Cultural Property Protection in the Context of Military Operations: The Case of Uruk, Iraq

The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict (1954 Hague Convention) remains the leading treaty on the treatment of cultural heritage during armed conflict and occupation. After several decades of relative dormancy, eleven States have joined the 1954 Hague Convention in the last decade, including two major military powers: the United States and the United Kingdom. In addition to the 1954 Hague Convention, a host of laws touch on the protection of cultural property in armed conflict, as well as those under customary international law. Nonetheless, there are disagreements in interpretations of States’ obligations toward cultural property during armed conflict stemming from a variety of factors. These factors can include: whether States are Parties to the instrument that conveys the obligation or if the obligation is one of customary international law, which itself is often contested; the individual State’s interpretation; interpretation by tribunals; and a plethora of other factors. Given these discrepancies in interpretation, a review of States’ military manuals is useful to see if they shed any light on the State’s interpretation of their obligations toward cultural property under the law of armed conflict (LOAC) and international obligations in LOAC more generally. This chapter will analyze and compare the military manuals of the United States and the United Kingdom to determine how they elucidate several key issues in the protection of cultural property during armed conflict, such as the definition of ‘cultural property’, requirements for ‘respect’, the doctrine of military necessity, and laws applicable in non-international armed conflicts.

The protection of cultural property has long been recognised under international humanitarian law. Article 5 of the 1954 Hague Convention on Cultural Property embodies three-pronged affirmative obligations specifically relating to occupied territory. With specific regard to occupied territory, Article 56 of the Hague Regulations of 1907 accord special protections to the property of institutions dedicated to religion, charity, education, the arts and sciences. The occupying powers are absolutely prohibited from seizing, destroying or causing wilful damage to institutions of this character, historic monuments, and works of art and science. In occupied territory, the occupying power must prohibit, prevent and stop any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, the cultural property as defined in Article 1 of the 1954 Convention. The application of rules on the conduct of hostilities in turn necessitates the occupying power to undertake careful appraisal of the applicable rules.Keywords: cultural property; Hague Regulations; international humanitarian law; occupied territory

Al Mahdi was the first case before the International Criminal Court (icc), which focused on the destruction of cultural property, and indeed, the first case before an international criminal tribunal which had the destruction of cultural property as the sole charge against a jihadist. This case note first addresses the international legal framework on the protection of cultural property in Section 2. Section 3 then assesses the concept of hisbah and its operation, including the reasons why the Hisbah in Mali destroyed cultural property. The next section considers the facts of the Al Mahdi case. Section 5 highlights the shortfalls in the Trial Chamber’s consideration of the rationales for the protection and destruction of cultural property, before the note concludes in Section 6.

Since armed conflicts are based increasingly on politics of identity, the protection of cultural property is likely to become continuously more important during peace operations. The extent to which peace operations are obligated to protect cultural property is, however, not always clear. This article explains why and to what extent peace operations ought to be required to protect cultural property. It first explores the way that the protection of cultural property can contribute to the overall aim of an operation. Second, the extent, from a legal standpoint, to which peace operations must respect cultural property is elaborated – and whether peace operations must refrain from damaging cultural property. Finally, the article analyses whether peace forces are obligated by international law to actively protect cultural property. Thus, whether they are responsible for the protection of cultural property from the depredations of others is questioned. The study contends that, on the one hand, the protection of cultural property is needed because it contributes to the overall aim of a peace mission, but that, on the other hand, a coherent legal framework is lacking.

The relevance of studying the legal foundations of the organization of the protection of cultural property in the context of armed conflict is increasing against the background of recent international events, as well as the aggravation of relations between the Russia and a number of foreign states, including the Baltic states. These circumstances require not only theoretical understanding, but also practical application of the norms of international law. The object of the study is the protection of cultural heritage in the event of an armed conflict. The subject of the study is the regulation and implementation of international legal protection of cultural heritage in the event of an armed conflict. The purpose of the article is to develop proposals for improving the international legal mechanism for the protection of cultural property in the event of an armed conflict, enshrined in the law of the Russian Federation. The methodological basis of the research presented in the article is a systematic approach and a doctrinal method. The following methods were used in the research: analysis, synthesis, generalization, deduction, formal legal analysis, and others. The paper examines the legislative, institutional and practical aspects of the legal framework for the protection of cultural property in the event of an armed conflict. The main international and regulatory legal acts of the Russian Federation regulating these issues are given. The author suggests possible ways to improve the national legislation of the Russian Federation on the protection of cultural property in the event of armed conflict and ensuring compliance with international humanitarian law. The position is argued on the need not only to inform, but also to test military personnel of the Armed Forces of the Russian Federation on the protection of cultural property and responsibility for violations of international law (including the destruction, misappropriation and vandalism of cultural heritage). The novelty of the research lies in a comprehensive approach to analyzing the protection of cultural property in the event of armed conflict, identifying shortcomings in existing norms and offering specific recommendations for their improvement.

Cultural property can be damaged to varying degrees during armed conflicts, such as the devastating blows inflicted on cultural property during WWII. In reality, when a country is at war, its cultural property is exposed to unintended or purposeful damage. Cultural property has been protected by laws and regulations since the early twentieth century, and humanitarian law provides specific measures on the issue. This article will examine the causes of attacks on cultural property in the context of today's armed conflicts and analyze the inadequacies of the protection of cultural property in today's international humanitarian law. Despite the growing concern of the international community for cultural heritage, there is still a lack of clear procedures and penalties for crimes against cultural heritage in the context of regional armed conflicts, and the international legal system needs to be further improved.

The paper notes the attempts that are being made to doctrinally substantiate a broad approach, according to which the «international law of cultural property» was formed as a special (autonomous) legal framework. Without sharing such views, the author justifies the existence of an intersectoral institute for the international legal protection of cultural property, and also notes that the protection of cultural property in the actual situation of armed conflict is a branch institute of international humanitarian law (IHL), characterized by the presence of special principles and established scope of application (ratione materiae and ratione temporis). For the purposes of IHL, the definition of «cultural property» is formulated. It implies movable and immovable objects of the material world (objects) that are subject to identification and have no military purpose. They are of fundamental importance for the cultural heritage of not only a single people, but also the entire international community, included in the relevant register/list and under common, special or enhanced international legal protection, including their storage sites or concentration centers.A reasonable proposal has been made to introduce the concept of the «1954 Hague Convention system» into scientific circulation. The central part of it is formed by the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, including the Executive Regulations as an integral part of it, and additional Protocols to it (Optional Protocol I and the Second Protocol of 1999), as well as three resolutions attached to the Final Act of the 1954 Conference. It is emphasized that the Second Protocol of 1999, which Russia has not ratified, provided for the creation of institutional structures designed to complement the system of implementation of the Hague Convention of 1954. Based on the analysis of the «1954 Hague Convention system», three conventional regimes for the protection of cultural property in the actual situation of armed conflict (general, special and enhanced) have been established and their features have been analyzed.

Intangible Folk Cultural Properties (IFCP) represent cultural customs or events related to transition in people’s lives, and need to be protected and passed on to future generations. The Japanese government adopted the revised Act on Protection of Cultural Properties in 2018, which aims to ensure comprehensive protection and utilization of cultural properties. IFCP are required to make it available and accessible to the public considering these features. This study proposes an IFCP data model using Linked Open Data (LOD). This model is based on the CIDOC Conceptual Reference Model (CRM) and other vocabularies. We constructed a dataset based on this model and published it on the web. The dataset contains 5,106 triples from 103 IFCP focusing on religious faiths festivals (RF) and annual observances (AO). To evaluate our data model, we defined functional requirements for the IFCP and implemented a prototype system to verify utilization feasibility of the IFCP. The prototype system shows the IFCP lists based on retrieval feature using the SPARQL query language.KeywordsIntangible folk cultural propertiesMetadataLinked open dataCIDOC CRMSPARQL

This article discusses how the protection of cultural property in armed conflicts is far from being complete, and how the enforcement of existing international law rules is ineffective. Although it is certainly unavoidable that not every cultural property can be protected, one category is missing, namely, the property which constitutes the cultural heritage of a particular population or even a minority group. The protection of cultural property in non-international conflicts is particularly unsatisfactory. Not only is it questionable whether the 1954 Hague Convention is binding upon rebels; it is even more problematic to ensure its enforcement. Another weakness of the existing international regime on the protection of cultural property in armed conflict stems from its lack of coherency. The possibility to waive the protection of cultural property under the 1954 Hague Convention on the basis of military necessity makes the respective objects a prey of military considerations. Keywords:armed conflict; cultural property; Hague Convention; international instruments; military necessity; obligation; protection

Armed conflict is perhaps as old as humankind itself. Although the rules regulating the protection of persons are far more important than protection to property, it does not mean that the protection of property is of only modest significance. This chapter considers international law pertaining to the protection of cultural property in armed conflict. It first surveys the development of rules relevant to wartime protection of cultural property. In order to determine exactly which law, and how much of it, is relevant to the Old Bridge, the chapter then examines the nature of the Bosnian and Herzegovinian Croat-Muslim conflict in Mostar at the time of the destruction of the Old Bridge. This examination highlights the direct intervention and overall control tests. Finally, the chapter outlines the law applicable to the destruction of the Old Bridge, specifying the applicability of both customary and treaty international humanitarian law (IHL). Keywords:armed conflict; Croat-Muslim conflict; cultural property; international law; Mostar; Old Bridge; wartime protection

The Advisory Service on International Humanitarian Law of the International Committee of the Red Cross (ICRC) organized a Regional Expert Meeting for Latin American Countries on 13 and 14 May 2002 in Lima (Peru) on the subject “To protect cultural property in the event of armed conflict: implementation of international regulations in this field at national level”. The meeting was held with the support of the Peruvian authorities, the National Institute of Culture and the National Commission for the Study and Application of International Humanitarian Law. After a previous expert meeting on the protection of cultural property during hostilities, which took place in Chavannes-de-Bogis (Geneva) on 5 and 6 October 2000, this was the first decentralized meeting.

All military involvement in the protection of cultural property in the Netherlands is a direct consequence of legal obligations laid down in international humanitarian law (IHL). The 1954 Hague Convention was supplemented by Protocol I, which imposed further obligations on occupying forces in control of hostile territory and on other High Contracting Parties to take into custody and to return cultural property coming from occupied territories at the close of the hostilities. However, the eruption of armed conflict in former Yugoslavia in the 1990s demonstrated the very limited effect of IHL protection. As a result of this, Protocol II to the 1954 Convention sought to impose even tighter restrictions on the impact of military operations on cultural property. This chapter discusses the role of the Dutch armed forces in protecting cultural property. Keywords: armed conflict; cultural property; Dutch armed forces; Dutch Ministry of Defence; Hague Convention; international humanitarian law (IHL); military operations; protection

Contents: Introduction Bibliography and further reading. Part I Foundations: The Concept of Cultural Heritage: Cultural property internationalism, John Henry Merryman On defining the cultural heritage, Janet Blake The Politics of Cultural Heritage Rights: The expanding purview of cultural properties and their politics, Rosemary J. Coombe The politics of preservation: privileging one heritage over another, Jonathan S. Bell. Part II Types of Cultural Heritage Rights: Natural Heritage as Cultural Heritage: Nature and culture: a new World Heritage context, Shabnam Inanloo Dailoo and Frits Pannekoek World Heritage and rights-based approaches to nature conservation, Gonzalo Oviedo and Tatjana Puschkarsky Urban Landscapes as Cultural Heritage: Informal settlements and urban heritage landscapes in South Africa, Lindsay M. Weiss Artefactual Cultural Heritage Rights: Sir, how much is that Ming vase in the window? Protecting cultural relics in the People's Republic of China, Michael L. Dutra Underwater Cultural Heritage Rights: 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, Sarah Dromgoole Intangible Cultural Heritage Rights: Heritage trouble: recent work on the protection of intangible cultural property, Michael F. Brown The UNESCO concept of safeguarding intangible cultural heritage: its background and Marrakchi roots, Thomas M. Schmitt Indigenous Cultural Heritage Rights: Indigenous cultural heritage in development and trade: perspectives from the dynamics of cultural heritage law and policy, Rosemary J. Coombe with Joseph F. Turcotte Indigenous cultural landscapes and the politics of heritage, Melissa F. Baird. Part III Contemporary Issues in Cultural Heritage Rights Law: Repatriation of Cultural Heritage: Resolving material culture disputes: human rights, property rights and crimes against humanity, Robert K. Paterson Illicit Trade in Cultural Heritage: Controlling the international market in antiquities: reducing the harm, preserving the past, Patty Gerstenblith Armed Conflict and Cultural Heritage Protection: The protection of cultural property in times of armed conflict: the practice of the International Criminal Tribunal for the former Yugoslavia, Hirad Abtahi The obligation to prevent and avoid destruction of cultural heritage: from Bamiyan to Iraq, Francesco Francioni and Federico Lenzerini Tourism, Economic Development and Cultural Heritage Protection: Posta Econflict heritage and tourism in Cambodia: the burden of Angkor, Tim Winter. Part IV Future Directions in Cultural Heritage Rights Law: Cultural Heritage Protection and the Challenge of Climate Change: Changing climate, changing culture: adding the climate change dimension to the protection of intangible cultural heritage, Hee-Eun Kim Cultural Expressions as Cultural Heritage: The UNESCO Convention on the Protection and Promotion of Cultural Expressions: building a new world information and communication order?, Rachael Craufurd Smith The Human Genome and Cultural Heritage: The human genome as common heritage: common sense or legal nonsense?, Pilar N. Ossorio Beyond Rights? Rethinking the Cultural Heritage Protection Paradigm: Cultural heritage rights: from ownership and descent to justice and well-being, Ian Hodder. Name index.

This chapter provides a commentary on the protection of cultural property in armed conflicts, which covers recent developments in treaty law and international practice. The Second World War spurred the eventual conclusion of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and the Regulations for its execution, along with a separate optional Protocol, now known as the First Protocol. The preamble to the former declares that ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world’. While the 1954 Convention applies during international armed conflict (whether or not a legal state of war exists between the belligerents, as well as to all cases of partial or total occupation of the territory of a party), its provisions relating to respect for cultural property also apply to non-international armed conflict occurring within the territory of one of the parties. Meanwhile, the 1977 Additional Protocols to the Geneva Conventions, too, embody brief provisions specifically relating to respect for cultural property. In parallel with these treaty regimes, a body of customary international law has developed over the years to protect cultural property in armed conflict.

This article considers the relationship between the protection of cultural property in the event of armed conflict, as defined in International Humanitarian Law, and human rights. It contextualises this by acknowledging the social role of archaeology as developed by the World Archaeological Congress. The article uses the author’s personal experience of working with the UK Ministry of Defence to attempt to protect cultural property in Iraq to illustrate the failure of the military, and its political masters, to understand the importance of cultural property and argues that there needs to be a closer relationship between the military and cultural heritage experts if the human rights of those caught up in conflict are to be ensured.