, the only body of law that prescribes in precise form the conduct in which belligerents are forbidden or permitted to engage under these circumstances. Therefore, it unquestionably constitutes a lex specialis in this area. The codification that this legal regime provides is built around four fundamental principles relating to the conduct of hostilities in armed conflict. These are the principles of military necessity, distinction, proportionality and precaution. The International Court of Justice (ICJ) has described them in its jurisprudence as “cardinal” principles.Footnote 27 These four principles will be discussed in turn below.
The principle of military necessity
The principle of military necessity represents a customary norm contained in the 1868 Declaration of Saint Petersburg, according to which only such military force as the belligerents need to attain their objective is lawful.Footnote 28 It is therefore a restrictive principle aimed at limiting the right of belligerents to conduct all-out war. First codified in a binding instrument of the law of armed conflict, namely the 1899 Regulations that would be revised in 1907, it was, along with the principle of humanity, one of the two principles out of which this body of law grew. However, the simultaneous inclusion in one set of regulations of both principles, those of military necessity and humanity, led to the introduction into positive law of a formal reservation to some of its prescriptions. In this way, the principle of military necessity, which began as a restrictive doctrine, then became more of a permissive exception. In a ruling issued in the wake of the Second World War, a British judge recalled in this regard that the requirement relating to the implementation of this principle involved military “necessity” and not military “advantage”.Footnote 29
In the law governing the protection of cultural heritage in armed conflict, the exception of military necessity, which puts a strain on several provisions, does indeed mitigate the prohibition against committing an act of hostility during combat, regardless of the regime protecting the object in question. Moreover, in both the 1907 Hague Regulations and the 1954 Convention, the application of this legal reserve is left largely to the discretion of the belligerents. The attacks on cultural heritage during the conflict in the Balkans in the 1990s, such as the destruction of the Old Bridge in Mostar and the partial destruction of the Old City of Dubrovnik, demonstrated once more to the international community that various provisions of the 1954 Convention needed to be revised without further delay. A second protocol to that Convention, the 1999 Protocol, was adopted shortly after the end of this conflict. It now clarifies, among other questions, the implementation of the principle of military necessity by restating, in its Article 6, the rule contained in Article 52(2) of Additional Protocol I (AP I) concerning “military objectives”.Footnote 30 From now on, the invocation of this exception with regard to cultural property must comply with clearly defined conditions,Footnote 31 and the belligerents have considerably less discretion to assess its legitimacy.
The principle of distinction
The second principle is that of distinction, whereby belligerents must at all times distinguish components of cultural heritage from other property. This principle is essential to preserving cultural heritage, as it prohibits the parties to the conflict both from committing acts of hostility against these components and from using them for military purposes. The initial prohibition against hostile acts has been clarified by incorporating the regulations in AP I into the 1999 Protocol, which confers greater protection on cultural heritage.Footnote 32 From now on, the obligation to distinguish is no longer limited solely to differentiating components of the heritage from other property; rather, for an act of hostility to be lawful, the property in question must also have been turned into a military objective.Footnote 33 The 1999 Protocol also dictates additional conditions in this regard;Footnote 34 in order to make a valid distinction, the parties to the conflict have various obligations, such as the obligation to verify, assess and take precautions, whose demands increase with the importance of the object in question.Footnote 35
Secondly, the principle of distinction also prohibits belligerents from “using” components of cultural heritage for military purposes. Indeed, in many cases, such use harms the property in question and can constitute the precondition and principal motive for the subsequent launching of an attack.Footnote 36 This prohibition, which was absent from the 1907 Hague Regulations, was introduced in Article 4(1) of the 1954 Convention and further strengthened by the 1999 Protocol. In addition to the specific conditions laid down in this instrument with regard to the possibility of such property becoming a military objective, Article 6 of the 1999 Protocol also places the belligerents under additional obligations, such as the obligation for the attacking forces to ensure that there is “no feasible alternative available to obtain a similar military advantage”.Footnote 37
The case of the Church of the Nativity in Bethlehem, Palestine, illustrates this, even though the 1999 Protocol was not formally applicable under the circumstances. Having been used in 2002 as a refuge by troops of the Palestine Liberation Organization during clashes with Israeli forces – hence for military purposes, thereby violating the principle of distinction – the church potentially became a military objective. An attack could therefore be considered by the Israeli army, if various other conditions were met. Among the specific conditions laid down in the 1999 Protocol with which the Israeli forces would have had to comply, there is one that would have proved decisive in this context, namely that in these circumstances there would have been “no feasible alternative available to obtain a similar military advantage” other than attacking the building.Footnote 38 In fact, the decision to lay siege to the church rather than attack it – an approach that the Israelis adopted because of the major international pressure aroused by the situation – undoubtedly contributed to its preservation.Footnote 39
The principle of proportionality
The third principle, that of proportionality, is a general principle of law.Footnote 40 It signifies the search for a balance between military considerations and the concern with ensuring respect for fundamental values, a search that belligerents must constantly engage in as part of the conduct of hostilities. It reflects the very essence of the law of armed conflict, the purpose of which is to reconcile military necessity with the requirements of humanity. This principle was expressly enshrined in positive law only through Article 57(2)(a)(iii) and (b) of AP I, and also, in terms of instruments protecting cultural heritage, by Article 7(c) and (d)(ii) of the 1999 Protocol.
However, the observance of this principle by belligerents poses problems of implementation. In order to determine whether a contemplated military action is or is not lawful, a party to a conflict must evaluate a ratio between two hypothetical values related to a cultural property, i.e. the “direct and concrete advantage” resulting from attacking that property, on the one hand, and the “excessive damage” that it might be expected to cause, on the other hand. While battle-hardened soldiers are generally prepared to assess the first term of this ratio, the same is not so true of the second. Indeed, assessing the probable severity of the damage that may be caused to a cultural property is indeed particularly complex, for it requires a precise knowledge of the property in question, its quality and its value. These are subjective judgements, which differ, among other relevant factors, according to the degree of training of the forces present. Moreover, information concerning the object may be unavailable or incomplete, or exceptional components of the heritage may be found there, unbeknown to those whose task it is to make the proportionality assessment. Hence, judging whether the damage would be excessive is complicated, especially as the decision to attack must frequently be taken at a moment's notice.
The case of the Temple of Ur in Iraq during the First Gulf War in 1991 illustrates the two terms of the ratio. Military officials had placed an Iraqi military aircraft next to the Temple, giving the aircraft a kind of protection against enemy attack.Footnote 41 The aircraft could unquestionably have been defined as a military objective, but the military advantage anticipated from its destruction was negligible; it was completely isolated and far from any landing strip, and its destruction did not therefore offer any “concrete and direct military advantage” to the coalition forces. As for the “excessive damage” to the temple that destroying the aircraft could be expected to cause, it too was easily assessable. Destroying the aircraft would certainly have entailed major damage to the property, which was more than 2,000 years old. That the damage could be expected to be excessive was also easily recognizable: the loss of a well-known important cultural property, identified on military staff maps as requiring protection, was clearly excessive in relation to the slight military advantage to be gained from its destruction. The special nature of this situation, and the exceptional quality of the property, facilitated the coalition forces' compliance with the principle of proportionality. However, this is not always the case; the “excessive damage” consideration is often not easily quantifiable, usually because the people who have to make such decisions lack the requisite knowledge of the enemy's cultural heritage, especially when it comes to cultural property that is less well known.Footnote 42
The principle of precaution
The fourth and final principle, that of precaution, strengthens compliance with the principle of distinction and the principle of proportionality by clarifying many aspects of their implementation. The measures it prescribes are intended to limit and minimize the damage resulting from the conduct of hostilities. As is true of the principle of distinction, the conduct dictated by the obligation to respect this fourth principle varies according to whether it applies to the attacking or the defending party. With regard to cultural heritage, once again, the legal development embodied in AP IFootnote 43 and restated in the 1999 Protocol confers considerably greater protection on the components of this heritage.Footnote 44 Such protection is expressed through a series of measures that differ according to whether the heritage is or is not in the hands of a given party. These cover the need for belligerents to pay particular attention during hostilities to their choice of means and methods of warfare and the need for certain decisions to be taken by senior officers, and also specific actions such as deadlines to be observed and warnings to be given.
Mention can be made, for example, of two cities which experienced heavy bombing in different conflicts and eras, namely Isfahan, Iran, in 1985 and Dubrovnik, Croatia, in 1991. These two cases illustrate the obligations of the attacking party and the defending party, respectively, with regard to the principle of precaution.
During the Iran–Iraq War (1980–86), the Iraqi air force carried out a missile attack on Isfahan, where large petroleum refineries were situated. This severely damaged the Jameh (Friday) Mosque, one of the oldest mosques in the Islamic world. It appears that numerous measures dictated by the principle of precaution were not complied with at the time; for instance, there was no verification of the military objective targeted and no monitoring, either of the presence of a component of cultural heritage or of whether the means and methods deployed were appropriate in view of the situation at the site.Footnote 45 This attack could therefore be described as indiscriminate and thus unlawful.Footnote 46
The attacks on the Old City of Dubrovnik during the Balkan conflict (1991–95) illustrate the obligations of the defending party. According to the Serbs, the attacks were justified by the alleged presence of a munitions depot on the outskirts of the city. Yet one of the obligations of parties holding components of cultural heritage is to move military objectives away from such property.Footnote 47 The proximity of military objectives to cultural property – formally proscribed by law – is indeed liable to dissuade the enemy forces from launching an attack against the military target. In the event of conflict, military equipment is frequently stored next to cultural objects so that the latter can serve as shields, as in the case of the Temple of Ur. In this case, during the years preceding the conflict, the competent authorities had scrupulously evacuated from the Old City of Dubrovnik any object or activity liable to be identified with a military objective.Footnote 48 The complete demilitarization that had been carried out there was aimed at preventing any attack, and no attack could therefore be justified on those grounds. The attack launched in December 1991 was thus clearly illegal, as the International Criminal Tribunal for the former Yugoslavia (ICTY) concluded in the 2005 Strugar judgment.Footnote 49
The different situations described above show that in the hostilities phase of a given conflict, the greatest risks to cultural heritage result most frequently from its use for military purposes and the battles to which this leads. They also result from choices of means and methods of warfare that are frequently unsuitable and which can often cause indiscriminate attacks against such property. Compliance by the armed forces engaged in combat with the four principles defined above is therefore an essential firewall against such harm. While the current state of technological development of armaments enables certain corrections to be made to the risks associated with the choice of means and methods of warfare, the human factor is still fundamental to the protection of cultural heritage in the event of armed conflict, as shown in particular by the principle of proportionality. Indeed, the knowledge required to assess and differentiate the components of cultural heritage, particularly in order to comply with the principles of distinction and proportionality, results from the perception of duly trained individuals when they are faced with situations of this kind.
Tangible cultural heritage fallen into enemy hands
Harm to cultural heritage when it is under the control of enemy forces occurs mainly in situations of military occupation and of non-international armed conflict. Such harm usually results from violations of the said forces' obligations to ensure the protection of both the people and the property that have fallen into their power. These obligations are based on a more diverse range of instruments than those governing the conduct of hostilities alone. The components of cultural heritage that are affected in these situations are then likely to increase in scope, and the intangible dimension of the heritage, which is sometimes given a lower priority during hostilities, proves to be particularly at risk when fallen into the enemy's power.
Indeed, a military occupation, or any other similar situation,Footnote 50 can, because it is frequently long-lasting, involve profound changes to the economic and social fabric and to the lifestyles and behaviour patterns of the societies concerned. These changes are liable to undermine the cultural identity of individuals. Moreover, internal armed conflicts may often have a religious, cultural or ethnic character which can contribute to endangering not only cultural property but also the cultural and spiritual expressions linked to it, as shown by the Malian example mentioned above. As the applicable legal instruments focus on one or another dimension of cultural heritage, the analysis of the protection they confer deals first with the tangible heritage and then with the intangible heritage. The premise that any component of cultural heritage is bidimensional nonetheless still stands, and is underscored in the discussion below. Across different armed conflicts, cultural heritage may suffer different types of harm, and three of these will be discussed here.
Harm resulting from destruction of components of cultural heritage
The first type of harm is “destruction”. It differs from the destruction resulting from combat during hostilities, in that it involves the demolition, dismantlement or abandonment – and subsequent deterioration due to lack of maintenance – of property. Examples include the demolition of the Mughrabi Quarter in East Jerusalem,Footnote 51 the Orthodox churches in ruins in the occupied part of Cyprus and, more recently, the wrecking of the Hatra archaeological vestiges in Iraq by forces of Islamic State Group. The law applicable to cultural heritage differs considerably depending on whether an international armed conflict, a military occupation or an internal conflict is involved. While the first two situations are largely regulated by the law of armed conflict, the same is not true for the third, particularly when the property concerned does not meet the definition of cultural property under the 1954 Convention. The instruments belonging to regimes other than the law of armed conflict – some of whose provisions nonetheless remain applicable in such situations – are then likely to constitute an additional source of legal protection that can sometimes prove essential.
In the event of military occupation, as in two of the examples above, the law of war expressly forbids “destruction”,Footnote 52 and the lex specialis concerning cultural property, namely Article 5 of the 1954 Convention, prescribes the occupying forces' abstention requirements, thereby maintaining the primary jurisdiction of the national authorities assigned to protect cultural heritage. In so doing, Article 5 a fortiori also proscribes all types of harm to this heritage. In an internal conflict, however, it is only cultural property – as defined by the 1954 Convention, or that which represents what Article 16 of Additional Protocol II (AP II) describes as the “cultural and spiritual heritage of peoples” – that formally enjoys protection under the law of armed conflict.
Thus, in circumstances such as the civil war that tore Guatemala apart (1960–92), the destruction of the cultural heritage of the Rabinal Mayan communities in Guatemala – i.e., the masks, costumes and musical instruments essential to their celebrations of the Rabinal AchíFootnote 53 – was not formally prohibited by the applicable provisions of the law of armed conflict.Footnote 54 These objects were not considered by the military forces into whose power they had fallen as meeting the definitions of cultural property or the cultural and spiritual heritage of peoples under Article 1 of the 1954 Convention and Article 16 of AP II respectively. To confer a form of protection on those objects, therefore, it would have been necessary to resort to other norms, such as those concerning intangible cultural heritage in the 2003 Convention (had it been applicable at the time), those of the 1989 ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169), or the cultural rights provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 55
Harm resulting from changes in the function of components of cultural heritage
The second type of harm involves a “change of function” of property or sites belonging to the cultural heritage. Examples include the Oued Hanin mosque near Ramallah,Footnote 56 which was turned into a synagogue; certain Angkor temples, which were used as warehouses under the Khmer Rouge regime;Footnote 57 and the Saint Anastasia Church in the village of Lapithos, Cyprus, which became a hotel.Footnote 58 There are no norms expressly prohibiting such actions, but such a prohibition can be inferred, implicitly or indirectly, from certain provisions of the law of armed conflict concerning situations of military occupation, such as those prohibiting the seizure or appropriation of cultural property.Footnote 59 It should be emphasized, furthermore, that this type of harm not only affects the property or sites so transformed. A change in function is also liable to destroy the intangible components of the heritage concerned, such as the knowledge and history linked to the property, which gives it meaning and value, and the events, ceremonies and rituals which take place in the property. Such components can indeed be affected or even destroyed by the changes made to an object or a site, as evidenced by the above examples of different places of worship.
Some episodes of the 2003 Iraq War offer an illustration of these types of harm to cultural heritage in its various dimensions, such as the conversion of the Babylon archaeological site into a military base in 2003, decided on by US forces and then continued by Polish forces up to 2004.Footnote 60 Such a change in function involved considerable damage, both tangible and intangible. The construction at this site of a military base with a helicopter landing pad not only led to the destruction of numerous vestiges dating back thousands of years, but also, because of massive additions of soil from elsewhere, caused intermingling of sands at the site that had not yet been studied. These sands contained countless pieces of information on past civilizations, which are now lost forever. The history that their study would have revealed was thus obliterated. The damage resulting from the change in the function of the Babylon site by the occupying forces therefore caused severe harm to the Iraqi cultural heritage in its multiple dimensions.
The law of military occupation, as regulated by the 1907 Hague Regulations, the only instrument formally applicable in this instance,Footnote 61 unconditionally forbids such action, mainly through the prohibition against “seizure” and “destruction” of such property contained in Article 56 of the Regulations. The 1954 Convention, in imposing an abstention requirement on the occupying forces,Footnote 62 would also have prevented such action. But the 1999 Protocol, had it been applicable, would specifically have proscribed this type of conversion. Whereas the protection furnished by the preceding instruments was only implied, the 1999 Protocol now marks a clear breakthrough in the application of the law of armed conflict to such situations. In fact, its Article 9 expressly forbids, in paragraph (1)(b), “any archaeological excavation” and, in paragraph (1)(c),Footnote 63 the destruction of “cultural evidence”, thereby ensuring the preservation of cultural heritage in both its tangible and intangible dimensions.
Harm related to the removal of components of cultural heritage
Cultural heritage can also be harmed by the “removal”, in various forms, of its components. This occurs frequently in armed conflict when the national authorities exercising oversight of cultural property are disorganized or even non-existent. Such circumstances encourage pillage, theft and all other forms of appropriation or diversion of property. These acts are usually followed by illicit transfers of movable cultural property from war-torn countries to third States, where it is sold, thereby fuelling a market in works of art that can be contrary to the applicable law, both international and national.
Unlike the other acts mentioned above, acts of pillage are prohibited by the law of war in all cases of armed conflict, regardless of the conflict phase in which they occur.Footnote 64 Furthermore, this prohibition applies to all property, not only to cultural property. The situation is different with regard to theft or any form of unlawful appropriation: such conduct is not proscribed by the law of armed conflict unless it involves components of cultural heritage duly recognized as such. Instruments such as the 1954 Convention and its two Protocols (1954 and 1999) regulate such actions, and the prohibition against this type of harm is laid down mainly in the event of military occupation.Footnote 65 The law of armed conflict sometimes seems patchy in this regard, mainly in internal armed conflicts, when the property in question does not have the status of cultural property or is not recognized as such by enemy belligerents.
In some cases, it may be necessary to resort to other instruments under legal regimes other than the law of war. With regard to cultural property, the 1970 UNESCO Convention and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural ObjectsFootnote 66 can sometimes fill certain gaps in the law of armed conflict, e.g. by providing additional mechanisms for the return or restitution of cultural property, especially when it is in private hands. Other gaps arise from the absence of norms applicable in non-international armed conflicts that would ensure the protection of property which does not have the status of cultural property.Footnote 67 Only norms of the law of armed conflict aimed at protecting such property, such as the provisions of the 1907 Hague Regulations governing international armed conflicts, which are applicable as customary rules, seem to be able to be invoked in the event of non-international armed conflict, based in particular on the jurisprudence of international judicial bodies, which enshrine their applicability in such situations as well.Footnote 68
One illustration of the need to resort to different instruments in connection with the removal of cultural property is the case of the Dead Sea Scrolls. These objects, discovered in the 1950s in the Qumran Caves on the West Bank, were exhibited at the Palestine Archaeological Museum in East Jerusalem until 1967. They were then withdrawn from that museum and transferred to the Shrine of the Book in Israel.Footnote 69 This act was contrary to various norms of the law of armed conflict applicable in the event of military occupation, such as Article 56(1) of the 1907 Hague Regulations, which prohibits the “seizure” of property by the occupying forces. In this instance, therefore, the withdrawal of the Scrolls was unlawful. These objects, which were indisputably cultural property, were covered by the 1954 Convention. Article 5 of the 1954 Convention imposes an abstention requirement on the occupying forces; seizure, in particular, is incompatible with this obligation. Paragraph 1 of Part I of the 1954 Protocol further requires such forces to prevent the exportation of property from occupied territories; hence, this obligation, too, was breached. Moreover, during an exhibition of the Scrolls in Canada in 2009, the Palestinian Authority and Jordan, citing paragraphs 2 and 3 of the 1954 Protocol, asked that they be sequestered and then returned. The request was not complied with. If the 1970 Convention or the 1995 UNIDROIT Convention had been applicable, the mechanisms they establish might have encouraged the return of this property.
Intangible cultural heritage fallen into enemy hands
Intangible cultural heritage includes various forms of cultural expression and events, such as dance, music and theatre, as well as beliefs, rituals and know-how, which reflect the traits of a given group and convey its cultural and spiritual identity. Individuals give life to this heritage, using instruments, tools, costumes and other objects. The protection of this property has been addressed above; this section deals only with the protection of individuals. The primary protection that the law must provide is clearly to safeguard the life and physical well-being of every person, and the law of war prescribes such protection in all circumstances of armed conflict. Nevertheless, giving life to intangible cultural heritage requires the individuals concerned to fulfil many other functions, which must also be legally protected in order to safeguard their heritage. War harms people and disrupts the pattern of their lives, and this section focuses on three types of harm that show how an armed conflict can hinder the expression and preservation of intangible cultural heritage in such circumstances.
Harm to the realization of intangible cultural heritage
Intangible cultural heritage comes to life, first and foremost, through its “realization” by interpreters or bearers. Such people may be actors, musicians or dancers; writers, painters or poets; or officiants, clergy or spiritual leaders. With regard to the latter, the law of armed conflict ensures the specific protection of “ministers of religion” and their function, regardless of the nature of the armed conflict.Footnote 70 The same cannot be said, however, for the functions of actors and creators. The protection that the law affords them breaks down into two stages: first the “knowledge” connected with the cultural expression is preserved, and then the actual “activity” is guaranteed. Yet the law of armed conflict proves deficient with regard to protecting the functions of actors and creators, and the necessary legal protection must therefore be sought in other bodies of law, such as international human rights law, in particular the ICCPR and ICESCR,Footnote 71 as well as the UNESCO cultural property conventions.Footnote 72
The fate of the performers of Sbek Thom, a Cambodian shadow theatre decimated during the civil war that took place under the Khmer Rouge regime in the 1970s, can be mentioned as an example. Given the state of the law of armed conflict applicable at the time, only common Article 3 to the four Geneva Conventions could be invoked. While it conferred protection on the lives and physical well-being of the performers, none of its provisions could really be interpreted in such a way as to extend that protection to the functions of the performers, whether they were musicians, puppeteers or storytellers, as the Sbek Thom performers were. Hence, other legal bases had to be found to protect these functions, such as international human rights law, which provides broad protection for freedom of thought and expression and cultural rights in general. And among the conventions adopted under the auspices of UNESCO that enshrine the protection of cultural heritage, the 2003 Convention would probably have been able, had it been applicable at the time, to confer protection not only on individuals but also on the knowledge they embodied and the actions they performed to give life to the component of intangible cultural heritage that was the Sbek Thom theatre.
Harm to participation in expressions of the intangible cultural heritage
The second function of intangible cultural heritage that armed conflict can also harm is the free “participation” of groups and communities in events related to this heritage. This implies, in particular, the ability to move, to get together and to have access to places where the heritage is expressed. The law of armed conflict prescribes various norms ensuring that the populations concerned have the right to maintain their daily lives and to have their “habits and customs” respected, but this applies mainly to situations of military occupation. In other contexts of armed conflict, such as internal armed conflicts, the law of armed conflict has gaps that must be filled by resorting to other applicable provisions, such as human rights norms.Footnote 73
The difficulties that Palestinians face in gaining access to some of their spiritual ceremonies held in the Old City of Jerusalem, such as those that take place during Holy Week, are a clear illustration of the constraints that occupying forces can place on the participation of the populations concerned in expressions of their cultural heritage. The law of armed conflict applicable in the event of military occupation or similar situations specifically prescribes these forces' obligation to respect people's freedom to practise both their religionFootnote 74 and their customs, which includes the celebration of feasts or rituals belonging to their own cultural and spiritual heritage.Footnote 75 Many norms protecting human rights that are in any event applicable as lex generalis guarantee the same rights with regard to participation in such celebrations. It should be recalled in this regard that the ICJ confirmed the applicability of such norms in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, as well as the impossibility of any abrogation or limitation of these provisions in the case in question.Footnote 76
Harm to the transmission of intangible cultural heritage
A third type of harm liable to seriously affect intangible cultural heritage is the obstruction of its “transmission” to future generations. While the Angkor Wat temples have managed, despite the vicissitudes of history, to remain standing through the centuries, the same is not true, for example, of the Sbek Thom theatre, which because of its intangible character could survive only by being handed down from one generation to the next. It is in fact a living heritage, staged by some individuals so that others can absorb its content, become its repositories and hand it down in turn. Yet, in situations of armed conflict, the transmission of intangible cultural heritage, which necessarily involves encounters between qualified individuals and the populations concerned, as well as conditions conducive to the ability to teach, exhibit and produce, is frequently hindered. This is seen in family, educational, professional and other environments, for war usually sows chaos in everyone's life. The law of armed conflict has no specific answers for countering this type of harm; they must be sought mainly in its norms ensuring respect for family rights and people's daily lives, customs and beliefs, or for their means and ways of producing their art and craftwork.
The provisions of the law of armed conflict that are the most specific in this regard belong to the law of military occupation. The Sufi masters' transmission of religious practices to their pupils during the Soviet occupation of Afghanistan in the 1980s benefited from the protection afforded by various norms of this body of law that were applicable in this instance. The situation would have been different in other circumstances of armed conflict, such as internal armed conflicts, where it must be acknowledged that there are certain gaps in the legal instruments belonging to the law of armed conflict that might otherwise ensure the effective transmission of intangible cultural heritage. The gradual disappearance of the ceremonies conducted by shamans among the indigenous communities on Mindanao Island in the Philippines can serve as one example of this. Having been denied access to the forest because of the armed conflict, the shamans could no longer go there to search for the plants they needed for their rituals. The transmission of this knowledge to succeeding generations was deeply impaired as a result. Only the application of other provisions under different legal regimes could have safeguarded these components of Mindanao's intangible cultural heritage. Such provisions include, in addition to certain human rights norms applicable in these circumstances, those whose aim is to preserve intangible cultural heritage, such as the provisions of the 2003 Convention, as well as some norms of the 1989 ILO Convention No. 169 and possibly of the instruments whose elaboration is currently in progress at WIPO and which are designed to protect traditional cultural expressions, traditional knowledge and genetic resources.Footnote 77
Conclusion
Recent armed conflicts – like the one in Mali, in which the attack on the Timbuktu mausoleums cannot be separated from the impediment to the ceremonies that were held there – illustrate in particular the multidimensional character of any component of cultural heritage, although the predominance of the tangible or intangible dimension varies from one case to the next. The protection that the applicable law in such situations must provide to cultural heritage cannot, therefore, be limited to one or another of its components. The law of armed conflict only partially meets this requirement through the system of the 1954 Convention and its two Protocols, which aim mainly to ensure the preservation of cultural property; the protection of intangible cultural heritage that these instruments prescribe is at best implicit or indirect. The law of armed conflict, the lex specialis in these circumstances, is not, however, deficient in this regard. Various norms of the 1949 Geneva Conventions and their Additional Protocols confer protection on individuals as regards both their physical well-being and their human dignity, and in particular, their cultural and spiritual identity; in so doing, they too help ensure the preservation of the “living” cultural heritage of the populations concerned, which is constituted by their intangible cultural heritage.
Having said that, these norms are not always precise enough to afford the best protection to the intangible cultural heritage at risk. Indeed, the protection that they offer is sometimes only inferred, and it also often derives from a broad interpretation of the provisions in question, one based mainly on their aim, which is to ensure respect for human dignity. Furthermore, while several of these provisions can be invoked in the event of military occupation, the same is not true of internal armed conflicts, in which frequently only common Article 3 and the relevant provisions of the law of armed conflict (viewed as customary norms) are applicable. Resorting to the protection that other legal regimes, such as international human rights law and the UNESCO cultural conventions – various norms of which are lex generalis – might offer in these circumstances, and invoking the applicability of these norms, seems therefore to be both possible and necessary.Footnote 78 Indeed, their application, complementing that of the law of armed conflict, would ensure the effective protection of cultural heritage, both tangible and intangible, in any armed conflict situation.
Such an approach is, moreover, currently being discussed at UNESCO, in the Committee for the Protection of Cultural Property in the Event of Armed Conflict, where various States have supported the implementation of synergies between the 1954 Convention and other UNESCO instruments, particularly the 2003 Convention,Footnote 79 that aim to ensure the protection of cultural heritage.Footnote 80 This consensus, which can also be found in other bodies such as the Committee for the Safeguarding of Intangible Cultural Heritage,Footnote 81 reflects the international community's recognition of the existence of a law protecting cultural heritage, both tangible and intangible. Nevertheless, the accession by a large number of States to these legal instruments does not negate the challenge of applying them, and the current destruction of the Syrian and Iraqi cultural heritage is an issue to which there has been no response up to now.
