HILAC Lecture on Cultural Heritage in Armed Conflict: Protection and Prosecution

Published 3 December 2015

On 19 November 2015, the Hague Initiative for Law and Armed Conflict (HILAC) Lecture Series continued at the T.M.C. Asser Instituut. Dr. Marina Lostal, lecturer in International Law at The Hague University of Applied Sciences, gave a presentation on ‘Cultural Heritage in Armed Conflict: Protection and Prosecution’.The topic of protection of cultural heritage in armed conflict remains a pressing issue as seen in the recent events of damage and destruction to listed world heritage sites in Mali and Syria. Dr. Lostal began by giving an overview of the background to the conflicts in both Mali and Syria and the fate of cultural heritage in these conflicts, including the damage done to the world heritage sites of Timbuktu in Mali, and Palmyra and Krak des Chevaliers in Syria.

Dr. Lostal elaborated the legal framework for the protection of cultural property and the various challenges facing these regimes in protecting cultural property effectively. This included the 1907 IV Hague Regulations, which recognises that during sieges and bombardments the High Contracting Parties have to take all necessary steps to spare such buildings as far as possible, provided that they are not used at the time for military purposes. The 1954 Hague Convention, to which both Syria and Mali are parties, provides the oldest definition of ‘cultural property’ and establishes three cardinal obligations (not to direct acts of hostilities, not to use these properties for military purposes, and to prevent acts of vandalism, looting and the like) concerning cultural heritage. However, there is a major exception to two of these cardinal obligations as they may be waived in the case of imperative military necessity. Then came the 1972 World Heritage Convention, which creates a system of cooperation among States to protect cultural heritage of the outstanding universal value, that is, world heritage. However, the Convention’s nature (whether or not it is legally binding) and scope (whether or not it is applicable in times of armed conflict) remains a subject of discussion between scholars. Lastly, Dr. Lostal discussed the 1999 Second Protocol to the Hague Convention of 1954, which was adopted in the aftermath of the Yugoslav Wars. It defines the concept of imperative military necessary and creates an enhanced regime of protection for cultural property of the greatest importance. The type of properties that may fall under the enhanced protection regime are considered to be practically the same as world cultural heritage. However, after more than ten years in force, only ten properties are listed on this enhanced protection list whereas the World Heritage List contains 802 cultural sites.

Dr. Lostal went on to explain the options of prosecution for damage or destruction of cultural heritage in armed conflict. Syria is not a party to the International Criminal Court (ICC) and the chances of referring the situation to the ICC are more than remote. As such, the legal basis for prosecution of individuals committing offences against cultural heritage would be Article 28 of the 1954 Hague Convention. However, in practice Article 28 will not be very successful in prosecution for three reasons: most States haven’t incorporated such sanctions in their domestic legislation, as is the case in Syria and Mali; it is not clear if Article 28 allows for universal criminal jurisdiction; and thirdly, it is unclear whether Article 28 is applicable in non-international armed conflicts. The situation in Mali is different in that Mali is a party to the ICC and referred the situation to the Office of the Prosecutor in 2012. On this basis, the first ever person accused solely of this type of crime, Ahmad Al Faqi Al Mahdi, was arrested and transferred to The Hague on 26 September this year. In January of next year, the hearing of the confirmation of charges will take place and the challenge will be for the prosecution to show that the destruction of cultural heritage meets the threshold of gravity required.

After the presentation, another expert on cultural heritage, Dr. Joris Kila, archaeologist and researcher, shared his experience of visiting the damaged heritage sites to gather evidence of crimes in both Mali and Syria and gave an insight into the strategies of those committing such crimes, including ideological reasons and to finance the conflict. Dr. Kila concluded that the key to tackling these crimes was international cooperation.

The presentation was followed by a Question and Answer session, moderated by Mr. Onur Güven, researcher at the T.M.C Asser Instituut. Many interesting and thought-provoking questions were raised which gave further insight into the protection of cultural heritage and the difficulties involved in it. These questions included the prospects for prosecution in the fact that there are many members of IS committing these crimes who are not Syrian. Dr. Lostal stated that it depends on the nationality of the accused. If their nation is a State Party to the ICC, then the ICC has jurisdiction. Additionally, the regulations of Spain and Germany have interpreted this as universal jurisdiction and so they could prosecute. As such, it depends on a case-by-case basis. The question was also raised as to the difference between cultural property and civilian objects. Dr. Lostal confirmed that the definition of war crimes contained in the Statute of the ICC contains the same exception to that for civilian objects.

In light of the existing legal framework for the protection of cultural heritage during armed conflict and the possibilities of prosecuting those who are responsible for damaging cultural property, it was noted that it remains pertinent to train and prepare soldiers in a way to ensure that the rules concerning the protection of cultural heritage during armed conflict are observed. Dr. Lostal emphasised that, given that most conflicts are non-international in character nowadays, there is an urgent need to provide training to armed non-state actors that may be willing to abide by the law, but this may be difficult to attain in practice.

Lastly, the topic of “responsibility to protect” was raised. Dr. Lostal explained that an R2P for cultural heritage initiative has been put forward by the Italian Minister of Culture after IS began its campaign of destruction. The parameters of this initiative remain unclear but, Dr. Lostal remarked, an R2P doctrine concerning solely cultural heritage would be difficult and perhaps inappropriate to justify in light of the human suffering these conflicts are causing.