Peace Operations and the Protection of Cultural Property During and After Armed Conflict

Abstract

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.

Notes

Convention for the Protection of Cultural Property in the event of Armed Conflict with Regulations for the Execution of the Convention 1954, adopted 14 May 1954 (at: http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html).

See, inter alia, Jan Hladik, ‘The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the Notion of Military Necessity’, International Review of the Red Cross, Vol.835, 1999, pp.621–35; Kevin Chamberlain, War and Cultural Heritage, Leicester: Institute of Art and Law, 2004; Roger O'Keefe, The Protection of Cultural Property, Cambridge, UK: University Press, 2006; Patty Gerstenblith, ‘From Bamiyan to Baghdad: Warfare and the Preservation of Cultural Heritage at the Beginning of the 21st Century’, Georgetown Journal of International Law, Winter 2006, pp.245–352.

See, inter alia, Lawrence Rothfield (ed.), Antiquities under Siege. Cultural Heritage Protection after the War in Iraq, Lanham, MD: Altamira Press, 2008; Niel Brodie et al., Stealing History: the Illicit Trade in Cultural Material, Cambridge: McDonald Institute for Archaeological Research, 2000.

See, inter alia, Daphna Shraga, ‘The United Nations as an Actor Bound by International Humanitarian Law’, International Peacekeeping, Vol.5, No.2, 1998, pp.64–81; Shraga, ‘UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operation-Related Damage’, American Journal of International Law, Vol.94, No.2, 2000, pp.406–12; Paul C. Szasz, UN Forces and International Humanitarian Law, US Naval War College, Newport, RI 2000, pp.507–37; Ray Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo. Operational and Legal Issues in Practice, Cambridge: Cambridge University Press, 2007; Marco Sassòli, ‘International Humanitarian Law in Contemporary Armed Conflicts and Its Application to Multinational Forces’, paper presented at Euro-Atlantic Partnership Council (EAPC) Workshop on IHL and Multinational Forces, London, 20–21 Nov. 2000; Alexandre Faite and Jérémie Labbé Grenier, Expert Meeting on Multinational Peace Operations. Applicability of International Humanitarian Law and International Human Rights Law to UN Mandated Forces, Geneva 11–12 Dec. 2003, Geneva: ICRC, 2004; Ulf Häuβler, Ensuring and Enforcing Human Security. The Practice of International Peace Missions. Legal Framework – Military Operations – Political Ramifications, Nijmegen: Wolf Legal, 2007.

A peacekeeping operation strictu sensu involves non-coercive intervention and is based on the consent of the parties to a conflict and the non-use of force, except in self-defence. Peace enforcement may involve the threat and actual use of force to impose the implementation of international norms and mandates. However, today the dichotomy is no longer that strict. When a benign environment turns hostile, the mission must have the capability to respond appropriately and when necessary with the use of force. Hence, peace operations can rather be seen as a continuum. Even within a single operation different phases of the continuum can be reached.

Mary Kaldor, New and Old Wars. Organized Violence in a Global Era, Cambridge: Polity Press, 1999.

Lotta Harbom and Peter Wallersteen, ‘Armed Conflict, 1989–2006’, Journal of Peace Research, Vol.44, No.5, 2007, p.626. Five internal conflicts were, however, internationalized. An internal conflict is seen as internationalized when a state that is external to the original conflict contributes troops in support of one of the primary warring parties, so mediation efforts and peacekeeping are excluded.

Oliver Ramsbotham, Tom Woodhouse and Hugh Miall, Contemporary Conflict Resolution, 2nd rev. edn, Cambridge: Polity Press, 2006, pp.4–5.

Ramsbotham (see n.8 above), p.21.

Earl Conteh-Morgan, Collective Political Violence. An Introduction to the Theories and Cases of Violent Conflicts, London: Routledge, 2004, p.vii.

Ibid., p.193.

Kaldor (see n.6 above), pp.35, 76–85.

András Riedlmayer, Destruction of Cultural Heritage in Bosnia-Herzegovina 1992–1996: A Post-war Survey of Selected Municipalities (at: www.archnet.org/library/documents/one-document.jsp?document_id=9281), 2002, p.11.

Prosecutor v. Krstic, IT-98-33-T, Trial Chamber Judgment, 2 August 2001 and Prosecutor v. Krstic, IT-98-33-A, Appeals Chamber Judgment, 19 April 2004. The Court concluded, ‘customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of a group’ and so that ‘an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide’. However, the Court added the following: ‘The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group. In this case, the Trial Chamber will thus take into account as evidence of intent to destroy the group the deliberate destruction of mosques and houses belonging to members of the group.’

Andrew Herscher and András Riedlmayer, ‘Monument and Crime: The Destruction of Historic Architecture in Kosovo’, Grey Room 01, Fall 2000, p.109.

For example, Matthew Bogdanos, ‘The Causalities of War: The Truth about the Iraq Museum’, American Journal of Archaeology, July 2005, pp.477–529.

United Nations, The Blue Helmets: A Review of United Nations Peacekeeping, New York, 1990.

Reparations for Injuries Case in the Service of the United States, ICJ 1949 (Advisory Opinion of 11 April 1949), pp.174–80.

Marc Bossuyt and Jan Wouters, Grondlijnen van het international recht [Rules and Principles of International Law], Antwerp: Intersentia, 2005, pp.238–9.

UN doc. 1/46/185.

Daphna Shraga, ‘The United Nations as an Actor Bound by International Humanitarian Law’, International Peacekeeping, Vol.5, No.2, 1998, pp.67–8.

Shraga (see n.21 above), p.68; idem, ‘UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operation-Related Damage’, American Journal of International Law, Vol.94, No.2, 2000, pp.407–8.

Szasz (see n.4 above), pp.515–16.

Convention on the Safety of United Nations and Associated Personnel, adopted 9 December 1994 (at www.un.org/law/cod/safety.htm).

Murphy (see n.4 above), pp.8–9.

See, inter alia, Sassòli (see n.4 above), p.3.

Faite and Grenier (see n.4 above), p.9.

Eric David, Principes de droit des conflits armés [Legal Principles of Armed Conflict], Brussels: Bruylant, 2002, p.148.

Murphy (see n.4 above), pp.218–19.

General Comment No.31, UN doc. CCPR/C/2/1/Rev.1/Add.13 (2004), para.10.

Dalya Alberge, ‘UN vandals Spray Graffiti on Sahara's Prehistoric Art’, Times Online, 13 January 2008, accessed at http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/visual_arts/article3280058.ece

Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954, adopted 14 May 1954, accessed at http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html

Due to the power vacuum that arose after the defeat of Iraq, looters could operate freely. A minority of people reacted furious after two decades of dictatorship and from 10 to 13 April 2003 the National Museum of Baghdad and other museums and cultural institutes in the country were looted.

James A. R. Nafziger, ‘The Protection of Cultural Property in Time of War and Armed Conflict’, International Foundation for Art Research Journal, Vol.6, 2003 (at: www.ifar.org/heritage.htm)

Rode Kruis Vlaanderen, Internationaal humanitair gewoonterecht [International Humanitarian Customary Law], Mechelen, Belgium: Rode Kruis Vlaanderen, 2009, pp.10–11.

‘Secretary-General's Bulletin on the Observance by United Nations forces of International Humanitarian Law’, adopted 6 August 1999, UN doc. ST/SGB/1999/13.

International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, accessed at www.unhchr.ch/html/menu3/b/a_cescr.htm

UN doc. E/1991/23:108.

Gregory M. Mose, ‘The Destruction of Churches and Mosques in Bosnia-Herzegovina: Seeking a Rights-Based Approach to the Protection of Religious Cultural Property’, Buffalo Journal of International Law, Vol.3, 1996, p.200.

Murphy (see n.4 above), pp.246–7.

Ibid., p.247.