2. Mapping Protection—What's Old and What's “New”

Destruction of cultural heritage in armed conflicts is not new, but the current political context presents a new opportunity to counter it. While twentieth-century legal instruments have included its protection, the contemporary convergence of two factors has dramatically altered the politics of protection.

First, the destruction of cultural heritage has captured the attention not just of curators, archaeologists, historians, and activists but also of major media outlets and popular audiences. Specialists sound a clarion call when heritage is at risk, but there is a new and wider international recognition of the scale and significance of contemporary damage. The Buddhas of Bamiyan were among the first cases to draw the widespread attention of international popular audiences, and the issue has remained in the media limelight and in the public’s awareness due to continued Al-Qaida and ISIL attacks on cultural heritage.

Second, the destruction of cultural heritage has become strongly associated in the public’s mind and in government policy with widely reviled terrorist groups; protection of cultural heritage thus benefits from association with the high politics of international security. Given the emotive power of the Global War on Terror (GWOT) in the post-9/11 landscape, the destruction of remote antiquities has become sufficiently politicized to draw the ire of many groups, ranging from UN member states to domestic political actors, from nongovernmental organizations (NGOs) to individual consumers of the news. Governments frame the destruction of cultural heritage by terrorists as another front in the GWOT, and they interpret intervention on behalf of culture as a way to hamper terrorist financing and the advancement of terrorist groups. Political actors thus appear increasingly amenable to dedicating resources to protection of cultural heritage.

The convergence of these two factors provides the political backdrop to generalize about the destruction of cultural heritage in wars and possible steps forward. By building on the growing attention to and concern about destruction by terrorist groups, political entrepreneurs may now describe once seemingly disparate and remote instances of damage as part of a pattern of abuses that requires a systematic response.

Indeed, since 2013 the protection of cultural heritage has become a component of “a threat to international peace and security,” the trigger for UN Security Council decisions. This shift is analogous to the one for humanitarian action and the protection of war victims in the 1990s. At the outset of that decade, diplomats viewed humanitarian interventions in northern Iraq and Somalia as exceptional. Resolutions to protect Kurds followed the first UN enforcement action since Korea, and then the resolutions approving the Somalia intervention used the word “humanitarian” eighteen times to suggest that no precedent was being set. The 1995 report by the Commission on Global Governance proposed that humanitarian catastrophes be the subject of a Charter amendment in order to permit the Security Council to act.¹² By the time their report was available, however, that recommendation was moot as the council had already so decided and acted in several additional humanitarian catastrophes.

Mass atrocities were not new in the 1990s, but robust action to come to the rescue suddenly was possible. The development and emergence of the R2P norm reflected a new political reality that had led to muscular international action in humanitarian emergencies. The destruction of cultural heritage in wars is also not new, but it may now elicit international action in light of the changing political landscape. The question is how best to take advantage of what appears a propitious moment, and how to publicize it in a manner to mobilize sufficient political will to do something about it.

What’s Old

The protection of cultural heritage has been codified in international law for more than a century. However, the language in the legal instruments buries cultural heritage in a lengthy consideration of crimes, and the UNESCO conventions address only facets of protecting cultural heritage in wars. Moreover, the existing texts largely concern destruction in interstate wars, not in civil wars or in transboundary attacks by terrorists. Moreover, the main body active in this arena is UNESCO, which is an intergovernmental organization under duress.

The 1907 Hague Convention Concerning the Laws and Customs of War on Land (Hague IV) prohibits the destruction and seizure of an enemy’s property unless it is “imperatively demanded by the necessities of war” (Article 23). It requires that “all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes” (Article 27). Its final words resonate powerfully:

These clauses address some (but not all) of the types of destruction with which this report is concerned, but cultural heritage is not the focal point of the convention. Further, as with all international law, only modest expectations for compliance are applied to States Parties, and even then gaps in coverage exist. Hague IV has only thirty-eight States Parties, but they include the Security Council’s permanent members. For present purposes, notable nonsignatories include Afghanistan, Iraq, Israel, Libya, Mali, Syria, and Saudi Arabia. Italy and Turkey have signed but not ratified. The 1899 Hague Convention with Respect to the Laws of Customs of War on Land and its annex, Regulations Concerning the Laws and Customs of War on Land, contain the same provisions as the 1907 convention, but the nearly identical wording has thirteen more States Parties. Regardless of the number of States Parties, many countries as well as legal experts consider their provisions to be part of international customary law; hence, the Hague Conventions have implications for all states and nonstate actors regardless of whether they have formally become party to the documents.

The 2002 Rome Statute of the ICC makes destruction of cultural heritage a war crime. Article 8’s paragraph b defines “war crimes” and includes several pertinent items:

Intentionally directing attacks against civilian objects, that is, objects which are not military objectives (item ii); . . .

Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives (item v); . . . [and]

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives (item ix).

The statute’s definition of crimes against humanity contains two points that could readily be interpreted to include the destruction of cultural heritage:

The Rome Statute has considerably more States Parties: 124 in November 2017. However, non–States Parties include Libya, whose five World Heritage Sites were added to the World Heritage in Danger list in 2016, and Syria, whose extensive destruction has been described. Consequently, neither of these countries would be empowered to bring a case of cultural heritage destruction before the ICC.

UNESCO conventions do a better job of specifically attending to the protection of heritage, but they are still subject to the limitations of international law and the absence of meaningful international enforcement mechanisms. The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict calls on States Parties to implement preventive safeguards for cultural heritage within their borders, and to refrain from damaging cultural heritage in other states. It further specifies:

Although the convention acknowledges the existence of intrastate wars—or “conflicts not of an international character” (Article 19), which is the preferred vocabulary of international humanitarian law—the extent to which nonstate belligerents are bound by the provision of the convention is contested. Article 19 continues and specifies that all belligerents in a civil war on the territory of a State Party are obligated to show “respect for cultural property.” Yet at least three thorny questions remain unanswered: whether States Parties intended nonstates to be covered; whether nonstate actors can be expected to honor the provisions of a convention that they had no part in advancing; and, if so, what violations would entail for a convention with weak enforcement mechanisms.¹³ In late 2017, this convention had a total of 129 States Parties, which do not include Afghanistan and Syria.

The 1970 Convention for the Protection of Cultural Property and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property enjoins States Parties to create infrastructure dedicated to the protection of cultural heritage by passing domestic legislation, maintaining current inventories of protected property, promoting cultural institutions for preserving and presenting heritage, protecting archaeological sites, promoting best practices for the treatment of cultural heritage, publicizing any disappearance, and using educational programs to promote popular respect for heritage. States are also obliged to prevent illicit importation of heritage and assist with repatriation and prosecution when illicit transfers occur. As of November 2017, its 134 States Parties include the Security Council’s permanent members along with Afghanistan, Iraq, Libya, Mali, and Syria.

The Preamble to the 1972 Convention Concerning the Protection of World Cultural and Natural Heritage calls on “the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value.” This convention built on momentum from the 1972 Stockholm Conference on the Human Environment; it created the World Heritage Committee (WHC) and the World Heritage Fund, established the responsibilities of states to protect their national heritage and to provide regular reporting to the WHC, and outlined the types of protection that the WHC could provide to states. It stands out from the other legal instruments by virtue of its 193 States Parties.

What’s “New”

The “securitization” of an issue is often a goal for proponents of decisive action because governments then are supposed to take such an issue more seriously than “softer” threats. The protection of cultural heritage has recently benefited from its association with threats to international peace and security.

Nonstate actors, and terrorist groups specifically, have attracted increasing attention as a result of the political vacuum created by the wars in Iraq and Afghanistan and the Arab Spring. These groups have exploited destruction of cultural heritage as a fundraising mechanism and a war tactic, and the Security Council has paid more attention to the issue as a result. Since 2013, the council has passed four resolutions that address the protection of cultural heritage; they clearly link it to the maintenance of international peace and security, thereby signaling an evolution in the council’s reasoning and resulting in the securitization of protecting cultural heritage. Although what is “new” is invariably in the eyes of the beholder, those who follow the Security Council’s deliberations cannot help but notice the significance of these resolutions as precedents to constitute the basis for further decisions and perhaps more robust international action.

In April 2013, the Security Council unanimously passed resolution 2100, creating the Multidimensional Integrated Stabilization Mission in Mali (MINUSMA). This force comprised some twelve thousand peacekeepers whose mandate included a special provision for support of cultural preservation: “to assist the transnational authorities of Mali, as necessary and feasible, in protecting from attack the cultural and historical sites in Mali, in collaboration with UNESCO.” This mandate was the first to include cultural protection as part of a UN peace operation. This precedent was important not merely for UNESCO and the issue itself but also for the expansion of the possible scope of future peace operations and wider involvement in them by other parts of the UN system.

Passed unanimously in February 2015, resolution 2199 focuses primarily on halting terrorist financing, but also attends to the role of illicit trade in cultural heritage items. It condemns the destruction of cultural heritage, both intentional and collateral, in Iraq and Syria, and specifically by ISIL and the Al-Nusrah Front. It calls on states to prevent illicit trade in Iraqi and Syrian cultural objects.

Resolution 2253, passed unanimously in December 2015, built on the provisions of resolution 2199 and expanded the jurisdiction of the Al-Qaida Sanctions Committee, renaming it the ISIL (Da’esh) and Al-Qaida Sanctions Committee. Noting specifically the role of illicit trafficking of cultural heritage in terrorist financing, the resolution encourages member states to engage in public-private partnerships to implement sanctions effectively.

Resolution 2347 is the most explicit and focused for the purposes of protecting cultural heritage. Passed unanimously in March 2017, its operative passage begins with the admonition that the Security Council

deplores and condemns the unlawful destruction of cultural heritage, inter alia destruction of religious sites and artefacts, as well as the looting and smuggling of cultural property from archaeological sites, museums, libraries, archives, and other sites, in the context of armed conflicts, notably by terrorist groups.

It notes that states have the primary responsibility for protecting their cultural heritage, specifically calling attention to the threats of illegal excavation, illicit trade, and direct attacks on sites. It also encourages member states to provide one another with “all necessary assistance” upon request. In listing specific recommendations to facilitate domestic protection of cultural heritage, the resolution points to two notable tools: for states with endangered cultural heritage, the use of a network of “safe havens” to protect potentially endangered cultural property; and for states committed to protection of cultural heritage, contributions to multilateral funds dedicated to preventive and emergency operations. Specifically, it cites UNESCO’s Heritage Emergency Fund and the International Alliance for the Protection of Heritage in Conflict Areas (ALIPH), a multilateral fund established in Abu Dhabi in December 2016. The resolution also encourages member states to ratify the 1954 convention as well as other relevant international conventions.

During opening week of the General Assembly in September 2017, the Global Centre for the Responsibility to Protect, the European Union (EU), the Permanent Mission of Italy to the United Nations, UNESCO, and the UN Office on Drugs and Crime (UNODC) hosted a High-level Meeting on Protecting Cultural Heritage from Terrorism and Mass Atrocities: Links and Common Responsibilities. The meeting marked a shift in international discourse related to the protection of cultural heritage; it embraced, rather than kept at a distance, the logic of R2P in two ways. First, the onus of protection is primarily the responsibility of the state, an approach that builds on the point of departure for the original ICISS report, the World Summit decision, and Secretary-General Ban Ki-moon’s reformulation of R2P. It thus reflects the provisions of Security Council resolution 2347. Second, the link between cultural heritage and mass atrocities moves beyond terrorism, which had been the main stimulus for Security Council deliberations—especially resolution 2347, which had confined itself to destruction resulting from terrorists in Syria and Iraq. During the meeting, Irina Bokova employed the term “cultural cleansing,” as she had since 2014, to link human security more broadly to the protection of heritage in armed conflicts. However, major UN member states have only recently moved away from a virtually exclusive preoccupation with terrorism to consider more generally the relationship between mass atrocities and cultural heritage.

Some Important Players

UNESCO is the most visible international institution working on protecting cultural heritage in zones of armed conflict. In November 2015, the Paris-based secretariat hosted an “Expert Meeting on ‘Responsibility to Protect’ as Applied to the Protection of Cultural Heritage in Armed Conflict.” Participants recognized that the destruction of cultural heritage “could fall within the existing scope of the ‘responsibility to protect’ as enunciated in paragraphs 138 and 139 of General Assembly resolution 60/1.”¹⁴

Earlier in that month, UNESCO released an essential document for its 38th Session, “Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict.”¹⁵ This strategy cites two main goals: “strengthen the ability of Member States to prevent, mitigate and recover the loss of cultural heritage and diversity as a result of conflict”; and “incorporate the protection of culture into humanitarian action, security strategies and peacebuilding processes by engaging with relevant stakeholders outside the culture domain.” These two objectives have subsequently been clarified within thirty-two action plans for the organization’s work.¹⁶

Additionally, UNESCO has two operational campaigns related to the protection of cultural heritage in zones of armed conflict. The first relates specifically to protecting Syrian heritage. With funding from the EU, “Emergency Safeguarding of the Syrian Cultural Heritage” was launched in 2014, the goal being to “contribute to restoring social cohesion, stability and sustainable development through the protection and safeguarding of cultural heritage.” To that end, it takes a three-pronged approach: monitoring of heritage and damage on the Observatory of Syrian Cultural Heritage platform; national and international awareness-raising efforts; and provision of enhanced technical assistance and capacity-building for national stakeholders and beneficiaries. A two-year progress report showed that, by May 2016, the campaign had organized multiple training events and workshops and also delivered seven tons of French and Swiss “museum material” to Syria.

“Unite for Heritage” and “#Unite4Heritage” are other relevant UNESCO projects also launched in 2015. The former provides a framework for establishing coalitions of stakeholders in heritage protection, which aims to include police; customs officials; museums; governments; actors from the cultural, humanitarian, and security sectors; civil society; and the media. The latter is a social media campaign. It is difficult to determine the extent to which these efforts currently go beyond public relations, although some potentially valuable initiatives have resulted. For instance, a partnership agreement allows the organization to call on Italy’s newly formed UNESCO Emergency Task Force for Culture. This is a group of cultural heritage experts and members of the Carabinieri force ready for deployment to places of need. A forceful military action would require a Security Council authorization or a request from a host government, although training or expert advice would not. UNESCO also has signed a Memorandum of Understanding with the International Committee of the Red Cross (ICRC) to promote cooperative programming to protect cultural heritage as an integral component of the latter’s operations in armed conflicts.

Despite its proposed strategy and campaigns, UNESCO continues to suffer from dramatic cutbacks in funding. The discontinuation of US assessed payments to the regular budget since 2010—resulting from the board’s decision to admit Palestine as a full member in 2011—has entailed a 22 percent decrease in UNESCO’s regular budget and additional shortfalls in voluntary funding. As we write, the Trump administration announced the US intention to withdraw from UNESCO at the end of 2017. Other major donors are also unpredictable: Japan is not paying its share because of a dispute over what is included in the “memory of the world” project; the United Kingdom only pays when it approves the results; and Brazil is short of funds. As a result, UNESCO has cut its staff and other expenditures by one-third over the last half-decade.

The November 2015 strategy notes that an additional $25 million would be required to implement its provisions, representing almost a 125 percent increase over UNESCO’s anticipated budget for conflict responses. A year later, only four of the thirty-two activities outlined in the strategy had secured full funding; seventeen had received no funding at all.

In 2015, UNESCO established the Heritage Emergency Fund to pool discretionary contributions from member states, international organizations, and private donors. It has mobilized very modest resources of about $2.5 million ($2 million from Qatar), which is dispersed in small amounts (maximum of $100,000) for projects such as rapid-reaction training, the provision of experts, and seminars.

As hinted earlier, there is widespread skepticism about the ability of this large international bureaucracy—established at the outset of the Cold War and riven with political disputes between the North and the Global South—to lead effectively the operational charge to protect cultural heritage in zones of armed conflict. It is logical for an intergovernmental organization’s deliberations to emphasize the state. However, does catering to member states not help but rather hinder the protection of cultural heritage in wars? How could UNESCO act effectively in Libya or Syria to help in non-regime-held parts of these countries without the permission of the central government? Is UNESCO not, in fact, impotent when what effective protection of cultural heritage necessitates is not consistent with what some governments have decided? These questions have become even more awkward following the State Department’s October announcement of the US withdrawal from the organization to occupy a position of nonmember observer state.

A promising new funding source may be ALIPH. France and the United Arab Emirates established the fund, with some background assistance from UNESCO. ALIPH resulted from the December 2016 Abu Dhabi Conference on Safeguarding Endangered Heritage, which some forty countries attended. The conference had two objectives: the creation of ALIPH and the implementation of an international network of safe havens for endangered cultural property. The Abu Dhabi Declaration¹⁷ provides a statement of commitment by the attendees to pursue the two goals over the long term.

A decision by UNESCO’s Executive Board in June 2017¹⁸ empowers the director-general to appoint a UNESCO representative as a nonvoting member of ALIPH’s executive board, but no bylaws for the fund yet exist. Headquarters are to be in Geneva, financed by Switzerland, but also do not exist at present. Of an initial fundraising goal of $100 million, donors pledged some $75 million at a March 2017 conference.

ALIPH’s stated purpose is to support “prevention (training, implementation of emergency safeguarding plans, compiling inventories, digitizing collections), intervention which is possible during the conflicts (financing the transfer of cultural property to safe havens, raising awareness of the fight against illicit trafficking), and projects to restore the damaged heritage following conflicts.”¹⁹ It is noteworthy that these three elements mirror exactly the three “responsibilities” articulated in the original ICISS concept of R2P.

France was a penholder of Security Council resolution 2347 (along with Italy) and successfully incorporated references to both sets of goals of the Abu Dhabi conference into the resolution. Paragraph 15 calls for member states to contribute to ALIPH, and paragraph 16 encourages them to consider the use of safe havens for endangered cultural property. The latter item remains controversial in light of sensitivity to encyclopedic museums, largely located in the West, whose collections include so many antiquities from countries of the Global South. Building on a central point of departure for R2P—in both ICISS’s original version and Ban Ki-moon’s “first pillar” as well as the World Summit outcome document—the resolution reiterates the principle that states have the primary responsibility for protecting cultural heritage within their borders. Initial drafts of the resolution considered the endangerment of cultural heritage beyond the context of terrorism in Syria and Iraq. However, Russia and Egypt objected to this broader scope, which meant that the wider scope was eliminated from the language of the final resolution.²⁰

The politics of protecting cultural heritage reflect a distinct mixture from those of the North-South divide that many observers customarily, although erroneously, use to characterize the debate about R2P.²¹ It is to these politics and to a range of possible policy options that we turn.