Kamala Naganand
Aarna Law, Bangalore
kamala.naganand@aarnalaw.com

Anusha Madhusudhan
Aarna Law, Bangalore
anusha.madhusudhan@aarnalaw.com

Background

Recent times have witnessed widespread destruction of cultural property, including over 150 cultural sites in Ukraine.^[1] The protection of cultural property is crucial to the preservation of civilisations’ historical experiences. An articulation of this ethos in conjunction with the development of principles, such as military necessity, assist in understanding how and why the rules governing the protection of cultural property in times of armed conflict may be regarded as part of international humanitarian law.

Apart from the (treaty) obligations discussed below, even if a state is not a party to a treaty governing the protection of cultural property in armed conflict, it is still bound by obligations imposed by customary international law – that is, by norms developed over time because of the maintenance of a general practice accepted as law among states.^[2]

This piece attempts to outline the rules of international law, including humanitarian law governing the protection of cultural property, and compares various instruments that form part of this regime.

Law of Armed Conflict (LOAC)

International humanitarian law (IHL) distinguishes armed conflicts into: (1) international armed conflicts, with two or more opposing states, and (2) non-international armed conflicts, between governmental forces and non-governmental armed groups within the state. The Geneva Conventions^[3] also embody this distinction.

Geneva Conventions and their Additional Protocols

The Geneva Conventions are important not only for their efforts in protecting civilians during armed conflict, but the impact they can have on the wider IHL regime towards the protection of cultural heritage.

Though the Geneva Conventions themselves do not specifically mention protection of cultural heritage, Additional Protocols (AP) I and II added relevant provisions in 1977.^[4] Article 53 of AP I, relating to cultural objects and places of worship areas, prohibit commission of any hostile act directly against historical monuments, works of art or places of worship that constitute peoples’ cultural or spiritual heritage, as well as prohibiting their use in any military effort or use as objects of reprisals target for retaliation. It largely covers the same principle of protection under the 1954 Hague Convention, but it can be argued that the requirement appears to be more rigorous, as this rule does not envisage deviation, even for military considerations (necessity).^[5] AP II reaffirms that hostile acts against historic monuments, works of art or places of worship that are part of a people’s cultural or spiritual heritage, as well as their usage in support of military operations, are prohibited.

1954 Hague Convention and the Additional Protocols

In the aftermath of the Second World War, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict ('Hague Convention') became the first international instrument to focus solely on the preservation of cultural property during conflicts.

It protects movable or immovable property of great importance to the cultural heritage of every people, including monuments of historical or artistic interest, works of art, as well as scientific collections, important collections of books and defined centres known as ‘centres containing monuments’.^[6]

The Hague Convention imposes on States Parties obligations to ‘safeguard’ cultural property situated within their own territories in an event of foreseeable armed conflict by taking appropriate measures, as well as and to ‘respect’ cultural property. The second obligation envisages that respect be accorded to cultural property within a state’s territory as well as in other countries. It directs states to ‘prohibit, prevent and put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property’.^[7]

It also obliges parties to refrain from any use of the property and its immediate surroundings for purposes which may expose it to destruction or damage in the event of armed conflict and directing any hostility against cultural property. However, the obligation to respect may be waived in cases of imperative military necessity.^[8] However, such ‘imperative military necessity’ was not defined, nor was it stipulated as to which authorities may declare a situation of imperative military necessity, leading to ambiguities in implementation.

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999) 

The Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict ('Second Protocol') came into force in 2014 with the aim of complementing and expanding the provisions of the 1954 Hague Convention. Among other measures, it envisages action that may be taken in coordination with the United Nations (UN) in the event of ‘serious violations’ with respect to cultural property and individual criminal responsibility in certain circumstances, for example, when protected cultural property is made the object of an attack.^[9] It also establishes a 12-member Intergovernmental Committee to oversee the implementation of the Second Protocol and the Hague Convention.^[10]

The Hague Convention allowed parties to request ‘special protection’ for a limited range of specified buildings, including refuges sheltering cultural objects and other immovable cultural property of great importance. When property is placed under special protection, parties are obligated to refrain from any act of hostility against it and from any use of it or its surroundings for military purposes.^[11] However, only the Vatican City and four other refuges had been entered on the International Register of Cultural Property under Special Protection.^[12]

The Second Protocol is significant as it replaced ‘special protection’ with ‘enhanced protection’, includes more categories of properties that may be eligible for such protection, and provides immunity to the (protected) property on the satisfaction of three conditions: (1) the cultural heritage is of greatest importance to humanity; (2) it is protected by adequate domestic legal measures that recognise its exceptional value; and (3) it is not used for military purposes or to shield military sites.^[13]

International criminal law

The Rome Statute of 1998 establishing the International Criminal Court (ICC) classifies the intentional and direct international destruction of buildings dedicated to art and historic monuments cultural heritage as a war crime pursuant Article 8(2).^[14] A war crime is a violation of IHL that results in the perpetrator’s criminal liability under international law, whether customary or treaty-based.^[15]

War criminals may face prosecution before a national or international criminal court, in their own country or elsewhere. The Second Protocol to the 1954 Hague Convention specifies a range of war crimes, referred to as ‘serious violations’ of the Protocol, involving violations of the Second Protocol and of the Hague Convention itself. It also imposes a comprehensive set of duties on states parties, including the power to prosecute individuals suspected of criminal culpability for major violations of the Protocol on specially enumerated jurisdictional grounds.^[16]

On 14 June 2021, the Prosecutor of the ICC published a comprehensive Policy on Cultural Heritage (the ‘Policy’). Recent attacks drew the ICC’s attention to what it terms as ‘heritage crimes’.^[17] Through the Policy, it stated that universal human rights principles shall guide the Office of the Prosecutor’s activities concerning cultural heritage. The Policy seeks to ensure that it has the necessary institutional capacity to conduct preliminary examinations, investigations and prosecution of crimes against or affecting cultural heritage more effectively.

The case concerning Ahmad Al-Faqi Al-Mahdi^[18] resulted in a landmark decision pertaining to the themes explored so far.

Ahmad was a member of Ansar Dine which, along with al-Qaeda, took control of Timbuktu in April 2012, following the departure of Malian army troops (AQIM – Al Qaeda in the Islamic Maghreb). He was the commander of the ‘Hisbah’ (Islamic morality police) at the time and led a campaign to destroy nine of the sacred mausoleums located within Timbuktu.^[19] The demolished mausoleums were said to contain the human remains of highly revered Islamic scholars. During the trial, an admission of guilt was made by Ahmad. On 27 September 2016, Trial Chamber VIII unanimously found him guilty beyond reasonable doubt as a co-perpetrator of the war crime against sites of historical, religious and cultural significance in Timbuktu.

The Chamber sentenced him to nine years’ imprisonment, in consideration of mitigating circumstances.^[20] This case is significant as it was the first time that there was judicial pronouncement on the destruction of cultural sites as a standalone crime. Earlier destruction of cultural heritage had been dealt with by international tribunals but always accompanying other crimes such as murder or torture.^[21]

Conclusion

The will of states in concluding the Hague Conventions was key in the crystallisation of the customary rule to protect cultural property into a specialised treaty-based norm. However, the continued breaches of applicable norms governing the protection of cultural property during armed conflict evidence further need to strengthen both the framework for implementing binding international obligations on actors and the coordinated efforts towards enhanced accountability for such breaches.

^[1] UNESCO Press Release dated 23 June 2022, www.unesco.org/en/articles/ukraine-over-150-cultural-sites-partially-or-totally-destroyed.

^[2] International Committee of the Red Cross (ICRC), ‘Customary Law’, https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law.

^[3] Common Article 3, Geneva Conventions 1949.

^[4] Additional Protocol to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; and Additional Protocol to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

^[5] Article 53 of AP II — Protection of cultural objects and of 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 4(2) of the Hague Convention, ‘The obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver’.

^[6] Article 1, Hague Convention.

^[7] Articles 2–4, Hague Convention

^[8] Article 4(1) and Article 4(2), Hague Convention.

^[9] Protocol II of the Hague Convention, Articles 15 and 31.

^[10] ‘Making the Convention more operational:1999 Second Protocol’, https://en.unesco.org/protecting-heritage/convention-and-protocols/1999-second-protocol.

^[11] Article 9, Hague Convention.

^[12] Kollektiv Avtorov, ‘The Roerich Pact. History and modernity’. On the Occasion of the 80th Anniversary of the Roerich Pact and 70th Anniversary of the United Nations. Exhibition catalogue, May 2022, page 18.

^[13] Articles 10 and 11 of AP II.

^[14] ICC, Rome Statute of the International Criminal Court (The Rome, The Italy: 17 July 1998), Article 8(2)(ix).

^[15] Customary International Humanitarian Law, Vol II, Chapter 44, Section A, Rule 156.

^[16] UNESCO, Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, The Netherlands: UNESCO, 26 March 1999,Chapter IV.

^[17] ‘The intentional destruction of cultural heritage in Iraq as a violation of human rights’, Submission for the UN Special Rapporteur in the field of cultural rights, Research Assessment & Safeguarding of the Heritage of Iraq in danger, p 7.

^[18] The Prosecutor v Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15.

^[19] Paul Williams, ‘Tear It All Down: The Significance of the Al-Mahdi Case and the War Crime of Destruction of Cultural Heritage’, Huffington Post, 26 September 2016.

^[20] ICC, ‘ICC Trial Chamber VIII declares Mr Al Mahdi guilty of the war crime of attacking historic and religious buildings in Timbuktu and sentences him to nine years’ imprisonment’, www.icc-cpi.int/news/icc-trial-chamber-viii-declares-mr-al-mahdi-guilty-war-crime-attacking-historic-and-religious, Al-Mahdi Trial, 27 September 2016.

^[21] Cara Solomon, ‘The Significance of the al-Mahdi Case and the War Crime of Destruction of Cultural Heritage’, Human Rights@Harvard Law, 30 September 2016, https://hrp.law.harvard.edu/alumni-news/alumni-perspective-the-significance-of-the-al-mahdi-case-and-the-war-crime-of-destruction-of-cultural-heritage.