Tragic examples of cultural heritage destruction have recently filled the news. While they rightly caused dismay among the international community, it is, however, essential to acknowledge similar events perpetrated in the same circumstances to the intangible cultural heritage (ICH) of people caught up in the turmoil of war. Harm to ICH is, certainly, less visible than that to tangible property, yet the effects are just as devastating.
War does not take things into consideration; it destroys without distinction visible and invisible. Two sites on the World Heritage List can, among others, illustrate this. Besides their reputation, it is also of interest to mention them since harm occurred at different stages of an armed conflict: during hostilities, then following combat, when the population falls into the enemy’s hands. Aleppo’s Old Souk, first, was destroyed during hostilities, but many cultural expressions, ancestral skills that Aleppines gave life to, were also affected and disappeared with the Souk. The other refers to the Timbuktu mausoleums and their destruction, which was the subject of an ICC judgment of the utmost importance. Those populations’ ICH was moreover also affected, as onsite ceremonies were prohibited. Again, added to the visibility of destroyed Mausoleums is the invisible, as ICH expressions were silenced. Such cases illustrate the tangible and intangible dimensions of heritage, of which one prevails according to region, culture, and conflict evolution.
These distinctions, between tangible and intangible, between different stages of a conflict, are also found in the norms aiming at protecting cultural heritage in armed conflict. They are numerous, pertaining to various legal regimes, yet they exist, and by ratifying such treaties, states subscribe to the obligation, when war breaks out, of complying with them and thereby of preserving cultural heritage.
History of Protection
While wars have always existed, attempts to regulate them also date back to time immemorial. Man has always felt the need for rules to ensure community life. This is true for land management, life cycles related rituals, and also for war. These rules were gradually specified, and one of them, which made its way through centuries and continents, aims to protect the spiritual sphere, the “sacred.”
Even though frequently violated, these rules existed and, when respected, they contributed to preserving the populations’ cultural and spiritual heritage. They were mainly to prohibit combat near sacred sites to protect these as well as to ensure ceremony celebration and everyone’s participation. This protection focused on the site, celebration and individuals who fulfilled it and took part, a protection suggesting the future safeguarding of ICH.
The first treaties of the law of armed conflict applicable primarily in the event of war also established this rule. The 1907 Hague Conventions governed the conduct of both world wars. While their provisions did not prevent all harm to heritage, they nonetheless contributed to its preservation. The Nuremberg Tribunal also punished as a war crime the violation of their norms aimed at preserving cultural heritage.
The law of armed conflict was then enriched with the 1949 Geneva Conventions dedicated to the protection of human beings in armed conflict. Their 1977 Additional Protocols extended it to “cultural or spiritual heritage of peoples,” including in internal conflict. Then followed the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which also contributes to the safeguarding of ICH. Its scope, beyond objects and buildings, is indeed also extended to sites and centers that can involve ICH expressions. Its Second Protocol of 1999 specifies this indirect protection it confers.
Other treaties were later adopted, such as the 1966 UN International Covenants on Human Rights, including two provisions protecting cultural rights. Not belonging to the law of armed conflict, some of their norms, theoretically applicable at all times, can however be restricted in the event of war. The UNESCO culture conventions then followed, such as the 1972 World Heritage Convention and the 2003 Convention for the Safeguarding of the ICH.
What Law Protects ICH in Armed Conflicts?
Most armed conflicts in the past decades were internal and of a cultural, spiritual, or ethnic nature. Cultural heritage plays a key role therein as it can become a stake in the conflict, its destruction being an act of war sometimes described as “cultural cleansing.” Indeed, by attacking the symbols of the opponent populations’ identity, it is their dignity, their own existence, which are aimed at. The history of humanity provides many examples of this.
When acts of hostility aim at intangible heritage, they contravene rules pertaining to multiple instruments, unlike tangible property. A recent example of an ending conflict can illustrate it. It involves the Ette Ennaka people of Northern Colombia, particularly harmed by this long war.
In addition to displacements and massacres they were exposed to, they also faced the loss of essential ICH elements, such as access to their numerous sacred sites, scattered throughout a vast territory. There, Elders made pilgrimages in which ancestral knowledge was ritually passed on to the next generations, including traditional pharmacopoeia. What applicable law would protect this tradition then?
The regime applied as a priority is the law of armed conflict. Yet, when it is imprecise or incomplete, resorting to other norms that meet more accurately a given situation, such as those of the 2003 Convention or the 1966 UN Covenants, is in principle possible, as was ruled by the ICJ.
The Geneva Conventions and their Additional Protocols protect individuals in armed conflict, in particular their life, their physical integrity, their dignity, their religious freedom, yet not traditions nor the group that brings them to life, particularly in internal conflicts, as fewer norms then apply. The 2003 Convention’s norms provide a precise protection to Ette Ennaka ICH expressions, such as article 11, which sets the obligation of States Party to take necessary action for the safeguarding of ICH, or article 15, which requires the aforementioned states to ensure community participation in activities for the safeguarding of their ICH. The applicability of such norms in this instance could thus be invoked.
Human rights, theoretically applicable during the conflict, like cultural rights requiring the right to one’s own cultural life and access to one’s heritage, the freedom of expression, of movement, of reunion, can also be invoked to ensure the fulfillment of these ceremonies. Yet, in a situation of serious disturbance of public order, such as war, they can, unlike religious freedom, be restricted or even suspended. In addition to these rights, various norms of the 1989 ILO Convention N° 169 concerning Indigenous and Tribal Peoples enshrine their right to conduct their cultural and spiritual practices.
This brief overview of the law applicable to ICH in the event of armed conflict shows that its safeguarding implies the implementation of several legal regimes and instruments. The law of armed conflict, ensuring respect for individuals, their cultural and spiritual identity, their dignity, applies in priority. However, to fill the gaps of these regulations with regard to ICH preservation, resorting to provisions that precisely meet a specific case is needed, as ruled by the ICJ. This involves mainly the 2003 Convention’s norms and, in particular, those enshrining the states’ obligation to ensure the safeguarding of ICH and the communities’ right to give life to it.
The joint applicability of various cultural heritage related instruments to improve its preservation in armed conflict is a constant concern of UNESCO. Efforts are made to implement synergies between the 1954 Convention and the 1972 Convention, in particular, and now also the 2003 Convention.
The applicability of this instrument in armed conflict has been discussed during the last 2003 Committee sessions. This was the case in Windhoek in 2015 when was adopted an ethical principle on the applicability of the 2003 Convention in such circumstances, and in 2016 when the Committee decided during its Addis Ababa session to continue addressing the issue of safeguarding ICH in emergency situations, which also include armed conflicts. In December 2016, the Committee for the Protection of Cultural Property in the Event of Armed Conflict confirmed its previous year’s decision, seeking to implement synergies with the 2003 Convention.
To conclude, similar concerns are also expressed at the UN where the Special Rapporteur in the field of cultural rights presented her report on the intentional destruction of cultural heritage and cultural rights before the General Assembly in 2016, stressing the serious harm also committed to ICH in the event of armed conflict.