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Protecting cultural property in Syria: New opportunities for States to enhance compliance with international law?

Published online by Cambridge University Press:  15 August 2018

Polina Levina Mahnad
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Abstract

The war in Syria has lasted for six years and has led to massive destruction and loss of life. Stymieing international peace efforts from the outset, there is increasing doubt that the conflict will reach a resolution or political settlement in the near future. This frustration has triggered an appetite among States, civil society and the international community for finite and concrete measures that can contribute to greater protection and compliance with international law. A recent constellation of events around the protection of cultural property appears to herald a shift in the response of the international community toward prescribing practical and actionable measures for third-party States. Drawing on the responsibility of third States “to respect and ensure respect for” international humanitarian law, this article examines the legal framework protecting cultural property and recent innovative protection responses that contribute to ensuring compliance with international law in Syria, short of military assistance and intervention.

Keywords

Syriacultural propertycultural heritagecompliancecommon Article 11954 Hague Conventioninnovationprotection
Type
The way forward
Information
International Review of the Red Cross , Volume 99 , Issue 906: Conflict in Syria , December 2017 , pp. 1037 - 1074
Copyright
Copyright © icrc 2018 

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References

1 Max Fischer, “Syria's Paradox: Why the War Only Ever Seems to Get Worse”, New York Times, 26 August 2016.

2 UN News Centre, “Syria's Brutal War Threatens International Peace and Security, Says UN Rights Panel”, 27 August 2014.

3 UNSC Res. 2139, 22 February 2014, para. 6, demanding that all parties, in particular the Syrian authorities, promptly allow rapid, safe and unhindered humanitarian access for UN humanitarian agencies and their implementing partners across conflict lines and across borders; UNSC Res. 2268, 26 February 2016, para. 1, endorsing a cessation of hostilities agreement aimed at ending five years of conflict; UNSC Res. 2401, 24 February 2018, para. 1, demanding the cessation of hostilities without delay by all parties for a durable humanitarian pause for at least thirty consecutive days throughout Syria.

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5 In seeking to generate respect for IHL, there have been efforts to clarify the extent to which States are bound by the customary obligation to “respect and ensure respect” for their provisions “in all circumstances”, as articulated in Article 1 common to the four Geneva Conventions and echoed in other IHL treaties including the 1954 Hague Convention, as obligations erga omnes partes, and to what extent this imposes an obligation on third States not involved in a given armed conflict to influence the parties to the conflict. See Dörmann, Knut and Serralvo, Jose, “Common Article 1 to the Geneva Conventions and the Obligation to Prevent International Humanitarian Law Violations”, International Review of the Red Cross, Vol. 96, No. 895/896, 2015Google Scholar. A toolbox of practical measures – rather than obligations that States may find onerous – remains elusive, however.

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9 ICTY, The Prosecutor v. Dusko Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para 98.

10 Ibid., para 127.

11 Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, The Hague, 14 May 1954 (entered into force 7 August 1956) (1954 Hague Convention), Arts 4, 19.

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14 1954 Hague Convention, Art. 19; Ibid., Arts 4 and 19.

15 See the International Committee of the Red Cross (ICRC) “Treaties, States Parties and Commentaries” database for list of States Parties and State signatories to the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague, 26 March 1999, available at: https://ihl-databases.icrc.org/ihl.

16 See Brammertz, Serge, Hughes, Kevin C., Kipp, Alison and Tomljanovich, William B., “Attacks against Cultural Heritage as a Weapon of War: Prosecutions at the ICTY”, Journal of Criminal Justice, Vol. 14, No. 5, 2016Google Scholar.

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19 1954 Hague Convention, Art. 2.

20 The prohibition on any act of hostilities against transports, and the immunity of transports from seizure, capture and placing in prize, only extends to those transports that are under special protection (Ibid., Arts 12(3), 14) as indicated by the distinctive red cross or red crescent emblem. Personnel engaged in the protection of cultural property are to be respected, as is consistent with the interests of security and in the interests of such property, if they fall into the hands of the opposing party, and should be allowed to continue their duties (Ibid., Art. 15).

21 ICC, Al Mahdi, above note 13, para. 14.

22 Boylan, Patrick J., “The Concept of Cultural Protection in Times of Armed Conflict: From the Crusades to the New Millennium”, in Brodie, Neil and Tubb, Kathryn Walker (eds), Illicit Antiquities: The Theft of Culture and the Extinction of Archaeology, Routledge, London, 2012, p. 66Google Scholar.

23 UN Institute for Training and Research (UNITAR), Satellite-Based Damage Assessment to Cultural Heritage Sites in Syria, 22 December 2014. This report notes that military activity, including hostilities and construction of fortified fighting positions, can lead to damage to cultural heritage locations (p. 13).

24 1954 Hague Convention, Art. 2.

25 Ibid., Art. 3.

26 See ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd ed., Geneva, 2016 (ICRC Commentary on GC I), Art. 19, para. 1799; Art. 24, paras 1982–1994. Although not applicable to cultural property (or non-international armed conflict) as such, Geneva Convention I (GC I) provides useful guidance on the meaning of terms and interpretation of principles that appear throughout IHL.

27 1954 Hague Convention, Art. 4.

28 See ICRC Commentary on GC I, above note 26, Art. 19, para. 1799; Art. 24, paras 1982–1994.

29 1954 Hague Convention, Art. 19; Ibid., Arts 4, 19.

30 Ibid., Art. 4(2).

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33 Toman, Jiří, Cultural Property in War: Improvement in Protection – Commentary on the 1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, UNESCO Publishing, Paris, 2009, p. 177Google Scholar.

34 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, 26 March 1999 (Second Protocol to the 1954 Hague Convention), Arts 1(f), 6(i); Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 52(2).

35 Second Protocol to the 1954 Hague Convention, Art. 6.

36 Frulli, Micaela, “The Criminalization of Offences against Cultural Heritage in Times of Armed Conflict: The Quest for Consistency”, European Journal of International Law, Vol. 22, No. 1, 2011, pp. 203, 205CrossRefGoogle Scholar.

37 AP I, Art. 53(1); Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978), Art. 16.

38 Article 3(d–e) of the ICTY Statute lists “seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science” and “plunder of public or private property”. Other provisions of the ICTY Statute which were used to prosecute acts against cultural property but were not specifically aimed at this objective are Article 3(b), “wanton destruction of cities, towns or villages, or devastation not justified by military necessity”, and Article 3(c), “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings”. Article 3(d) is inspired by Articles 27 and 56 of the 1907 Hague Regulations.

39 Rome Statute of the International Criminal Court, 17 July 1998 (entered into force 1 July 2002) (Rome Statute).

40 1907 Hague Regulations.

41 Rome Statute, Art. 8(2)(a)(iv).

42 For a discussion on how these provisions were applied (or misapplied) by the Trial Chamber of the ICC in the Al Mahdi case, see Shabas, William, “Al Mahdi Has Been Convicted of a Crime He Did Not Commit”, Case Western Reserve Journal of International Law, Vol. 49, No. 1, 2017Google Scholar.

43 Convention (IV) respecting the Laws and Customs of War on Land and Its Annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (Hague Convention IV), Art. 27.

44 Ibid., Art. 56.

45 M. Frulli, above note 36.

46 ICRC Customary Law Study, above note 6, Rule 38.

47 See ICTY, Prosecutor v. Prlić et al., Case No. IT-04-74-A, Appeal Judgment (Appeals Chamber), 29 November 2017, in which the Appeals Chamber found, by majority, that the “Trial Chamber erred in finding that the destruction of the Old Bridge of Mostar constituted the crime of wanton destruction not justified by military necessity as a violation of the laws or customs of war”. In his Dissenting Opinion, Judge Fausto Pocar (para. 7) disagreed with the majority with respect to: (i) it erroneously conflating the notion of a military target with that of military necessity; (ii) its failure to discuss the fact that the attack on the Old Bridge of Mostar was disproportionate and the consequences thereof; (iii) its failure to account for the fact that the Old Bridge of Mostar constitutes cultural property protected under the general principles of international humanitarian law; and (iv) the consequences of the above errors with respect to persecutions on political, racial, and religious grounds as crimes against humanity.

48 See ICTY, Prosecutor v. Strugar, Case No. IT-01-42, Judgment (Trial Chamber), 31 January 2005, paras 328–330.

49 UNESCO World Heritage Centre, Syrian Arab Republic. The six properties inscribed on the World Heritage List are the Ancient City of Aleppo (1986), the Ancient City of Bosra (1980), the Ancient City of Damascus (1979), the Ancient Villages of Northern Syria (2011), Crac des Chevaliers and Qal'at Salah El-Din (2006), and Palmyra (1980).

50 UNESCO World Heritage Centre, Syrian Arab Republic, Tentative List.

51 J.-M. Henckaerts, above note 17. For an updated International Register list, see: www.unesco.org/new/en/culture/themes/armed-conflict-and-heritage/protection/enhanced-protection/.

52 Secretariat of the 1954 Hague Convention, “List of Cultural Property under Enhanced Protection”, UNESCO, 2017.

53 Established by the Convention concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972 (entered into force 17 December 1975) (1972 UNESCO Convention).

54 The Jokić case involved the shelling of the Old Town of Dubrovnik. The Trial Chamber noted that the Old Town's belonging to the World Heritage List granted it a special status that had “been taken into consideration in the definition and evaluation of the gravity of the crime”, and thus also in the sentencing of the defendant.

55 ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, 27 September 2016, para. 80.

56 1954 Hague Convention, Art. 11(2).

57 Ibid.

58 Second Protocol to the 1954 Hague Convention, Art. 13(i).

59 ICRC Customary Law Study, above note 6, Rule 139.

60 ICRC Commentary on GC I, above note 26, paras. 119–120.

61 See ICRC Customary Law Study, above note 6, Rule 144. This rule, on “Ensuring Respect for International Humanitarian Law”, stipulates that States may not encourage violations of IHL by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law.

62 ICRC Commentary on GC I, above note 26, Art. 1, para. 119, citing International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, para. 157 (“In the Court's view, these rules [of humanitarian law applicable in armed conflict] incorporate obligations which are essentially of an erga omnes character”); ICTY, Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-T, Trial Judgment, 14 January 2000, para. 519 (“norms of international humanitarian law do not pose synallagmatic obligations, i.e. obligations of a State vis-à-vis another State. Rather … they lay down obligations towards the international community as a whole”); and Jean Pictet (ed.), Commentary on the First Geneva Convention, ICRC, Geneva, 1952, p. 25 (“[Geneva Convention I] is not an engagement concluded on a basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world as represented by the other Contracting Parties”).

63 ICRC Customary Law Study, above note 6, Rule 144.

64 Second Protocol to the 1954 Hague Convention, Art. 31.

65 1972 UNESCO Convention, Arts 19–21.

66 M. Frulli, above note 36, pp. 203, 205.

67 Second Protocol to the 1954 Hague Convention, Ch. 4.

68 ICRC Customary Law Study, above note 6, Rule 144.

69 1954 Hague Convention, Art. 7(1).

70 The Syrian Arab Republic deposited its instrument of acceptance for the 1970 UNESCO Convention on 21 February 1975.

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72 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970 (1970 UNESCO Convention), Art. 9.

73 Hague Convention IV, Arts 28, 47; Cunliffe, Emma, Muhesen, Nibal and Lostal, Marina, “The Destruction of Cultural Property in the Syrian Conflict: Legal Implications and Obligations”, International Journal of Cultural Property, Vol. 23, No. 1, 2016, p. 7CrossRefGoogle Scholar.

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76 UNESCO, “Illicit Trafficking of Cultural Property: Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – 1970”, available at: www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-convention/.

77 E. Cunliffe, N. Muhesen and M. Lostal, above note 73.

78 Council of Europe Convention on Offences relating to Cultural Property, 2017, available at: www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680710435.

79 Report of the Independent Expert in the Field of Cultural Rights, UN. Doc. A/HRC/17/38 and Corr.1, 21 March 2011, para. 79.

80 Ibid.

81 Report of the Special Rapporteur in the Field of Cultural Rights, UN Doc. A/HRC/31/59, 3 February 2016, para. 47; Report of the Independent Expert in the Field of Cultural Rights, above note 79, para. 77. For example, in 2012, the independent expert in the field of cultural rights, Ms Shaheed, noted that “the destruction of tombs of ancient Muslim saints in Timbuktu, a common heritage of humanity, is a loss for us all, but for the local population it also means the denial of their identity, their beliefs, their history and their dignity”.

82 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 21, “Right of Everyone to Take Part in Cultural Life (Art. 15, Para. 1a of the Covenant on Economic, Social and Cultural Rights), E/C.12/GC/21, 21 December 2009, para. 50.”

83 Ibid., para. 50(a).

84 Ibid., para. 50.

85 Report of the Independent Expert in the Field of Cultural Rights, above note 79, para. 2.

86 Report of the Special Rapporteur in the Field of Cultural Rights, above note 81, para. 53.

87 For further analysis of ISIS’ destruction of cultural heritage, see Harmanşah, Ömür, “ISIS, Heritage, and the Spectacles of Destruction in the Global Media”, Near Eastern Archaeology, Vol. 78, No. 3, 2015CrossRefGoogle Scholar; Shahab, Sofya and Isakhan, Benjamin, “The Ritualization of Heritage Destruction under the Islamic State”, Journal of Social Archaeology, Vol. 18, No. 2, 2018CrossRefGoogle Scholar.

88 UNSC Res. 1483, 22 May 2003, para. 7.

89 UNSC Res. 2139, 22 February 2014, Preamble.

90 UNSC Res. 2199, UN Doc S/RES/2199, 12 February 2015, para. 15. On this resolution and, more generally, on cultural heritage in prior resolutions and the link between cultural heritage and terrorism, see Vincent Négri, “Legal Study on the Protection of Cultural Heritage through the Resolutions of the Security Council of the United Nations”, UNESCO, 2015, available at: http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Study_Negri_RES2199_01.pdf.

91 UNSC Res. 2199, 12 February 2015.

92 UNSC Res. 2199, 12 February 2015, Preamble.

93 Brodie, Neil, “The Market Background to the April 2003 Plunder of the Iraq National Museum”, in Stone, Peter G. and Bajjaly, Joanne Farchakh (eds), The Destruction of Cultural Heritage in Iraq, Boydell Press, Woodbridge, 2008Google Scholar; compare Sam Hardy, “Syria/Lebanon: Syrian-Lebanese Antiquities-for-Arms Trade”, Conflict Antiquities Blog, 12 May 2013, cited in E. Cunliffe, N. Muhesen and M. Lostal, above note 73.

94 UN Security Council, “Press Statement on Destruction of Cultural Heritage, Executions in Palmyra”, UN Doc. SC/12690, 20 January 2017.

95 UNESCO, Reinforcement of UNESCO's Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict, UNESCO Docs 38 C/49 and 197/EX/10, 2 November 2015 and 17 August 2015.

96 UNESCO, Operational Guidelines for the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Paris, 1970, cited in E. Cunliffe, N. Muhesen and M. Lostal, above note 73, 2016.

97 UNESCO, “UN Security Council Adopts Historic Resolution for the Protection of Heritage”, 24 March 2017.

98 “Briefing and Draft Resolution on Protection of Cultural Heritage in Armed Conflict”, What's in Blue, 23 March 2017, available at: http://www.whatsinblue.org/2017/03/briefing-and-draft-resolution-on-protection-of-cultural-heritage-in-armed-conflicts.php; UN Security Council, Protection of Cultural Heritage in Armed Conflict, 31 October 2017.

99 Note that France reported having designated a safe haven on its territory not only for its own cultural objects but also for those from other countries “upon request”: see Report of the Secretary-General on the Implementation of Security Council Resolution 2347 (2017), UN Doc. S/2017/969, 17 November 2017, para. 84.

100 UNSC Res. 2347, 24 March 2017, para. 5, taking note of the Abu Dhabi outcomes in paras 15 and 16.

101 Ibid., para. 19.

102 UNSC Res. 2100, 25 April 2013, para. 16(f): “Support for cultural preservation – To assist the transitional authorities of Mali, as necessary and feasible, in protecting from attack the cultural and historical sites in Mali, in collaboration with UNESCO.”

103 UNSC Res. 2379, 21 September 2017, Preamble, fourth recital.

104 Directorate-General of Antiquities and Museums (DGAM), State Party Report: On the State of Conservation of the Syrian Cultural Heritage Sites (Syrian Arab Republic), Ministry of Culture, Syrian Arab Republic, 1 February 2017.

105 Oral Update of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/29/CRP.3, 23 June 2015.

106 US GAO, above note 75.

107 UNESCO, “UNESCO Director-General Condemns the Destruction of the Arch of Triumph in Palmyra – ‘Extremists are Terrified of History’”, 5 October 2015; UNESCO, “Director-General Irina Bokova Expresses Consternation at the Destruction of the Temple of Bel in Palmyra”, 1 September 2015; UNESCO, “Director-General of UNESCO Irina Bokova Firmly Condemns the Destruction of Palmyra's Ancient Temple of Baalshamin, Syria”, 24 August 2015.

108 “Syria Urges International Community to Work to Stop Looting Syrian Cultural Heritage”, SANA, 9 March 2016, available at: https://sana.sy/en/?p=71579.

109 Oral Update, above note 105.

110 “Russia's Valery Gergiev Conducts Concert in Palmyra Ruins”, BBC News, 5 May 2016, available at: www.bbc.co.uk/news/world-middle-east-36211449.

111 UNESCO, “UNESCO Director-General Condemns Destruction of the Tetrapylon and Severe Damage to the Theatre in Palmyra, a UNESCO World Heritage Site”, UNESCO, 20 January 2017.

112 Sir Derek Plumbly, “Cultural Heritage in Times of War and the Present Crisis in the Middle East”, Gresham College, 19 May 2016.

113 ICC, Al Mahdi, above note 13, para. 77. See also ICC, The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07-3484-tENG, Sentencing Decision (Trial Chamber), 23 May 2014, paras 42, 43; ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15-141-Corr-Red, Defence Sentencing Observations, 20 September 2016, paras 121–123, 127–128.

114 1954 Hague Convention, Art. 1.

115 Report of the Special Rapporteur in the Field of Cultural Rights, UN Doc. A/71/317, 9 August 2016, para. 7, referencing the submission of Patrice Meyer-Bisch.

116 Warring, Jane, “Underground Debates: The Fundamental Differences of Opinion that Thwart UNESCO's Progress in Fighting the Illicit Trade in Cultural Property”, Emory International Law Review, Vol. 19, No. 1, 2005, pp. 246–247Google Scholar.

117 ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, Annex II, Confidential Expert Report – Reparations Phase (Dr Marina Lostal), 28 April 2017 (amended 3 May 2017).

118 1954 Hague Convention, Preamble.

119 Veres, Zsuzsanna, “The Fight Against Illicit Trafficking of Cultural Property: The 1970 UNESCO Convention and the 1995 UNIDROIT Convention”, Santa Clara Journal of International Law, Vol. 12, No. 2, 2014Google Scholar.

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121 1970 UNESCO Convention, Preamble, third recital.

122 Hannah Arendt characterized the Holocaust as a “new crime, the crime against humanity – in the sense of a crime ‘against human status,’ or against the very nature of mankind”. Arendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil, Viking Press, New York, 1965, p. 268Google Scholar.

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124 ICTY, Strugar, above note 48, para. 232, citing the 1954 Hague Convention, Art. 1(a).

125 Ibid., paras 218, 232.

126 ICTY, The Prosecutor v. Miodrag Jokić, Case No. IT-01-42/1-S, Judgment (Trial Chamber), 18 March 2004, paras 45, 53.

127 ICTY, The Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgment (Trial Chamber), 26 February 2001, para. 207.

128 ICJ, Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Request for Interpretation of the Judgment of 15 June 1962, Separate Opinion of Judge Cançado Trindade, ICJ Reports 2013, 11 November 2013, p. 606, para. 114.

129 ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, First Transmission and Report on Applications for Reparations (Trial Chamber), 16 December 2016, para. 9.

130 ICC, Al Mahdi (Judgment and Sentence), above note 55, para. 80.

131 Ibid.

132 1954 Hague Convention, Preamble.

133 UNESCO, “Discours de la Directrice générale de l'UNESCO Irina Bokova, à l'occasion de la Réunion de haut niveau pour la protection du patrimoine culturel syrien”, 29 August 2013.

134 Report of the Special Rapporteur in the Field of Cultural Rights, above note 115, para 7, referencing the submission of Patrice Meyer-Bisch.

135 UNESCO, Reinforcement of UNESCO's Action for the Protection of Culture and the Promotion of Cultural Pluralism in the Event of Armed Conflict, UN Doc. 197 EX/10, 17 August 2015.

136 Ibid., paras 32, 48.

137 Memorandum of Understanding between UNESCO and the ICRC, 29 February 2016, Art. 1(v–vi).

138 UNESCO, “UNESCO and ICRC Partner on the Protection of Culture Heritage in the Event of Armed Conflict”, 29 February 2016.

139 UN, Framework of Analysis for Atrocity Crimes: A Tool for Prevention, July 2014.

140 Lostal, Marina and Cunliffe, Emma, “Cultural Heritage that Heals: Factoring in Cultural Heritage Discourses in the Syrian Peacebuilding Process”, The Historic Environment: Policy and Practice, Vol. 7, No. 2–3, 2016, p. 250CrossRefGoogle Scholar.

141 International Expert Meeting on the Responsibility to Protect as Applied to the Protection of Cultural Heritage, Recommendations, Paris, 26–27 November 2015.

142 Bevan, Robert, The Destruction of Memory: Architecture at War, Reaktion Books, London, 2016Google Scholar, Preface.

143 Lostal, Marina, International Cultural Heritage Law in Armed Conflict: Case Studies of Syria, Libya, Mali, the Invasion of Iraq and the Buddhas of Bamiyan, Cambridge University Press, Cambridge, 2017, p. 110CrossRefGoogle Scholar.

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146 UNESCO, “Syrian Citizens Protect Their Cultural Heritage”, available at: www.unesco.org/new/en/safeguarding-syrian-cultural-heritage/national-initiatives/syrians-protect-their-heritage/.

147 British Museum, “The Iraqi Archaeologists Saving Their Heritage”, 3 March 2017.

148 Smithsonian Global, “Safeguarding Cultural Heritage in Syria and Iraq”, available at: https://global.si.edu/success-stories/safeguarding-cultural-heritage-syria-and-iraq.

149 US GAO, above note 75.

150 1972 UNESCO Convention, Arts 19–21.

151 M. Lostal, above note 143, p. 110.

152 Remarks by High Representative/Vice-President Federica Mogherini at the Event on “Protecting Cultural Heritage from Terrorism and Mass Atrocities: Links and Common Responsibilities”, New York, 21 September 2017.

153 Federal Government Commissioner for Culture and Media, “Key Aspects of the New Act on the Protection of Cultural Property in Germany”, Berlin, September 2016.

154 Stone, Peter, “War and Heritage: Using Inventories to Protect Cultural Property”, Heritage Inventories, Getty Conversation Institute, Summer 2013Google Scholar.

155 Mark Brown, “British Museum and Army Team Up in Move to Rescue Iraq's Heritage”, The Guardian, 26 February 2008.

156 Remarks Federica Mogherini, above note 152.

157 Victoria & Albert Museum, “The V&A's Culture in Crisis Programme”, available at: www.vam.ac.uk/content/articles/v/the-v-and-as-culture-in-crisis-programme/.

158 UNESCO, Regional Training on Syrian Cultural Heritage: Addressing the Issue of Illicit Trafficking, Final Report and Recommendations, Amman, 10–13 February 2013.

159 Ministry of Education and Culture, “Endangered Syrian Documents Taken into Safekeeping at the National Archives of Finland”, Finland, 2 December 2016.

160 Federal Government Commissioner for Culture and Media, above note 153.

161 1954 Hague Convention, Art. 8.

162 UNESCO, “Museum-in-Exile: Swiss Foundation Safeguards over 1,400 Afghan Artefacts”, 7 October 2000.

163 Association of Art Museum Directors, Protocols for Safe Havens for Works of Cultural Significance from Countries in Crisis, 28 September 2015.

164 International Council on Monuments and Sites (ICOMOS), “Abu Dhabi Declaration on Heritage at Risk in the Context of Armed Conflicts”, 3 December 2016, available at: https://tinyurl.com/ybodfemx.

165 Embassy of France in Abu Dhabi, “UAE–French International Conference on Endangered Cultural Heritage to Take Place on December 2nd and 3rd 2016”, 1 December 2016.

166 UNESCO, “UNESCO, France and the Emirates Launch an International Alliance for the Protection of Heritage”, 20 March 2017.

167 UNESCO, above note 158, p. 18.

168 Memorandum of Understanding, above note 137, Art. 1(v–vi).

169 UNESCO, “UNESCO to Create an Observatory for the Safeguarding of Syria's Cultural Heritage”, 28 May 2014.

170 UNESCO, “UNESCO Conference Calls for Protected Cultural Zones to be Established in Syria and Iraq”, 3 December 2014.

171 Lostal notes that the “gist of all cultural property regulation is that these objects deserve a treatment sitting over and above that of civilian objects.” Despite this being widely accepted, the language of the 1907 Hague Regulations, which includes historic monuments together with hospitals and places where the sick and wounded are collected and does not require a threshold of importance for the cultural site in question, was deemed “over-inclusive” by the end of the Second World War. M. Lostal, above note 144.

172 Report of the Special Rapporteur in the Field of Cultural Rights, above note 115, paras. 63-64.

173 For further discussion on this, see J. Toman, above note 33, p. 177.

174 O'Keefe, Roger, The Protection of Cultural Property in Armed Conflict, Cambridge University Press, Cambridge, 2006, pp. 70–73CrossRefGoogle Scholar.

175 Mary Ellen O'Connell, Occupation Failures and the Legality of Armed Conflict: The Case of Iraqi Cultural Property, Working Paper No. 6, Ohio State University Moritz College of Law, 2004.

176 Neil Brodie, “Syria and Its Regional Neighbors: A Case of Cultural Property Protection Policy Failure?”, International Journal of Cultural Property, Vol. 22, No. 2–3, 2015.

177 UNESCO, above note 158.

178 The lack of protection under IHL for transports and appliances used for cultural property is particularly notable in comparison to that attached to the medical function.

179 DGAM, “The French Parliament Delegation: Offering Solidarity and Support to DGAM Is One Important Reason for Our Visit to Syria”, Ministry of Culture, Syrian Arab Republic, 29 September 2015.

180 Jeremy Bowen, “The Men Saving Syria's Treasures from Isis”, New Statesman, 22 September 2015.

181 “‘When Cultural Heritage Is Under Attack, Human Rights Are Under Attack’ – UN Expert”, UN News, 4 March 2016.

182 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 1998.

183 See OHCHR, “Who Is a Defender”, available at: www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Defender.aspx.

184 1954 Hague Convention, Art. 19(3–4).

185 Ibid., Art. 23.

186 UNESCO, Standard Plan of Action to Protect Cultural Property in the Event of Armed Conflict, UNESCO Doc. CLT-11-CONF-209-INF1, 2011, Annex. The plan was revised in 2013 to reflect developments in Syria and Mali (see UNESCO Doc. CLT-13/10HCP/CONF.201/INF.3).

187 UNESCO Constitution, Art. 1(3).

188 Geneva Call has undertaken a scoping study to understand the existing dynamics between armed non-state actors and cultural heritage in Syria, Iraq, and Mali, including through interviews with armed group members. The study issued recommendations to enhance respect for cultural heritage by armed groups in non-international armed conflicts, and its findings are presented in Lostal, Marina, Hausler, Kristin and Bongard, Pascal, “Armed Non-State Actors and Cultural Heritage in Armed Conflict”, International Journal of Cultural Property, Vol. 24, No. 4, 2017CrossRefGoogle Scholar.

189 Quntar, Salam Al, “Syrian Cultural Property in the Crossfire: Reality and Effectiveness of Protection Efforts”, Journal of Eastern Mediterranean Archaeology & Heritage Studies, Vol. 1, No. 4, 2013Google Scholar.

190 Kila, Joris D., “Inactive, Reactive, or Pro-Active? Cultural Property Crimes in the Context of Contemporary Armed Conflicts”, Journal of Eastern Mediterranean Archaeology and Heritage Studies, Vol. 1, No. 4, 2013Google Scholar.

191 ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, UNESCO Amicus Curiae Observations, 2 December 2016.

192 Geneva Call, “Syria: Top Military Commanders from eight Free Syrian Army Brigades Receive Training on Humanitarian Norms in Geneva”, 10 February 2016.

193 UNSC Res. 2347, 24 March 2017, para. 19: “… Affirms that the mandate of United Nations peacekeeping operations, when specifically mandated by the Security Council and in accordance with their rules of engagement, may encompass, as appropriate, assisting relevant authorities, upon their request, in the protection of cultural heritage from destruction, illicit excavation, looting and smuggling in the context of armed conflicts, in collaboration with UNESCO, and that such operations should operate carefully when in the vicinity of cultural and historical sites.”

194 Remarks by Federica Mogherini, above note 152. For more information on the integration of cultural property protection into military missions, see Major Yvette Foliant, “Cultural Property Protection Makes Sense: A Way to Improve Your Mission”, Civil–Military Cooperation Centre of Excellence, 2015.

195 Report of the Special Rapporteur in the Field of Cultural Rights, above note 81, para. 58.

196 Gerstenblith, Patty, “Protecting Cultural Heritage in Armed Conflict: Looking Back, Looking Forward”, Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 3, 2009Google Scholar.

197 See ICTY, The Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgment (Trial Chamber), 2 April 2001, para. 580.

198 ICJ, Case Concerning Application of The Convention on the Prevention and Punishment of the Crime of Genocide – Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007, para. 344.

199 Mustapha Hammouche, “Guerre contre l'humanité”, Liberté, 15 November 2015.

200 ICTY, Jokić, above note 126, para. 51.

201 ICTY, Strugar, above note 48, paras 218, 232.

202 Fatou Bensouda, “Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at the Opening of the Confirmation of Charges Hearing in the Case against Mr Ahmad Al-Faqi Al Mahdi”, ICC, 1 March 2016.

203 Kanishk Tharoor, “Life Among the Ruins”, New York Times Sunday Review, 19 March 2016.

204 Rafi Grafman and Myriam Rosen-Ayalon, “The Two Great Syrian Umayyad Mosques: Jerusalem and Damascus”, Muqarnas, Vol. 16, 1999.

205 Report of the Special Rapporteur in the Field of Cultural Rights, “Addendum: Mission to Bosnia and Herzegovina (13–24 May 2013)”, UN Doc. A/HRC/25/49/Add.1, 3 March 2014.

206 Report of the Independent Expert in the Field of Cultural Rights, above note 79, para. 12.

207 Nora, Pierre, Les lieux de mémoire, 7 vols, Gallimard, Paris, 1984–1992Google Scholar.

208 Tumarkin, Maria, Traumascapes? The Power and Fate of Places Transformed by Tragedy, Melbourne University Publishing, Carlton, 2005Google Scholar.

209 UNESCO, “What Is Intangible Cultural Heritage?”, 2012, available at: www.unesco.org/culture/ich/index.php?lg=en&pg=00002. For more information on intangible cultural heritage, see: Christiane Johannot-Gradis, “Protecting the past for the future: How does law protect tangible and intangible cultural heritage in armed conflict?”, International Review of the Red Cross, Vol. 97, No. 900, 2015, available at: www.icrc.org/en/international-review/article/protecting-past-future-how-does-law-protect-tangible-and-intangible.

210 ICC, The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07, Reparations Order, 24 March 2017, para. 279.

211 ICC, The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15-236, Reparations Order, 17 August 2017, para. 14.

212 Ibid., para. 22. Given that the impact of the destruction of cultural property was widely felt by the community in Timbuktu as an assault on their cultural and religious identity, and is recognized to have had a broader affect, the judges also awarded nominal damages to the Malian State and the international community through UNESCO as symbolic reparations. Ibid., para. 106.

213 K. Tharoor, above note 203.

214 Stephen Farrell, “If All Else Fails, 3D Models and Robots Might Rebuild Palmyra”, New York Times, 28 March 2016.

215 ICOMOS, above note 164.