Introduction
The international legal background for the protection of cultural property became a matter for discussion during several last years as a result of many armed conflicts observed in different world regions, and especially in the Middle East and North Africa.
The deterioration of the political situation in the world has led to the development of new wars and to the further destruction of historical sites and the misappropriation of artworks belonging to nations. Thus, representatives of the Islamic State in Iraq and the Levant (ISIL) regarded as the terrorist group destroyed numerous cultural objects in Iraq and Syria in 2014, and the situation seems to even worsen in 2015.
The response of the international community to the mass destruction of cultural property in the Middle East was immediate, and many governments referred to the goals and principles of the 1954 Hague Convention as well as to its protocols as the tools to prevent further damage to cultural heritage.
However, the problem is in the fact that the current laws that address the issue of cultural property destruction and the supported treaty regime are not always viewed by researchers and authorities as effective enough to fight the real threat caused by the development of the armed conflicts in the Middle East. In this context, it is important to evaluate the current laws and regulations in the field of cultural property protection in terms of their adequateness and efficiency.
This paper will discuss what protection is provided to cultural property according to the current international humanitarian law and regulations and whether this protection can be considered effective. In order to support the critical analysis of the issue, modern definitions of cultural property will be discussed along with the evolution of the law regarding the cultural heritage that can be used to protect property during armed conflicts in the Middle East and North Africa.
Definition of Cultural Property
Cultural heritage is the property of a certain state or a nation that is represented by archeologically and culturally valuable objects, different historical artworks, as well as particular archaeological sites. Following the definition proposed in Article 1 of the Hague Convention, cultural property can be discussed as the “movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; … works of art; manuscripts, books”.
From this point, objects and sites that are referred to as cultural property usually represent the historical and cultural development of the concrete nation and civilization. Therefore, cultural property is usually characterized by great importance for the international community.
Still, the definition proposed in the Hague Convention is often discussed as rather general, and authorities usually regard the idea of cultural property with the focus on the definition proposed in Article 1 of the UNESCO Convention of 1970. According to this definition, cultural property is “property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science”.
Additionally, a wide list of categories is provided in this Convention to specify features of culturally valuable objects. Milligan notes that referring to these two definitions that are rather similar, but different in terms of their scope, the cultural property that is referred to during armed conflicts can be divided into two main categories. These categories are “that of collateral damage arising from military necessity …, and the intentional destruction of cultural property as a concerted policy of warfare employed by one or both parties to the conflict”.
Therefore, while defining cultural property that is interesting and attractive for enemies in military conflicts, it is necessary to pay attention not only to the historical role of the property but also to the idea of the ‘military necessity that can make combatants destroy cultural objects in spite of their cultural value.
Evolution of the International Humanitarian Law regarding Cultural Property
The legal ways to protect the cultural heritage globally was the topic for discussion during several Hague Peace Conferences that were conducted during the late part of the 19th century and early part of the 20th century. The results of conferences were represented in the Hague Conventions. While participating in the conferences, the international authorities decided on prohibitions to destroy cultural sites, places, and institutions associated with the people’s history, religion, or art.
Kornegay states that these violent actions were discussed as intentional damages and were strongly forbidden. The problem was in the fact that there was an exception regarding the military or war activities, and the events of further World War I and World War II demonstrated that the Hague Conventions were useless to prevent the intentional destruction of cultural sites. The lessons of World War I and World War II were taken into account and addressed only in 1949.
Thus, it is possible to state that the Geneva Conventions were adopted after World War II as a response to violating human rights and to destroying the nations’ property. According to Article 53 of the Convention, “destruction by the Occupying Power of real or personal property belonging… to the State or to other public authorities… unless such destruction is rendered absolutely necessary” is prohibited.
Still, the protection of cultural property was not determined as the separate option in the 1949 Geneva Convention. Furthermore, it was one of the first documents to proclaim the doctrine of ‘military necessity’ that is often referred to as an obstacle to prevent cultural property from destruction.
Another attempt to resolve the problem of protecting cultural property during military conflicts was made in 1954, when one more Hague conference was held. Levine states that the conference became a significant event in the process of developing approaches related to the international humanitarian law to prohibit destruction of cultural heritage.
From this perspective, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was developed to cover gaps in the previous conventions and declarations on the issue, and it directly addressed the situation of the war or armed conflict as the precondition for the further misappropriation and destruction of cultural property.
The convention was ratified by more than one hundred and ten states. However, the United States ratified the 1954 Hague Convention only in 2009, and the United Kingdom only plans to ratify the same document in 2015. Such researchers as Sherry and Cunning state that the low interest in ratifying the Convention from large nations is one of the main causes of the current problems with preventing the destruction of cultural property in the Middle East.
The articles of the Convention stated that combatants could use any strategies and methods in order to protect their cultural heritage from the war fire and destroying sites and objects. Article 3 of the Convention declared that nations needed to plan taking action to preserve their cultural property. Article 4 stated the right of the nations to actually protect their cultural property from destruction, misappropriation, and vandalism.
Furthermore, the Convention determined the punishment for those persons who could act against the statements of the Convention. However, as it is noted by Howe, the original variant of the Convention was not appropriate to unite the nations’ efforts against the threat of cultural property destruction.
As a result, two additional protocols were signed by the representatives of the international community. The First Protocol signed in 1954 declared the necessity of using specific strategies to prevent soldiers and other persons from stealing cultural property from the territories that have a status of occupied ones. The protocol was signed by more than ninety states.
The Second Protocol to support the Convention was signed in 1999. This Protocol was signed by only thirty-seven states. According to the Protocol, the definition of crimes for stealing and destroying cultural property was determined. Moreover, the international community supported the realisation of resolutions and principles with the help of creating the international committee responsible for examining the cases of misappropriating cultural property.
Francioni notes that the principles presented in the Second Protocol were more detailed and effective to determine the frames for belligerents’ actions regarding the cultural property. In addition, the Second Protocol was more legally appropriate because it reflected the ideas of the UNESCO Convention on cultural heritage ratified in 1972.
Effectiveness of the International Humanitarian Law to Protect Cultural Property
The first debates on appropriateness of current laws to protect cultural property became observed in 2003, when the United States, trying to maintain the law and order in Iraq, failed to prevent the Iraq Museum in Baghdad from looting because he was held by the Iraqi soldiers. Thurlow states that the situation was rather controversial because the United States had the military necessity to attack the museum, and the country was not the part of the treaty associated with ratification of the Hague Convention. In this case, authorities focused on the idea of ‘military necessity’ and on the importance of ratifying the Convention.
Focusing on the vagueness of language used in the Convention, Milligan notes that there are many exceptions in the text of the document that could explain the position of the United States. Thus, in spite of numerous debates on the topic, it is still unclear what is meant under “the respectful treatment of cultural property by both parties to a conflict”, and why the “military necessity” can be discussed as the exception for prohibiting the destruction of cultural property.
Moreover, a definition of the international armed conflict proposed in the Convention is also unclear, and a definition of the non-international armed conflict is not provided in the text of the document. Finally, such researchers as Warring and Veres refer to the principles of the 1954 Hague Convention as the treaty regime involving the international community, but the problem is in the fact that this treaty regime is rather weak because such influential players in the world as the United Kingdom and the United States did not ratify the Convention after its declaration.
Referring to the situation in Iraq in 2003, Forrest notes that “a conflict naturally arises when balancing the needs to successfully complete a military operation and preserving the cultural property”. Such researcher as He also agrees that impossibility to propose a single right answer to the question of destroying cultural heritage in the situation with the Iraq Museum in Baghdad indicated significant failures in the current international laws. The similar controversial situation was observed even earlier, in 2001, when the Buddhas of Bamiyan were destroyed by the Taliban, and no adequate reaction of the international community was observed.
On the one hand, the Taliban intentionally damaged the cultural heritage of the nation. On the other hand, Afghanistan did not ratify the 1954 Hague Convention, and the destruction of cultural property was observed during the period of the civil war, rather than the international armed conflict. From this point, the international community became limited in its actions because of weaknesses in the international humanitarian laws.
Therefore, the current laws aimed to protect cultural property from destruction seem to be weak because many questions and issues remain to be non-addressed with references to the 1954 Hague Convention and its Protocols. Chamberlain pays attention to the fact that even principles proposed in the Geneva Convention and in the UNESCO Convention of 1970 cannot add more legal grounds for protecting the cultural heritage in the world.
According to Al Quntar, the main indication for the fact that the currently followed international law regarding the protection of cultural property is not adequate is the reoccurring cases of destroying cultural objects and antiquities as a result of armed conflicts.
Such researchers as Abtahi and Meron note that during a long period of time, governments did not pay much attention to the development of the efficient treaty regime in order to address the problem of destroying cultural property. When situations in Yugoslavia, Afghanistan, and Iraq demonstrated the threats of damaging the cultural heritage of the oldest nations, no appropriate actions were taken to protect the cultural property of foreign nations.
In spite of the fact that the Second Protocol of 1999 was more effectively formulated than the First Protocol, this document was signed mainly by small states, and their decision could not influence the overall opinion of the international community regarding strategies to use for overcoming the problem. Thus, such critics of the process as Driver and Jowers pay attention to the fact that only few states ratified the Second Protocol that included more efficient formulations regarding definitions and restrictions in contrast to the vague language of the Hague Convention. Such an approach to the governments’ cooperation to address the problem of cultural property protection cannot be discussed as appropriate.
Therefore, another approach to analysing the problem is necessary. According to He, trying to oppose the ISIL and preventing the further destruction of the cultural heritage, governments need to take into account the fact that ISIL is “not abiding by international law, and a new response is needed to protect cultural sites from damage”. Furthermore, “as neither Iraq nor Syria is party to the Second Protocol, however, the duty to protect cultural sites during a domestic conflict does not apply”. As a result, new methods should be used to overcome the challenge of cultural property destruction.
Thus, the main issues associated with the cultural property protection that are mentioned by researchers are the problem of ratifying the Convention by many governments, the problem of protecting the cultural heritage during civil wars, and the problem of protecting property in spite of violating principles of the Convention. Although the issue of non-addressing the destruction of cultural property during the peace time was resolved with the focus on imposing more responsibilities on governments according to the Second Protocol, the exact definition of the cultural property covered with the Protocol was not improved, and it was even restricted.
Moreover, being developed as a more detailed version of the convention, the Second Protocol also provided the definition of the ‘military necessity’. Eagen states that “the most obvious flaw of the Convention is its overly broad deference to ‘military necessity’ when parties at war wish to dismiss their duties to protect cultural property”. Still, many uncertainties were noted regarding the definition because Article 13 and Article 14 of the protocol included rather different interpretations of the phenomenon.
The approach to preventing destruction and misappropriation of the cultural heritage should be broad. Mastalir states that the improvement of the international law regarding cultural property should be based on formulating more regulations for museums and owners of private collections that can restrict them in opportunities to buy antiquities of the undetermined origin.
Morrow and Chang, as critics of the effectiveness of international laws to protect cultural property, argue that the growth of the black market of culturally valuable artworks and antiquities provokes further misappropriation within territories where armed conflicts prevent the national government and international community from protecting their cultural property.
As a result, the world development of a black market of antiquities influences the situation regarding cultural objects misappropriation more significantly than the international law. The flow of exported moveable antiquities is significant within the international market, and any current regulations can stop this process because of the restricted compliance of states and because of focusing on weak regulations regarding the export of cultural property and antiquities.
It is mentioned in Article 10 of the Convention that cultural objects and buildings need to be marked with the help of a known symbol in order to prevent occupying and destroying these sites. However, Francioni, as a critic of this idea state that such an approach will only work to attract belligerents to the immovable cultural heritage, and this situation will lead to more destruction.
Therefore, the legal ways to protect cultural property should be more radical. Belligerents need to be aware of punishments for destroying the cultural heritage that is meaningful both nationally and internationally. In addition, all issues associated with the definition of the cultural property and armed conflicts, including international military conflicts and civil wars, need to be addressed with improving formulations of definitions in the Protocols.
Furthermore, the export and import restrictions regarding antiquities should be strengthened. Finally, the collaboration of international community members should lead to creating a strong organisation to prevent cases of destroying cultural property. The reason is that the 1954 Hague Convention supported with the principles of the Geneva Convention and UNESCO Convention are not enough to protect cultural property from the further threats.
Thus, such researchers as He and Al Quntar agree that there is a lack of a strong international organisation to address the problem and propose effective laws or treaties to control the situation worldwide because the number of governments that ratified the Convention and its Protocols is still low. In recent times, the threat of the ISIL and Al-Qaida groups has become more significant, and the international community is facing the problem of lacking effective legal resources to restrict and prohibit the actions of terrorists damaging the cultural heritage.
In spite of the fact that the Second Protocol declared the necessity of creating the committee controlling the situation in the world regarding cultural property, this committee cannot be discussed as an effective and strong structure or mechanism to address the needs of the treaty regime. The committee seemed to fail to regulate the situation in the past. Thus, only today, when the threats to cultural property of nations in the Middle East and North Africa are high, the international community begins to develop a new plan of actions, and the United Kingdom and the United States are also joining this process.
The problem is in the fact that the current enforcement mechanism declared by the Protocols of the Hague Convention cannot be discussed as effective enough to oppose and restrict actions of the representatives of such terrorist organisations as the ISIL and the Al-Qaida groups. Stronger methods are necessary to oppose the threat to the cultural property in the world, and clearer punishment for destroying and misappropriation of cultural objects needs to be determined.
Conclusion
In spite of the fact that the international community is discussing the problem of protecting cultural property in war conflicts for a long period of time, it is impossible to state that the current laws addressing the issue are appropriate to control the situation completely. The problem is in the fact that the 1954 Hague Convention, the Geneva Convention of 1949, and the UNESCO Convention of 1970 are not properly formulated and developed in order to cover all the issues associated with stealing and destroying the cultural property in territories that are occupied or held by military groups.
At the current stage, the existing international humanitarian law addressing the aspects of cultural heritage protection is weak in order to provide the legal response to all cases that are observed today in terms of the situation in Iraq and Syria.
Currently, the international community cannot propose adequate measures to respond to the problem in the Middle East and North Africa, therefore, the improvement of the used legal base is necessary. From this point, it is important to develop laws covering the issues of export and import of cultural property; it is significant to guarantee the cooperation of nations, and it is necessary to create the organization that could become responsible for completing the goals of the teary regime based on the principles of the 1954 Hague Convention.
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