The protection of cultural property in times of armed conflict: Ethics, gender, and coloniality – CORRIGENDUM

Abstract Cultural heritage rests on imaginings of a shared humanity transcending national dividing lines. However, cultural heritage sites are frequently targeted in war. In this article I show that the politics of cultural protection is marked by tensions and contestations. A key argument is that the protection of cultural heritage in armed conflict is a militarised practice that is informed by notions of protection that are broadly western-centred and masculinised. Therefore, I suggest that they are insensitive to the gendered and colonial power relations that undergird the protection of cultural property. Informed by critical heritage studies, cosmopolitanism, and feminist IR scholarship, I elucidate the claims of this article through a feminist narrative analysis of protection. I identify what is said and what is silenced in heritage protection narratives. First, I focus on the wider storytelling that surrounds heritage protection, unpacking the ethical, gendered, and colonial assumptions employed. Second, I turn to the narration of military protection in the UNESCO military manual, attending to its ethical underpinnings, protection logics, and privileging of distinctively western military knowledge. I conclude by calling for a more nuanced approach to cultural protection.

Objectives: This article examines the protection of cultural property in times of armed conflict, arguing that the absence of a unified legal framework contributes to the failure of international law in protecting such property. Methodology: Using analytical and critical approach, this Article analyzes relevant legal provisions and assesses their impact on cultural property protection. Results: The article proposes three key approaches to enhance the understanding and implementation of international law in this context. First, it suggests that cultural property protection should be viewed from a humanitarian perspective rather than solely as a matter of regulating armed conflicts. Second, it advocates for the use of existing international legal mechanisms that have proven effective and widely accepted. Third, the article calls for a reassessment of the military necessity exception. Given recent developments, it argues that this exception should be refined, and a new legal concept for “crimes against cultural property” should be introduced to deter violations. Conclusion: Ultimately, the article concludes that the failure to protect cultural property stems not from a lack of legal provisions but from inadequate understanding and application of existing laws. Instead of drafting new laws, improving comprehension and interpretation of current regulations would enhance compliance and effectiveness. Implementing the proposed approaches would contribute to a more coherent and practical legal framework, ensuring better protection of cultural heritage during armed conflict.

Abstract On 22 January 2025, an international conference titled “Patrimoine en péril?” was held at the Museum of Art and History in Geneva. It was organized by the UNESCO Chair in the International Law of the Protection of Cultural Heritage (University of Geneva), the Museum of Art and History (MAH), and the International Alliance for the Protection of Heritage (ALIPH) Foundation. This event was part of the eponymous exhibition at MAH,1 commemorating the seventieth anniversary of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and coinciding with the twentieth anniversary of the entry into force of the Swiss Cultural Property Transfer Act. The conference explored these two themes, bringing together international experts from academia, law, and heritage conservation and management, reflecting a cross-disciplinary perspective on the protection of cultural property in times of crisis. In his opening remarks, Marc-Olivier Wahler (Director of the MAH) highlighted the evolving role of museums in contemporary society. The conference was split into five sessions, each addressing various critical issues related to cultural property, and were moderated by Béatrice Blandin (MAH), Antoinette Maget Dominicé (University of Geneva), and Marc-André Renold (University of Geneva).

Cultural values are part of human dignity and civilian life. Cultural property must be primarily protected during armed conflicts as well as during peacetime. Unfortunately, in armed conflicts, culture has often been one of the primary victims of conflict. As a matter of fact, the parties to the conflict usually target the cultural heritage militarily or politically in order to demoralize the targeted society and show their superiority. During the armed conflicts, many cultural heritages, many of them world heritage, have been destroyed or damaged. The destruction of cultural heritage fuels violence, hatred and revenge among people and undermines the foundations of peace by impeding reconciliation even when conflicts are over. The protection of cultural property in international law is regulated in many international documents. However, the first international regulation prepared by UNESCO on the protection of cultural property in times of armed conflict, “The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict” has a special importance. International law requires the protection of cultural heritage in armed conflicts. Recent history, however, provides numerous examples of the deliberate destruction or its use to secure a military objective. This leads to questioning whether international law provides adequate protection to cultural heritage in times of armed conflict. The study aims to examine what should be understood from the concept of cultural property in terms of international law, what the international regulations are in this regard and whether these regulations are sufficient, on the basis of the 1954 Hague Convention on the Protection of Cultural Properties during Armed Conflicts, and to make some observations and comments.

Deterring a crisis or war requires the commitment of large forces and resources that may include armed forces, security services or other non-military defense elements. The entire crisis management system is organized by the public administration. A crisis and the threat of war necessitate the implementation of a wide range of tasks aimed at securing life, health and property. Cultural property is a special category of property protected under the Polish legal system. The Republic of Poland undertook to protect it upon accession to the Hague Convention of 1954 on the Protection of Cultural Property in the Time of an Armed Conflict. This international agreement, along with the Polish experiences of the Second World War, laid the foundations for building an efficiently functioning system for the protection of cultural property during an armed conflict. Recent years have brought an increase in global interest in this area. Asymmetric threats against cultural heritage objects forced the involvement of military entities in developing security mechanisms. The author will provide an overview of national institutions tasked with the protection of cultural property in times of peace, assess the quality of these institutions as well as propose de lege ferenda postulates that could improve their functioning.

The paper demonstrates the intrinsic connection between the Roerich Pact - the first international treaty on the protection of cultural property in peace-time and in time of armed conflicts, and the philosophic system of the Living Ethics. The Pact was initiated by the outstanding Russian thinker, artist, scholar and public figure Nicholas Roerich whereas the Living Ethics was created by Helena Roerich and Nicholas Roerich in cooperation with the spiritual Teachers of the East, and it represents a synthesis of the Eastern philosophy and the Russian cosmism. According to the Living Ethics, culture is the foundation and the driving force of the evolution of humanity, it is also the basis for lasting peace in the world. Nicholas Roerich’s concept of culture-which is based on the ideas of the Living Ethics-not only draws a clear line of distinction between culture and civilization, it also substantiates the necessity of according priority to culture in its interrelation with civilization. The principle of priority of culture is implemented in the Roerich Pact: this international treaty provides for unconditional protection of cultural property in times of armed conflict (priority of culture over military necessity), and in peacetime it accords priority to culture (education, science, arts and spirituality) in the internal policies of the countries, which means in particular priority of funding of the cultural, scientific and educational institutions. The main objective of the Roerich Pact is the preservation of cultural property. According to the Living Ethics the preservation of the material objects of culture means the preservation of the energy of culture (the latter is the foundation for the evolution of mankind), for energy does not exist without matter. Cultural heritage which has accumulated in itself the creative luminiferous power of thought of its great creators is of paramount importance for improvement of society and for overcoming the deep-running contemporary crises and particularly the main one of them - the moral crisis. The destruction of cultural objects and consequently of the very space wherein culture exists inevitably brings about the domination of pseudoculture which resonates with the low instincts of the human being and leads to the swelling of egotism, aggression and mass predatory consumption. True culture, true art, and science elevated by ethics contribute for the development of the inner spiritual strength of the human being, for the flowering of her/his creative potential and therefore for the advancement of humanity on the ladder of its cosmic evolution.

Over the past years, the world has witnessed the loss of many intrinsic and invaluable cultural property during armed conflicts. Looting the invaluable artefacts of the National Museum of Iraq during the U.S invasion in 2003 is an example. More recently, the Islamic State in Iraq and Syria (ISIS) established, in 2015, a Ministry of Antiquities to officially control looting sites and facilitate both trafficking in cultural artefacts and direct selling. Examples on the destruction and other forms of attack against cultural property during armed conflicts are countless and terribly increasing, which demonstrates the failure of international law in protecting cultural property during times of armed conflict. This issue has been addressed by the international jurisprudence, and many writings attributed the reason for this to poor compliance with the rules of international law or for the rules’ failure to provide sufficient protection. This Article claims that the absence of a unified and consistent "legal framework" for the protection of cultural property is another reason for the failure of international law in protecting cultural property during times of armed conflict. To this end, this Article focuses on examining this reason and tracing its impact on the protection of cultural property. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict along with its two additional protocols, up until the time of writing this article, were representing the main legal instruments devoted exclusively to the protection of cultural property during times of armed conflict. However, protection is also embedded in different subfields of international law as well as in international jurisdiction and international practice. Therefore, this Article will rely on the 1954 Hague Convention as the basis for cultural property protection, while comparing it with relevant provisions in related subfields of international law, international jurisdiction and international practice. Accordingly, this article is divided into four parts. Part I exposes key provisions of cultural property protection in the main treaty with emphasis on their effectiveness and fitness for purpose. Part II explores the division of international law with respect to the protection of cultural property in times of armed conflict, with emphasis on the comparison between the main treaty and related subfields of international law. Part III elaborates on how this division affects the interpretation of the term “cultural property” in practice and impacts the applicability of international law.

Enhancing International Law with Respect to The Protection of Cultural Property in Time of Armed Conflict: A Comparative Analysis

International Legal Protection of Cultural Heritage in Armed Conflict: Achievements and Developments

لقد اهتم بحث( الحماية المعززة للممتلكات الثقافية في اوقات النزاعات المسلحة )بموضوع الحماية للممتلكات الثقافية أثناء النزاعات المسلحة لمايمثله هذا الموضوع من أهمية تاريخية تمتد جذورها للحضارات القديمة المرتبطة بواقع الدول ولما لاقى هذا الموضوع من تطورات من الاتفاقيات والقرارات والمؤتمرات الدولية ، فضلاً عن تزايد النزاعات المُسلحة بمُختلف صورها على نطاق واسع في دول العالم الثالث بشكل عام ، والدول العربية بشكل خاص ،لذلك اهتم البحث هنا بالهدف الذي من اجله اقرّ نظام حماية الممتلكات الثقافية في فترات النزاع المسلح والذي كان من اجل زيادة درجة الحماية المقررة لتلك الممتلكات والعمل على تقليل فرص نهب أو تدمير هذه الممتلكات ، ولو بشكل عرضي ، وعليه تضمن البحث مبحثين اولهما : احكام الحماية المعززة وفقدانها وثانيهما : أحكام وقواعد الحماية للممتلكات الثقافية خلال فترات الاحتلال. وقد اختتم البحث بجملة من النتائج من اهمها عدم الاهتمام بالممتلكات الثقافية سيؤدي الى استهداف كافة المنشآت سواء أكانت طبية او حتى خدمية فالحماية هذه تعادل إنقاذ الارواح و المنشأت الطبية . ومن اهم التوصيات يجب على الدول من اجل أن تتمتع(بالحماية المعززة) أن تقوم بتقديم قائمة تورد فيها الممتلكات الثقافية الموجودة فيها الى اللجنة المكلفة بحماية الممتلكات الثقافية اثناء فترات النزاعات المسلحة.

This article undertakes a comparative analysis of the two main international legal instruments providing for offences against cultural property and cultural heritage in times of armed conflict in order to assess existing gaps and lacunas, and to make suggestions on how better to advance the protection of cultural property through international criminal law. The International Criminal Court Statute takes a very retrograde attitude to this kind of crime – which the author calls the civilian-use approach – whereas the Second Protocol to the 1954 Hague Convention on the Protection of Cultural Property in Times of Armed Conflict seems far more innovative, preferring a cultural-value oriented approach. The author concludes that the latter approach is more appropriate and that, at present, the most effective tool for pursuing war crimes against cultural property is Protocol II to the 1954 Hague Convention. It is thus crucial to promote ratification by a large number of states and to encourage states to adopt implementing legislation that may allow domestic judges to prosecute the most serious crimes against cultural heritage on the basis of jurisdictional criteria provided for in Protocol II to the 1954 Hague Convention.

In May of 1954, the Convention for the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention) was adopted in an attempt to curb the destruction of movable and immovable cultural property during war. Recent conflicts, such as the continuing war in the Balkans, remind us that the Hague Convention is as relevant today as it was fifty years ago. Although this Convention is the most comprehensive and internationally recognized treaty to protect cultural property in time of war, the United States remains one of the few signatories that has yet to ratify it. In January 1999, former President William J. Clinton forwarded the Hague Convention to the Senate with the recommendation that it ratify the Convention and part of Protocol I. Although this presented perhaps the first real opportunity in nearly half a century for the United States to join one hundred countries and ratify the Hague Convention, its fate remains uncertain. Generally oriented towards the United States' policy and practice, this article broadly discusses the Hague Convention, its history, its weaknesses and strengths, and the current status of U.S. ratification.

Examples can be found from ancient times of concern for the protection of cultural artefacts and early legislation to protect monuments and works of art first appeared in Europe in the 15th century. Cultural heritage was first addressed in international law in 1907 and a body of international treaties and texts for its protection has been developed by UNESCO and other intergovernmental organisations since the 1950's. The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict of UNESCO (henceforth the “Hague Convention”) is the earliest of these modern international texts and was developed in great part in response to the destruction and looting of monuments and works of art during the Second World War. It grew out of a feeling that action to prevent their deterioration or destruction was one responsibility of the emerging international world order and an element in reconciliation and the prevention of future conflicts. International law relating to the protection of cultural heritage thus began with comparatively narrow objectives, the protection of cultural property in time of war.

The extent of destruction and appropriation of cultural property in recent armed conflicts, especially those in Croatia and Bosnia and Herzegovina, questions the adequacy of international rules aimed at the protection of cultural property in armed conflicts. This article seeks to examine that problem by analysing the basic international rules devoted to the protection of cultural property in the event of armed conflict.

The seventeenth and eighteenth centuries bore witness to the zenith of the European art of 'collecting' antiquities. The second half of the nineteenth century saw the beginnings of systematic archaeological techniques of excavation, field survey, conservation and protection. It saw what Professor Seton Lloyd has called the 'birth of a conscience' regarding the expropriation of antiquities from other countries. In the twentieth century the idea has emerged that cultural property is a matter of international concern, as being part of the 'heritage of mankind'. This concern has centred around looting from and destruction of archaeological sites, cultural heritage, the illicit traffic of art in the international market, and the return of cultural property. ildditional controls have been sought to establish the protection of cultural property in time of war as well as peace.