This book fills gaps in the exploration of the protection of cultural heritage in armed conflict based on the World Heritage Convention. Marina Lostal offers a new perspective, designating a specific protection regime to world cultural heritage sites, which is so far lacking despite the fact that such sites are increasingly targeted. Lostal spells out this area's discrete legal principles, providing accessible and succinct guidelines to a usually complex web of international conventions. Using the conflicts in Syria, Libya and Mali (among others) as case studies, she offers timely insight into the phenomenon of cultural heritage destruction. Lastly, by incorporating the World Heritage Convention into the discourse, this book fulfills UNESCO's long-standing project of exploring 'how to promote the systemic integration between the [World Heritage] Convention of 1972 and the other UNESCO regimes'. It is sure to engender debate and cause reflection over cultural heritage and protection regimes.
What do we expect of the law? In general, we expect it to provide us with a coherent set of norms that can address current concerns and problematic situations. However, when it comes to the protection of cultural property during armed conflict, this expectation appears destined to remain unfulfilled. In fact, if we take a close look at the field, we find that it is composed of “many laws but little law” as such.
The cultural value of the objects in need of protection, and the often-intense and dangerous nature of the circumstances in which the law must be applied, require rules that are straight forward and transparent. Yet the norms of this field and their relationship to each other are so complex that even the meaning of the terms “cultural property” and “protection” is far from self-evident. This is partly due to the atomization of the rules: there are five binding legal instruments (to date), each with its own state parties, which may or may not coincide with those of the other “non- identical- twin” instruments. As a consequence, because these instruments all work on the basis of reciprocity, the more international an armed conflict, the less probable it is that – when it comes to protecting cultural property – any single treaty will govern the overall conduct of the warring parties.
Amid this sea of conventions, world cultural heritage is universally recognized as the most outstanding of all the categories of cultural objects. Indeed, when the Taliban dynamited the monumental statues of the Buddhas in Bamiyan, Afghanistan, it provoked an international outcry – as did the destruction of the Sui shrines of Timbuktu in Mali and the destruction of the Temple of Bel and Baalshamin in Palmyra. Yet, despite the proliferation of legal norms, the astonishing fact is that world cultural heritage lacks a specific regime of protection during times of armed conflict. Furthermore, this constellation of rules is helpless in the face of the recent shift in the paradigm of destruction: dynamiting, shelling, stoning, and desecrating a country’s cultural heritage are part of the “infidel-cleansing” agenda of the violent fundamentalist groups currently operating in the Sahel and the Middle East. Furthermore, because the situation in some of the affected countries, such as 2011 postwar Libya, did not reach the defining threshold of “armed conflict,” its cultural property was left without protection, even though it faced the same threat of systematic destruction as in, say, Syria or Iraq. The rules are designed solely for times of war.
Time and again, in the aftermath of an armed conflict that has taken a particularly heavy toll on cultural heritage, the international community has decided to adopt another new instrument to reinforce protection. This was the impulse behind the Hague Convention for the Protection of Cultural Property in Armed Conflict (the 1954 Hague Convention), drafted in reaction to the devastation caused by the Second World War, and its 1999 Second Additional Protocol (the 1999 Second Protocol), adopted after the war in the Balkans. While they may spring from the best of intentions, these policies simply serve to multiply the number of treaties in the field and thus perpetuate its problems. Trying to counteract the law’s failure with more laws is, at least in this context, a nonsensical endeavor. I argue here that a resolution to these dilemmas can only be found within the existing law, and not by adding more noise to the legal cacophony. For this reason, this book is based on the central premise that if we place the 1972 Convention Concerning the Protection of Cultural and Natural Heritage (the World Heritage Convention) at the center of the field, as its common legal denominator, it will enable us to untangle the complex web of conventions and integrate the different legal norms, and thus resolve or mitigate the issues outlined in the following.
TABLE OF CONTENTS
Foreword
Acknowledgments
List of Treaties and Other Legal Instruments
List of Abbreviations
INTRODUCTION
1. Issues in the Field
1.1. Lack of Clarity2 Contribution to the Field
1.2. Lack of Coherence
1.3. Reciprocity versus Atomization of the Rules
1.4. Destruction during “Peacetime”
1.5. Revisionism and Idealism
2.1. A Coordinated Approach3. Some Caveats Regarding Scope
2.2. Identifying International Cultural Heritage Law
2.3. Discovering Principles Specii c to the Protection of Cultural Property in Armed Conflict
2.4. Analyses of Current Conflicts
4. Chapter Summary
I. TWO WRONG WAYS OF THINKING ABOUT THE LEGAL PROTECTION OF CULTURAL PROPERTY IN ARMED CONFLICT
1.1. The 1907 IV Hague Regulations2. Idealism
1.2. The 1954 Hague Convention
1.3. The Two Additional Protocols of 1977
1.4. The 1999 Second Protocol
1.5. The 2003 UNESCO Declaration
1.6. Final Remarks
2.1. The Effect of the ICTY and ICC Statutes on the 1954 Hague Convention3. Conclusion
2.2. The ICTY Case Law and the 1954 Hague Convention as Customary International Law
2.3. The Erga Omnes Nature of Cultural Heritage Obligations
2.4. The Human Dimension of Cultural Heritage Law?
II. THE SYSTEMIC APPROACH: INTERNATIONAL CULTURAL HERITAGE LAW AND ARMED CONFLICT
1. The Search for a Branch of International Law
1.1. Systematization and the Problem of Identity2. International Cultural Heritage Law
1.2. How Can We Identify a Branch of International Law?
1.3. Principles and Telos
2.1. Preliminary Considerations3. The Principles of International Cultural Heritage Law in Armed Conflict
2.2. The Principle of Prevention
2.3. The Principle of Relative Interest
2.4. The Principle of Differentiated Duties
2.5. The Principles of International Cultural Heritage Law: Its Telos
3.1 The Principle of Prevention4. Conclusion
3.2 The Principle of Third- and Fourth- Order Distinction
3.3 The Principle of Relative Proportionality: Collateral Cultural Damage
III. THE WORLD HERITAGE CONVENTION AS THE FIELD’S COMMON LEGAL DENOMINATOR
2. The World Heritage Convention’s Unique Features
3. The World Heritage Convention as the Field’s Common Denominator: Systemic Integration and Effet Utile
4. Possible Objections
4.1. The Binding Nature of the World Heritage Convention
4.2. The Applicability of the World Heritage Convention in Armed Conflict
4.3. “Why Bother? States Would Never Accept This”
IV. SYRIA: A CASE STUDY OF THE INTERPLAY BETWEEN THE WORLD HERITAGE CONVENTION AND THE 1954 HAGUE CONVENTION
2. Preventive Measures
2.1. Syria and the Preventive Measures of the 1954 Hague Convention: Their Implementation and Limitations3. The Obligations of Respect during Armed Conflict under the 1954/ 1972 Framework
2.2. The 1954/ 1972 Legal Framework
3.1. The Meaning of the Terms “Measures” and “Deliberate”4. Reaching Out to the Common Parties to the Conventions
5. Conclusion
V. LIBYA AND MALI: A CASE STUDY OF THE INTERPLAY BETWEEN THE WORLD HERITAGE CONVENTION AND THE SECOND PROTOCOL
1. The Conflicts in Libya and Mali 1.1. Libya2. Preventive Supplementary Measures in the 1999/ 1972 Framework
1.2. Mali
1.3. A Final Remark: The “Bamiyanization” of World Cultural Heritage
2.1. Safeguarding Measures3. The Relationship between World Cultural Heritage and the Enhanced Regime of Protection
2.2. Precautions during the Hostilities
3.1. A Tripartite System4. A Critique of the Individual Criminal Responsibility for Violations of the Framework’s Obligations
3.2. The Meaning of “Deliberate Measures against World Cultural Heritage” in the 1999 Second Protocol
3.3. The Relationship between the Enhanced Protection List and the Lists of the World Heritage Convention
5. Conclusion
VI. 2003 IRAQ AND AFGHANISTAN: THE WORLD HERITAGE CONVENTION AS THE LOWEST LEGAL COMMON DENOMINATOR FOR THE PROTECTION OF CULTURAL HERITAGE IN ALL CONTEXTS
1. The World Heritage Convention as the Lowest Legal Common Denominator in Armed Conflict and Occupation: The Minimum Framework 1.1. The Iraq War2. The World Heritage Convention as the Lowest Legal Common Denominator in Armed Conflict and Occupation: The Buddhas of Bamiyan and the Minimum Rule
1.2. The Minimum Framework: A Summary
3. Conclusion
CONCLUSION
1. Clarity over Basic Concepts 2. The Issue of Coherence and the Regime for World Cultural Heritage
3. The Atomization of Rules
4. Final Remarks
Bibliography
Index
Marina LOSTAL, International Cultural Heritage Law in Armed Conflict: Case-Studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan, Cambridge, Cambridge University Press, 2017 (220 pp.)
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