Attacks on Cultural Heritage in Armed Conflict

Publication Date: 
Monday, August 3, 2015

Threats to the ancient city of Palmyra, a UNESCO World Heritage Site, recently captured the headlines as ISIS forces took control of the central Syrian site. Fears of destruction are well-founded, considering ISIS’s record of targeting religious and cultural sites for destruction in Syria, Iraq, and Libya, including shrines, mosques, churches, and cultural sites, such as the ancient cities of Nimrud, Khorsabad, and Hatra in Iraq, as well as ancient artifacts in the Mosul museum and library. While the frequency and zeal by which ISIS is waging war on religious and cultural heritage stand out, the targeting of cultural heritage sites is not new; armies and armed groups have long employed it as a tactic of war, occupation, and persecution: Islamist rebels destroyed ancient tombs, shrines, and manuscripts in Timbuktu, Mali in 2012; the Taliban demolished ancient Buddha statues in Bamiyan, Afghanistan in 2001; Croat forces destroyed  the Mostar bridge in Bosnia in 1993; Serb forces destroyed the ‘Vijecnica’ National Library in Sarajevo in 1992 and bombarded the Old Town of Dubrovnik in 1991; the Khmer Rouge destroyed Cambodia’s Buddhist heritage; and the Nazis expropriated and destroyed Jewish-held art in Europe during World War II. Armies and armed groups may be motivated to target cultural property for its symbolic value, to spread terror or discourage resistance, or to destroy the identity and culture of an ethnic or religious group as a means of persecution or ethnic cleansing. How, then, does international law seek to protect cultural heritage from destruction and to prosecute those who target it?

International law protects cultural heritage during armed conflict in two ways. First, cultural property is protected from attack under international humanitarian law (IHL) by virtue of being a civilian object. All provisions of IHL apply, including the obligation of belligerents to distinguish at all times between civilian objects and military objectives and to refrain from directing attacks against the former. This civilian protection includes historical, cultural, and religious sites, so long as they are not being used for military purposes, at which point they may lose their civilian status and become targetable. The Rome Statute of the International Criminal Court, in force since 2002, classifies as a war crime — thus entailing individual criminal responsibility — intentionally directing attacks against civilian objects when committed as part of a large-scale plan or policy in the context of international armed conflict [Art. 8(2)(b)(ii)] or non-international armed conflict [Art. 8(2)(e)(ii)].

Second, cultural heritage sites also benefit from specific protection under international law, as enshrined the 1954 Hague Convention for the protection of cultural property during armed conflict and its Protocols of 1954 and 1999, the 1977 Additional Protocols I and II to the Geneva Conventions, and customary international law. The 1954 Hague Convention defines cultural property as movable or immobile goods, such as religious or secular monuments, archaeological sites and objects; manuscripts and works of art that are “of great importance to the cultural heritage of every people;” or sites such as museums, libraries, and archives whose purpose is to preserve and exhibit such property. The Convention protects cultural property from military use or harm – except in cases of “military necessity” – establishes a distinctive emblem (Blue Shield) to mark protected cultural property, and obliges Member States to undertake measures at the national level to safeguard such property. Article 53 of Additional Protocol I to the Geneva Conventions (1977), applicable in international armed conflicts, reiterates the protection of cultural objects and places of worship: 

“Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited:

(a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples;

(b) to use such objects in support of the military effort;

(c) to make such objects the object of reprisals.”

Article 16 of Additional Protocol II, applicable in non-international armed conflicts, includes a similar prohibition:

“Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, 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.”

Both provisions are generally considered to constitute customary international law, binding upon all belligerents whether or not they are parties to the Conventions or Protocols. A 1999 Protocol to the 1954 Hague Convention, applicable to both international and non-international armed conflicts, extends enhanced protection to specific types of cultural property, clarifies the “military necessity” exception in the 1954 Convention, and enumerates acts which are considered serious violations of the Protocol, entailing individual criminal responsibility. However, only 68 states are currently parties to the Protocol (plus 11 signatories). Finally, the Rome Statute classifies as a war crime “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, […] provided they are not military objectives”[Art. 8(2)(b)(ix)], when undertaken as part of a large-scale plan or policy in the context of international armed conflict or non-international armed conflict [Art. 8(2)(e)(iv)].

The obligations placed by IHL on belligerents to respect and protect cultural property reflect the recognition of such property as invaluable to humanity as a whole. In the words of the preamble to 1954 Hague Convention: “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world.” The International Criminal Tribunal for the former Yugoslavia (ICTY) also recognized in the Kordić & Čerkez Trial Judgment that the widespread destruction of Muslim religious property during the Balkan wars may also amount to persecution as a crime against humanity, in addition to a violation of the laws or customs of war:

“This act, when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious identity of a people. As such, it manifests a nearly pure expression of the notion of “crimes against humanity”, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects.” (Para. 207)

Yet as recent events indicate, the criminalization of the destruction of cultural property under international law has failed to preclude such attacks from occurring. On the one hand, some commentators point to gaps in the law that limit its efficacy: for example, the decision by the drafters of the Rome Statute not to criminalize the use of cultural property for military action — thereby jeopardizing its protection from attack — as prohibited by the 1954 Hague Convention, the 1977 Additional Protocols to the Geneva Conventions, and ICTY jurisprudence. Furthermore, the legal obligation to protect cultural property in peacetime, post-conflict, or stability operations is less clear (e.g., with regard to riots or looting such as those that occurred at Baghdad’s Iraq Museum following the topping of Saddam Hussein’s regime by U.S. forces in 2003). Furthermore, more can be done to prevent inadvertent violations through awareness, training, and the integration of proper tactics and procedures into military operations to protect cultural property, as has occurred since the Baghdad Museum incident. On the other hand, these provisions are not unique in terms of their limited efficacy; violations of the prohibition of attacks against cultural property tend not to occur in isolation but rather in the context of widespread violations of IHL, including deliberate or indiscriminate attacks on civilians and other war crimes. While international law protecting cultural property during armed conflict and criminalizing its destruction is well established, protecting cultural property remains a challenge within the context of implementing and enforcing IHL in general in many contemporary conflicts.

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