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24.08.2015 -

Fighting Cultural Cleansing: Harnessing the Law to Preserve Cultural Heritage - Harvard International Review

Article published in Harvard International Review on 24 August 2015.

Since the beginning of the conflicts in Iraq and Syria, in addition to the tragic loss of human life and the humanitarian crisis, cultural heritage has been intentionally targeted, damaged, trafficked and destroyed. Armed groups have marked the houses of minorities and are hunting down inhabitants in a logic not unlike the darkest days of European history. Minorities are being persecuted and their identities crushed. Heritage sites are being systematically destroyed.

Extremists seek to maximize the impact of this destruction by putting images of their crimes on the internet. A video released in late February 2015 showed the shocking destruction of collections in the Mosul Museum by extrem- ist groups. In March, the government of Iraq confirmed that the archaeological site of Nimrud had been bulldozed and dynamited, which was confirmed by an appalling video several weeks later. Founded during the 13th century BC, the city of Nimrud is considered the second capital of the Assyrian Empire. Excavations in the 1980s revealed three royal tombs holding frescos and works that have been celebrated around the world and revered in literature and sacred texts. Two days later, on March 7, 2015, the Iraqi Ministry of Tourism and Antiquities reported that extremist groups had attacked the UNESCO World Heritage city of Hatra. Along with Palmyra in Syria, Petra in Jordan, and Baalbek in Lebanon, Hatra is a great Parthian city, added to the World Heritage List in 1985. It does not only matter for the people of Iraq and Syria—this heritage belongs to the whole of humanity as a universal legacy which is now reduced to rubble.

These attacks, the destruction, and the persecutions are part of the same global strategy, which I call “cultural cleansing,” intended to destroy identities, tear apart social fabrics, and fuel hatred. Such acts of destruction cannot be decoupled from the killing of people, as violent extremists attack anything that can sustain diversity, critical thinking and freedom of opinion—schools, teachers, journalists, cultural minorities, and monuments. In this context, the protection of heritage is more than a cultural issue: it is a security necessity. We see, with the Islamic State group, how terrorists use such destruction as a tactic of war to paralyze and weaken the social defences of people, to attract and recruit foreign fighters across the globe as well as to promote a fundamentalist agenda. Illicit trafficking of cultural objects is also linked to the financing of terrorism, as has been established by the recent UN Security Council Resolution 2199 on the financing of terrorism, adopted in February 2015. It is clearly stated in Article 8 of the Rome Statute of the International Criminal Court that the deliberate destruction of cultural heritage is a war crime, and should be assessed, documented, and investigated so that the perpetrators can be brought to justice in the future.

How can multilateral organizations such as UNESCO fight against these crimes? At the outset, one can only feel powerless in front of this devastation. The inability to access the sites makes it difficult to protect anything. UNESCO has no “blue helmets” to protect sites. This further highlights the need to train member states and reinforce their capacities to prevent looting and destruction, through preventative inventory and early relocation of cultural objects under threats. For example, as the second largest museum in Iraq, the Mosul Museum is home to a vast collection of artifacts of Assyrian origin, some dating back 3,000 years. In 2003, over 1,000 objects were relocated to the Iraqi Museum in Baghdad for safekeeping. But other statues—too large or too fragile to be moved—remained on site and many were destroyed by extremists. These events send us back 12 years, when the renowned National Museum of Iraq in Baghdad was intentionally damaged and looted. As a result of the pillage of 15,000-piece national collections, 60% of the objects went missing. As of today, only half of them have been recovered.

We must act at several levels. First, we must denounce and reject the destruction of heritage as a crime. It is not about making speeches: it is about changing the mindset, not letting extremists hijack cultures and religions, and for this we need stronger counter-extremism communication strategies. In the long term, it is clear that terrorism cannot be defeated by weapons alone. The situation in Iraq and Syria calls for a stronger coalition of international organizations and countries to educate the public about United Nations Security Council to convene an emergency meeting on this matter. I have also alerted the prosecutor of the International Criminal Court to investigate these acts of deliberate destruction of heritage. The international community must work together with one voice, and this is the reason why I have made several joint statements on Iraq and Syria with the Secretary-General of the United Nations Ban Ki-moon, the former Special Envoy for Syria Lakhdar Brahimi, and most recently with Dr. Abdulaziz Othman Altwaijri, director-general of the Islamic Educational, Scientific, and Cultural Organization (ISESCO), as well as with the president, prime minister, and members of the government of Iraq.

Along similar lines, we must encourage the voices of cultural and religious leaders who denounce the rhetoric of the Islamic State militants. On March 6, 2015, the Egyptian Islamic Institute Al-Azhar issued a fatwa forbidding the destruction of ancient artifacts. “These [artifacts] have important cultural and historical significance,” Al-Azhar said in an official statement. “They are an important part of our collective legacy that must not be harmed.” Similarly, Ayatollah Sistani, the top Iraqi cleric, denounced the destruction of the ancient sites: “With Daesh [Islamic State militants] destroying Mosul’s treasures and the heritage of civilization, this should make all united against it for its barbarism.” Such statements are essential to balance out propaganda and to craft a counter-narrative to the extremists.

When violent extremists say humanity is not a single community that shares values, when they say world heritage does not exist, when they say pre-Islamic heritage is idolatry, when they say that diversity is dangerous, that tolerance and dialogue are unacceptable—we must respond by showing that exchange and dialogue between cultures are driving forces of history. We must explain the importance of that heritage for the history of humanity, how the Assyrian civilization brought us the wheel, mathematics, and the rule of law. We can do so through the media, in schools, in the public space, and on the internet, in a much more systematic manner. It is time we step up our efforts in this area and this is why UNESCO has launched a global campaign, #unite4heritage, starting with young people from the University of Baghdad, to reach out to youth in the Middle East and beyond.

<h5>A Solid Legal Basis to Build Upon</h5>

We must strengthen the legal tools at our disposal. The recent UN Security Council Resolution 2199 is important in this regard. It condemns the destruction of cultural heritage in Iraq and Syria, whether such destruction is incidental or deliberate, including targeted destruction of religious sites and objects. The resolution notes that armed groups are generating income from engaging directly or indirectly in the looting and smuggling of cultural heritage items and decides that all Member States shall prevent the trade in Iraqi and Syrian cultural property. UNESCO was explicitly requested to assist in the implementation of this decision, in close cooperation with the International Criminal Police Organization (INTERPOL) and other international organizations. It is a clear recognition of the importance of heritage protection in times of conflict.

We can build on several treaties and conventions specifically designed to protect heritage in times of conflict. UNESCO has built up a series of standard-setting instruments, both legally binding and non-binding, to ensure the safeguarding of the world’s cultural diversity through heritage preservation.

The 1954 Hague Convention was adopted after the massive destruction of World War II and stipulates that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all humankind, since each people makes its contribution to the culture of the world.” Similarly, the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, adopted on October 17, 2003, was a reaction to the destruction of the Buddhas of Bamiyan in Afghanistan. It stressed that the intentional destruction of cultural heritage is an infringement on human dignity and human rights.

The Hague Convention was the first multilateral treaty to focus exclusively on the protection of cultural heritage during hostilities. In the 1990s, several conflicts revealed gaps in the implementation of the Hague Convention, notably in relation to conflicts involving non-state actors. For this reason, the Secretariat, along with several interested states, initiated the review of this agreement in 1991. The result of this collaboration was the elaboration and subsequent adoption of the Second Protocol to the Hague Convention at the March 1999 Hague Diplomatic Conference.

A fundamental principle of the 1954 Hague Convention is to ensure respect for cultural property, in particular by taking all appropriate measures “to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage, or misappropriation of, and any acts of vandalism directed against, cultural property.” The Second Protocol complements the Hague Convention by introducing a new system of enhanced protection for cultural property of “the greatest importance for humanity.” For this to be fully effective, we must also ensure that cultural property is protected by adequate national legislation, and not used for military purposes or to shield military sites. We must also strive for a gradual increase of sites under enhanced protection by listing sites in areas of conflict (currently only ten sites are listed, all of them also World Heritage sites). In December 2014, the Ninth Meeting of the Second Protocol Intergovernmental Committee issued a declaration calling upon Syria and Iraq to become party to the Second Protocol and to submit their requests to the Committee for granting enhanced protection to cultural property, on an emergency basis.

Another important Convention is the one on the means of prohibiting and preventing the illicit export, import and transfer of ownership of cultural property, adopted by UNESCO in 1970. It is the key legal instrument in the fight against illicit trafficking of cultural objects. It is interesting to note that this was the first international treaty to focus on cultural artifacts in times of peace. It is also of vital relevance in times of conflict, especially today in the Middle East. Even if we cannot access and protect places under the control of Islamic State groups, we must ensure that illegally-exported cultural objects are seized and returned in a timely manner, through cooperation with neighboring countries, places of transit, and the art market.

<h5>Trafficking, the Hidden Crisis of Cultural Cleansing</h5>

Every day, irreplaceable and priceless cultural treasures, including Sumerian, Akkadian, Babylonian, Assyrian, and Arab art and artifacts, are taken from their places of origin in Iraq and Syria to be traded illegally on the international art market. This looting now takes place at an industrial scale, and accelerates the disintegration of society through the theft of its memory. The idea that some cultural artifacts are the property of the people of the place of origin, and hence should not be considered as pure commercial commodities, has gained full recognition. Many museums, fine art dealers, and auction houses have expressed this understanding by adopting and implementing professional codes of ethics. This reflects a heightened awareness of the problems connected with illicit traffic in cultural property.

Only international cooperation and complementary self-regulation at the national level will allow for better, more stringent measures of control in this area. As of March 2015, in an effort to curb illicit traffic in cultural property, 127 UNESCO member states have ratified the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property; 36 states have ratified the 1995 UNIDROIT (the International Institute for the Unification of Private Law) Convention on Stolen and Illegally Exported Cultural Objects; and many countries have signed other relevant multilateral and bilateral agreements. Today more than ever, these two fundamental legal standards must be universally implemented. The harmonization of national legislations and measures to protect cultural heritage, combating thefts and illegal exports and imports as well as the enhancement of restitution processes are key to fighting the scourge of illicit traffic in cultural goods.

<h5>International Agreements, National Implementation</h5>

When becoming party to the 1970 UNESCO Convention, it is the responsibility of each country to fully implement the Convention in its national legislation. National governments must ensure full cooperation between public administrations and other institutions for the fight against the illicit trafficking in cultural property, in particular through bilateral and multilateral cooperation. Such policies must involve customs officials, specialized police forces, and other law-enforcement agencies. UNESCO works closely with intergovernmental organizations such as INTERPOL, UNIDROIT, the World Customs Organization, the United Nations Office for Drugs and Crime, non-governmental organizations such as the International Council of Museums, the International Council on Monuments and Sites, and the International Foundation for Art Research on a daily basis. UNESCO also works also with specialized police units, such as the Carabinieri in Italy, the Guardia civil in Spain, and the OCBC (Central Office for the Fight Against the Traffic of Cultural Items) in France. It also encourages the development and use of databases of stolen or missing cultural property such as the one maintained by INTERPOL. Intelligence sharing is the backbone of any effective police work. This is why the connectivity and interoperability of existing databases and the creation of reliable databases in countries where it is needed are critical. Lessons have been learned from the first Gulf War, after which only one item was inserted into the world police body’s Stolen Works of Art database. In the context of United Nations Security Council resolution 2199 (2015), information on more than 1300 items removed from the Deir Atiyah Museum and other sites in Syria is currently being added to the database to be made available too 2,000 users from law enforcement, customs, partner organizations, and private dealers.

The 1970 Convention requires its state parties to take action in three main fields:

  1. Preventive measures: states are requested to prepare and update inventories, impose export certificates on protected heritage, monitor trade, impose penal and administrative sanctions, develop educational campaigns, and so on. Each state party to the Convention agrees as well to act to prevent museums and similar institutions from acquiring illegally exported objects
  2. Restitution provisions: states undertake, at the request of the state party “of origin”, appropriate steps to recover and return any such cultural property imported after the entry into force of this Convention in both states concerned, provided, however, that the requesting state shall pay just compensation to an innocent purchaser or to a person who has valid title to that property.
  3. International cooperation framework: the idea of strengthening cooperation among and between state parties is a key element of the Convention. In cases where cultural patrimony is in jeopardy from pillage, Article 9 provides a possibility for more specific undertakings such as a call for import and export controls. It is precisely in the framework of this provision that Syria, Iraq, and other states suffering conflicts and heavy destruction of their heritage are calling upon the assistance of all the state parties and the international community to help them tackle the pandemic of thefts and illegal exports of cultural objects.

UNESCO asked UNIDROIT in 1984 to work on private law aspects of the rules applicable to illicit trafficking in cultural objects to complement the 1970 Convention. The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was adopted a decade later in 1995. The UNIDROIT Convention, which is celebrating its 20th anniversary in 2015, is designed to fundamentally adjust market forces governing private transactions in art. It is crucial that the 1970 Convention be implemented in close consultation with the 1995 UNIDROIT Convention.

The 1954 Hague Protocol also requests the return of cultural property illegally exported from occupied territory. Under this protocol, the export of cultural property from an occupied territory is prohibited. However, if such property has been exported, it must be returned, at the end of hostilities, to the competent authorities of the previously occupied territory. The 1954 Protocol also expressively forbids the appropriation of cultural property as war reparation. As of March 2015, 103 states are bound by the 1954 Hague Protocol. Among these, some are not parties to the 1970 UNESCO Convention. This means that although they are not bound by obligations to the restitution of cultural property under the 1970 UNESCO Convention, they are obliged to do so under the 1954 Hague Protocol – with regard to movable cultural property exported from occupied territory.

<h5>Tackling Legal Obstacles</h5>

Those legal provisions raise complex issues, especially when countries have not ratified these texts. Iraq and Syria are not States Parties to the International Criminal Court. Not all members of the Security Council have ratified the 1954 Convention. The determination of conditions of compensation for good faith holders of stolen or illicitly exported cultural property is another issue. Under a number of existing national laws, a good faith holder is not required to return cultural property to a dispossessed owner. In addition, art dealers are not required to reveal the ownership history of an object for sale, thus effectively preventing the dispossessed owner from proving their ownership. The second issue is the legal obstacle that prevents the recovery of stolen property once it has entered the art market. Under a number of existing national laws, it is virtually impossible for dispossessed owners to retrieve stolen property once it has been resold to a third party. The UNIDROIT Convention challenges both of these constraints by placing the burden of proof squarely on the holder of allegedly stolen or illegally exported cultural property. No previous international legal agreement goes as far in persuading potential art buyers to enquire about an object’s past ownership. In this way, the UNIDROIT Convention has a powerful indirect influence on the art trade, and it is extremely important that the greatest number of parties ratify the UNIDROIT Convention. As of today, 37 countries have ratified the UNIDROIT Convention.

While the 1970 UNESCO Convention provides a legal framework to deal internationally with illicit traffic in cultural property, the UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation (ICPRCP) acts as a forum for negotiation, discussion, training, and awareness-raising in relation to cases where no bilateral or multilateral agreement is applicable.

The Committee can only intervene in situations where bilateral negotiations between states have failed or are in deadlock. To facilitate negotiations, the Committee, which exerts considerable political and moral influence, has streamlined the process for demanding return or restitution of cultural property by preparing a standard form for States making such requests. In addition, the Committee has assumed new innovative roles, such as mediation and conciliation between parties.

The UNESCO General Conference has also adopted several international legal texts that are not conventions, but recommendations. They do not create reciprocal obligations, as states are not bound by its provisions, but they do embody the best expert advice in a particular field. UNESCO member states are therefore encouraged to draw inspiration from these recommendations when drafting national legal provisions and regulations. Several recommendations seek to facilitate the adoption and implementation of measures for the fight against illicit traffic in cultural property such as the 1956 Recommendation on International Principles Applicable to Archaeological Excavations; the 1964 Recommendation on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; the 1976 Recommendation Concerning the International Exchange of Cultural Property; and the 1980 Recommendation for the Protection of Moveable Cultural Property. UNESCO and its member states are currently working towards the adoption of a new international recommendation on the protection and promotion of museums and collections, to be examined by the General Conference in November 2015. This new instrument would certainly contribute to raising awareness within the international community on the importance of safeguarding museums, which preserve and transmit an invaluable testament to human creativity and shared memory to the future generations. All these legal instruments are the backbone of international action and enable concrete cooperation with neighboring countries such as Turkey, Jordan, and Lebanon to seize suspicious objects and curb the illicit trafficking of antiquities.

<h5>Conclusion: Culture at the Frontline of Peace</h5>

The deliberate destruction of heritage touches upon the very foundations of human societies, and seeks to destroy the very existence of civilization. It is no surprise that it should be a major concern in conflicts. During World War II, a team of “Monuments Men” saved precious treasures of art from the fury of Nazi Germany. Today in Iraq or Syria, men and women are risking their lives to do the same. The key is to strengthen the coordination among all partners working in different fields, between the security, humanitarian, and cultural domains. It is a difficult but not impossible task. Today, in Timbuktu, UNESCO is rebuilding the 14 mausoleums which were destroyed by terrorists in 2012. We are doing this with the local population, showing how culture can restore self-esteem and confidence and mobilize different communities. UNESCO is also training the UN peacekeeping force in Mali (MINUSMA) about the role of heritage for resilience and recovery. UNESCO believes that all peacekeeping forces should be sensitized and the protection of heritage be incorporated in their mandate. Proof of the deliberate destruction of heritage is being gathered with the International Criminal Court, so that the force of justice eventually prevails. All of this is part of a global strategy to restore human dignity against the forces of chaos. As heritage now stands at the frontline of a new war on minds, it is clear that heritage should be at the frontline of peace building, and a central component of our response to the new conflict of the 21st century.

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