Abstract
The destruction of cultural goods is a form of violence used as a war strategy that often aims to erase the identity and history of a people. In the current scenario, where places and objects of great importance to humanity become mere instruments of war, cultural protection goods should awaken enormous interest in the international community. This article, through the review of the literature and case studies, aims to define what can be considered cultural heritage and its importance. It also analyzes the cultural genocide and illicit trade of cultural goods, both activities closely linked to war contexts. Finally, enunciate the current legal framework and emphasize the problems that international law faces when dealing with this matter, the main one being the lack of enforcement.
A cura di
Francisco Durán - Senior Researcher Mondo Internazionale G.E.O. Cultura & Società
Giulia Consonni - Junior Researcher Mondo Internazionale G.E.O. Cultura & Società
Giulia Pavan - Junior Researcher Mondo Internazionale G.E.O. Cultura & Società
Matteo Restivo - Senior Researcher Mondo Internazionale G.E.O. Cultura & Società
The importance of cultural heritage at national and international level
In the collective imagination, the concept of cultural heritage is associated with all those tangible and intangible assets pertaining to a society or a nation, inherited by ancestors of the past generations. Thus, heritage is perceived as the cultural legacy received from the past, which owns an exceptional value and for this reason must be preserved and protected by institutions and governments. Indeed, UNESCO, the general authority responsible for cultural heritage protection under international law, established a number of specific places on Earth as universally valuable and belonging to humanity’s common heritage. Examples are the Pyramids of Egypt, the Great Barrier Reef in Australia, the Galapagos Islands in Ecuador, the Great Himalayan National Park in India, the Yosemite National Park in the United States, and many more. The importance of this whole “cultural capital” lies in revalorization of ancient cultures and identities, with the further purpose of promoting the enjoyment of cultural diversity through tourism. Cultural heritage is also an important vehicle for the transmission of expertise, knowledge and innovation. Plus, it can also shape social and territorial cohesion among nationals, fostering the collective sense of belonging through reminders of a common historical legacy (Alonso et al, 2014).
However, the core concept of cultural heritage is still well debated among scholars and experts, despite the wide variety of international legislative tools and instruments that have been developed over the years. The reason lies in the fact that culture is essentially the way we live and behave, and as such it is extremely dynamic and changeable over time. The same is true for the definitions of cultural heritage and cultural property which are constantly evolving, partly because their global importance is always increasing together with their scope and areas of action (Mullen, 2020). The protection of cultural artifacts has been firstly addressed in international law in 1907 with the Hague Regulations, concerning the Law and Customs of Wax on Land protecting "historic monuments" from sieges and bombardments. Later, in 1954, the Convention for the Protection of Cultural Property in the Event of Armed Conflict of UNESCO (henceforth the "Hague Convention") was developed in response to the huge destruction of art works and monuments during the Second World War. The Convention represented the emerging need of the international world to protect and prevent cultural deterioration, also as a means of preventing future conflicts. Further UNESCO recommendations have been developed during the 1970s, with the purpose of safeguarding landscapes and sites that represent national cultural properties (Blake, 2008).
The relationship between “cultural property” and “cultural heritage” is still unclear in the legislative realm. In fact, the former is often considered a pure legal concept that identifies a movable property in need of protection because of its market value, but this definition is limited to tangible cultural elements and does not include natural landscapes, knowledge and ideas. However, the 1968 UNESCO Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, suggested that cultural property has a meaning extending beyond material objects themselves. Despite this, the term “cultural heritage” acquired more relevance in the realm of international law, since it is capable of encompassing a broader range of elements, including the intangible ones (Blake, 2008). The cultural heritage is essentially identified in all those elements that – according to the choice of State authorities and intergovernmental organizations – are valuable and worthy of protection. As such, the related national and international legislation represents a formal political decision, connected to the idea of inheritance. In fact, cultural heritage is considered to be a valuable resource that must be protected and preserved for future generations and societies (Blake, 2008).
Among the World Heritage List drafted by UNESCO, there are different types of historical and cultural sites, natural sites and landscapes, as well as intangible elements. A number of definitions have been included in the UNESCO Culture for Development Indicators (CDIS): cultural heritage refers mainly to monuments such as architectural works, sculptures and paintings; natural heritage refers to natural formations and sites; intangible cultural heritage refers to social practices, artistic representations and knowledge that pertains to the history of a community; cultural property defines all those elements (independently on their origin and nature) recognized by national authorities as important for historical, artistic, scientific, archeological reasons (Alonso et al, 2014). The criteria used by specialists for the identification of valuable heritages can be officially prescribed or adaptable to the context, but all of them are based upon a set of common values: authenticity, ancientness, rarity, beauty and signification (Heinich, 2011).
There exist two main ways of thinking of cultural heritage, cultural nationalism and cultural internationalism. The former refers to one nation’s cultural heritage which is under the jurisdiction and control of that single nation. This view implies that the decision whether to protect a site is exclusively up to the state wherein it is located, posing the risk for certain minorities or discriminated groups of not being considered in the designation process. On the other hand, the concept of cultural internationalism is less exclusivist, since it implies that all the existing cultural heritage – regardless of its location – is part of a universal human culture that is significant for the whole international community. According to this assumption, the protection of cultural heritage is not under a single national jurisdiction, but is a responsibility of the whole international community and it is enacted through the creation of international legislative tools and institutions (Mullen, 2020).
Why destroy cultural heritage during conflicts?
When thinking about the destruction of cultural heritage, attention could go further than the military aim. The goal could be to suppress a group based on their origin, ethnicity or religion.
Raphael Lemkin used on 1944 the word genocide for the first time in history. He also studied the phenomenon of the destruction of cultural heritage. Thus, the concept of cultural genocide was born not as another type of genocide; but directed to the non-physical destruction of a group (Flores, 2021). Even if the crime of genocide was considered relevant to writing an international treaty on the matter, whether or not to include cultural genocide as a modality; was intensely discussed. The crime of genocide was considered within the statute of the International Criminal Court, but any reference to cultural genocide was deliberately omitted in the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the United Nations General Assembly. The colonial past of some countries, mostly the USA, UK and France, was one of the main reasons for them to oppose the inclusion of this modality. The inclusion or not of the colonial clause was discussed, but the final decision was to exclude it from the final text (Cooper, 2008)
In recent history, cultural genocides have been committed. For instance, the IS scope was that Iraq's cultural memory had to be suppressed. Therefore, the destruction of buildings where communities interact with each other was the main target. It also targeted individual buildings and the cultural landscapes of certain communities of which IS did not approve. Heritage sites of both Assyrian Christians and Yezidi communities were destroyed in an attempt to wipe out any trace of their physical and cultural existence (Vlasic and Turku, 2016)
Theft, looting and illicit trade as other threats to cultural heritage in times of war
Another of the consequences when dealing with a war context is the illicit trade of cultural goods. The situation existed since colonial time when goods were illicitly moved from America and Africa to Europe, but it acquired international relevance after the Second World War when the phenomenon intensified.
In 1970 the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was adopted; and approved by the United Nations Educational Organization, Science and Culture. But not only, the matter has also been the core of the Convention on Stolen or Illegally Exported Cultural Objects, approved in Rome in 1995, by the International Institute for the Unification of Private Law, and The Hague Convention in 1954.
The modality of this crime supposes the existence of illicit markets where the goods move from one place to another, even through the Internet. Frequently, it requires the support of a collective organization to act on each of the stages that are part of the illicit traffic of cultural goods. As with many illicit markets, the targets are often developing countries, while the market goes in the direction of developed countries.
The trafficking of cultural property has had multiple objectives, one of them being the financing of terrorism. Thus, IS has deployed its forces in two directions. First, with the massive destruction of archaeological sites in Syria and Iraq and second, as a seller in the clandestine market of cultural goods. For instance, the destruction of the Nabi Yunus shrine in July 2014 in Mosul; allowed excavations on the hill below. Remains of the Assyrian palace of Esarhaddon, sovereign from the VII century BC, were found to be later trafficked without being cataloged. Illicit excavations, smuggling and destruction of cultural heritage are often simultaneous activities. (Vlasic and Turku, 2016)
United Nations Security Council addressed the problem in resolution 2199 of 2015 which indicates the following: Notes with concern that Isil, Anf and other individuals, groups, undertakings and entities as- sociated with Al-Qaeda, are generating income from engaging directly or indirectly in the looting and smuggling of cultural heritage items from archaeo- logical sites, museums, libraries, archives, and other sites in Iraq and Syria, which is being used to support their recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks; then in paragraph 17 they declare that; (…)all Member States shall take appropriate steps to prevent the trade in Iraqi and Syrian cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from Iraq since 6 August 1990 and from Syria since 15 March 2011 (…)
Protection of cultural heritage from an international law perspective: current instruments and shortcomings
Considering the importance of cultural heritage both at the national and international level as well as the frequency of targeted attacks on cultural heritage during conflicts, it is not a surprise that various international conventions have been drafted with the aim of safeguarding cultural heritage and posing a limit to its destruction. Even though the primary objective of international humanitarian law is to protect wounded and sick people in war, and persons who do not (or no longer) take part in the hostilities, it also addresses cultural heritage. For example, article 16 of the Additional Protocol II to the 1949 Geneva Conventions determines that ‘it is prohibited to commit any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and to use them in support of the military effort.’
Following the horrors of the Second World War, which also entailed extensive destruction and looting of cultural goods, the idea of preserving cultural heritage in times of conflict emerged (Moustafa, 2016). The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is an international document entirely devoted to the subject, grounded on the belief that ‘damage to cultural property […] means damage to the cultural heritage of all mankind’. Almost 20 years later, the UNESCO World Heritage Convention highlights that the deterioration of items of cultural heritage represents ‘a harmful impoverishment of the heritage of all the nations of the world’.
Yet, as the most recent armed conflicts testify, historic and cultural monuments and buildings of worship have continuously been destroyed without apparent sanctioning consequences. Three main factors make the effectiveness of international rules regarding the protection of cultural heritage problematic.
First, the imperative of military necessity is vaguely defined. This concept can justify the destruction or use of the cultural property for military purposes if these are unavoidable while conducting military action. Moreover, there is no clear instruction regarding when the principle applies (Van der Auwera, 2013). According to some scholars, the use of the cultural property for military objectives is acceptable from an international law perspective when ‘such use is the only feasible means available for the commander to achieve a valid military objective’ (Corn, 2005). As a consequence, the total or partial destruction of cultural heritage is justified if it is the only way through which a valid military objective can be achieved.
Second, international conventions are legal documents created with the notion of nation-states as primary actors in the international arena. While states surely continue to be key subjects, non-state actors have gained impressive relevance at the international level. Not only terrorist groups but also private military companies (PMCs), like the Wagner Group, increasingly play a paramount role in conflicts and there is no reference to them in international humanitarian law treaties (Doswald-Beck, 2007). Additionally, international conventions, such as the 1954 Hague Convention, pose obligations to state parties, calling them to implement international rules regarding the protection of cultural property within their domestic jurisdiction. The applicability of those norms to non-state actors remains therefore problematic (Van der Auwera, 2013).
Lastly, the issue of enforcement is a shared problem for international law in general. Unlike other fields of international law, international cultural heritage law lacks an ad hoc mechanism of norms enforcement and dispute settlement, meaning that no general court focused on the subject exists (Francioni, 2013). This absence constitutes a problem that can be solved by interaction with other legal orders (Lenzerini, 2013). For example, the International Criminal Court (ICC), which prosecutes individuals for the crimes of genocide, crimes against humanity, war crimes and the crime of aggression, convicted for the first time someone for a cultural crime in 2016. Ahmad Al Faqi Al Mahdi, a member of a movement associated with Al Qaeda in the Islamic Maghreb, was indeed found guilty as a co-perpetrator of the war crime consisting of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali (ICC, 2016). Being this the first case where the destruction of religious and historical sites has been made a priority charge as a war crime, it has a symbolic and precedential value. More recent ICC cases bode well for greater enforcement of rules concerning the protection of cultural heritage during conflicts.
Conclusion
The previous paragraphs have emphasized different but equally important issues regarding cultural heritage and the urgency for an internationally recognized strategy for its protection. In particular, there appears to be a need for a strong safeguard against war crimes.
There are a number of specific places on Earth as universally valuable and belonging to humanity’s common heritage. Valuable heritages are usually based upon a set of common values, as previously reported, but they are also very often connected to spaces of sacredness, of religion. In most cases, the goal of cultural heritages’ destruction is the suppression of a definite group of people based on their origin, ethnicity or religion.
In that manner, the reliance upon the international human right to freedom of religion or belief, can better serve the needs of groups desiring to protect and utilize their sacred space. The human right to freedom of religion or belief opens up avenues for group assertions regarding sacred space protection, especially in light of broader understandings of the right. That should be taken into account, especially in the light of problematic international standard rules effectiveness.
Moreover, according to the fact that a damage against cultural property, belonging to any people, means damage to the cultural heritage of all mankind, then the international and humanitarian laws should embrace the infinite variety of cultural expressions and protect art significantly stronger, because it is conceived as a medium essentially devoted to giving form to the plurality and diversity of tastes, beliefs, and inclinations of the different societies in which it is produced.
Contenuto dell’Informazione | ||
1 | Confermata | Confermato da altre fonti indipendenti; logico in sé; coerente con altre informazioni sull’argomento |
2 | Presumibilmente Vera | Non confermato; logico in sé; consistente con altre informazioni sull’argomento. |
3 | Forse Vera | Non confermato; ragionevolmente logico in sé; concorda con alcune altre informazioni sull’argomento |
4 | Incerta | Non confermato; possibile ma non logico in sé; non ci sono altre informazioni sull’argomento |
5 | Improbabile | Non confermato; non logico in sé; contraddetto da altre informazioni sul soggetto. |
6 | Non giudicabile | Non esiste alcuna base per valutare la validità dell’informazione. |
Affidabilità della fonte | ||
A | Affidabile | Nessun dubbio di autenticità, affidabilità o competenza; ha una storia di completa affidabilità. |
B | Normalmente Affidabile | Piccoli dubbi di autenticità, affidabilità, o competenza, tuttavia ha una storia di informazioni valide nella maggior parte dei casi. |
C | Abbastanza Affidabile | Dubbio di autenticità, affidabilità o competenza; tuttavia, in passato ha fornito informazioni valide. |
D | Normalmente non Affidabile | Dubbio significativo sull'autenticità, affidabilità o competenza, tuttavia in passato ha fornito informazioni valide. |
E | Inaffidabile | Mancanza di autenticità, affidabilità e competenza; storia di informazioni non valide. |
F | Non giudicabile | Non esiste alcuna base per valutare l’affidabilità della fonte. |
Fonti:
Corn G S (2005). Snipers in the Minaret – What is the Rule? The Law of War and the Protection of Cultural Property: A Complex Equation. Army Lawyer. (1-A)
Doswald-Beck L (2007). Private Military Companies Under International Humanitarian Law, in From Mercenaries to Market: The Rise and Regulation of Private Military Companies. Oxford University Press. (1-A)
Francioni F (2013). Plurality and Interaction of Legal Orders in the Enforcement of Cultural Heritage Law, in Enforcing International Cultural Heritage Law. Oxford University Press. (1-A)
Hussein Mustafa L (2016). Cultural Heritage and Preservation: Lessons from World War II and the Contemporary Conflict in the Middle East. The American Archivist (79(2)). (1-A)
ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi. ICC-01/12-01/15. Case information sheet. [ONLINE]. Disponibile da:https://www.icc-cpi.int/sites/default/files/CaseInformationSheets/Al-MahdiEng.pdf (1-A)
ICRC (1977). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II). (1-A)
Lenzerini F (2013). The Role of International and Mixed Criminal Courts in the Enforcement of International Norms Concerning the Protection of Cultural Heritage, in Enforcing International Cultural Heritage Law. Oxford University Press.(1-A)
UNESCO (1954) Convention for the Protection of Cultural Property in the Event of Armed Conflict.(1-A)
UNESCO (1972). Convention Concerning the Protection of the World Cultural and Natural Heritage.(1-A)
Van der Auwera S (2013). International Law and the Protection of Cultural Property in the Event of Armed Conflict: Actual Problems and Challenges. The Journal of Arts Management, Law, and Society (43). (1-A)
Blake J. (2008). On Defining the Cultural Heritage, in International & Comparative Law Quarterly, Volume 49, Issue 1, pp. 61 – 85. Cambridge University Press. (1-A)
Nilson T. and Thorell K. (2018). Cultural Heritage Preservation: The Past, the Present and the Future, in Forskning i Halmstad nr 24. Halmstad University Press. (2-A)
Heinich N. (2011). The Making of Cultural Heritage, in Nordic Journal of Aesthetics 22(40-41). French National Centre for Scientific Research. (2-A)
Mullen A. (2020). International Cultural Heritage Law: The Link Between Cultural Nationalism, Internationalism, and the Concept of Cultural Genocide, in Cornell Law review, Vol. 105, Issue 5. Cornell Law School. (1-A)
Alonso G. and Medici M. (2014). Heritage Dimension, in UNESCO Culture For Development Indicators Methodology Manual. UNESCO. (1-A)
Vlasic and Turku (2016), Protecting Cultural Heritage as a Means for International Peace, Security and Stability: The Case of ISIS, Syria and Iraq, in Vanderbilt Journal of Transnational Law. (2-A)
Flores M. (2021). Il Genocidio, Il Mulino (1-A)
Cooper J. (2008), Raphael Lemkin and the struggle for the Genocide Convention, Palgrave Macmillan (2-A)
Bachman J. (2019), Cultural Genocide: Law, Politics, and Global Manifestations, Routledge (1-A)
United Nations Security Council. (2015). Resolution N.2199 (1-A)