The Protection of Cultural Heritage During Armed Conflict

The Changing Paradigms

Noelle Higgins

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9781032236148
• eBook ISBN: 9781000059311
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

This book analyses the current legal framework seeking to protect cultural heritage during armed conflict and discusses proposed and emerging paradigms for its better protection. Cultural heritage has always been a victim of conflict, with monuments and artefacts frequently destroyed as collateral damage in wars throughout history. In addition, works of art have been viewed as booty by victors and stolen in the aftermath of conflict. However, deliberate destruction of cultural sites and items has also occurred, and the Intentional destruction of cultural heritage has been a hallmark of recent conflicts in the Middle East and North Africa, where we have witnessed unprecedented, systematic attacks on culture as a weapon of war. In Iraq, Syria, Libya, Yemen, and Mali, extremist groups such as ISIS and Ansar Dine have committed numerous acts of iconoclasm, deliberately destroying heritage sites, and looting valuable artefacts symbolic of minority cultures. This study explores how the international law framework can be fully utilised in order to tackle the destruction of cultural heritage, and analyses various paradigms which have recently been suggested for its better protection, including the Responsibility to Protect paradigm and the peace and security paradigm.

This volume will be an essential resource for scholars and practitioners in the areas of public international law, especially international humanitarian law and cultural heritage law.

1 Traditional paradigms on the protection of cultural heritage during armed conflict

Introduction

The deliberate destruction of cultural heritage has been a continuing, and frequently occurring, phenomenon throughout history,¹ and has been well documented.² An early recorded example of such destruction is the demolition of the Temple of Serapis in Alexandria, Egypt, in 391 ad, on the orders of Roman Emperor Theodosius, with the aim of destroying the last sanctuary of non-Christians.³ More recent examples include the razing of synagogues and other Jewish cultural sites in the Old City of Jerusalem after its subjugation by the Arab Legion in 1948;⁴ the demolition of mosques and other religious or historic buildings during the Balkan Wars in the 1990s;⁵the attacks on the two ancient Bamiyan Buddha statues in Afghanistan by the Taliban in 2001, which was part of a wider plan to eradicate all elements of non-Muslim cultures in the area;⁶ and the recent destruction of multiple cultural sites in Timbuktu, Mali, by the extremist group Ansar Dine in June–July 2012.⁷ As highlighted by Lenzerini,

1 Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14(4) European Journal of International Law 619, 619.

2 See Jiri Toman, The Protection of Cultural Property in the Event of Armed Conflict (Dartmouth Publishing Company 1996); Roger O’Keefe, The Protection of Cultural Property during Armed Conflict (Cambridge University Press 2006); Ana Filipa Vrdoljak, ‘The Criminalisation of the Intentional Destruction of Cultural Heritage’ in Tiffany Bergin and Emanuela Orlando (eds), Forging a Socio-Legal Approach to Environmental Harms. Global Perspectives (Routledge 2017), 237.

3 Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14(4) European Journal of International Law 619, 620.

4 Federico Lenzerini, ‘Terrorism, Conflicts and the Responsibility to Protect Cultural Heritage’ (2016) 51(2) The International Spectator 70, 71.

5 See Helen Walasek et al., Bosnia and the Destruction of Cultural Heritage (Routledge 2016). See also Hirad Abtathi, ‘The Protection of Cultural Property in Times of Armed Conflict: The Practice of the International Criminal Tribunal for the Former Yugoslavia’ (2001) 14 Harvard Human Rights Journal 1; Theodor Meron, ‘The Protection of Cultural Property in the Event of Armed Conflict within the Case-law of the International Criminal Tribunal for the Former Yugoslavia’ (2005) 57(4) Museum International 41; Marc Balcells, ‘Left Behind? Cultural Destruction, the Role of the International Criminal Tribunal for the Former Yugoslavia in Deterring it and Cultural Heritage Prevention Policies in the Aftermath of the Balkan Wars’ (2015) 21(1) European Journal on Criminal Policy and Research 1.

6 Francesco Francioni and Federico Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14(4) European Journal of International Law 619, 619; Bren Whitney Bren, ‘Terrorists and Antiquities: Lessons from the Destruction of the Bamiyan Buddhas, Current ISIS Aggression, and a Proposed Framework for Cultural Property Crimes’ (2016) 34(1) Cardozo Arts & Entertainment Law Journal 215.

7 See Mohamed Elewa Badar and Noelle Higgins, ‘Discussion Interrupted: The Destruction and Protection of Cultural Property under International Law and Islamic Law – the Case of Prosecutor v. Al Mahdi’ (2017) 17(3) International Criminal Law Review 486; Mohamed Elewa Badar and Noelle Higgins, ‘The Destruction of Cultural Property in Timbuktu: Challenging the ICC War Crime Paradigm’ (2017) 74(3/4) Europa Ethnica 99.

[i]n all these cases, the perpetrators’ actions were driven by a persecutory intent. In some of the examples, the targeted community was all of humanity not belonging to the perpetrators’ groups, as their iconoclasm was based on the fantastic delirium that truth lies only in what is representative of one’s own culture, while manifestations of different cultures are to be obliterated forever.⁸

8 Federico Lenzerini, ‘Terrorism, Conflicts and the Responsibility to Protect Cultural Heritage’ (2016) 51(2) The International Spectator 70, 72.

Attacks on cultural heritage were first prohibited in the period between the close of the 19th century and the start of the 20th century. However, ‘the protection devoted to such property at that time remained at an embryonic level.’⁹ It is interesting to note that the concept of ‘culture’ was not a part of the legal vernacular at this time, with the first legal instruments prohibiting attacks on cultural heritage not even using the term culture. Rather, the Hague Conventions on the Laws and Customs of War of 1899 and 1907 state that ‘[i]n sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity […] provided they are not used at the same time for military purposes.’¹⁰ Lenzerini comments that at this point in time, ‘the rationale of the protection of the property concerned was merely a corollary of state sovereignty, while no value was attributed to it as a heritage belonging to humanity as a whole.’¹¹ Over time, however, the rationale for the protection of cultural heritage has changed as its role as identity marker, and its value to the local, and indeed, global, community has become recognised. This change in rationale is reflected in the wording of the legal instruments adopted with the aim of its protection.

9 Ibid.

10 Article 27 of Hague Convention II with Respect to the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, 1899; Article 27 of the Regulations annexed to Hague Convention IV with Respect to the Laws and Customs of War on Land, 1907; and Article 5 of Hague Convention IX concerning Bombardment by Naval Forces in Time of War, 1907.

11 Federico Lenzerini, ‘Terrorism, Conflicts and the Responsibility to Protect Cultural Heritage’ (2016) 51(2) The International Spectator 70, 73.

This chapter analyses the traditional paradigms on the protection of cultural heritage during armed conflict and their development over time. The first section sets out the legal framework concerning the prohibition of attacks on cultural heritage, highlighting the rationales for such protection. The second section focuses on individual criminal responsibility for crimes against culture and analyses the international jurisprudence on this issue prior to the adoption of the Rome Statute of the International Criminal Court (ICC). The third section then discusses the approach the ICC takes to attacks on cultural heritage.

The legal framework protecting cultural heritage

History books abound with examples of the condemnation of the destruction of cultural heritage during times of armed conflict. For example, in the 2nd century bc, Polybius, a Greek historian, criticised the plundering of art by the Romans after their defeat of Syracuse in 212 bc.¹² Later, in 146 bc, Cicero reports that after the siege and capture of Carthage, Scipio Aemilianus, commander of the final siege, arranged to have various works of art that Carthage had stolen from the Greek cities of Sicily returned to their owners, rather than keeping them for himself.¹³ Later, international legal scholars addressed the issue of the destruction of cultural heritage. For example, in 1625 Grotius discussed the question of whether pillaging during armed conflict could be justified, and referred back to the opinions of Polybius and Cicero.¹⁴ He stated that ‘[t]here are some things of such a nature, as to contribute, no way, to the support and prolongation of war: things which reason itself requires to be spared even during the heat and continuance of war.’¹⁵ De Vattel, in 1758, called for a prohibition of the plundering of works of art and architecture in his work The Law of Nations, stating:

12 Polybius, trans by Robin Waterfield, Book IX : The Histories (Oxford University Press 2010). See also US Committee of the Blue Shield, ‘History of Protection of Cultural Property: Ancient Authors’ https://uscbs.org/antiquity.html accessed 10 November 2019.

13 See US Committee of the Blue Shield, ‘History of Protection of Cultural Property: Ancient Authors’ https://uscbs.org/antiquity.html accessed 10 November 2019. See also M Tullius Cicero, trans by CD Yonge, The Orations of Marcus Tullius Cicero (George Bel & Sons 1903).

14 Hugo Grotius, trans by AC Campbell, The Rights of War and Peace, including the Law of Nature and of Nations (M Walter Dunne 1901), Book III, Chapter XII.

15 Ibid., Chapter XII.V.

For whatever reason a belligerent plunders a country, he should spare buildings that are the pride of mankind and do not strengthen the enemy. Temples, tombstones, public buildings, and all other works of art distinguished for th...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• 1 Traditional paradigms on the protection of cultural heritage during armed conflict
• 2 Potential paradigms: Cultural cleansing, the Responsibility to Protect doctrine and cultural genocide
• 3 The securitisation of cultural heritage
• Conclusion
• Bibliography
• Index