5. Assembling a Commission?

One of the authors of the present report was the research director for ICISS, so readers may wish to discount enthusiasm about its deliberations, products, and impact. An “independent” commission provides a preferable mechanism to an official UN panel for a topic as fraught as the protection of cultural heritage. This chapter examines the lessons from the ICISS experience as a possible model for the proposed Independent Commission on Protecting Cultural Heritage in Armed Conflicts; it then explains such efforts in general as a way to lay out the parameters of such an endeavor. However, no pronounceable acronym—always a help in international deliberations—is readily apparent.

Four features of ICISS’s composition and work facilitated its ultimate success: having the support of major players, ensuring diverse representation of various stakeholders in its membership, building on legal and conceptual precedents, and leveraging momentum. These features appeared already but are repeated here because they are relevant in considering how best to proceed toward advancing a framework for the protection of cultural heritage.

First, some major powers have already demonstrated their interest in protecting cultural heritage. France took the lead for the December 2016 Abu Dhabi Conference on Safeguarding Endangered Heritage, although it is difficult to discern whether then French President François Hollande’s enthusiasm will be matched by his successor, Emmanuel Macron. The conference’s two objectives—the establishment of networks of safe havens and the establishment of a multidonor fund—both align with the thrust of this report. A follow-up donors’ conference took place in Paris to secure funding. France contributed $30 million to the announced goal of $100 million, and currently the fund has received $75 million in pledged contributions—the UAE is the next largest donor with $15 million—and Switzerland has agreed to finance the Geneva-based secretariat. In addition, the new fund has attracted its first private contribution, $1 million from US philanthropist Thomas Kaplan, who chairs the ALIPH board. He is joined by other museum and foundation officials as well as a former French minister of culture and a UNESCO representative.

France, along with Italy, was also a penholder for Security Council resolution 2347, which stressed that states have the primary responsibility for protecting their own heritage—the primary point of departure in documents from ICISS, the World Summit, and the last secretary-general—and requests all member states to provide assistance when states are unable to protect their own heritage. It also recommends that states consider the use of safe havens for heritage at risk and contribute to either UNESCO’s Emergency Fund or ALIPH. The initial draft of the resolution also expanded the scope of concern to include all cases in which cultural heritage is endangered by armed conflict, and not just those in Iraq and Syria subject to destruction by terrorists. France and Italy, respectively, preside over the Security Council in October and November 2017. The issue will remain on the council’s agenda.

Italy also has approved a UNESCO Emergency Task Force for Culture, which is composed of cultural heritage experts and Carabinieri; UNESCO may call upon it as needed to provide technical assistance and protect cultural heritage. There were also some forty states present at the Abu Dhabi conference; while the attendance list is not readily available, most of them are presumably prepared to play a role. For instance, the United Kingdom recently established a $40 million fund to improve training for personnel devoted to protecting cultural heritage.

Other institutions are also moving ahead. Important museums worldwide are already on board with the need to act. The EU has placed the protection of cultural heritage at the heart of its common foreign policy, including a decision to deploy cultural protection officers in their field missions, beginning with Iraq in October 2017. The ICC, building on the precedent of the first conviction and damages for the destruction of cultural heritage, will be outlining further policy developments to build on existing international law, in particular the relevance of crimes against humanity.

Second, international political backing will require a diverse range of partners. The dominant cleavage that usually dictates representation is the divide between the North and Global South; these distinctions still characterize most UN debates, even if the categories bear little relationship to the actual interests of countries on particular issues. Of interest for deliberations about cultural heritage, there are source countries among the wealthiest—Italy, Greece, and increasingly China—and former empires in poorer countries such as Turkey and Peru whose museums have objects from former imperial holdings just as France and the United Kingdom do.

For cultural heritage, regional balance and diversity is essential, but each region has partisans of national and universal ownership; each also has museums that aspire to be encyclopedic; and each has consumers and producers of antiquities. In addition, this issue necessitates a wide range of expertise beyond the political and diplomatic backgrounds that usually predominate in international commissions: historians, anthropologists, archaeologists, criminal and law enforcement officials, international lawyers, and museum curators.

Third, it will be essential not to duplicate existing work but to build on existing conceptual precedents and a growing legal and normative consensus. The preceding chapters have examined such important steps as the evolution of sovereignty, the use of cultural cleansing to link destruction of cultural heritage to mass atrocity crimes, and the “object-oriented” approach to the treatment of cultural artifacts. In addition to building on these intellectual and political developments, it will also be essential to expand ratifications of existing legal mechanisms. The Hague Conventions of 1899, 1907, and 1954; the First and Second Protocols of 1954 and 1999, respectively; and the ICC’s Rome Statute have identified destruction of cultural heritage as a war crime and, by implication, as a crime against humanity. The relevance of UNESCO’s conventions of 1970 and 1972 are also key building blocks.

Fourth, the ongoing momentum augurs well for continuing to move ahead on this issue in 2018. The growing attention to cultural heritage in the context of the GWOT, the engagement of the Security Council on the issue, and the rhetorical linking of cultural destruction to the four mass atrocities agreed by the 2005 World Summit as justifying R2P action are promising. While 9/11 temporarily disrupted the path of R2P, the GWOT and other political developments (in particular the emphasis on nonstate actors) add to the momentum because so much of the recent and ongoing destruction of cultural heritage is the product of attacks and looting by what are widely recognized as terrorists. Finally, there is a widespread public interest in the dramatic destruction of cultural heritage along with a new openness among UN member states in the way that they frame the issue in intergovernmental conversations.

In short, the moment seems propitious to harness the ongoing interest and build on substantial momentum. However, a consolidated conceptualization of the protection of cultural heritage is required that is not only for terrorists; that considers all types of destruction related to armed conflicts (intentional destruction, collateral destruction, forced neglect, and looting); that has high visibility; and whose findings will be viewed as legitimate. In short, a robust and well-supported independent commission could explore options for an international framework for the protection of cultural heritage in wars. With the right composition and adequate financial and political backing, such a commission could raise awareness and effectively pave the way for a new norm, reinforcing as appropriate existing international law. It would spell out the issues as well as the pluses and minuses of possible future actions.

A short history of such mechanisms would perhaps help those skeptics who dismiss all such international endeavors as gabfests and junkets. Some of the loudest and most challenging voices in what one of the authors has called “the Third UN”⁴⁰ come from “eminent persons”—in juxtaposition to the First UN of member states and the Second UN of international civil servants. For example, as part of the lead-up to the UN’s sixtieth anniversary, then UN secretary-general Kofi Annan convened the High-level Panel on Threats, Challenges and Change. As part of the follow-up to the September 2005 World Summit, he also pulled together the High-level Panel on UN System-wide Coherence in the Areas of Development, Humanitarian Aid and the Environment. Ban Ki-moon did the same toward the end of his second term, and 2015 was a banner year for UN reform proposals with three blockbuster reviews of UN peace operations and architecture: the High-level Independent Panel on UN Peace Operations (HIPPO), the Advisory Group of Experts on Peacebuilding (AGE), and the UN Global Study on Women, Peace and Security. There were also two independent and comprehensive reviews from the Independent Commission on Multilateralism and the Commission on Global Security, Justice and Governance.

ICISS was an “independent” commission, a preferable model for a subject as politically sensitive as the protection of cultural heritage in armed conflicts. This tradition goes back to the late 1960s and the panel headed by former Canadian prime minister and foreign minister Lester B. Pearson, which produced Partners in Development (1969). The so-called Pearson Commission was followed by a host of others also usually referred to by the last names of their chairs: on development issues, chaired by former German chancellor Willy Brandt (1980 and 1983); on common security, by former Swedish prime minister Olof Palme (1982); on environment and development, by then Norwegian prime minister Gro Harlem Brundtland (1987); on humanitarian problems, by Iranian and Jordanian princes Sadruddin Aga Khan and Hassan bin Talal (1988); on South-South cooperation, by then Tanzanian president Julius Nyerere (1990); on global governance, by former Swedish prime minister Ingvar Carlsson and then Commonwealth secretary-general Shridath Ramphal (1995); on humanitarian intervention and state sovereignty, by former Australian minister of external affairs Gareth Evans and former Algerian ambassador to the UN Mohamed Sahnoun (2001); on human security, by former UN high commissioner for refugees Sadako Ogata and Nobel economics laureate Amartya Sen (2003); and on civil society, by former Brazilian president Fernando Henrique Cardoso (2004). There are also commissions that are recalled more by their sponsors’ names than by those of their chairs—for example, the first report to the Club of Rome (1972) and the report of the Carnegie Commission on Preventing Deadly Conflict (1997).

Independent experts—combining knowledge with political punch and access to decision makers—have been influential in nourishing ideas and their dissemination. Commissioners speak in their individual capacities and can move beyond what passes for received wisdom in governments and secretariats. The reports are normally presented to the UN secretary-general, who can point to multinational composition and a variety of perspectives behind a consensus and thus use the findings and recommendations more easily than ideas emanating from inside the United Nations, which too many governments believe should not venture beyond their well-established positions enunciated in intergovernmental forums. Research teams are often led by scholars and policy analysts; they are usually located “outside” the UN but sometimes temporarily employed by the UN. The researchers play an important role not only by supporting the commissioners’ deliberations with necessary documentation, but also by providing an entry point for outside-the-box ideas that eventually get carried forward by the commissioners and the published reports.

Such commissions have varying degrees of accomplishment, but there are sufficient successes among them to demonstrate their utility for advancing international public policy. They pull together visible individuals who have made careers as senior governmental, intergovernmental, or nongovernmental officials. The emphasis on diversity of national origins, especially for the topic of heritage, should be far less salient than the inclusion of independent voices ranging from cultural specialists, former civil servants, academics, and civil society members with firsthand familiarity on the ground. They should also have previously demonstrated a willingness to run risks and voice criticisms at higher decibel levels and make more controversial recommendations than when they occupied official positions.

The ideal composition of such a commission would be about fifteen members, representing the world’s major geographical regions—with consideration given to gender and cultural diversity—and with the collective expertise required. Ideally, two or three major states would provide funding and political backing as well as administrative support, which would be supplemented by private funders to keep the governments at a distance and honest. An autonomous research directorate would need a similar range of expertise.

The work of the commission undoubtedly would require more time than the one-year, forced-pace march of ICISS, which was able to rely on so much recent research produced after the crises of the 1990s. Thus, the new commission would resemble others whose byproducts were new knowledge and ideas generated over three or so years in parallel with deliberations by commissioners. Among possible topics for a future research agenda would be the following:

• What are best practices for protection of cultural heritage, including possible preventive peacekeeping operations?
• What would be necessary to establish a standard international catalogue for information sharing about sites and artifacts? How could locals in rural locales be enlisted?
• Safe havens seem to be a priority for some Western countries; how could they be organized to address postcolonial sensitivities?
• What policies would work best for the various types of destruction (intentional, collateral, forced neglect, and looting)?
• What types of military intervention could be relevant to different types of sites or artifacts? What kinds of changes in military doctrine would be necessary?
• What relevant cataloguing and restoration techniques could be applied? In which cases would certain techniques be most cost-effective?
• In light of UNESCO’s financial and political difficulties, should it concentrate on its comparative advantage in universal norm and standard setting? What are the pluses and minuses of other intergovernmental or nongovernmental operational alternatives?
• Are there better strategies to increase ratifications of the relevant conventions and their protocols?
• What is the unrealized potential for the ICC’s prosecution of those who attack cultural heritage under international law?

For proponents of R2P and the protection of civilians who are wary about a competing priority, it is worth considering that the protection of cultural heritage in armed conflicts is not a distraction. It is not a fifth and additional crime for the list of four mass atrocities agreed by the 2005 World Summit. Rather, it is a fundamental aspect of R2P with the potential to widen support for that norm and not detract from it.

Attempting to establish a hierarchy for protecting people and heritage is counterproductive. In referring to the Middle East and Asia but with general relevance, a 2016 report from three NGOs put it succinctly: “The fight to protect the peoples of the region and their heritage cannot be separated.”⁴¹ Cultural cleansing and mass atrocities are intertwined.