‘State responsibility for intentional destruction of cultural heritage may also be conceived in terms of responsibility to protect (“R2P”) such heritage. R2P consists in the responsibility of each state to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, while the international community has the responsibility to help states to protect populations from such crimes. The three pillars of R2P – as specified by the UN Secretary General – are the following:
1) each state has the responsibility to protect its populations from said crimes;
2) the international community has the responsibility to assist states in fulfilling their R2P;
3) when a state manifestly fails to fulfil its own R2P, the international community has a responsibility to take timely and decisive action through peaceful diplomatic and humanitarian means and, if that fails, through other more forceful means, including the use of military force.
Since intentional destruction of cultural heritage amounts to a war crime and a crime against humanity, it is straightforwardly subsumed within the scope of R2P. As regards the modalities through which R2P may be realized in concrete terms, it’s third pillar clearly shows that the United Nations, regional organizations, and even single states may take action to protect populations from intentional destruction of cultural heritagein territories where the territorial state manifestly fails to comply with its own R2P. In this respect, the denotation of international destruction of cultural heritage as an offence against humanity as a whole makes the international obligation to prevent and avoid such destruction an obligation erga omnes, with respect to which any state other than the one directly injured by a violation may take lawful measures to ensure that cessation of the breach and reparation in favour of the injured state or other victims of the breach, pursuant to the rule enshrined by Article 54 of the International Law Commission’s Articles on Responsibility of States for Intentionally Wrongful Acts. Among the possible measures to be taken in this respect, even recourse to military force would be possible, although only as a last resort and taking the relevant decision with the utmost caution and preferably with the authorization and under the guidance of the UNSC, acting pursuant to Chapter VII of the UN Charter. This conclusion is corroborated by the characterization of intentional destruction of cultural heritage as a threat to peace.’
[The Oxford Handbook of International Cultural Heritage Law, Chapter 4, Intentional Destruction of Cultural Heritage, by Federico Lenzerini (2020), at pages 97 to 98].
Global Britain in a competitive age – The Integrated Review of Security, Defence, Development and Foreign Policy(March 2021): Global Britain in a Competitive Age: the Integrated Review of Security, Defence, Development and Foreign Policy – GOV.UK (www.gov.uk) states:
‘The source of much of the UK’s soft power lies beyond the ownership of government – an independence from state direction that is essential to its influence. The Government can use its own assets, such as the diplomatic network, aid spending and the armed forces, to help create goodwill towards the UK – for example, through support to disaster relief or through our international work to protect cultural heritage in conflict settings.’
In any conflict, the humanitarian aim of Cultural Heritage protection always competes with military operations. Since there is no international authority responsible for defining: (i) each country’s cultural property; and (ii) the case of ‘military necessity’ / ’loss of immunity’, on the ground ‘it [is] difficult to separate military operations from cultural property under protection.’ [‘Legal Changes In The Regime Of The Protection Of Cultural Property In Armed Conflict’, Prof. Dr . Sabine von Schorlemer, Art Antiquity And Law, Vol IX, Issue 1, March 2004, p.43 at p.76].
Does an opportunity exist for Britain to use its diplomatic, military, and academic expertise and networks, to facilitate the development of an international code of ethics for the protection of Cultural Heritage in future conflicts around the globe?
The aim would be to develop a code that strikes a balance between:
(a) Cultural Heritage protection; and
(b) military interests.
The development, agreement, and practical implementation (e.g. through military training manuals) would require the ‘round-table’ expert involvement of: representatives of states; military officials; academics; UNESCO; the International Committee of the Red Cross; and NGO’s.
The ambition would be to develop clear norms of behaviour and standards, that are capable of practical and universal implementation on the ground by armed forces in a conflict zone.
The UNESCO ‘Protection Of Cultural Property Military Manual’ (2016) highlights the strategic importance of this global humanitarian challenge:
‘Over the past few decades, culture has moved to the frontline of war, both as collateral damage and as a target for belligerents who use its destruction to foster violence, hatred and vengeance. This destruction strikes at societies over the long term, weakening the foundations of peace and hindering reconciliation when hostilities end. Recent conflicts in Mali, Libya, Yemen, Iraq and Syria have demonstrated that the protection of heritage is inseparable from the protection of human lives. The destruction of heritage has become an integral part of a global strategy of cultural cleansing which seeks to eliminate all forms of diversity. In this context, military forces need to adapt their tools, behaviours and skills to take into account the protection of heritage as an integral part of sustainable strategies to build peace and security. Over the last seven decades, UNESCO has elaborated standard-setting instruments to help Member States tackle these issues. As the first international agreement of universal scope focusing exclusively on the protection of cultural property in armed conflict, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict has made a tremendous contribution to the protection of cultural heritage and has inspired subsequent treaties aimed at preserving such heritage. Following the conflicts of the 1990s, the Convention was strengthened with the adoption in March 1999 of its Second Protocol, which reinforces the protection afforded to cultural property in armed conflict, notably through new mechanisms for its implementation on the ground. This has been complemented by several other instruments, notably the 1970 UNESCO Convention on the Illicit Import, Export and Transfer of Ownership of Cultural Property and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, as well as the 1972 UNESCO World Heritage Convention. Most recently, in 2015, UNESCO Member States adopted a fully-fledged strategy for the reinforcement of UNESCO’s action for the protection of culture. The examples of the rebuilding of the mausoleums in Timbuktu, Mali, destroyed by violent extremists, the training of military personnel for United Nations peacekeeping operations (MINUSMA) and the recent conviction of Ahmad Al Faqi Al Mahdi for war crimes by the International Criminal Court all attest to UNESCO’s determination to take this new strategy forward. Conventions and other legal instruments are necessary, but they are not enough to tackle increasingly complex situations on the ground. Just as culture is on the frontline of conflicts, it should be on the frontline of peace. To succeed, we need to broaden and rethink traditional approaches to protecting heritage. We need to connect the dots between the cultural, security and humanitarian aspects, while fully respecting the mandate and prerogatives of each actor. Military forces must pay particular attention and be capable of ensuring the protection of heritage in difficult circumstances. This is the aim of the present manual, namely to outline the practical implementation of the 1954 Hague Convention and its Second Protocol so as to enable Member States, in cooperation with UNESCO, to xiv include in their military directives guidelines and instructions on the protection of cultural property. All this should be viewed not as an additional burden on armed forces but as a means to achieve and consolidate long-term security objectives, in particular social cohesion and reconciliation.’
I am developing the negotiation, mediation, arbitration and diplomatic dispute settlement of Art and Cultural Heritage Disputes as a niche practice area, and am a member of the Institute of Art & Law in London, where I am studying for a Diploma in Art Law. I plan to qualify as a mediator in 2024. I can then be appointed as an expert co-mediator to provide technical support to mediators on law, best practice, and ethics.
My book, the ‘Contentious Trusts Handbook’ contains a practice note contributed by the distinguished Art Historian, Pandora Mather Lees (www.artonsuperyachts.com), entitled, ‘Art & Heritage Assets – Duties of Trustees’, and I am currently researching substantive aspects of art and antiquities law for a new book I am planning to write for publication in 2023 provisionally entitled,
‘Fiduciary Theory of Art And Cultural Heritage’.
To view the current outline of the book please vists the ‘Art & Antiquities Disputes’ page at www.ihtbar.com.