Max Planck Yearbook of United Nations Law

Max Planck Yearbook of United Nations Law Volume 19 (2015)

Edited by

Frauke Lachenmann Tilmann J. Röder Rüdiger Wolfrum

LEIDEN | BOSTON

For use by the Author only | © 2016 Koninklijke Brill NV

Contents List of Abbreviations viii List of Contributors xiii

Part 1 The Law and Practice of the United Nations 1 Ideological Warfare against Cultural Property: un Strategies and Dilemmas 3 Kirsten Schmalenbach 2 un Security Council Resolutions before uk Courts 39 Alexander Orakhelashvili 3 The Role of the Security Council in the Use of Force against the ‘Islamic State’ 65 Priya Urs 4 The Slippery Slope of un Peacekeeping: Offensive Peacekeeping in Congo and Beyond 100 Diana Kearney 5 Security Council Referrals to the International Criminal Court as Quasi-Legislative Acts 142 Alexandre Skander Galand 6 Ratifying the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression 176 Meagan S. Wong 7 United Nations Convention against Corruption (uncac) – After Ten Years of Being in Force 216 A. Katarina Weilert 8 United Nations and Regional Organizations: Complementarity v. Subsidiarity 241 Alena F. Douhan


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Contents

Modernizing the Standard Minimum Rules for the Treatment of Prisoners – A Human Rights Perspective 278 Katrin Tiroch

Part 2 Legal Issues Related to the Goals of the United Nations 10

The Right to Asylum between Islamic Shari’ah and International Refugee Law: Consequences for the Present Refugee Crisis 307 Ahmed Abou-El-Wafa

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The United Nations Prosecution Support Cell Programme in the Democratic Republic of Congo – A Strategy to Combat Impunity for Serious Crimes 337 Charles Briefel and Ignacio Tredici

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Concepts of the Legal Status of the Arctic 363 Elvira Pushkareva

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Discrepancies between Civil Law and Common Law Federations 386 Thomas Fleiner

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Self-Determination during the Cold War: un General Assembly Resolution 1514 (1960), the Prohibition of Partition, and the Establishment of the British Indian Ocean Territory (1965) 419 Victor Kattan

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Evaluating ‘Access to Justice’ in Informal Justice Systems: A Suggestive Framework 469 Siddharth Peter de Souza

Part 3 Report on Key Legal Developments at the United Nations in 2015 16

Key Legal and Political Developments at the United Nations in 2015 507 Tilmann J. Röder and Maximilian Spohr


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Book Reviews 1 Andrea Carcano: The Transformation of Occupied Territory in International Law 583 2 Andreas von Arnauld, Nele Matz-Lück and Kerstin Odendahl (eds): 100 Years of Peace through Law: Past and Future 590


chapter 1

Ideological Warfare against Cultural Property: un Strategies and Dilemmas Kirsten Schmalenbach When tens of thousands of people are dying, should we be worried about cultural cleansing? Yes, because heritage unites and culture provides dialogue that fanatical groups want to destroy. France’s Ambassador to unesco Philippe Lalliot, 2014

∵ Abstract With iconic cultural heritage in Afghanistan, Mali, Libya, Iraq and Syria at the mercy of Jihadi extremists, the international community’s somewhat feverish compilation of emergency measures illustrates both the sense of urgency now felt, but also how unprepared the world was to be confronted with ideological warfare against the ‘culture of the heretics.’ The laws of armed conflict, and in its wake international criminal law, provide relatively clear cut proscriptive rules against ideologically motived cultural destruction, which cannot be said of peacetime rules on cultural heritage protection. But the threat of incurring international responsibility and punishment is seen as inconsequential when the perpetrators’ driving ideology distains external laws. On un level, the Security Council has resorted to a global trade ban to target two birds with one stone: to dry-up is’s source of income through illicit trade in Iraqi and Syrian antiquities and to preserve artefacts by making illicit excavation and pillaging economically unattractive. Unfortunately the situation on the ground, with its many uncertainties regarding domestic implementation means the effectiveness of this measure is in abeyance.

Keywords Cultural property – ideologically motivated destruction – laws of armed conflict – peacetime protection – international criminal responsibility – un peacekeeping – un trade ban on Iraqi and Syrian antiquities © koninklijke brill nv, leiden, ��6 | doi 10.1163/18757413-00190002


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i Introduction Controlling large parts of Iraq and Syria, the Islamic State group (is)1 attracts considerable media attention not only for its utter contempt for human life and dignity but also for its destructive campaign against cultural artefacts. Starting with the occupation of Mosul in 2014, numerous eyewitness reports and video footage from is controlled territory have exposed the deliberate destruction, misuse, looting and vandalization of historical monuments – a pattern which seems to have no end in sight. The destruction of unique and culturally significant antique artefacts and monuments in Palmyra, such as the famous lions of Al-Lāt as well as the Baalshamin and Baal temples, together with the murder of the head of antiquities in Palmyra, Khaled Asaad, provide ample evidence for the group’s tactic of targeting what it considers as un-Islamic idolatry as well as those individuals previously entrusted with its care. The group’s partisan opposition to figurative motives and anthropomorphic art is an stance labelled by art historians as iconoclastic, a phenomenon commonly linked to the destruction and mutilation of cultural objects and symbols particularly within a religious context2 and especially targeting representations of deities in earthly forms.3 However, the swathe of devastation left behind by is and associated groups goes far beyond the alleged demands of Jihadi-Salafism, as the obliteration of Palmyra’s Roman monumental Arch of Triumph on 5 October 2015 illustrates. By vandalizing historical architectural objects with no religious significance, is has unveiled that the cultural objects themselves are not the group’s true target but all of humanity and its societies that treasure the objects as intrinsic parts of their cultural memory, i.e. is’s ideological enemy. Ultimately, violence against culture is, as Alexander Demandt pointedly put it, an intensified form of violence against humans.4 By proficiently using social and western media to 1 The denomination of the group changed over time: October 2006–April 2013 ‘Islamic State of Iraq’ (isi), April 2013–June 2014, ‘Islamic State of Iraq and al-Sham’ (isis), June 2014–present ‘Islamic State’ (is) and Da’esh: the latter term is a pejorative Arabic acronym for ‘al-Dawla al-Islamiya fi al-Iraq wa al-Sham.’ 2 A related concept is political iconoclasm which is targeted against images, symbols and representations of the political or social enemy; see on the usage of the terms iconoclasm and vandalism, see D. Gamboni, The Destruction of Art: Iconoclasm and Vandalism since the French Revolution (Reaktion 1997) 17. 3 K. Kolrud and M. Prusac, ‘Introduction – Whose Iconoclasm?’ in K. Kolrud and M. Prusac (eds), Iconoclasm from Antiquity to Modernity (Ashgate 2014) 1, 6. 4 A. Demandt, Vandalismus: Gewalt gegen Kultur (Siedler 1997) 271; see also M.T. Dutli ‘Protection of Cultural Property in the Event of Armed Conflict – Report on the Meeting of Experts, Geneva, 5–6 October 2000’ (icrc 2002) 9.


Ideological Warfare against Cultural Property

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increase the impact of their cultural assault on humans worldwide, is closely follows in the infamous footsteps of the Taliban, the de-facto government of Afghanistan from 1996 to 2001, who stage-managed the destruction of the ancient Bamiyan Buddhas in 2001 to the dismay of the international community. Given the ideological fervour seen in both is’s rhetoric and actions, it appears duplicitous that the destructive campaign consists not only of the physical havoc of antiquities but also of the looting and selling of these objects on the black market to finance their military operations in the region.5 The 9th century bc grand palace of the Assyrian King Ashurnasirpal ii at Kalhu, the artefacts of which were broken up, sold piecemeal and recovered in various European cities, is but one example of the large-scale sell off conducted by is with the help of mafia-style artefact networks and States that turn a blind eye to such profitable cross border activities. This then begs the question, what is the international community’s response to this appalling situation? The fact that not only members of society (inside and outside is territory) along with academia, States and International Organizations beyond unesco are aware of the need and seemingly willing to take concerted action rates as one of the few good news items in the area of cultural heritage protection. The political exhortations and actions recently taken on the universal, regional and domestic level are numerous, diverse and of varying practical impact. Even so, there is no denying that the protection of cultural property is especially challenging in areas afflicted by both poverty and widespread lawlessness. If we add to this is’s ideological contempt for and repudiation of ‘western’ styled common values, individual rights, accountable governance and the secular rule of law (including international norms), the situation seems intractable. This article examines the international response to ideological warfare against cultural property with a specific focus on the deliberate destruction of artefacts and their trafficking conducted by is and persons associated with it. As a starting point, it can be seen from history that ideological warfare against cultural property is not a recent phenomenon (Chapter 2.). Having a coordinated international response to it is however a recent phenomenon. Turning to the different strategies on cultural heritage protection, it becomes evident that the normative framework provided by international law (Chapter 3) is only one of many components constituting the current protective regime. A different perspective on the topic is provided by multifarious international

5 If not directly engaged in these activities, then is charges fees for permits allowing private looters to excavate, see unsc ‘Al-Qaida Sanction Committee Highlights Current Trends of isil and anf Financing’ (20 October 2015) unsc Press Release SC/12090.


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community response, inter alia the un Security Council’s global trade ban in Iraqi and Syrian cultural property (Chapter 4). ii

Contextualizing Ideological Warfare against Cultural Property

1 Terminological Pitfalls Although of much older origin, the expression ‘ideological warfare’ became a popular catch phrase in the Cold War era, which was fought not only with conventional proxy wars but also by non-military means. The latter aimed at influencing, demoralizing and unsettling the society of the respective ideological enemy (so called physiological warfare). This contribution employs the expression ‘ideological warfare’ in the context of Jihadist Salafi extremist groups such as is without the intention to class it with the 20th century’s war of socio-economic ideas. The focus taken here is not on the group’s professional non-military propaganda strategies, which have been discussed elsewhere,6 but on their aggressive campaign against cultural relics deemed ideologically offensive, including their deliberate destruction as an instrument of war.7 In the cases addressed, the destruction is not the result of collateral damage arising from fighting in an area of significant cultural and historical importance, but a series of deliberately planned psychological operations conducted by the group against its ideological opponents’ cultural treasures.8 The generic term ‘ideology’ encompasses all manner of beliefs, values, principles and objectives, however ill-defined, reprehensible or tenuous by those not embracing it, through which a particular group defines its distinctive social, religious and/or political identity and which provides a guiding framework for its action.9 Common broad labels for various ideologies such as separatism, liberalism, communism, fascism, nationalism and jihadism, 6 For instance, A.M. Fernandez, ‘Here to Stay and Growing: Combating isis Propaganda Networks’ (2015) us-Islamic World Forum Papers; J. Cohen, ‘Digital Counterinsurgency’ (November/December 2015) 94 Foreign Affairs 52. 7 unesco Director General Irena Bokova stated to the unsc on 27 April 2015 addressing the situation of cultural destruction in the Middle East: ‘This is a tactic of war – a global war on minds. They are part of the same strategy which I call “cultural cleansing,” to destroy identities, to tear social fabrics, to impose tyranny,’ available at http://whc.unesco.org/en/ news/1269 (21 January 2016). 8 J. Yarwood, ‘Cultural Warfare’ (2003) 8 (2) Art Antiquity and Law 191, 192. 9 W.A. Rosenbaum, Political Culture: Basic Concepts in Political Science (Praeger 1975) 120; for an early definition of ‘ideology’ see K. Mannheim, Ideology and Utopia (Routledge & Regan Paul 1936) 49.



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to name but few, conceal the uniqueness and hybridity of most groups’ beliefs.10 In this respect, such broad categories are used with caution. That said, the targeting choices of groups are crucially affected by their ideology-based moral, religious and p olitical framework, including their approach towards cultural property located within their sphere of influence.11 The term ‘cultural property’ is deliberately used in this contribution even though modern international parlance leans towards ‘cultural heritage.’12 Not only has the wording of the 1972 Cultural Heritage Convention13 contributed to the decline of the term ‘cultural property,’ but also the desire to use a value-based connotation which implies that the object of protection is more than national patrimony but a public good transnationally cherished and preserved for its outstanding value.14 Over the last few decades, the term ‘cultural heritage’ has developed into an umbrella term that encompasses all kinds of human cultural traces, i.e. not only tangible cultural items such as sites, monuments and objects but also the intangibles such as language, rites, folklore, and intellectual property.15 Decisive for the choice of terms made here is the narrow focus of this contribution on movable and immovable tangibles. Moreover, the wording does not predetermine to whom an artefact must be culturally valuable to in order to be protected – the whole of humanity, citizens of a particular nation, the people of a region, minorities or other groups of a specific culture or even sub-culture. In any case, most international treaties dealing with the protection of cultural property and heritage, respectively, provide their own definition and concepts,16 reflecting the value system and mind-set 10 11 12 13

14 15

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C.J.M. Drake, ‘The Role of Ideology in Terrorists’ Target Selection’ (1998) 10 (2) Terrorism and Political Violence 53, 55. Drake, ‘The Role of Ideology in Terrorists’ Target Selection’ 78. On the development from cultural property to cultural heritage see A. Chechi, The Settlement of International Cultural Heritage Disputes (oup 2014) 14–17. Convention for the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 unts 151; but see the European Convention on the Protection of the Archaeological Heritage (signed 6 May 1969, entered into force 24 November 1970) ets No. 66. K. Wangkeo, ‘Monumental Challenges: The Lawfulness of Destroying Cultural Heritage during Peacetime’ (2003) 28 Yale J Int’l L 1183, 188. C. Roodt, Private International Law and Cultural Heritage (Edward Elgar 2015) 5; see on the relationship between the two terms also J. Blake, ‘On Defining the Cultural Heritage’ (2000) 49 iclq 61, 66: interchangeable in some cases, while in others, cultural property is a sub-group within cultural heritage. See, e.g., Art. 1 Hague Convention (1954); on the restrictive or broad understanding of the wording ‘of great importance to the cultural heritage of every people’ (in contrast to ‘cultural heritage of peoples’ in Art. 53 (a) ap i), see R. O’Keefe, ‘The Meaning of Cultural


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of the negotiating States at the time in more or less vague language open to progressive interpretation.17 2 Ideological Warfare against Culture throughout the Ages The historical dimension of the wilful destruction of cultural artefacts, its causes, motivations and effects, has been thoroughly examined in art and cultural studies,18 reaffirming the conviction that the phenomenon is as old as human culture itself.19 There is no denying that the most efficient and prolific demolishers of cultural heritage – alongside armed conflicts – are the changing needs, tastes and perceptions of societies, ruling classes and succeeding generations. Such demolition often quietly occurs under the banners of urban development, modernization and progress. However, the history of mankind is littered with an abundance of acts of iconoclasm, fanatic vandalism20 and identity-based violence against cultural heritage, driven by ethnic, religious and political ideologies, or combinations thereof. Cultural destruction motivated by religious beliefs, the pretext used by is, is often – but not exclusively21 – linked to monotheistic religions. An early and well documented example of this is Pharaoh Akhenaton’s (14th century bc) order

17 18

19

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Property under the 1954 Hague Convention’ (1999) 46 nilr 26–56; J. Toman, Protection of Cultural Property in the Event of Armed Conflict (Dartmouth 1996) 49; Art. 1 Convention on Cultural Heritage (1972): ‘which are of outstanding universal value.’ C. Forrest, International Law and the Protection of Cultural Heritage (Routledge 2010) 20. For instance, Gamboni, The Destruction of Art: Iconoclasm and Vandalism since the French Revolutiona; S. Boldrick, L. Brubaker and R. Clay (eds), ‘Striking Images, Iconoclasms Past and Present’ (Ashgate 2013). P.J. Boylan, ‘Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954)’ (1993) unesco Doc. CLT-93/WS/12, 24. At the height of the French Revolution Abbé Grégoire first coined the term vandalism (French vandalisme), a reference to the Germanic Vandal tribe that sacked Rome in 455, to describe the massive cultural destruction arising from the confluence of the r evolutions socio-political ideologies; Gamboni, The Destruction of Art: Iconoclasm and Vandalism since the French Revolution 17; Demandt, Vandalismus: Gewalt gegen Kultur 154. There have, for example, been occurrences of Hindu iconoclasm in the 19th century, carried out by Hindu reformers; N.A. Salmond, Hindu Iconoclasts. Rammohun Roy, Dayananda Sarasvati, and Nineteenth-Century Polemics against Idolatry (Wilfried Laurier University Press 2004). A more recent example for religiously motivated cultural vandalism by Hinduists is the destruction of the 450 year-old Babri mosque in the Indian town of Ayodhya in 1992 which supposedly occupied the site of the birthplace of the god Rama; H. Silverman and R.D. Fairchild, ‘Cultural Heritage and Human Rights’ in H. Silverman and R.D. Fairchild (eds), Cultural Heritage and Human Rights (Springer 2007) 3, 9.



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to remove all Egyptian gods’ names other than Aton from monuments, tombs and places of worship.22 Early Christians destroyed and defaced multitudes of religious sites throughout the Middle East such as the late 4th century ad demolition of the then 600 year old Temple of Serapis in Alexandria.23 Over a millennium later the iconoclastic depredations undertaken by opposing factions in the religious wars of Europe’s early modern age further exemplify the enormous cultural losses experienced over the centuries. The destruction of church ornaments and art by Puritans in the English civil war as well as Reformists on continental Europe was justified at the time with the biblical injunctions against idols and graven images.24 An example of Islamic iconoclasm comes from the orthodox Sultan Firuz Shah (1351–88 ad) who ordered not only the destruction of early Muslim representational art but also architectural elements from Hindu temples in India.25 The demolition of the Bamiyan Buddhas by the Taliban in 2001 officially followed the same Koran-based proscription of anthropomorphic art.26 It is lost to history whether or not the destruction of Hindu culture by early Muslim rulers on the Indian subcontinent was driven by religio-cultural motivations alone or – more likely – by the conflation of wide-ranging religious, ethnic, political and military factors.27 This conflation of motives was evident in the 1992–99 Balkan wars where ethnic identities were defined by the religious choices of ancestor. It is estimated that approximately a thousand of Bosnia’s mosques, churches, monasteries, libraries, archives and museums were destroyed or damaged in order to discourage those expelled and dispossessed from returning.28 Taking stock of the past shows that iconoclasm and cultural vandalism is as old as history 22

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24 25 26 27

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B.M. Bryan, ‘Episodes of Iconoclasm in the Egyptian New Kingdom’ in N.N. May (ed), Iconoclasm and Text Destruction in the Ancient Near East and beyond (The Oriental Institute of the University of Chicago 2012) 363, 369 et seq. Christian violence against the deities of ‘the others’ was a widespread phenomenon under the reign of Roman Emperor Theodosius i, see F. Trombley, Hellenic Religion and Christianization (Brill 2014) 123 et seq., 145. J. Spraggon, ‘Puritan Iconoclasm during the English Civil War’ (The Boydell Press 2003) xi. F.B. Flood, ‘Between Cult and Culture, Bamiyan, Islamic Iconoclasm, and the Museum’ (2002) 84 The Art Bulletin 641, 645. M. Lewelyn, The Buddhas of Bamiyan (hup 2012) 5; F. Francioni and F. Lenzerini, ‘The Destruction of the Buddhas of Bamiyan and International Law’ (2003) 14 (4) ejil 619, 627. For an analysis of this motivational amalgam see: A. Azfar Moin, ‘Sovereign Violence: Temple Destruction in India and Shrine Desecration in Iran and Central Asia’ (2015) 57 Comparative Studies in Society and History 467 et seq. J. Noyes, Politics of Iconoclasm: Religious, Violence and the Culture of Image-Breaking in Christianity and Islam (I.B Tauris 2013) 152.


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itself. The advent of an o rganized and systematic international response to such acts though is a strikingly recent phenomenon. iii

International Law Response to Ideological Warfare against Cultural Property

1 Ideology-Based Destruction in Armed Conflicts The above short historical overview illustrates that ideology-based cultural destruction often thrives in an environment of conflict and violence. Within a political entity, incidents occur as isolated criminal acts, in the course of riots and turmoil,29 within internal armed conflicts as an expression of conflicting ideologies and identities of civil war factions, culminating in cultural purging by the victorious party. All this likewise occurs in international armed conflicts, in which cultural objects and monuments central to the enemy’s national or ethnic identity are destroyed as a form of psychological warfare, as sufficiently demonstrated in both World War i and ii. Often, the question of whether or not the destruction of cultural heritage was driven by ideology or conventional military practice is subject to controversy and propaganda, e.g. the case of Reims Cathedral destroyed by German artillery in ww i30 and the fire-bombing of Dresden by the Allies in ww ii,31 to name but two examples. Irrespectively of whether invoked or not, the rules on cultural property protection in international and non-international armed conflicts offer room to manoeuvre for all parties involved. The awareness of the need to legally protect cultural heritage in times of armed conflicts irrespective of the belligerent parties’ religious, ideological or identity-based beliefs and convictions is not a 21st century phenomenon. Emmer de Vattel emphasized in his 1758 treatise Droit des Gens that the specific reason why a country is ravaged never provides justification for destroying its 29

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For the destruction of the Babri Mosque by radical Hindus, see fn. 21; during the 2013 turmoil in Egypt, thieves broke into the Malawi Museum in the Upper Egypt city of Minya, burning and destroying 48 artefacts and stealing 1041 objects, nearly 950 of which could later be recovered by Egyptian authorities, see Z. Niesel, ‘King Tut and Tahrir Square: The Egyptian Revolution of 2011 and the Advantage of Viewing Cultural Heritage Destruction through a Right to Culture Lens’ (2014) 20 Sw. J. Int’l L. 283, 286. P.G. Pierpaoli Jr, ‘German Bombardment of Reims, France’ in S.C. Tucker (ed), World War i. The Definitive Encyclopedia and Document Collection (abc-clio 2014) 1320. M. Kirby and R. Capey, ‘The Area Bombing of Germany in World War ii. An Operational Research Perspective’ (1997) 48 (7) The Journal of the Operational Research Society 661, 674.



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monuments and works of art which do honour to human society.32 If such treasures are destroyed regardlessly, the wantonly33 vandalizing party declares itself an ‘enemy of mankind.’ This passage in Vattel’s work is routinely cited in discourses on cultural heritage protection, and rightly so for expressing the still valid rationale behind the belligerent’s duty to abstain from destroying the enemy’s cultural artefacts: as Vattel himself pointedly asks, ‘What advantage is obtained by destroying them?’34 As modern international laws of armed conflict make it plain, in order to justify the deliberate destruction of cultural property, the objective pursued by the destructive act and the advantage obtained must be a military one. The requirement of a military objective as well as the limits of its pursuit can be extracted from various legal sources: The 1907 Hague Convention35 provides in Art. 27 of its Regulations that in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science and historic monuments, provided they are not being used at the time for military purposes.36 After ww ii, the failure of this provision to make an impact on military conduct led to the 1954 Convention on the Protection of Cultural Property in Armed Conflict, whose provisions relating to respect for cultural heritage are applicable in both international and non-international armed conflicts (Art. 19).37 In its basic provision on general protection, Art. 4, the 1954 Hague Convention obliges both Contracting Parties and armed groups38 to refrain from any act 32 33 34 35

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E. de Vattel, Le droit des gens (1758) vol. 3, Chap. 9, para. 168. Vattel accepted however, destruction of edifice due to unhappy consequences or maxims of war, ibid. Ibid. (Engl. translation Liberty Funds 2008, based on the London 1797 translation). Hague Convention respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (signed 18 October 1907, entered into force 26 January 1910) (1907) 205 cts 277. For a similar wording see also Art. 5 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (signed 15 April 1935, entered into force 26 August 1935) 167 unts 289 (Washington Pact or Roerich Pact), today binding for 10 Pan-American State Parties. Convention for the Protection of Cultural Property in the Event of Armed Conflict (signed 14 May 1954, entered into force 7 August 1956) 249 unts 240. The question as to why armed groups are bound by ihl rules relates to their effectiveness and is a matter of providing a legal justification for the duty to comply of armed groups. For discussions in this regard, see S. Sivakumaran, ‘Binding Armed Opposition Groups’ (2006) 55 Int’l & Comp. L. Q. 369–394; J.K. Kleffner, ‘The Applicability of International Humanitarian Law to Organized Armed Groups’ (2011) 93 irrc 443–461; A. Cassese, ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts’ (1981) 30 Int’l & Comp. L. Q. 416–439; especially for Art. 19 Hague Convention (1945) see


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of hostility directed against cultural property (Art. 4 (1)) except in cases where military necessity imperatively requires a waiver of this duty (Art. 4 (2)).39 The 1999 Second Protocol to the 1954 Hague Convention,40 which entered into force in March 2004 and since then has applied in both international and non- international armed conflicts within the territory of a State Party (Art. 22 (1)), aims at clarifying the imperative military necessity test of Art. 4 Hague Convention. In Art. 6 (a), two requirements have to be cumulatively present to substantiate the military necessity claim. Firstly, the cultural property has functionally been made a legitimate military objective by one party,41 entailing that the property has been turned into an object which by its nature, l ocation, purpose or use makes an effective contribution to military action and the destruction of which offers a definite military advantage (Art. 1 (f) Second Protocol). Secondly, there is no feasible alternative available to the attacker to obtain a similar military advantage to that offered by destroying the cultural property constituting such a military objective. In other words, military necessity considerations amount to a proportionality test on the basis of which cultural property considerations linked to a specific military objective must be balanced against

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Toman, Protection of Cultural Property in the Event of Armed Conflict 212: the basis of the obligation of non-State Parties lies in the fact that they are bound by contractual engagements undertaken by a community of which they are a part. Art. 4 is universally accepted as customary international law and applies to different types of warfare: Rules 95 and 96 of the Manual on International Law Applicable to Air and Missile Warfare (hpcr 2009); Rule 82 of the Tallinn Manual on the International Law Applicable to Cyber Warfare (cup 2013). For cultural property under special protection Art. 11 (2) Hague Convention (1954) sets out a military necessity exception with a higher threshold: immunity shall be withdrawn from cultural property under special protection only in exceptional cases of unavoidable military necessity, and only for such time as that necessity continues. Art. 11 does not apply in a non-international armed conflict if the parties do not explicitly agree on it; see in this regard also Rule 47 (d) in conjunction with Rules 48 and 52 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (cup 1994). Second Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (done 26 March 1999, entered into force 9 March 2004) 2253 unts 172. Converting a cultural property, i.e. a civilian object, into a military objective is prohibited under Art 4 (1) Hague Convention as well as Art. 53 ap i and Art. 16 ap ii which explicitly prohibit the use of cultural property in support of a military effort; it is however noteworthy that the icc Statute does not criminalize the conduct of the holder of cultural property, a stance criticized by M. Frulli, ‘The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest for Consistency’ (2011) 22 ejil 203, 215–216.



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the military advantage that could be obtained by selecting another target.42 By and large, Additional Protocol i and ii to the Geneva Convention of 1977 follow the same logic:43 If in an international armed conflict a cultural site is used by one party in support of a military effort contrary to Art. 53 (b) ap i, a deliberate attack against that site by the enemy would be lawful under Art. 52 (2) ap i if its destruction makes an effective contribution to the military situation and offers a definite military advantage.44 The same is valid for cultural sites in non-international armed conflicts which are militarized in violation of Art 16 ap ii. Even though ap ii lacks a provision on military objectives similar to Art. 52 (2) ap i on the basis of which a party could justify the destruction of cultural property,45 Art. 16 ap ii does not dismiss within its scope of application the customary rule on lawful military objectives.46 However, it is an expression of the fundamental proportionality rule, that the possibility of lawfully targeting cultural property ‘should not be accepted without duly taking into account the fact that the objects concerned are of exceptional interest and universal value,’ as it is phrased in the icrc Commentary on Art. 16 ap ii.47 On the basis of the above, it can be said that customary and conventional ihl put an emphasis on the existence of both a traditional military objective and a definite military advantage being obtained by the attack. Underlying ideological motives may, but do not necessarily, diminishes the ‘definite military advantage.’ It is worth noting in this respect, however, that where regime change is the political goal of the military operation, it is argued that objects of purely psychological or ideological importance for the adversary’s political leadership are a legitimate 42 43

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45 46

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C. Ehlert, Prosecuting the Destruction of Cultural Property in International Criminal Law (Brill 2013) 86 see fn. 338. On the relationship between imperative military necessity rule in the 1954 Hague Convention and the military objectives rule in ap i see M. Lostal Becerril, ‘The Meaning and Protection of “Cultural Objects and Places of Worship” under the 1977 Additional Protocols’ (2012) 59 nilr 455, 469–471. Y. Sandoz, C. Swinarski and B. Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (icrc 1987) Art. 53 ap i, para. 2079. Sandoz, Swinarksi and Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 Art. 16 ap ii, para. 4846. J.-M. Henckaerts and L. Doswald-Beck, Customary Law International Humanitarian Law vol. i Rules (icrc/cup 2009) Rule 8 (Definition of Military Objectives) in conjunction with Rule 10 (Civilian Objects’ Loss of Protection); cf. also R. O’Keefe, The Protection of Cultural Property in Armed Conflict (cup 2006) 231; for a different view see Toman, Protection of Cultural Property in the Event of Armed Conflict 389. Sandoz, Swinarksi and Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 Art. 16 ap ii, para. 4846.


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military target.48 Unsurprisingly, it is not openly discussed that such militarily valuable objects could well be of cultural value for the people. Even though the 2003 us-led Operation ‘Iraqi Freedom’ provides some examples for psychologically significant targeting,49 States are more or less conscience of the need to argue the military objective value of their target selection,50 and rightly so, given that any policy-based broadening of the military objective principle would cut both ways, i.e. for the adversary as well. The legal prohibition of ideology-driven destruction of cultural property in armed conflicts gains further complexity in the light of the fact that is’s destructive efforts in Palmyra and elsewhere are cloaked as the exercise of governmental authority without any connection to their armed struggle against any of the multitude of parties involved in the Syrian Civil War. Referring to the Taliban’s destruction of the great Buddhas in Bamiyan, O’Keefe observed that not every culturally destructive act performed on the territory of a State for the duration of the conflict falls under the ambit of the 1954 Hague Convention or customary international law of armed conflict,51 citing a wealth of international criminal law jurisprudence that does not consider acts unrelated to the armed conflict as war crimes but as domestic offences.52 Findings on individual punishment, however, do not fully embrace the object and purpose of international treaties regulating the behaviours of belligerent parties.53 Proceeding exclusively from the 1954 Hague Convention’s approach on State and group obligations, the convention not only aims at protecting cultural property from the machinery of war (Art. 3, 4 (1)) but also from harmful acts 48

See the discussion in University Centre for International Humanitarian Law Geneva, eport – Expert Meeting: “Targeting Military Objectives” (12 May 2005) 9, available at R http://www.geneva-academy.ch/docs/expert-meetings/2005/1rapport_objectif_militaire. pdf (accessed 15 January 2016). 49 J. Dill, Legitimate Targets? Social Construction, International Law and us Bombing (cup 2015) 181. 50 See the us policy in this regard as described in Henckaerts and Doswald-Beck, Customary Law International Humanitarian Law vol. i Rules 31 (Rule 8). 51 O’Keefe, The Protection of Cultural Property in Armed Conflict 98–99. 52 See, especially, Prosecutor v. Kunarac (Appeal Judgment) IT-96-23 & IT-96-23/1-A (12 June 2002), para. 58: ‘The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed’; see also Prosecutor v. Akayesu ( Judgment) ICTR-96-4-A (1 June 2001), para. 444. 53 P. Gaeta, ‘Geneva Convention and International Criminal Law’ in A. Clapham, P. Gaeta and M. Sassòli (eds), The 1949 Geneva Convention, A Commentary (oup 2015), para. 36 et seq. and 39.



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of private parties which take advantage of the general breakdown of a State’s civil structures when pursuing their criminal interests (Art. 4 (3)).54 From the perspective of a State still battling in certain areas civil war factions, the latter’s acts of ‘cultural cleansing’55 in territory under their exclusive control remain acts of private vandalism punishable as a domestic crime despite any display of self-styled de facto governmental authority. The State’s international duty under Art. 4 (3)56 to prevent or stop such private wrongdoing is, however, a due diligence obligation,57 which in times of internal armed conflict effectively amounts to nothing if the State has militarily lost effective control over parts of its territory.58 In contrast to, the armed group effectively controlling the area where cultural property is located, is internationally responsible for any ideology-driven cultural destruction under the 1954 Convention precisely because the act is not justifiable under Art. 4 (1) (imperative military necessity).59 In addition, the territorial control puts the civil war faction under the international due diligence obligation to prevent and stop their adherents and civilian population from committing acts of cultural theft and vandalism (Art. 4 (3) in conjunction with Art. 19).

54

55

56

57 58

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The looting of the Iraqi National Museum in 2003 falls under Art. 4 (3) regarding the r esponsibility of the us having effective control of the area, see in this regard M. Thurlow, ‘Protecting Cultural Property in Iraq: How American Military Policy Comports with International Law’ (2005) 8 Yale Human Rights and Development Journal 153, 179. unesco ‘Heritage and Cultural Diversity at Risk in Iraq and Syria. International Conference. Report’ (3 December 2014) 3: ‘The term cultural cleansing refers to an intentional strategy that seeks to destroy cultural diversity through the deliberate targeting of individuals identified on the basis of their cultural, ethnic or religious background, combined with deliberate attacks on their places of worship, memory and learning.’ un HRCouncil Resolution 6/11 ‘Protection of Cultural Heritage as an Important Component of the Promotion and Protection of Cultural Rights’ (28 September 2007) gaor 63rd Session Supp 53, 19, para. 5. For peace time duties of a State regarding private wrongdoing see Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Merits) [1949] icj Rep 4, 18. J. Frowein, Das de facto-Regime im Völkerrecht: Eine Untersuchung zur Rechtsstellung ‘nichtanerkannter Staaten’ und ähnlicher Gebilde (Heymanns 1968) 72; C. Ryngaert and A. Van de Meulebroucke, ‘Enhancing and Enforcing Compliance with International Humanitarian Law by Non-State Armed Groups: An Inquiry into Some Mechanisms’ (27 January 2012) 16 J. Conflict & Sec. L. 443, 463; also Ilaşcu v. Moldova (ECtHR) Reports 2004-VII 179, para. 340. O’Keefe considers the acts of private vandalisms implicitly prohibited under Art. 4 (3) on the basis of the object and purpose of the 1954 Hague Convention; O’Keefe, The Protection of Cultural Property in Armed Conflict 132.


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That said, whereas the 1954 Hague Convention clearly establishes armed group obligations, the State-centric reality of international relations provides few examples of groups held responsible for their acts and omission regarding cultural destruction. One of the reasons for the factual responsibility gap that stretches far beyond cultural property issues could be that armed groups and insurrection movements lack the tangibility of a registered legal person, making them a fugitive from the law.60 In addition, the decentralized nature of traditional international law enforcement is deficient when it comes to mechanisms that determine the responsibility of armed groups and the consequences of their actions. This non-apologetic observation at least explains the present day focus on international sanctions against a group’s individual members with the aim of changing the targeted behaviours (Chapter 4) and the criminal responsibility of the individual members of the group for the destruction of cultural property (see Chapter 3.3). 2 Ideology-Based Cultural Destruction in Peace Time Despite the factual responsibility gap, the laws of armed conflict at least have rules that establish the armed group’s international obligations and responsibilities regarding cultural property. The legal situation is less clear once the military conflict stops and the armed group converts into a de facto government, raising the question of when exactly a non-international armed conflict ends to the effect that humanitarian law, including the 1954 Hague Convention, no longer apply to the conduct of the effectively ruling party. Possibly for the purpose of securing its own jurisdiction, the icty in the Tadić case took the rather academic view that the internal armed conflict extends beyond the cessation of hostilities until a peaceful settlement is achieved.61 Others convincingly counter argue that the beginning of an armed conflict is determined on the basis of the factual situation on the ground, hence its end should likewise be determined.62 For the purpose of cultural property

60 61

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L. Zegveld, Accountability of Armed Opposition Groups in International Law (cup 2002) 223. Prosecutor v. Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-AR72 (2 October 1995), para. 70; for the same line of argument see S. Sivakumaran, The Law of Non-International Armed Conflict (oup 2012) 252–254. M. Milanovic, ‘The End of Application of International Humanitarian Law’ (2014) 96 irrc 163, 180; R. Bartels, ‘From Ius in bello to Jus Post Bellum: When Do Non-International Armed Conflicts End?’ in C. Stahn, J.S. Easterday and J. Iverson (eds), Jus Post Bellum: Mapping the Normative Foundations (oup 2014) 303 et seq.



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protection63 it suffices to point out that the new de facto government64 which no longer faces military resistance from the ousted de jure government must comply with all international rules that are binding for the State they claim to represent.65 This legal situation extends to situations where a new de facto government insists – even if internationally unheeded – on representing an entirely new State because of an ideological break with the old regime and its cultural identity.66 In such a situation, peacetime rules on cultural protection apply to acts of this de facto government irrespective of its international recognition and irrespective of ongoing clashes with remaining opposition groups in any fringe areas,67 as was the case with Afghanistan after the Taliban seized control of 90% of the country including the Bamiyan valley with its cultural treasures in 1998. Matters become legally obscure if the de facto regime effectively controls only parts of the parent State’s territory. Provided that the parent State is party to the 1972 Cultural Heritage Convention, its sovereignty over the cultural property reaches as far as its territorial sovereignty stretches, giving the parent State the right to request the inclusion of a cultural property situated in the newly detached territory in accordance with Art. 11 Cultural Heritage Convention (1972). Considering the Convention’s focus on the sovereign rights 63

64

65

66

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For instance, J.A. Hessbruegge, ‘Human Rights Violations Arising from Conduct of on-State Actors’ (14 March 2005) 11 Buff. Hum. Rts. L. Rev. 21, 40; T. Rodenhäuser, ‘Human N Rights Obligations of Non-State Armed Groups in Other Situations of Violence: The Syria Example’ (1 November 2013) 3 J. Int’l Human. Legal Stud. 263; Y. Ronen, ‘Human Rights Obligations of Territorial Non-State Actors’ (2013) 46 Cornell Int’l L.J. 21; D. Matas, ‘Armed Opposition Groups’ (1997) 24 Man. L. J. 621, 629 et seq. For the usage with regard to the terms de facto regime and de facto government see S. Talmon, ‘The Constitutive versus the Declaratory Theory of Recognition: Tertium non datur?’ (2004) 75 bybil 101, 148. J. Pictet (ed), Commentary to the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (icrc 1958) 37; see also un ilc ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (2001) gaor 56th Session Supp 10, 43, Art. 9 (4), pointing at the applicability of Art. 4 asr, with reference to the Tinoco Case: Aguilar Amory and Royal Bank of Canada (Great Britain v. Costa Rica) (1923) 1 un riaa 369, 381 et seq.; Frowein, Das de facto-Regime im Völkerrecht – Eine Untersuchung zur Rechtsstellung „nichtanerkannter Staaten’ und ähnlicher Gebilde 154 et seq. For a discussion on State responsibility in the case of an armed group being successful in becoming the new government or establishing a new State pursuant to Art. 10 asr see P. Dumberry, ‘New State Responsibility for Internationally Wrongful Acts by an Insurrectional Movement’ (2006) 17 ejil 605. C. Forrest, International Law and the Protection of Cultural Heritage 83; cf. also Milanovic, ‘The End of Application of International Humanitarian Law’ 180.


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of State Parties, the de facto regime of a self-proclaimed but unrecognized territorial entity evidently enjoys no rights under Art. 11 (‘States’),68 let alone the ‘sovereign’ right to dispose of the cultural property situated in territory under its effective control.69 This is equally valid for a local de facto regime which is a pawn in the hands of an occupying power, the latter being obliged to cooperate in cultural protection matters with the national authorities (Art. 5 Hague Convention (1954)). This category encompasses for example the cultural property situated in Northern Cyprus over which the Republic of Cyprus has repeatedly asserted its sovereign ownership, claiming that it constitutes part of Cyprus’ cultural property and is part of the collective history and memory of the people of Cyprus as a whole nation.70 In order to fully appreciate the peacetime legal regime governing ideologybased destruction of cultural property, it is logical to begin with the obligations of State Parties under the 1972 Convention, the main legally binding instrument for peace time protection of cultural heritage ‘of an outstanding universal value’ (Art. 1). In the first sentence of Art. 4, State Parties to the Convention ‘recognizes’ the duty of the State where cultural heritage is situated (hereafter referred to as the State of origin) to ensure the protection and conservation of cultural heritage, using a rather suggestive language in that it encourages States more

68

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The Operational Guidelines for the Implementation of the World Heritage Convention of 8 July 2015 only refer to ‘State Parties’; the Angkor site in Cambodia was included in the World Heritage List (1992) while the country was governed by a un mission. The Committee deciding on the inscription noted this unique situation and waived some conditions required under the Operational Guidelines. However, the Committee stressed in unesco World Heritage Committee Decision 667 (14 December 1992) WHC-92/CONF.002/12, para. 37 that this action was not to be taken as setting a precedent for the inscription procedure. See Art. 5 (6) Law of Georgia on Cultural Heritage Protection; for the competence of the Autonomous Republic of Abkhazia within Georgia in the field of cultural heritage protection see Art. 7, available at http://www.unesco.org/culture/natlaws/media/pdf/georgia/ geo_lawculturalheritage_engtof.pdf (accessed 15 January 2016); in 2004, the four medieval churches in Kosovo were listed as World Heritage with Serbia being the responsible State Party, unesco Decision 28 com 14B.47 (29 October 2004). At its 197th Session, the unesco Executive Board recommended that the General Conference admit the Republic of Kosovo as a member of unesco, unesco Decision 38 C/60 (31 October 2015). T. Papademetriou, ‘Cyprus: Destruction of Cultural Property in the Northern Part of Cyprus and Violations of International Law, The Law Library of Congress’ (April 2009) The Law Library of Congress Directorate of Legal Research ll File No. 2008–01356, 1, available at http://www.loc.gov/law/help/cultural-property-destruction/cyprus-destruction -of-cultural-property.pdf (accessed 15 January 2016).



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that it compels.71 This is underlined by the State’s prerogative to identify within the realm of its territorial sovereignty the cultural property of outstanding universal value (Art. 3). Despite the Convention’s reference to the collective interest of the international community in the preservation of cultural property assigned to the ‘universal value’ category (‘part of world heritage of mankind as a whole’72), the 1972 Convention shies away from a clear cut erga omnes partes obligation of the State of origin vis-à-vis the other State Parties or the international community as a whole, putting instead the emphasis on the principle of self-commitment and, along this line, international assistance (second sentence of Art. 4). That having been said, the Cultural Heritage List73 (Art. 11) gives a global profile to the outstanding universal value of the listed cultural properties,74 itemized at the request of the State of origin, which in turn significantly increases the inclination of the international community to strongly protest any State-sponsored damage to that property. By requesting the inclusion of a monument or site on the list, the State of origin formally accepts its predominantly custodial function pertaining to the listed cultural property along with the concomitant limitation of its sovereignty. Beyond the World Heritage List, however, the international community’s approach towards the destruction of cultural property remains vague and situational; this naturally severely impedes the international norm creation process. As Kanchana Wangkeo’s 2003 study75 convincingly demonstrates, the international reaction to the destruction of cultural property, particularly in non-conflict cases, is the outcome of a complex balancing act: the transnational cultural significance of the property, the residing State’s economic development priorities, as well as its financial and technical capacities to choose less invasive methods are taken into account. Even though designed as the international answer to the 71

72 73 74

75

In contrast to, see the compulsory wording of Art. 6 (3) (‘undertakes’) with regard to the duties of States regarding the cultural heritage of other States; accordingly, the Austrian Administrative Court considered it a prerogative of States to decide on their duties under Art. 4, Case 2011/03/0160, 0162, 0164, 0165 Austrian Administration Court (Verwaltungsgerichtshof) (19 December 2013), para. 9.4.1 (Semmering Basistunnel neu). 6th Recital of the Preamble of the 1972 World Heritage Convention. The complete World Heritage List is available at http://whc.unesco.org/en/list/ (accessed 15 January 2016). In order to be eligible for inclusion in the World Heritage List, cultural property must fulfill at least one out of the ten selection criteria for the assessment of outstanding universal value, which are set out in the unesco ‘Operational Guidelines for the Implementation of the World Heritage Convention’ (8 July 2015) whc. 12/01, para. 77–78. Wangkeo, ‘Monumental Challenges: The Lawfulness of Destroying Cultural Heritage during Peacetime’ 183–274.


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iconoclastic destruction of the Bamiyan Buddhas, the legally non-binding 2003 unesco Declaration concerning the Intentional Destruction of Cultural Heritage76 does not significantly contribute to the contouring of States’ legal peacetime obligations.77 Instead, the declaration blurs the line between legal and moral considerations by introducing a Martens clause on cultural heritage protection according to which the intentional destruction of cultural property that does not violate principles of international law may nevertheless constitute an unjustifiable offence to the principle of humanity and dictates of public conscience.78 The lack of legal clarity may be the reason why States protesting about the intentional destruction of cultural property often emphasize human and minority rights concerns instead of cultural property considerations.79 Especially in cases of ideology-driven cultural destruction, the discriminative objectives of the State of origin tends to push the cultural rights of the targeted group to the fore.80 Evidently, the freedom of religion (Art. 18 iccpr) as well as minorities rights (Art 27 iccpr)81 and the rights of indigenous people82 are closely linked to the more general right to participate in cultural life (Art. 15 (1) (a) icescr).83

76 77 78 79

80

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unesco ‘Declaration Concerning the Intentional Destruction of Cultural Heritage’ (17 October 2013) 32 C/Resolution 15. F. Lenzerini, ‘The unesco Declaration Concerning the Intentional Destruction of Cultural Heritage: One Step Forward and Two Steps Back’ (2003) 13 iyil 131. unesco ‘Declaration Concerning the Intentional Destruction of Cultural Heritage’ Part ii, para. 2. Wangkeo, ‘Monumental Challenges: The Lawfulness of Destroying Cultural Heritage during Peacetime’ 209; see generally Z. Niesel, ‘King Tut and Tahrir Square: The Egyptian Revolution of 2011 and the Advantage of Viewing Cultural Heritage Destruction through a Right to Culture Lens’ (2014) 20 Sw. J. Int’l L. Law 283, 301 et seq. un HRCouncil Resolution 6/11 ‘Protection of Cultural Heritage as an Important Component of the Promotion and Protection of Cultural Rights’ (28 September 2007) gaor 63rd Session Supp 53, 19. See also Art. 2 (2) unga Res 47/135 ‘Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities’ (18 December 1992) gaor 47th Session Supp 49 vol 1, 210. Art. 8 Declaration on the Rights of Indigenous Peoples, Annex to unga Res 61/295 (13 September 2007) gaor 61st Session Supp 49 vol 3, 15; see also ilo ‘Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries’ (adopted 27 June 1989, entered into force 5 September 1991) 1650 unts 383. For a comprehensive analysis of all relevant human rights instruments see E. Stamatopoulou, Cultural Rights in International Law (Nijhoff 2007) 38 et seq.; see on the interconnection of the different human rights cescr ‘General Comment No 21: Right of



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Depending on the scale of the cultural destruction, the accusation may even culminate in claims of cultural genocide and crimes against h umanity (see Chapter 3.3). But even in cases where the human rights of a particularly vulnerable group are not at stake, as was the case with the Bamiyan Buddhas, the ideological objective of the cultural destruction is – unlike comprehensible economic development priorities – not accepted by the international community as valid grounds of justification.84 At the same time, however, it should be noted that not every ideology-based destruction of historically significant symbols or property, for instance in the course of a regime change, is internationally considered culturally reprehensible (e.g. the 19m high statue of Lenin in Berlin-Friedrichshain or Saddam Hussein’s statue in Firdos Square). That said, the universal cultural value of the Bamiyan Buddhas, even though in 2001 not listed as World Heritage, was beyond doubt; their demolition by the Taliban, acting as the de facto government of Afghanistan, was not even committed under any pretense but openly iconoclastic (which, in turn, was a pretext of the Taliban’s vengeance for their non-recognition and sanctioning)85 and accordingly strongly deplored by the international community, placing the emphasis on the Taliban’s legal and moral obligations rather than that of the State Afghanistan.86 On balance, there is a noticeable tendency to shield cultural heritage from wilful damage by (quasi) sovereign actors: in its 2009 General Comment No. 21 the cescr interpreted Art. 15 (1) (a) icescr as enshrining the specific State Party obligation to preserve cultural heritage for future generations.87 Reacting to is’s destruction and looting of cultural heritage sites in Iraq, the un General Assembly adopted in May 2005 Resolution 69/281,88 calling upon community leaders to ‘reaffirm unambiguously that there is no justification for the destruction of human’s cultural heritage,’ which is a further

84 85

86 87 88

Everyone to Take Part in Cultural Life’ (21 December 2009) un Doc. E/C.12/GC/21, para. 25 et seq. Wangkeo, ‘Monumental Challenges: The Lawfulness of Destroying Cultural Heritage during Peacetime’ 265. F. Francioni and F. Lenzerini, ‘The Obligation to Prevent and Avoid Destruction of Cultural Heritage: From Bamiyan to Iraq’ in B.T. Hoffman (ed), Art and Cultural Heritage: Law, Policy and Practice (cup 2006) 28. unga ‘Destruction of the Relics and Monuments in Afghanistan’ (7 March 2001) un Doc. A/55/L.79. cescr ‘General Comment No 21: Right of Everyone to Take Part in Cultural Life’ (21 December 2009) un Doc. E/C.12/GC/21, para. 50. unga Res 69/281 ‘Saving the Cultural Heritage of Iraq’ (28 Mai 2015) un Doc. A/Res/69/281, op 8.


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step towards a solid legal rule prohibiting without exceptions the destruction of universally recognized cultural heritage.89 International Criminal Responsibility for Ideology-Based Cultural Destruction The universal condemnation of the senseless cultural destruction in Afghanistan, Syria and Iraq notwithstanding, the legal consequences of group responsibility have not yet moved from principle to practice.90 In contrast to, international efforts to enforce individual criminal responsibility for deliberate cultural destruction have already born fruit. The indictment of Mr Al-Faqi by the icc prosecutor for having intentionally directed attacks against World Heritage cultural property in Timbuktu, Mali, the first cultural property case in the history of the Court, is the latest development in this field that has been p ioneered by the imt in Nuremberg.91 The deliberate destruction of nine historical mausoleums in Timbuktu by members of Ansar Dine and aqim, two Jihadi Salafist movements,92 is a further example of modernday iconoclasm which constitutes an ideologically motivated offense targeted against property but also the international community as a whole. That said, neither the existence of an international criminal norm nor its enforcement will prevent ideologically motivated offenders from transgressing the norm because the motivating factor is the very ideological value they seek to preserve or promote through the offense.93 Consequently, neither general nor specific deterrence for the protection of cultural heritage is going to realistically be found solely through international prosecution;94 instead, the important 3

89

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92 93

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unga Res 69/281 ‘Saving the Cultural Heritage of Iraq’ op 8 does not refer to cultural destruction in armed conflict, which is addressed in op 4 to 6 together with the military necessity and military objective exemption. On the international criminal responsibility of armed groups as a whole see A. Clapham, ‘Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups’ (2008) 6 J. Int’l Crim. Just. 899, 919 et seq. Alfred Rosenberg was sentenced as the head of the Einsatzstab Rosenberg, which plundered museums and libraries, confiscated art treasures and collections, and pillaged private houses, see Trial of the Major War Criminals before the International Military Tribunal vol. 1 (Secretariat of the Tribunal Nuremberg 1947) 295. Office of the Prosecutor ‘Situation in Mali: Art. 53 (1) Report’ (icc 16 January 2013), para. 31, 32. M.C. Bassiouni, ‘Ideologically Motivated Offenses and the Political Offenses Exception in Extradition: A Proposed Juridical Standard for an Unruly Problem’ (1969) 19 DePaul L. Rev. 217, 229. For general considerations on the futility of the deterrence objective see J. Klabbers, ‘Just Revenge? The Deterrence Argument in International Criminal Law’ (2001) 12 Finnish Yearbook of International Law 249, 253.



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message c onveyed by it is – apart from executing retributive justice – the reaffirmation of the international legal order and its core values to all those affected by the cultural loss.95 The only category of international crimes which directly criminalizes cultural property destruction for what it is, is that of war crimes pursuant to Art. 3 (d) icty-Statute and Art. 8 (2) (b) (ix) and (e) (iv) icc Statue.96 However, the language of the provisions does not positively reflect the international community’s enhanced interest in cultural property preservation beyond its status as one of many civilian objects worthy of protection.97 This may be the reason why international jurisprudence struggles to take a decisive cultural protection stance when interpreting and applying the (customary) criminal rules. As of 2015, the icty passed nine final sentences concerning the wilful destruction of cultural property,98 two cases are still pending99 before the trial chamber and one is under appeal.100 Whereas most cases concern the wilful destruction of religious sites due to the ethnic-religious root causes of the Yugoslavian conflict,101 the icty’s legal handling of secular cultural property, especially the Old Town of Dubrovnik and the Old Bridge of Mostar, reveals the ambivalent status of cultural property protection in international criminal law. Since the Kordić and Ĉerkez Trial Chamber judgment, cultural property protected within 95

K. Fisher, Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World (Routledge 2011) 51, 65. 96 See also Art. 7 eccc Statute: ‘The Extraordinary Chambers (in the Courts of Cambodia) shall have the power to bring to trial all suspects most responsible for the destruction of cultural property during armed conflict pursuant to the 1954 Hague Convention for Protection of Cultural Property in the Event of Armed Conflict, and which were committed during the period from 17 April 1975 to 6 January 1979.’ 97 Frulli, ‘The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest for Consistency’ 204 et seq. 98 Prosecutor v. Blaškić (Appeal Judgment) ICTY-95-14 (29 July 2004); Prosecutor v. Brđanin (Appeal Judgment) ICTY-99-36-A (3 April 2007); Prosecutor v. Kordić (Appeal Judgment) ICTY-95-14-2-A (17 December 2004); Prosecutor v. Biljana Plavšić (Sentencing Judgment) IT-00-39&40 (27 February 2003); Prosecutor v. Martić (Appeal Judgment) ICTY-95-11-A (8 October 2008); Prosecutor v. Naletilić and Martinović ( Judgment) IT-98-34-T (31 March 2003); Prosecutor v. Stakić ( Judgment) IT-97-24-A (22 March 2006); Prosecutor v. Jokić (Appeal Judgment) IT-01-42/1-A (30 August 2005); Prosecutor v. Strugar ( Judgment) IT-0142-A (17 July 2008). 99 Prosecutor v. Šeŝelj, IT-03-67 and Prosecutor v. Hadžić, IT-04-75. 100 Prosecutor v. Prlić, Stojić, Praljak, Petković, Ćorić & Pušić IT-04-74: only two indictments concern the destruction of cultural property (Praljak and Petkovic). 101 M. Frulli, ‘Advancing the Protection of Cultural Property through the Implementation of Individual Criminal Responsibility: The Case-Law of the International Criminal Tribunal for the Former Yugoslavia’ (2005) 15 iyil 195, 198.


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the meaning of Art. 3 (d) icty Statute has been determined with Art. 1 Hague Convention in mind.102 In Jokić and Strugar, the artillery attack on the Old Town of Dubrovnik, a listed World Heritage site since 1975, gave the icty Trial Chamber the opportunity to stress that attacks against cultural property significant to not only the region but of all mankind bear an inherent gravity.103 In Strugar, the Trial Chamber considered that the special protection awarded to cultural property itself may not be lost simply because of military activities or military installations in the immediate vicinity of the cultural property.104 The two judgments stand in stark contrast to the 2013 Trial Chamber judgment in Prlić et al. (under appeal) concerning the destruction of the Old Bridge of Mostar (Stari Most), an Ottoman bridge build in the 16th century, destroyed by the Croatian Army in 1993 and listed after its reconstruction on the World Heritage list in 2005. In rather dry words, the Trial Chamber qualified the Old Bridge as ‘real property normally used by civilians’ that played an essential role in combat activities, making it a military target at the time of the attack.105 The majority of the Trial Chamber concluded that the destruction of the bridge may have been justified under military necessity considerations but was disproportionate due to the impact its destruction had on the civil population. The latter was indicated not only by its function as a lifeline for Mostar’s Muslim population on the right river bank but also by its immense cultural, historical and symbolic value for the Muslim community.106 The Tribunal’s struggle to adequately address cultural property preservation in times of armed conflict is underlined by presiding Judge Antonetti’s dissenting opinion: After explaining at length the cultural property dimension of the case (which he missed in the trial chamber judgment), he continued by stating that the bridge’s destruction gave the Croatian army a definite military advantage and thus constituted a legitimate military objective: ‘If the Old Bridge was a military objective, it quite simply had to be destroyed.’107 The controversy about the principle of proportionality governing the target selection touches the raw nerve of cultural property protection in combat situations. Irrespective of whether the Appeal Chamber will maintain the Trial Chamber’s rather weak legal reasoning, the 102 Prosecutor v. Kordić & Čerkez (Trial Judgment) ICTY-95-14/2-T (26 February 2001), para. 359. 103 Prosecutor v. Jokić (Trial Judgment) IT-01-42/1-S (18 March 2004), para. 51–53. 104 Prosecutor v. Strugar (Trial Judgment) IT-01-42-T (31 January 2005), para. 310. 105 Prosecutor v. Prlić (Trial Judgment) IT-04-74-T (29 May 2013) vol. 3, para. 1582. 106 Prosecutor v. Prlić (Trial Judgment) vol. 3, para. 1585. 107 Prosecutor v. Prlić (Trial Judgment) (Dissenting Opinion of Judge Antonetti) IT-04-74-T (29 May 2013) vol. 6, 325.



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latter’s findings on the excessive negative effect of the attack on civilian life again pushes humanitarian considerations to the front (Art. 53 ap i108) with the cultural value of the Old Bridge playing only a tangential role. That enabled the tribunal to apply a stricter ‘proportionality in attack’ rule than the one envisaged in Art. 6 (a) Second Protocol to the 1954 Hague Convention for the sake of cultural property protection. Bringing ethnic ideology into the cocktail of motives that led to the destruction of the Old Bridge,109 one may support the notion that property destruction driven by adverse distinction on the grounds of race, religion, beliefs or culture is ipso facto devoid of military necessity even in combat.110 As a rule the icty does not inquire into non-military motives for destroying a military objective. However, it refuses to accept the military necessity of property destruction under the condition that the destruction was evidently not linked to combat activities and the specific target selection (e.g. only Muslim houses) indicated ethnically driven obliteration.111 In contrast to war crimes, crimes against humanity and the crime of genocide clearly capture the ideological pretension and intention behind the destructive acts, irrespective of whether committed in times of armed conflict or in peace time. On the other hand, both crimes are ‘anthropocentric’ and thus not directly concerned with the intrinsic value of cultural property and heritage. Contrary to what Raphael Lemkin who coined the term ‘genocide’ envisaged,112 the modern international crime of genocide does not embrace attempts at cultural extinction.113 In Krstić, the icty Trial Chamber explicitly rejected the very idea, referring to the travaux préparatoires of the Genocide

108 Sandoz, Swinarksi and Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 Art. 53 ap i, para. 2079. 109 J. Petrovic, ‘A Monument, Identity and Nationhood: the Case of the Old Bridge of Mostar’ in D. French (ed), Statehood and Self-determination – Reconciling Tradition and Modernity in International Law (cup 2013) 429, 444. 110 N. Hayashi, ‘The Requirement of Military Necessity in International Humanitarian Law and International Criminal Law’ (10 March 2010) 28 bu ilj 39, 124; see also Rule 88 in Henckaerts and Doswald-Beck, Customary Law International Humanitarian Law vol. i Rules 308. 111 Prosecutor v. Kordić (Appeal Judgment) ICTY-95-14–2-A (17 December 2004), para. 484– 485, 583–586; Prosecutor v. Brđanin (Appeal Judgment) ICTY-99-36-A (3 April 2007), para. 340–341. 112 R. Lemkin, Axis Rule of Occupied Europe (Carnegie Endowment for International Peace 1944) 84. 113 See for the discussion on cultural genocide in un organs, B. Sautman, ‘Cultural Genocide and Tibet’ (2003) 38 tilj 173 182 et seq.


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Convention and the relevant considerations of the ilc.114 This view was later reinforced by the icj in the 2007 Genocide Case: ‘In the Court’s view the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group.’115 However, the icj with reference to the Krstić judgment116 endorsed that simultaneous attacks on cultural and religious property and symbols of the targeted group may be legitimately considered as evidence of the intent to physically destroy the group.117 Unlike the crime of genocide, the category of crimes against humanity criminalizes cultural property destruction as an act of persecution directed against persons, provided that the act was perpetrated with the requisite discriminatory intent.118 The imt in Nuremberg considered that the discriminatory confiscation, destruction and plunder of cultural property can amount to crimes against humanity,119 which was decades later confirmed by the icty: prosecution on political, racial, religious and cultural grounds which was recognized as a crime against humanity under Art. 5 (h) icty Statute that encompasses not only bodily and mental harm but also discriminatory destruction of cultural property such as religious sites and cultural monuments representative of a particular group;120 such acts, if part of a widespread, systematic attack against any civilian population or segment thereof and perpetrated with discriminatory intent,121 amount to an attack on the identity of the targeted group. In the words of the icty Trial Chamber in Kordić and Čerkez, ‘it manifests a nearly pure expression of the notion of “crimes against humanity,” 114 Prosecutor v. Krstić ( Judgment) IT-98-33-T (2 August 2001), para. 571. 115 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits) (26 February 2007) icj Doc. 2007 General List No 91, para. 344. 116 Prosecutor v. Krstić ( Judgment), para. 580. 117 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), para. 344. 118 See already un ilc ‘Draft Code of Crimes against the Peace and Security of Mankind’ 268. 119 See sentencing of Alfred Rosenberg for war crimes and crimes against humanity Trial of the Major War Criminals before the International Military Tribunal vol. 1 (Secretariat of the Tribunal Nuremberg 1947) 295. 120 Prosecutor v. Blaškić ( Judgment) IT-95-14 (3 March 2000), para. 233; see also Prosecutor v. Tadić (Opinion and Judgment) IT-94-1 (7 May 1997), para. 703–704. 121 Prosecutor v. Krajišnik (Trial Judgment) IT-00-39-T (27 September 2006), para. 781–783; Prosecutor v. Tadić (Opinion and Judgment), para. 644: ‘[…] the individual being victimized not because of his individual attributes but rather because of his membership of a targeted civilian population.’



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for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects.’122 That said, the crime against humanity of persecution, as specified in international jurisprudence and the icc Statute, does not embraces ideologically motivated systematic attacks against an undefined ‘international community’ in the course of which the universally recognized cultural heritage of mankind is deliberately destroyed. Hence the icc Office of the Prosecutor did not indict Al-Faqi for crimes against humanity relating to the destruction of the mausoleums in Timbuktu. Labelling these acts a ‘crime against culture’ or ‘crime against the common heritage of humanity,’ as was done by the Director-General of unesco after the demolition of the the Bamiyan Buddhas,123 reflects the nature of the crime but does not change the fact that no international criminal law currently exists to deal with such offences.124 iv

International Community Response

1 United Nations Countermeasures: Prospects and Dilemmas Since its establishment in 1946, unesco – being part of the un family – condemns the deliberate destruction of cultural property, raises international awareness, manages the list ‘Cultural Heritage in Danger,’ provides implementation tools and assistance for States, and launches safeguarding actions.125 With iconic cultural heritage in Afghanistan, Mali, Libya,126 Iraq and Syria at the mercy of Jihadi extremists, the somewhat feverish compilation of e mergency measures of the last category illustrates the helplessness of the international community when confronted with pariah regimes and their ideological warfare against the ‘culture of the heretics.’ unesco is not alone in its struggle: almost all un organs including the Security Council have concerned

122 Prosecutor v. Kordić (Trial Judgment), para. 207. 123 unesco ‘Report by the Director-General on the Execution of the Program Adopted by the General Conference’ (21 May 2001) 161st Session, 3. 124 M. Frulli, ‘The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest for Consistency’ 126. 125 On 28 March 2015, unesco launched Unite4Heritage, a campaign aiming to create a global movement ‘to protect and safeguard heritage in areas where it is threatened by extremists.’ 126 is in Libya seized control of Sabratha, including its ancient Roman amphitheatre, one of Libya’s five unesco World Heritage sites; no destruction is reported yet.


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themselves with is’s destruction of cultural heritage.127 With their statements and actions, unesco and the un organs raise public awareness and concerns with the undesired side-effect that is’s desire for global media coverage is further satisfied, broadcasting to the world the impotence of the international community to contain them; which is eventually a trigger for more destruction.128 This is not to say that the international community’s response as such is counterproductive: concerted efforts under unesco’s auspices such as the Million Images Database that documents at-risk sites in the Middle East and North Africa, training programs for Syrian, Iraqi, Libyan and Malian professionals and other programs funded through the unesco Heritage Emergency Fund129 try to remedy or at least counteract the losses within the realms of possibility.130 A fairly new development is that the Security Council has approached the subject of cultural heritage destruction under Chapter 7. In its first and still tentative reference to cultural heritage in Resolution 1267 (1999), the Security Council reaffirmed its respect for Afghanistan’s cultural and historical heritage only to impose targeted sanction against the Taliban regime for sheltering international terrorists.131 Two years later, these very sanctions fuelled inter alia the Taliban’s warfare against the Bamiyan Buddhas.132 In May 2003, three weeks after Iraq came under the military occupation of the us-led alliance, the Security Council in Resolution 1483 (2003) ‘decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum,

127 unsg, unesco Director-General Irina Bokova and un and League of Arab States Joint Special Representative for Syria L. Brahimi ‘The Destruction of Syria’s Cultural Heritage Must Stop,’ available at http://www.un.org/sg/statements/index.asp?nid=7521 (accessed 15 January 2016); unga Res 69/281 ‘Saving the Cultural Heritage of Iraq’ (28 May 2015) un doc. A/RES/69/281. 128 A. Al-Azm, ‘Why isis Wants to Destroy Syria’s Cultural Heritage’ (8 October 2015) Time, available at http://time.com/4065290/syria-cultural-heritage/ (accessed 15 January 2016). 129 unesco ‘Emergency Funds for an Inventory of Intangible Cultural Heritage in Mali with a View to Its Urgent Safeguarding’ (4 November 2013) Decision 8.com 3.BUR 4. 130 See also the unesco–eu Emergency Safeguarding of Syrian Heritage Project, officially launched in March 2014 for a period of three years, managed by the unesco office in Beirut (Lebanon). 131 unsc Res 1267 ‘Afghanistan’ (15 October 1999) un Doc/S/RES/1267 (1999). 132 Francioni and Lenzerini ‘The Obligation to Prevent and Avoid Destruction of Cultural Heritage: From Bamiyan to Iraq’ 28.



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the National Library and other locations in Iraq.’133 The universal trade ban was a reaction to the looting of the Iraq National Museum in B aghdad in April 2003, in the course of which at least 13,000 objects went missing although about 4000 objects134 were voluntarily returned later after an amnesty was declared;135 by the end of 2003, i.e. six month after the adoption of Resolution 1483 (2003), about 1900 Iraqi antiquities136 had been confiscated in neighbouring countries but as of 2015, approx. 50% of the spoils are still missing.137 Almost a decade after Resolution 1483, in June 2012, the Malian government raised the alarm that several historic sites in Timbuktu were in danger of being destroyed by armed extremist groups only for the world to witness their actual destruction two days later. The Security Council not only strongly condemned the demolition of these cultural and religious sites but also, in Resolution 2085 (2012), emphasized that ‘some of such acts may amount to crimes under the Rome Statue and that their perpetrators must be held accountable.’138 Given that the Malian government had referred the situation to the icc six month earlier in July 2012, the criminal responsibility statement was primarily of symbolic significance. A more tangible measure followed in June 2014, when the Security Council added to the already complex mission of minusma the task to assist Malian authorities in protecting cultural and historical sites in Mali from attack (see Chapter 2 below).139 And finally, the Security Council received praise from unesco140 for extending the twelve year old trade ban on Iraqi c ultural 133 unsc Res 1483 (2003) ‘Iraq–Kuwait’ (22 May 2003) scor [1 August 2002–31 July 2003] 139, op 7. 134 unesco–interpol Stolen Cultural Property Database, see http://portal.unesco.org/ culture/en/ev.php-URL_ID=17373&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed 15 January 2016); L. Rothfield, The Rape of Mesopotamia: Behind the Looting of the Iraq Museum (ucp 2009) 137. Rothfield estimates that between 2003 and 2005 approximately 400,000–600,000 artefacts have been ‘ripped from the ground,’ citing Archeologist John Malcolm Russell. 135 J. Ulph and I. Smith, The Illicit Trade in Art and Antiquity (Hart 2015) 10. 136 Rothfield, The Rape of Mesopotamia: Behind the Looting of the Iraq 139. 137 Ulph and Smith, The Illicit Trade in Art and Antiquity 11. 138 unsc Res 2085 ‘Stresses Need to Further Refine Military Planning’ (20 December 2012) un Doc. S/RES/2085 (2012), 6th recital. 139 unsc Res 2164 ‘On Extension of the Mandate of the un Multidimensional Integrated Stabilization Mission in Mali (minusma) until 30 June 2015’ (25 June 2014) un Doc. S/ RES/2164 (2014) op 14 (b). 140 The resolution was welcomed by unesco Director-General Irina Bokova, who called it a ‘milestone for enhanced protection of cultural heritage in Iraq and Syria, extending to Syria the prohibition of trade of cultural objects already in place for Iraq since 2003,’ see http://www.unesco.org/new/en/media-services/single-view/news/unesco_director


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property (Resolution 1483) to Syrian cultural property in Resolution 2199 (2015), which was drafted by Russia and unanimously adopted by the members of the Security Council.141 Most interestedly, the resolution condemns all cultural destruction in Iraq and Syria without exception, whether incidental or deliberate, and by that goes far beyond what is outlawed in armed conflict.142 The emotive prelude is followed by a trade ban in antiquities removed from Syria since 15 March 2011 which aims at preventing is and its associates from generating income from looting and smuggling of cultural heritage items (see Chapter 3 below).143 Of course, from a purely art history perspective it could be argued that trafficking of cultural objects does not constitute warfare against the objects if it does not destroy the artefacts but ultimately saves them from neglect and physical destruction.144 That being said, the art theft in Iraq and Syria is being undertaken by those who lack a preservation minded approach to the endeavour. Besides this, looting and trafficking is, without exception, a crime against those who have rightful claim on the artefacts. Then again, Security Council Resolution 2199 (2015) demands their safe return to the people of Syria, which appears to be rather counterproductive from cultural preservation perspective given the fact the country is still embroiled in its bloody civil war. It is worth noting in this regard that much of Afghanistan’s cultural property could have been lost forever without the Society for the Preservation of Afghanistan’s Cultural Heritage (spach) and other institutions taking Afghan cultural property into protective custody, particularly objects stolen from museums or discovered during illicit excavations and then identified on the international market.145 With this in mind, some un Member States along with unesco proposed to the isil/Al-Qaida Sanction Committee146 a safe _general_welcomes_un_security_council_resolution_to_step_up_protection_of_cultural _heritage_in_syria_and_iraq#.Vl8NtU10y71 (accessed 15 January 2016). 141 unsc Res 2199 ‘On Threats to International Peace and Security Caused by Terrorist Acts by Al-Qaida’ (12 February 2015) un Doc. S/RES/2199 (2015). 142 unsc Res 2199 ‘On Threats to International Peace and Security Caused by Terrorist Acts by Al-Qaida’ op 15. 143 unsc Res 2199 ‘On Threats to International Peace and Security Caused by Terrorist Acts by Al-Qaida’ op 16. 144 Demandt, Vandalismus: Gewalt gegen Kultur 43. 145 unesco ‘Activities to Protect Afghanistan’s Movable Cultural Heritage,’ available at unesco http://whc.unesco.org/en/activities/257/ (accessed 15 January 2016). 146 Former 1267/1989 Al Quaida Committee, renamed in unsc Res 2253 (2015) ‘On Expansion of Sanctions Framework to Include Islamic State in Iraq and Levant’ (17 December 2015) un Doc. S/RES/2253 (2015) op 1 to ‘1267/1989/2253 isil (Da’esh) and Al-Qaida Sanctions Committee.’



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haven approach,147 which has been received with considerable caution by the Committee, arguing that this path inadvertently increases the market size for illicit antiquities and therefore encourages an increase in the trade.148 It might be added that employing safe havens entails the risks that private collectors and museums misuse them in order to extend their collection.149 Be that as it may, the Security Council being aware of the sovereignty sensibilities of its Member States rather puts an emphasis on assisting them in the protection of cultural property than to place the latter under custodianship. 2 Peacekeeping Mandate: Support for Cultural Heritage Protection Assistance in protecting is above all needed when immovable cultural property is in danger and the un happens to be in the country, as is the case in Mali. Following the ideologically motivated destruction of ten ancient mausoleums in Timbuktu, the Security Council for the first time in peacekeeping history explicitly extended a peacekeeping mandate to cultural property protection:150 op 14 (b) of Resolution 2164 (2014) assigns to minusma the additional task ‘to assist the Malian authorities, as necessary and feasible, in protecting from attack the cultural and historical sites in Mali, in collaboration with unesco.’151 From the conceptual design of Resolution 2164 (2014) it is clear that cultural preservation is not the main focus within the framework of minusma’s extensive mandate, with all priority tasks being enumerated in op 13. At least officially, this distinction has been erased in the latest R esolution

147 Guidelines for the Establishment and Conduct of Safe Havens and Safe Haven Model Contract, annexed to ila ‘Resolution No 2/2008: Cultural Heritage Law’ (2008) 73 ila Conference Report. 148 Analytical Support and Sanctions Monitoring Team’s report on the impact of measures imposed in unsc ‘Al-Qaida Sanctions Committee Deletes One Individual from Its Sanctions List’ Security Council Press Release UNSC/12090, Chap. B, para. 4. 149 J. Van Krieken-Pieters, ‘An Ivory Bull’s Head from Afghanistan: Legal and Ethical Dilemmas in National and Globalised Heritage’ in S. Labadi and C. Long (eds), Heritage and Globalisation (Routledge 2010) 85, 89, citing Archeologist Sir Colin Renfrew. 150 In practice, un peacekeeping forces as well as the nato led kfor in Kosovo protected churches and other civilian monuments vulnerable to deliberate destruction in the course of their wider mandate to help authorities to maintain public security and order; for kfor’s mandate see osce ‘Challenges in the Protection of Immovable Tangible Cultural Property in Kosovo’ (March 2014) 21, available at http://www.osce.org/ kosovo/117276?download=true (accessed 15 January 2016). 151 unsc Res 2164 ‘On Extension of the Mandate of the un Multidimensional Integrated Stabilization Mission in Mali (minusma) until 30 June 2015’ op 14 (b).


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2227 (2015) on the matter, even though the feasibility proviso remained.152 The caveat that the mission only protects cultural heritage to the extent feasible under the factual circumstances in the area of operation is closely linked to the mission’s duty to use due diligence when fulfilling its many protective tasks. Within the framework of the cultural protection mandate, the latter standard requires the mission to take all measures which can under the given circumstances reasonably be employed in order to prevent damage to cultural objects.153 minusma already operates under a robust mandate which allows the use of all necessary means to address threats to the implementation of its mandate, which would – subject to the feasibility caveat – include the protection of Malian cultural heritage. The rules of engagement of the mission, which are not publicly available, appear to authorize the use of deadly force only for the protection of civilians and to accomplish its stabilization mandate, but not explicitly for the sake of protecting cultural heritage sites.154 Whatever the case may be, minusma’s protection of cultural sites in Timbuktu and Goa by means of military force would not make them a legitimate military objective under humanitarian law: this is because firstly, minusma is not a belligerent party within Mali’s internal armed conflict, and secondly, the mission’s presence at cultural sites is not in support of any military effort but is classed as a policing action. That is even the case if the mission is mandated to undertake offensive operations against armed groups who threatens civilians, e.g. in the immediate vicinity of a cultural heritage site. So far it has not been reported that m inusma has had to defend any of Mali’s cultural heritage sites with deadly force. The un’s role and scope of involvement in Mali ranges from guarding the newly reconstructed mausoleums in Timbuktu to participating in the restoration of four private libraries which contain ancient manuscripts.155 In Gao, unesco logistically supported unesco’s undertaking to replaster the Tomb of Askia, a listed World Heritage site. In addition, minusma together with u nesco supported the investigations conducted by icc Office of the P rosecutor which

152 unsc Res 2227 ‘On Extension of the Mandate of un Multidimensional Integrated Stabilization Mission in Mali (minusma) until 30 June 2016’ (29 June 2015) un Doc. S/RES/2227 (2015) op 14 (h). 153 K. Schmalenbach, ‘Schutz der Zivilbevölkerung durch un Friedensmissionen und Folgen des Mandatsversagens’ (2013) 51 avr 170. 154 unsc ‘Report of the Secretary-General on the Situation on Mali’ (23 December 2014) un Doc. S/2014/934, para. 48. 155 unsc ‘Report of the Secretary-General on the Situation on Mali,’ para. 42.



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led to the indictment of Al-Faqi for having committed the war crime of the deliberate destruction of the historic mausoleums in Timbuktu.156 It does not need to be determined whether minusma’s innovative cultural protection mandate triggered Italy’s proposal to establish ‘blue helmets of culture’ for the protection of heritage sites, which was unanimously supported by unesco’s Executive Board on 16 October 2015157 and approved by the General Conference in its 38th session in November with 195 Member States voting in favour.158 Italy explained that its proposal targets ‘important sites at risk from terrorist attacks, or in war zones, or zones hit by natural disasters where the international community will be able to send Cultural Blue Helmets to protect them or defend them before they can be destroyed.’159 Less ambitious and more broadly phrased is unesco Resolution 38 C/49, which places the protection of cultural heritage within the peace-building processes by means of ‘all pertinent United Nations mechanisms and in collaboration with the relevant United Nations departments,’160 making it plain that the deployment of a cultural heritage task force requires strategic and tactical integration into the un’s general and mission-specific peacekeeping policy, which is yet to come. In this regard, it is noteworthy that multidimensional peacekeeping operates in the aftermath of an armed conflict, i.e. the stabilization phase, with cultural protection being one of many indicative post conflict tasks in a highly unstable, impoverished and still violence prone environment.161 At this stage of the peace-building process, even if the country experiences additional waves of conflict, the contribution of a cultural heritage task force embedded in a robust peacekeeping mission on site has at least a reasonable chance to fulfil its task. Realistically, this is not the case during the initial outbreak of the 156 Assembly of States Parties ‘Report on the Activities of the International Criminal Court’ (19 November 2014) Doc. ICC-ASP/13/37, para. 73. 157 See unesco ‘Decisions Adopted by the Executive Board at Its 197th Session’ (of 23 November 2015) Executive Board 197th Session 197 EX/Decisions, Item 10. 158 unesco ‘Reinforcement of unesco’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict’ (2 November 2015) 38th General Conference Doc. 38 C/49, 11, para. 55. 159 D. Franceschini, Italian minister for culture, in an interview; H. Neuendorf, ‘un to Send Blue Helmet Troops to Protect Heritage Sites from isis’ (19 October 2015) Artnet News, available at https://news.artnet.com/art-world/un-blue-helmets-heritage-protection-342083 (accessed 15 January 2016). 160 unesco ‘Reinforcement of unesco’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict’ 11, para. 55. 161 un ‘Peacekeeping Operations: Principles and Guidelines’ (18 January 2008) 19 (Capstone Report).


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armed conflict, when armed groups gain exclusive control over territory of the weakened State and the international community is traditionally still struggling with an adequate response. In such cases, as we have seen in Iraq, Syria and Libya, cultural property and heritage remains – as much as the local population – helplessly exposed to violence, ideological warfare and lawlessness. Universal Trade Ban for Cultural Property Originating from Iraq and Syria It is reasonable to say Security Council Resolutions 1483 (2003) and 2199 (2015) tackle the root cause of clandestine excavation, looting and trafficking of cultural objects in Iraq and Syria, namely the seemingly insatiable global market for antiquities. That being said, the primary objective of both resolutions is to financially desiccate is, which is both the architect and principal financial beneficiary of the cultural looting in Syria and Iraq. Direct revenues from the antiquity trade plus fees and ‘taxes’ placed by is on those who are engaged in illegal excavation and trading activates are – alongside the oil trade, ransom payments and external donations – important financial sources for the group.162 As the Financial Action Task Force (fatf)163 observed, isil operates as a State and therefore needs more money than other terrorist groups: ‘Money is its biggest vulnerability,’ the president of fatf stated in the Security Council meeting that produced Resolution 2253 (2015),164 the latest in a series of resolutions that target is’s diverse sources of income among which Resolution 2199 (2015) occupies an important place as regard to endangered cultural property in Iraq and Syria. op 17 of Resolution 2199 (2015) stipulates that ‘all Member States shall take appropriate steps to prevent the trade in Iraqi and Syrian cultural property or other items of archaeological, historical, cultural, rare scientific and religious importance’ and calls upon unesco, Interpol and other international organizations ‘to assist in the implementation of this paragraph.’ Given that the Security Council leaves it to its Member States to decide how and by what means they chose to implement the trade ban, it contributes little to remedy 3

162 Analytical Support and Sanctions Monitoring Team’s report on the impact of measures imposed in unsc ‘Al-Qaida Sanctions Committee Highlights Current Trends of isil and anf Financing’ (20 October 2015) Security Council Press Release UNSC/12090. 163 fatf is an inter-governmental body established by the G-7 summit in Paris 1989 with 36 Member States, including all five permanent members of the Security Council; the organisation works in close partnership with the un. 164 unsc ‘On Expansion of Sanctions Framework to Include Islamic State in Iraq and Levant’ (17 December 2015) Security Council Press Release UNSC/12168.



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the well-known shortcomings of the 1970 unesco Convention on Illicit Trade, which evidently failed to prevent the large scale by-out of cultural objects.165 One major deficiency of the Convention is that it does not eradicate discrepancies in the national treatment of illegal trafficking in cultural goods, especially concerning both the good faith acquisition of items of dubious origin and the due diligence standard placed upon purchasers when verifying an item’s provenance. The 1995 unidroit Convention on Stolen and Illegal Exported Cultural Objects166 aims at closing the gap by defining the fundamental notions of ‘good faith’ and ‘due diligence’ but has only 37 State Parties bound to it so far. Resolution 2199 (2015) missed the opportunity to deal with these legal notions that would constrain collectors, art dealers and auction houses – the last link in the long trade chain that is well guarded by a strong dealer lobby. Instead, the resolution’s emphasis is on the duty of the Iraq’s and Syria’s neighbouring States to prohibit cross-border trade in illegally removed items, without explicitly imposing the legal assumption that after the outbreak of the Syrian civil war on 15 March 2011, all cultural objects from Syria can be assumed to have been removed without the consent of either the public or private owner. In contrast to, Council Regulations (eu) No 1210/2003 and (eu) No 1332/2013 on specific restrictions in view of the situation in Iraq and Syria, respectively, come close to a legal assumption by stipulating that items are considered illegally removed and hence in breach of the domestic law of the source State or international law ‘if the goods form an integral part of either the public collections listed in the inventories of the conservation collections of (Iraqi/Syrian) museums, archives or libraries, or the inventories of (Iraqi/Syrian) religious institutions.’167 If such a listing cannot be established, items are considered illegally removed ‘where there are reasonable grounds to suspect that the goods have been removed from (Iraq/Syria) without the consent of their legitimate owner.’168 The ‘reasonable suspicion’ threshold requires a case-by-case analysis

165 unesco ‘Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property’ (adopted 14 November 1970, entered into force 27 April 1997, as of December 2015 legally binding for 129 State Parties) 823 unts 23. 166 Convention on Stolen and Illegally Exported Cultural Objects (signed 24 June 1995, entered into force 1 July 1998) 2421 unts 457. 167 Art. 3 (c) Council Regulation (ec) 1210/2003 of 7 July 2003 Concerning Certain Specific Restrictions on Economic and Financial Relations with Iraq ABl 2003 L 169/9 and Art. 11 (c) Council Regulation (ec) 1332/2013 of 13 December 2013 amending Regulation (ec) 36/2012 Concerning Restrictive Measures in View of the Situation in Syria. 168 Ibid.


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of the totality of circumstances, including the specific characteristic of the antiquity deal (e.g. significantly below market value) as well as contextual factors showing that there is a risk of a trade being illicit;169 as a rebuttable presumption, it does leave some room for good faith purchases. Irrespective of whether or not the two Council Resolutions can be considered best implementation practice170 under Security Council Resolutions 1483 (2003) and 2199 (2015), on a global level the latter have failed to bear fruit. By way of example, according to the us International Trade Commission, commodities declared by importers as antiques exceeding the age of one hundred years and originating from Iraq has increased from US$583.000 in customs value in 2012 to US$4.45 million in 2013 which is a sky rocketing increase of 672.3% – a number that suggests the 2003 trade ban imposed by the Security Council has been woefully ineffective.171 On top of this, many items are smuggled into intermediary Turkey and Lebanon before they are exported, accompanied by misleading documentation concerning their origin. In its latest Resolution 2253 (2015), the Security Council openly addressed the lack of implementation of the antiquity trade ban, including the lacklustre level of reporting by un Member States about the measures taken to effectuate it.172 Notwithstanding the fact that eliminating the illicit trade in cultural objects is a difficult if not impossible endeavour, the Security Council stopped short of using all means available to attempt to reach the goal. Most notably the Security Council did not fully utilize the sanction system for freezing assets through financial institutions if the financial resources originate, directly or indirectly, from the illicit trade in Iraqi and Syrian antiquities. Even though op 6 of Resolution 2253 (2015), being a catch-all provision, covers the freezing of capital movements from and through the global antiquity market, the Resolution lacks an explicit focus on the topic, and with that it marginalizes the issue

169 The reasonable grounds to suspect standard is often used in connection with economic offences such as money laundering or carousel fraud; see e.g., Case 384/04 Federation of Technological Industries and Others [2006] ecr I-04191, para. 31. 170 At least the European Parliament sees room for improvement, European Parliament Resolution ‘On the Destruction of Cultural Sites Perpetrated by ISIS/Da’esh’ (30 April 2015) 2015/2649 (rsp). 171 R. St. Hilaire, ‘Conflict and the Heritage Trade: Rise in us Imports of Middle East “Antiques” and “Collectors’ Pieces” Raises Questions’ (6 October 2014) Red Arch, available at http://culturalheritagelawyer.blogspot.co.at/2014/10/conflict-and-heritage-trade-rise -in-us.html (accessed 15 January 2016). 172 unsc Res 2253 (2015) ‘On Expansion of Sanctions Framework to Include Islamic State in Iraq and Levant’ op 15.



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of the illicit trade in Iraqi and Syrian antiquities.173 In contrast to, Security Council Resolutions 2199 (2015) and 2253 (2015) are more forcefully in trying to prevent both is’s oil trade as well ransom payments for is captives, by explicitly requiring Member States to freeze not only economic resources such as oil products and modular refineries but also ransom money, regardless of how or by whom the ransom is paid. Finally here it is worth mentioning that Resolutions 2199 and 2253 abstain from sanctioning States for violating the trade ban and asset freezes even though such measures find a precedent in Security Council Res 1343 (2001), which sanctioned Liberia for non-compliance with the arms embargo and thus assisting in the prolongation of the armed conflict in Sierra Leone.174 However, in Resolution 2253 (2015), the Security Council pointed at the prospect of being included in the fatf’s ‘list of shame’ for noncooperation in the fight against those financing terrorism.175 It remains to be seen whether the fatf shies away from exposing some of its own Member States for maintaining sieve-like borders to Iraq and Syria.176 v Conclusion For virtually all of recorded human history, the protection of cultural property was either non-existent or marginalized, regarded as nonessential for economic, political and spiritual improvement and uncalled for in the realm of sovereignty and utilitarianism. That has steadily changed since ww ii, with the one proviso that during peacetime it remains the sovereign prerogative of States to manage their own cultural property, as expressed in the 1972 Cultural Heritage Convention. The world now witnesses an unprecedented level of cultural property destruction caused by modern-day Jihad groups waging ideological war not only against the heritage of all those they oppose but also not against the values of the international community. Against this backdrop it is not surprising that the international community has rallied and acted in c oncert 173 But see the Analytical Support and Sanctions Monitoring Team’s report on the impact of measures imposed in unsc ‘Al-Qaida Sanctions Committee Highlights Current Trends of isil and anf Financing’ Press Release. 174 unsc Res 1343 (2001) ‘The Situation in Sierra Leone’ (7 March 2001) un Doc. S/RES/1342 (2001) op 6 and 7. 175 unsc Res 2253 (2015) ‘On Expansion of Sanctions Framework to Include Islamic State in Iraq and Levant’ op 18. 176 See the Statement of the Russian representative Vitaly I. Churkin in the Security Council on the occasion of the adoption of unsc ‘On Expansion of Sanctions Framework to Include Islamic State in Iraq and Levant’ Press Release.


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against what it considers an international terrorist syndicate in a way rarely ever seen before in history. From the cultural property perspective though, the risks have been long known and are in no way limited to religiously veiled armed groups: lack of respect for the physical evidence of cultural heritage, ideological delusions and intolerance, identity-based violence, pursuit of material gain, mafia-styled organized theft, illegal trade in cultural artefacts on a worldwide market, and an insatiable demand for antiquities. With all these challenges, it is not surprising that our comprehension and understanding of what is happening and why has taken time to crystalize, as have the response and the measures taken to address the crisis. Unfortunately, as always seems the case with the response, it is reactive rather than proactive, as the shattered ruins of Palmyra bear witness to.
