Introduction

In this article, we will be discussing the legality surrounding the maintenance and destruction of immovable cultural property either during armed conflict or otherwise. Let us first understand what immovable cultural property is. The phrase “Immovable cultural property” is used to characterize various creative and historical works, including landscapes, buildings, engineering constructions, monuments, and ancient ruins, that have a special connection to their location.[2]An immovable tangible heritage is often associated with local communities, their customs, and religion, and involving them as well as state authorities in the preservation and protection of these properties. Attempts to secure cultural properties from both of these institutions together are likely to be more effective than an approach that focuses principally on governmental or state interests.

As stated above, cultural heritage or property signifies a cultural link and as such needs to be assessed not only on a national level but internationally as well as on a regional level. We will further discuss legal instruments that govern the destruction of mass heritage property due to atrocity committed on a larger level. Example: Gaza – Israel war or Russia-Ukraine issue. In such instances, the questions that are posed are: on whom does the criminal responsibility lie? How does the state intervene? How can we best safeguard cultural heritage? What are the legal implications?

The threat to various world heritage sites which have their ancient architectural elements attached to them and are greatly recognized for their historical, cultural and artistic significance. Incidents such as these attract international outrage, however, how do we go about protecting historical monuments in another state in which our law enforcement does not possess any jurisdiction? In this article, we are also trying to understand the relation between this cultural heritage and the various communities that live amid the said heritage and to whom such cultural property has sown meaning and value. The United Nations Report on the same discusses the complexity of defining a community and its cultural rights. “The term ‘community’ is too often assumed to suggest homogeneity, exclusivity, structure and formality. Such a construction is embraced not only by some outside observers not willing to recognize plurality and dynamism within groups but also by often self-proclaimed ‘representatives’ of the concerned groups—or presumed groups—themselves.”[3] The community can be explained in three levels, describing it in the context of either first as an international community. Second, in the context of a national or state community which has direct control over the said heritage property. And third is the local community, which consists of the people who live amid the heritage, who may be the descendants of those who produced the heritage, who may have the greatest spiritual, religious, and cultural affinity to the heritage, and who are also often in the best position to protect it.[4]

“The largely ineffective outrage of the international heritage community has a venerable history going back to at least the mid-1990s, when it stood by helplessly as Croatian forces destroyed the Stari Most (Old Bridge) in Mostar in 1993 during the Balkan conflict and when the Taliban destroyed the Bamiyan Buddhas in Afghanistan in 2001. The suggestion that troops should be sent to intervene and protect these sites raises numerous and probably insurmountable problems.”[5]

A Brief History of ISIS, USA & Cultural Heritage[6]

ISIS is a self-proclaimed Islamic Sunni caliphate whose roots date back to 2003 when the United States invaded Iraq.[7] Abu Musab al-Zarqawi, a Jordanian and leader of a militant group, allied with Al-Qaeda and began to target Shia Muslims and Shia holy sites, as well as United States troops and local allies.[8] After Zarqawi was killed, Abu Bakr al-Baghdadi became the leader of the group, which had by then taken on the name ISIS to reflect its ambitions to form a caliphate.[9] Baghdadi used the United States’ involvement in Iraq as propaganda to recruit and organize, including the recruitment of members of Sadam Hussein’s Ba’ath party, whom he met while in a U.S.-run prison in Iraq.[10] Per U.S. order, the Ba’ath party members were barred from ever serving in government again and thus held resentment toward the U.S. occupiers.[11]

The civil war outbreak in Syria in 2011 and the subsequent unrest gave the group further opportunity to expand its military, social, and geographic scope.[12] The group began to attract attention in 2014, both from the international community aimed at stopping the group and from individuals looking to join its cause.[13] When it took over the city of Raqqa, the city became its de facto capital. It was there that ISIS established a smattering of government structures, including administrative agencies and police forces, while taking over others, like education and infrastructure.[14] ISIS remained powerful through 2016, when U.S. and local troops began to take back some of the territory.[15] Today, although the group still exists, its power is certainly dwindling, and it has been forced from most of its once-claimed territory.[16]

Throughout its military campaign, ISIS swept through some of the oldest and most culturally rich areas in the world.[17] As it did so, it made concerted and public efforts to destroy much of the cultural heritage of the region.[18] In Syria, there were a total of six certified cultural heritage sites, all of which have been damaged to some extent by ISIS.[19] Many more sites not recognized by UNESCO but with great archaeological, religious, or cultural value have also been looted, damaged, or destroyed.[20] One of the most widely publicized destructions of cultural heritage occurred in Palmyra, a UNESCO World Heritage Site and once the site of outstanding architectural and archaeological remains of a city dating back to the first century.[21]

Legal Instruments:

International cultural heritage is divided into two main categories: 1) tangible cultural heritage and 2) intangible cultural heritage.’[22] The former represents physical artistic expressions such as historic buildings, monuments, artistic objects, paintings, sculptures, historic sites, etc.,[23] whereas the latter represents nonphysical artistic expressions such as songs, narrations, tales, traditional expressions such as dance, religious practices, beliefs, etc.[24] Tangible cultural heritage is also regarded as “cultural property” because it is essentially the natural property of the nation that owns it.[25]

With all the existing threats to tangible cultural heritage, international law also comes into play and provides certain regulations and rules for the conduct of armed conflicts to warring parties in order to ensure full protection of cultural property and heritage sites during fighting.’[26] “Cultural heritage law and cultural property law have been drawn from the provisions of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1972 World Heritage Convention concerning the Protection of the World Cultural and Natural Heritage, and the two 1977 Additional Protocols of the Geneva Convention of 1949. UNESCO has the leading role in putting efforts for the protection of cultural property during armed conflicts.”[27] It has set up several other committees and advisory bodies that work independently or semi-independently within their respective domains for the protection of cultural property in armed conflict-stricken zones.[28] For instance, the World Heritage Committee set up by UNESCO provides technical, scientific, educational, and advisory assistance to states for protecting their cultural property during armed conflict.[29]

Prominent legal provisions presented by international conventions such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflicts, the UNESCO Convention of 1970, the World Heritage Convention, the 1949 Geneva Conventions Additional Protocols of 1977 and the prominent resolutions by the UN Security Council for the protection of cultural property in Iraq and Syria.[30] Provisions of International Law for the Protection of Cultural Heritage during Armed Conflicts: International law has provided support for the protection of international cultural heritage during armed conflict.[31] Within the framework of international law, international cultural heritage law and international cultural property law are the main sets of legal provisions that mandate the protection of cultural heritage and cultural property in times of peace and conflict.[32]

Both sets of laws are based upon the rules defined in the Hague Convention 1954, the 1977 Additional Protocols to the Geneva Conventions 1949, the UNESCO Convention 1970, the World Heritage Convention, etc.[33] These conventions have set rules for warring parties in an armed conflict to protect cultural heritage and cultural property.[34] In American culture alw, the UNESCO Convention has played a significant role, it is notable to highlight the case of The Journey to U.S. v. Frederick Schultz.

“In what many consider the most significant recent cultural property decision by an American court, the Court of Appeals for the Second Circuit upheld the conviction and prison term of Frederick Schultz,2a prominent New York antiquities dealer and former president of the Association of Dealers in Ancient, Oriental and Primitive Art (hereinafter referred to as the Association), for conspiring to receive stolen Egyptian antiquities in violation of the National Stolen Property Act (NSPA).3Thecourt found that, over many years, Schultz has worked with Jonathan Tokeley Parry, an Englishman, to smuggle newly discovered antiquities out of Egypt so that they could be sold on the antiquities market in disregard of that country’s laws vesting ownership of such antiquities in the Egyptian government. The decision put to rest, at least for the time being, the decades-long controversy concerning whether foreign nations’ cultural patrimony laws, which commonly provide that antiquities found under the ground are the property of the government, can form the basis for a conviction under the NSPA when such antiquities are illegally taken from the country of origin and transported to the United States. Despite virulent complaints from many in the antiquities trade and their supporters that permitting convictions based on property ownership grounded in cultural patrimony laws essentially means that courts in the United States enforcing foreign laws that violate the property principles of American law, the Court of Appeals in the Schultz case distilled the issue down to its bare essentials: ‘We see no reason that property stolen from a foreign sovereign should be treated any differently from property stolen from a foreign museum or private home.”[35]

How does the U.S. protect cultural property and promote legal access?[36]

Agreements with other countries that provide a framework for international collaboration.
Import restrictions that prevent stolen objects from entering the United States.
Programs that build capacity, strengthen site protection, enhance inventories, build professional networks, and engage communities.
Policy and programs that promote temporary and long-term exchange of cultural property between countries for scientific, educational, and cultural purposes.
Multilateral engagement that promotes U.S. policy on cultural property protection related to organized crime, climate change, sustainable development, and the rights of Indigenous Peoples.
Support for Native Americans to repatriate ancestral remains and cultural items from international museum and gallery collections.

In the United States laws about cultural policies are enacted at both federal and state levels. These legal instrument aims to promote the culture of the United States, this would include: performing arts, language, museums, libraries heritage and more. The United States does not have an inclusive federal cultural policy which would directly address issues relating to cultural properties. However, there are independent laws enacted by state governments that sponsor various cultural programs that aim to achieve historic preservation. Cultural property law is the body of law that protects and regulates the disposition of culturally significant material,[37] including historic real property, ancient and historic artefacts, artwork, and intangible cultural property.[38] Repatriation issues may also apply domestically, for instance, in the United States, the 1990 Native American Graves Protection and Repatriation Act (NAGPRA).[39]

[1] Marina Lostal & Emma Cunliffe, Submission to Study on Intention Destruction of Cultural Heritage: The Aftermath of Destruction of Cultural Heritage: Factoring in Cultural Rights in Post-Conflict Recovery Processes, UN Human Rights Office of the High Commissioner, Jun. 9, 2016, available at https://www.ohchr.org/Documents/Issues/CulturalRights/DestructionHeritage/NGOS/M.Lostal_E.Cunliffe.pdf

[2] Conservation and restoration of immovable cultural property - RTF (re-thinkingthefuture.com)

[3] Karima Bennoune, Report of the Special Rapporteur in the Field of Cultural Rights, Human Rights Council, UN doc. A/HRC/31/59, 3 February 2016, Art. 2.A.14, p. 5, https://digitallibrary.un.org/record/831612?ln=en.

[4] Lucas Lixinski, International Heritage Law for Communities: Exclusion and Re-imagination (Oxford: Oxford University Press, 2019), 94–105.

[5] Protecting Cultural Heritage | Cultural Heritage and Mass Atrocities (getty.edu)

[6] CULTURAL HERITAGE IN CONFLICT & POST-CONFLICT SETTINGS: A WEAPON FOR WAR & A TOOL FOR PEACE, By Jessica Krauss.

[7] Zachary Laub, The Islamic State, COUNCIL ON FOREIGN RELATIONS, Aug. 10, 2016, https://www.cfr.org/backgrounder/islamic-state.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] As recently as August 23, 2018 Baghdadi, the ISIS leader, released a tape in which he admits that the group is losing, but encourages his followers to continue fighting for the cause. See ISIS Fast Facts, CNN, (Sep. 3, 2018, 11:18 AM), https://www.cnn.com/2014/08/08/world/isis-fast-facts/index.html;

[17] Alyssa Buffenstein, A Monumental Loss: Here Are the Most Significant Cultural Heritage Sites That ISIS Has Destroyed to Date, ARTNET NEWS (May 30, 2017), https://news.artnet.com/art-world/isis-cultural-heritage-sitesdestroyed-950060.

[18] Ibid.

[19] 8 Id. See also Syrian Arab Republic, UNESCO, available at http://whc.unesco.org/en/statesparties/sy/.

[20] Buffenstein, supra note 15.

[21] 2 Site of Palmyra, Description, UNESCO, available at whc.unesco.org/en/list/23.

[22] BEN BOER, DONALD ROTHWELL & Ross RAMSAY, INTERNATIONAL ENVIRONMENTAL LAW IN THE ASIA PACIFIC 71 (1998) (hereinafter, Boer, et al.); see also Jadranka Petrovic, THE OLD BRIDGE OF MOSTAR AND INCREASING RESPECT FOR CULTURAL PROPERTY IN ARMED CONFLICT 16-17 (2012).

[23] See Boer et al., supra note 1, at 71.

[24] Ibid.

[25] IRINI A. STAMATOUDI, CULTURAL PROPERTY LAW AND RESTITUTION: A COMMENTARY TO INTERNATIONAL CONVENTIONS AND EUROPEAN UNION LAW 8 (2011).

[26] JADRANKA PETROVIC, THE OLD BRIDGE OP MOSTAR AND INCREASING RESPECT FOR CUILFURAL PROPERTY IN ARMED CONFLICT 16-118 (Martinus Nijhoff Publishers 2012).

[27] Loyola University Chicago International Law Review, Volume 15, Issue 1, Article 3, 2017, The Protection of Cultural Heritage by International Law in Armed Conflict. Retrieved from: The Protection of Cultural Heritage by International Law in Armed Conflict (luc.edu)

[28] See ANDRZEJ JAKUBOWSKI, STATE SUCCESSION IN CULTURAL PROPERTY 156 (Oxford University Press 2015).

[29] ABDULQAWI A. YUSUF, STANDAR-SETTING AT UNESCO: NORMATIVE ACTION IN EDUCATION, SCIENCE, AND CULTURE 230 (Brill 2007).

[30] Ibid 27.

[31] CRAIG FORREST, INTERNATIONAL LAW AND THE PROTECTION OF CULTURAL HERITAGE XXii (Routledge 2012).

[32] See, e.g., FRANCESCO FRANCIONI & JAMES GORDLEY, ENFORCING INTERNATIONAL CULTURAL HERITAGE LAW, 42 (Oxford University Press 2013) [hereinafter Francioni & Gordley].

[33] Francioni & Gordley, supra note 65. See also HILDEGARi) E.G.S. SCHNEIDER, & VALENTINA VADI, ART, CULTURAL HERITAGE AND THE MARKET: ETHICAL AND LEGAL ISSUES 5 (Springer 2014) [hereinafter Schneider & Vadi].

[34] See STUART CASEY-MASLEN, THE WAR REPORT: ARMED CONFLICT IN 2013 366 (Oxford University Press 2014) [hereinafter Maslen].

[35] Protection and restitution - UNESCO Digital Library

[36] Below mentioned points retrieved from: Cultural Property | Bureau of Educational and Cultural Affairs (state.gov)

[37] Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J. MARSHALL REV. INTELL. PROP. L. 604 (2016) https://repository.jmls.edu/cgi/viewcontent.cgi?article=1392&context=ripl

[38] "Cultural Property".

[39] "Native American Graves Protection and Repatriation Act (U.S. National Park Service)".