Conflict, Heritage and Law

Cultural heritage is protected in times of conflict by a number of international conventions, and laws.  These are essentially legal instruments elaborated and adopted by States. Even though adopted by a high number of States, they only become binding on those States that decide to join, which is usually done through the State’s ratification, accession, acceptance or approval of the Convention.  Each international convention is legally binding only within its specific scope of application, which is generally determined by:

  • its States parties (ie the States which have signed / ratified it)
  • the timeframe it covers since Conventions usually do not apply retroactively
  • its subject-matter (for example, cultural property as defined in the convention)

Lady _justiceDespite regional and local variations in legislation, and despite the fact that not all laws and conventions are legally binding, a certain amount of consensus has been achieved. In general, under the law of armed conflict, cultural heritage is shielded against any act of hostility provided that it is not used at the same time for military purposes.

Four elements

There are four essential elements, binding for all states during armed conflicts whether they acceded or acknowledged the legal framework, or not. The first three elements are applicable both in international and non- international armed conflicts while the fourth only in international armed conflicts (Henckaerts et al., 2005):

  • The obligation of each party to the conflict to respect cultural property.
    • Special care must be taken in military operations to avoid damage to buildings dedicated to religion, art, science, education or charitable purposes and historic monuments unless they are essential military objectives.  Property of great importance to the cultural heritage of every people must not be the object of attack unless imperatively required by military necessity.
  • The prohibition to use cultural property of great importance for purposes which are likely to expose it to destruction or damage, unless imperatively required by military necessity.
  • The obligation of each party to the conflict to protect cultural property.
    • All seizure of or destruction of or wilful damage done to institutions dedicated to religion, charity, education, the arts and sciences, historic monuments and works of art and science is prohibited.  Any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, property of great importance to the cultural heritage of every people is prohibited.
  • The obligation of the occupying power to prevent the illicit export of cultural property from occupied territory and to return illicitly exported property to the competent authorities of the occupied territory.

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Conventions

The most important conventions relating to cultural heritage protection are:

  1. Geneva Convention (1949), and Additional Protocols I and II (1977), which forbids pillage and destruction of cultural property by invading or occupying forces (for more see…)
  2. The Hague Convention (1954), and its First and Second Protocols (1954 / 1999), which is the only international instrument aimed specifically at protecting cultural heritage during an armed conflict and occupation, and defines the circumstances under which cultural property may be attacked, as well as methods for its protection (for more see…)
  3. UNESCO Convention (1970), which is the most broadly ratified international convention that exists on the issue of illicit trafficking in cultural property (for more see…)
  4. World Heritage Convention (1972), which sets out the duties of States Parties in identifying potential sites of outstanding importance to mankind and their role in protecting and preserving them, as well as protecting their national heritage (for more see…)
  5. Convention on Stolen or Illegally Exported Cultural Objects (1995) (for more see…)
  6. International Criminal Law allows for the prosecution of individual war criminals for destructive acts or operations against cultural heritage (for more see…)
  7. International Human Rights Law guarantees the right to take part in cultural life and to preserve cultural heritage (for more see…)

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Only people themselves can prevent the destruction of cultural property in situations of armed conflict. The legal framework necessary for directing that change is there. It must only be accepted and applied.

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