International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Winter 2018 Issue

Hague Happenings


Slow Progress Towards a Stronger Protection of Heritage During Armed Conflict

Iva Vukusic
By: Iva Vukusic, International Judicial Monitor Correspondent in The Hague

The protection of cultural, religious and historical heritage in times of armed conflict is not a new aspiration, and as many other rules governing war-making, increasingly developed after the Second World War. After the United Nations Security Council established the first ad hoc tribunal—the International Criminal Tribunal for the former Yugoslavia (ICTY) in May 1993—those principles and rules found their way into statutes and soon, indictments. Since then, there has been one important case at the International Criminal Court (ICC) in The Hague exclusively focused on the destruction of heritage, and much has been discussed about how to protect sites like Palmyra in the Syrian conflict and punish the destruction of what is considered to be shared heritage of value to humanity as such.

The international legal framework governing the protection of heritage is based on a few key treaties: the Hague Convention for the protection of cultural property in the event of armed conflict (1954), First Protocol to the Hague Convention (1954), Second Protocol to the Hague Convention (1999), Protocol I additional to the Geneva Conventions (1977 – article 53), and Protocol II additional to the Geneva Conventions (1977 – article 16). In addition to the international framework, many states have their own domestic statutes protecting heritage during armed conflict.

International organizations such as the International Committee of the Red Cross (ICRC), the United Nations’ Organization for Education, Science and Culture (UNESCO), as well as non-governmental organizations have all been working to clarify legal norms, and their better implementation in the field as well as the education of fighters as to the applicable rules when it comes to heritage. Regional organizations like the European Union are also taking steps to safeguard cultural heritage and produce guidelines to assist the protection of vulnerable sites. One emblem in particular, the so-called ‘blue shield’, introduced in accordance with Article 16 of the 1954 Hague Convention, serves to mark cultural property, and the persons protecting it, in order to safeguard them from attack.      

Internationally, the jurisprudence has largely developed in the last twenty years. When it comes to the work of the ICTY, few individuals stand out in their contribution to the prosecution of the destruction of heritage and efforts to document these crimes as much as Harvard scholar Andras Riedlmayer. Since the 1990s he has spent countless hours painstakingly documenting the damage done, most of all, to the religious and cultural heritage in Bosnia. Riedlmayer wrote a thorough report discussing how important sites such as ancient mosques and churches were blown up in order to erase all trace of communities that had inhabited those territories through history. Ferhadija, the 16th century mosque in Banja Luka was leveled to the ground in 1993 and has been renovated in 2016. Riedlmayer has spoken in court, on numerous occasions, about the purposeful destruction of Vijecnica, the famous 19th century landmark of Sarajevo that served as the national university library, and the home of many invaluable manuscripts. In August 1992, it was set ablaze, and it burned for three whole days, with the fire destroying many rare manuscripts and records of importance for Bosnia and Herzegovina, and its people’s cultural history. Almost 90% of its collection was destroyed—close to one and a half million volumes of books. As the Ferhadija mosque, Vijecnica has been restored and since 2014 is again open for visitors.

Other examples of sites discussed in this context at the ICTY concern the UNESCO-protected old city of Dubrovnik, on the Adriatic coast, whose old walls and fortresses, buildings and monasteries were fired upon with artillery early on in the wars that tore Yugoslavia apart. Another important example dealt with in the courtrooms was the prosecution of the destruction of the Old Bridge in Mostar, in Herzegovina, in November 1993. The bridge was designed by a famous Ottoman architect in the 16th century and was considered the most important landmark in the city. When the Bridge collapsed after intense shelling, locals mourned it as if it were a loss of an old friend.

“What is going on now? It is just firing and firing. And then, I saw the faces of the people around me, some of them were crying. I wondered what was happening and they said, ‘Well, the Old Bridge has fallen.”
Enes Delalic, witness at the ICTY

This quote relating to the destruction of the Old Bridge, and other information, and testimony, about how the ICTY investigated and prosecuted crimes against cultural and religious heritage can be found on the website created by the Sense News Agency in The Hague. The ICTY itself produced a documentary on the developments in the prosecution of crimes against cultural heritage.

Much has been written about the protection of heritage, and prosecution of crimes against it, and there are numerous resources available for those that are interested in this topic. One such notable example is the book by Marina Lostal (International Cultural Heritage Law in Armed Conflict: Case-studies of Syria, Libya, Mali, the Invasion of Iraq, and the Buddhas of Bamiyan, Cambridge University Press 2017). The book discusses the first ever international case that was completely focused on the destruction of heritage, the Al-Mahdi case, relating to the destruction of mausoleums in Mali. The case was heard by the International Criminal Court in The Hague and it ended in a plea agreement, with the accused Ahmad Al-Faqi Al-Mahdi receiving a nine-year prison sentence in 2016. The defendant was a member of a movement associated with Al-Qaeda in the Islamic Maghreb, and he was convicted for the destruction of ten religious and historic buildings in the city of Timbuktu.

Significant work in relation to this topic has been done on the war in Syria, which has captured the attention of conservationists, archeologists, museologists, historians, as well as lawyers and activists. The destruction of heritage suffered in Syria, not least by the hands of ISIS members who used videos of smashing artefacts in their propaganda efforts, created an unprecedented response by networks of non-governmental organizations, and academics. They seek to protect heritage that is threatened with being damaged in fighting, or purposefully blown up or smashed. There are also efforts to prevent the moveable artefacts from being stolen and sold illegally on the internal market. There are numerous reports alleging that those funds are often used to finance the operations of violent radical groups. Innovative work has been done by organizations developing tools and skills to map damage as it happens and collect and analyze data from a multitude of sources, in order to use it in reconstruction efforts of destroyed heritage sites, or for prosecution purposes.

Some have criticized attention, and funds, being allocated to the protection of historical, cultural and religious heritage, and the prosecution of crimes against it. How can we justify protecting buildings, when there are people we aren’t protecting? How can we justify building cases to prosecute those that destroy monuments, when we don’t prosecute all those that murder people? However, it is important to note that these are not second-tier crimes, and they warrant attention. That is because some buildings are more than just buildings, and because being ‘a people’ has a lot to do with heritage – buildings, books and monuments. By destroying them, one destroys history, and the heritage that binds communities together. The destruction of treasured monuments often causes inhabitants to feel deep distress, and a sense of loss of identity, memory, and dignity. As in the example from Mostar in Bosnia and Herzegovina, when the Old Bridge collapsed into the river Neretva, for some structures, those left behind often cry as much as they would over the loss of a beloved friend or family member. Some structures are simply much more than the collection of stone, brick or paint that they are made of, and we must protect them as such.

As the reparations order in the Al-Mahdi case at the ICC, issued on August 17, 2017, clearly stated, in paragraph 22:

“Because of their purpose and symbolism, most cultural property and cultural heritage are unique and of sentimental value. As a result, they are not fungible or readily replaceable. The destruction of international cultural heritage thus ‘carries a message of terror and helplessness; it destroys part of humanity’s shared memory and collective consciousness; and it renders humanity unable to transmit its values and knowledge to future generations’. It is an irreplaceable loss that negates humanity. “

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© 2018 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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