Syria's Endangered Heritage, page 9
Preliminary assessment of damage affecting old buildings at archaeological sites during the crisis
Will events in Syria mirror those in Iraq?
The ongoing conflict in Iraq is one of several recent wars that point to the failure of the “military necessity” doctrine in the struggle to protect global cultural heritage. And we now are faced, of course, with the possibility that what happened in Iraq will be repeated in Syria. Though Protocol II of the Hague Convention, adopted in 1999, outlaws the use of heritage objects for any military purpose under any circumstance, there are signs coming from the combatants in Syria that they will opt for the “military necessity” defense should they ever be forced to appear before a Hague Tribunal. If so, it will not be the first time the justification has been used under dubious pretexts.
Warehouse of the Iraq Museum in Baghdad after looting in 2003
During the Saddam Hussein kangaroo—court proceedings his lawyers defended their client by arguing that the Baghdad Museum was situated in a strategic military position since it lay just opposite Special Republican Guard compound, which the court surely would agree is a military target. In point of fact, by the time U.S. forces entered Baghdad in April of 2003, Iraqi troops had prepared fighting positions and military fortifications within the museum compound. The sole purpose, the court was informed, was “to protect Iraqi cultural heritage from the American led criminal invaders.”
The Iraqi government was widely accused of being in violation of the Hague Convention (to which Iraq is a party), and also of customary international law. To escape liability, Iraq would have had to prove that the utilization of the Baghdad Museum, which housed the largest collection of antiquities in the region outside of Egypt, was prompted by military necessity, and that it was embarked upon solely to achieve legitimate military objectives that would otherwise be unattainable by any other means. Saddam’s legal team failed to convince the tribunal that tried him, or, one imagines, any serious legal observer, or the general public for that matter, that this was the case.
On the contrary, once Iraqi combatants occupied the museum, it could arguably be considered a legitimate target for opposing forces. However, the attacking troops would still be obligated, under customary international law and the Hague Conventions, not to cause disproportionate damage to the building or its environs. Therefore, any damage to the museum building or the antiquities it housed that occurred during the battle may not necessarily be a violation of international law.
But the locating of monuments, museums, and other cultural heritage sites near arguably legitimate military targets, or likewise bringing military conflict to the antiquities sites, raises international legal questions relating to balancing war exigencies with preservation of global archaeological sites that belong to all of us. The actions taken by Saddam Hussein, in essence making use of “cultural heritage human shields,” are violations of the Hague Convention and customary international law, given that they are not acts of imperative military necessity. Yet the same tactic has been resorted to by extremist armed groups in Syria.
The “military necessity” balance can be achieved, but today’s challenge, in light of the Syrian tragedy, is to make it mandatory. Despite the widespread destruction and theft of cultural property in World War II, there were some conscientious attempts to avoid unnecessarily destroying antiquity sites. For example, allied forces ordered to stop Axis traffic through Rome in 1943 made a concerted effort to protect religious and cultural heritage sites. Airfields located in Roman suburbs were attacked, but equally legitimate targets were left untouched, including the enemy’s military headquarters, solely because it was set up in the heart of the archaeological center of Rome. Moreover, air raids in urban and/or antiquities areas were often conducted by the most accurate bomber aircraft available, and orders were given that planes were to return with their bombs if it was determined that cultural heritage sites were jeopardized.[2]
Examples of Applicable Treaties in Force and International Regulations relevant to the protection of Syria’s Cultural Heritage
Brussels Declaration (1874)
Article 8 of the 1874 Brussels Declaration provides: The property of municipalities that of institutions dedicated to religion, charity and education, the arts and sciences even when State property, shall be treated as private property. All seizure or destruction of, or willful damage to, institutions of this character, historic monuments, works of art and science should be made the subject of legal proceedings by the competent authorities.
Oxford Manual 0f 1880
Article 53 of the 1880 Oxford Manual provides: The property of municipalities, and that of institutions devoted to religion, charity, education, art and science, cannot be seized. All destruction or willful damage to institutions of this character, historic monuments, archives, works of art, or science, is formally forbidden, save when urgently demanded by military necessity.
Hague Regulations (1899)
Article 56 of the 1899 Hague Regulations provides: The property of the communes, that of religious, charitable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property. … All seizure of, and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should be made the subject of ;legal proceedings.
Hague Regulations (1907)
Article 56 of the 1907 Hague Regulations provides: The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.
Hague Regulations (1907)
Article 56 of the 1907 Hague Regulations provides: The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.
Post First World War 1919 Report of the Commission on Responsibility
Based on several documents supplying evidence of outrages committed during the First World War, the 1919 Report of the Commission on Responsibility lists violations of the laws and customs of war which should be subject to criminal prosecution, including “wanton destruction of religious, charitable, educational and historic buildings and monuments.”
1943 Inter—Allied Declaration against Acts of Dispossession
In the 1943 Inter—Allied Declaration against Acts of Dispossession, the Allied governments expressed their intention: To do their utmost to defeat the methods of dispossession practiced by the Governments with which they are at war against the countries and peoples who have been so wantonly assaulted and despoiled. Accordingly, the governments making this Declaration and the French National Committee reserve all their rights to declare invalid any transfers of, or dealing with, property, rights and interests of any description whatsoever which are, or have been, situated in the territories which have come under the occupation or control, direct or indirect, of the Governments with which they are at war, or which belong, or have belonged, to persons (including juridical persons) resident in such territories. This warning applies whether such transfers or dealings have taken the form of open looting or plunder or of transactions apparently legal in form, even when they purport to be voluntarily effected.
Hague Convention for the Protection of Cultural Property (1954)
Article 4(3) of the 1954 Hague Convention for the Protection of Cultural Property provides: The High Contracting Parties further undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property. They shall refrain from requisitioning movable cultural property situated in the territory of another High Contracting Party.
Article 19(1) of the 1954 Hague Convention for the Protection of Cultural Property provides: In the event of an armed conflict not of an international character occurring within the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property.
Second Protocol to the Hague Convention for the Protection of Cultural Property
Article 15 of the 1999 Second Protocol to the Hague Convention for the Protection of Cultural Property provides:
1. Any person commits an offence within the meaning of this Protocol if that person intentionally and in violation of the Convention or this Protocol commits any of the following acts: (e) theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.
2. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law the offences set forth in this Article and to make such offences punishable by appropriate penalties.
The 1970 UNESCO Convention
The Convention on the Means of Prohibiting the Illicit Import, Export and Transfer of Ownership of Cultural Property was adopted in 1970 at the 16th general conference of the United Nations Environmental, Scientific and Cultural Organization (UNESCO) grants member states the right to recover stolen or illegally exported antiquities from other member countries, and also mandates observance of export restrictions of origin states. Consequently, since Syria forbids people to export ancient artifacts, parties to the convention are required to promulgate laws that punish people who import the Syrian objects. American law incorporated the UNESCO Convention in 1983 through the Convention on Cultural Property Implementation Act, but its enforced has been checkered.
The 1972 World Heritage Convention (WHC)
The thrust behind the World Heritage Convention (WHC) was to build an “effective cooperative international framework” to protect cultural (and natural) heritage from potential and/or specific threats, including those arising during all armed conflict.
While the 1954 Hague Convention is designed for the protection of cultural property in armed conflict the World Heritage Convention is the only treaty which focuses specifically on world cultural heritage rendering both treaties relevant and needed in the protection of world cultural heritage in Syria.
Under Article 6 (3) of the WHC, states must refrain from taking any deliberate measures which might damage, directly or indirectly, the world cultural heritage situated on the territory of another state party. Article 6 (3) mandates protection from (i) direct attacks; (ii) use of cultural sites that might lead to their direct harm; (iii) attacks aimed at another objective but that might harm those sites indirectly; (iv) use of the surroundings of cultural heritage sites that may cause them indirect damage.
The United Nations Educational, Scientific and Cultural Organization - UNESCO - Headquarters in Paris
1993 ICTY Statute
Article 3(d) of the 1993 ICTY Statute includes “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” among the violations of the laws or customs of war in respect to which the Tribunal has jurisdiction.
The 1995 UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects
The UNIDROIT Convention also deals with cultural property protection and attempts to fill gaps in the 1970 UNESCO Convention. At its core, UNIDROIT aims to reduce illegal trafficking in cultural property by obligating buyers to check the legitimacy of their purchases. If a determination is made that a piece of property was stolen or illegally exported, the treaty stipulates that it be immediately returned (Art. 3.1)
For the purposes of this Convention, a cultural object which has been unlawfully excavated or lawfully excavated but unlawfully retained shall be considered stolen, when consistent with the law.
The 1996 International Law Commission Draft Code of Crimes against the Peace and Security of Mankind (1996)
Pursuant to Article 20(e)(iv) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “Seizure of, destruction of or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and sciences” is a war crime.
The 1997 Revised Lauswolt Document (UNESCO)
Article 1(3) of the 1997 Revised Lauswolt Document states: “Any form of theft, pillage or misappropriation of, any act of vandalism directed against, any illicit transaction in, or any other breach of integrity of cultural property is prohibited.”
Article 12(1) of the 1997 Revised Lauswolt Document provides:
1999 UN Secretary—General’s Bulletin
Section 6.6 of the 1999 UN Secretary—General’s Bulletin states: “Theft, pillage, misappropriation and any act of vandalism directed against cultural property is strictly prohibited.”
The 2013 Chautauqua Blueprint
While not yet in force, the Chautauqua Blueprint is a Draft Statute receiving widespread attention. It was prepared by a panel of former international tribunal chief prosecutors, international judges, and leading experts which aims to provide a model for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes.
The Chautauqua Blueprint was signed on Aug. 27, 2013 at the Chautauqua Institution in Upstate New York during a meeting attended by several chief prosecutors of various international criminal tribunals international judges, and law professors closely involved in creation of similar courts for Rwanda and Yugoslavia several chief prosecutors of various international criminal tribunals—about war crimes committed during the ongoing Syrian crisis. It reflects insights gained from a series of meetings and workshops over the past two years, which brought together Syrian lawyers, jurists, and civil society leaders with international experts to discuss an approach to justice uniquely tailored to Syria.
With respect to personal accountability for Cultural Heritage crimes, the envisaged war crimes Tribunal would have jurisdiction over crimes including:
“Intentionally directing attacks against buildings that are dedicated to religion, education, art, science, of charitable purposes, historic monuments and archeological sites, hospitals and places where the sick and wounded are collected provide that are not military objectives.”
This article has been criticized because it reproduces exactly the crime against cultural objects of the ICC Statues and thus the wording is far behind the current concept of cultural property and world heritage sites. To this extent it regresses to the provisions of the 1907 IV Hague Regulations because they lump together historic monuments with hospitals and places where the sick and wounded are collected and grant an exception for ‘military necessity.’ The draft statute thereby fails to distinguish or grant special protection for places of importance to humanity over a local building only valued, for example, by a neighborhood. Nor does the Draft Statues cover the widespread crime of looting that is ravaging Syria daily. For the same reasons that 1907 Hague IV was judged inadequate for protecting World Heritage after World War II so the 2013 Chautauqua Blueprint is inadequate to hold accountable those currently destroying our cultural heritage in Syria.
2015 United Nations Security Council Resolution 2199
On 2/12/2015, the United Nations Security Council unanimously adopted Resolution 2199 (2015), under the binding Chapter VII of the UN Charter thus giving it the force of international customary law.
With respect to Cultural Heritage in Syria, the resolution provides, inter alia:
Condemns the destruction of cultural heritage in Iraq and Syria particularly by ISIL and ANF, whether such destruction is incidental or deliberate, including targeted destruction of religious sites and objects;
Notes with concern that ISIL, ANF and other individuals, groups, undertakings and entities associated with Al-Qaida, are generating income from engaging directly or indirectly in the looting and smuggling of cultural heritage items from archaeological sites, museums, libraries, archives, and other sites in Iraq and Syria, which is being used to support their recruitment efforts and strengthen their operational capability to organize and carry out terrorist attacks;
Reaffirms its decision in paragraph 7 of resolution 1483 (2003) and decides that all Member States shall take appropriate steps to prevent the trade in Iraqi and Syrian cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from Syria since 15 March 2011, including by prohibiting cross—border trade in such items, thereby allowing for their eventual safe return to the Syrian people and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph.
Military Manuals: State practice concerning attacks against cultural property as part of the conduct of hostilities
More than 80% of UN Member States have language in their armed forces military manuals that order the protection of cultural heritage property. Some countries are currently updating their manuals to order the protection of cultural heritage, archeological sites, and prohibit looting and any dealings in stolen artifacts in areas where their armed forces are present. Fairly typical language is found in the 1958 Military Manual of the United Kingdom of Great Britain and Northern Ireland.
