An often neglected but fundamentally important victim of conflict is the physical manifestations of a community, a people, a nation—their heritage. The cultural heritage of France and Belgium was utterly devastated during World War I, epitomized by the burning of the medieval library at Leuven and destruction of the cathedral of Rheims. A century later conflicts in states such as Iraq, Afghanistan and Syria continue to be characterized by the destruction of cultural heritage. So how far have we come in protecting cultural heritage from the devastating effects of war? Over the past century, surprisingly far, and at the same time not quite far enough. International law to protect cultural heritage has developed reactively, responding to conflict and destruction after the fact in the hope that it will not be repeated. An understanding of this law, its strengths and its shortcomings, requires its contextualization within the conflicts of the past century.
When simmering tensions exploded into war in 1914, there were already some laws in place to protect cultural heritage. In 1899, at the initiative of Czar Nicholas II of Russia, the First Hague Peace Conference adopted a set of laws, updated in 1907, to create a regime that would regulate the conduct of war and hopefully encourage “lasting peace.” Inspired by the Liber Code drafted during the American Civil War to protect the heritage of the United States, and mindful of the destruction that befell Strasbourg and Paris during the Franco-Prussian war of 1870-1871, the Convention Concerning the Laws and Customs of War on Land provided some rudimentary forms of protection for cultural heritage. This included prohibiting seizure, destruction and willful damage to institutions dedicated to education and the arts and sciences, as well as historic monuments and works of art themselves. Plunder in occupied territory was expressly forbidden, as was the confiscation of private property. Most important, states were required to take steps to avoid destroying museums, hospitals and historic monuments during sieges and bombardments as long as they were not being used for “military purposes.” This reflected a view that the law ought to reflect the realities of war and ought not to unduly restrict the military in the ultimate achievement of its objective. This concept of a military necessity exception to any rule that attempted to protect cultural heritage continues to bedevil the protection of cultural heritage during armed conflicts.
These rules proved inadequate to protect heritage during World War I. Not only was cultural heritage often used for military purposes, but the doctrine of military necessity justified the destruction and damage of numerous sites throughout Europe, including the library of Leuven and the cathedral at Rheims, as well as the 13th century church of St. Gervais, Whitby Abbey and the old royal palace in Belgrade. Nevertheless, the general principle that cultural heritage ought to receive protection appears to have been accepted by all belligerents, many of which took steps to avoid unnecessary destruction. That heritage was not free to be destroyed or plundered was reflected in the Treaty of Versailles, which required the restitution of identified cultural heritage back to the territory from which it came and restitution in kind, in the case of the library of Leuven, for cultural objects that were destroyed.
The 20 years after World War I saw a number of attempts to draft laws that would prevent the kind of destruction that was wrought during the war. The 1923 draft Hague Rules Concerning the Control of Wireless Telegraphy in Times of War and Air Warfare; the 1935 American Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, known as the Roerich Pact; and the 1938 Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Times of War had all made some limited progress at the time of the outbreak of international hostilities in 1939.
Nevertheless, World War II visited more destruction on the world’s cultural heritage than any other war. Aerial bombardment in particular caused extensive and indiscriminate damage. While a number of historic English cities (including Exeter, Bath, Norwich, York and Canterbury) suffered extensive damage in the Baedeker raids, the historic cities of Germany (such as Lubeck, Cologne, Wurzburg and Hamburg) and many in Japan (such as Osaka, Nagoya, Yokohama and Kobe) were almost obliterated. The Allied view was that while targets were to be limited only to those whose destruction offered a distinct military advantage, any collateral damage caused during the targeting of a military objective was necessary and lawful. The principle of military necessity effectively justified any damage to cultural heritage, except that which offered no distinct military advantage. On the ground this resulted in the almost complete destruction of the Benedictine abbey at Monte Cassino and much of the historic quarter of Florence.
The lack of any distinct military advantage did, however, save a number of cities from bombing, or at least from extensive damage to their cultural heritage. Paris was spared and Rome, while subjected to some bombing, was largely exempt from attack given its limited strategic position. Reflecting this sentiment, Gen. Dwight Eisenhower, in an order to all commanders in Italy, commented that, “Today we are fighting in a country which has contributed a great deal to our cultural inheritance, a country rich in monuments which by their creation helped and now in their old age illustrate the growth of the civilization which is ours. We are bound to respect those monuments so far as war allows”.
While the built heritage of Europe was extensively damaged or destroyed from shelling and bombing, the movable cultural heritage was subject to widespread plunder, looting and destruction, particularly in occupied territories. The German attitude toward cultural heritage in occupied territory evinces a distinctly schizophrenic character. Given the Nazi elite’s penchant for art and collectables, it is not surprising that some efforts were made to protect cultural heritage, particularly in those occupied territories that were considered to be part of the Third Reich, such as Austria and the Netherlands. A protective unit, the Kunstschutz corps, was established to provide a measure of protection for the cultural heritage in occupied territories, but its efforts were often undermined, and sometimes directly opposed, by those tasked with the appropriation and exportation to Germany of artworks deemed valuable by the Nazi elite.
This latter effort involved a large variety of organizations, foremost of which was Albert Rossenberg’s Einsatzstab Reichsleiter Rosenberg. Other, competing organizations were created by members of the Nazi elite, including the Ahnenerbe, which was the special archaeological research branch of the SS; Joachim von Ribbentrop’s Special Purpose Battalion of the Waffen SS; and detachments acting directly under Hermann Goering and Albert Bormann. Together these organizations appropriated vast amounts of cultural heritage. What was not deemed of merit by the Nazi regime was destroyed, leaving swaths of destruction through Poland, Ukraine and Belarus.
With the Allied advance into mainland Europe through Italy in 1943, the U.S. established the American Commission for the Protection and Salvage of Artistic and Historic Monuments in Europe to coordinate protection of works of cultural value in areas occupied by Allied forces. A special branch, recently depicted in George Clooney’s film “The Monuments Men,” was formed with officers trained to assist in identifying and preserving cultural heritage. These branches provided information to commanders about cultural heritage sites within the war zones, and they often had the difficult job of balancing the desire to protect such sites with the military’s views on the necessity of possible destruction. The defeat of Germany did not put an end to the looting of cultural heritage. Russian forces systematically looted those parts of Germany under their control following a policy of reparation for German appropriations.
The destruction of cultural heritage during World War II shattered any illusion that existing international law provided any effective protection. There was, however, one important development. The Military Tribunal at Nuremberg recognized the “plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity” as a war crime, and on this basis found Alfred Rosenberg guilty and sentenced him to hang. The assigning of individual responsibility for the destruction of cultural heritage had in fact arisen at the end of World War I when the Commission on Responsibilities of the Preliminary Peace Conference of Paris produced a draft list of war crimes, which included “wanton destruction of religious, charitable, educational and historic buildings and monuments.” Unfortunately, the political forces of the day prevented any trials.
The wholesale destruction, pillage, plunder and looting of cultural heritage during World War II galvanized international action to create an international regime that would protect cultural heritage during armed conflicts. Under the auspices of the newly created United Nations Educational, Scientific and Cultural Organization (UNESCO), the Convention for the Protection of Cultural Heritage during Armed Conflicts was adopted in 1954. The convention sought to supplement the postwar Geneva Conventions by providing a comprehensive protection regime that would not only address rights and duties of states relating to cultural property during an armed conflict, but also prior to and following such a conflict. This required the balancing of the interests of the military on the one hand and the protection of cultural property on the other. To ensure that the convention would be acceptable to states with a large and potentially active military, the drafters sought to produce a realistic convention rather than an ideal one in the belief that “modest, but enforceable provisions would better serve the cause of saving monuments” than a convention that sought “an ideal of unlimited protection.”
Just whether an appropriate balance was achieved has been the subject of ongoing debate and reflection, especially in light of armed conflicts since the convention came into force in 1956. During the 1960s, conflicts in the Middle East such as the Six-Day War between Israel and the Arab states sparked a legacy of damage and destruction to cultural heritage that continues today. In Cambodia in the early 1980s, the temples of Angkor were damaged and looted, including during the Vietnamese occupation. More recently, during the war between Eritrea and Ethiopia, the Ethiopian army toppled the 2,500-year-old Stella of Matara, which, while situated in Eritrea, was of significant cultural importance to the wider region. But it was perhaps the conflicts in the Balkans in the 1990s and in Iraq and Afghanistan more recently that have focused the most attention on the protective power of the 1954 convention.
At the heart of the convention is cultural property, defined to include a wide range of movable and immovable heritage. It includes works of art, manuscripts, books and other objects of artistic, historical or archaeological interest, as well as scientific collections and important collections of books and archives. It also covers the buildings that house such collections, such as libraries and museums, as well as historic buildings and monuments. While this outlines the scope of the convention, it is for each state to decide which heritage falls within this definition. The possible list of cultural heritage is naturally vast and might include the full inventory of all museums and similar collections, possibly including collections of heritage in private ownership, as well as numerous buildings and monuments. Each state party is required to identify what is, for the purposes of the convention, cultural property and to inform all parties to the conflict of this. This might require, for example, the deposition of lists, identifying elements and maps either to UNESCO for circulation to member states, or else directly to the states involved in the conflict. During the Balkan wars of the early 1990s, for example, Croatian authorities had circulated lists of cultural monuments to opposing belligerents after the medieval fortress of Erdut had been damaged during an artillery barrage. To assist in the task of identification, the convention provides for a distinctive emblem, the Blue Shield, to identify cultural property. The convention also requires states to make preparation in peacetime to safeguard their heritage against foreseeable damage.
A core conventional obligation requires each state to protect its own cultural property, in times of both peace and war, by refraining from using that property and its immediate surroundings for purposes that are likely to expose it to destruction or damage in the event of armed conflict. An infamous breach of this obligation was the placement of Iraqi fighter planes near the archaeological site of the Temple of Ur during the Persian Gulf War. The corollary core obligation is to respect other states’ cultural property by not making that property the target of attack or using that property for military purposes. This obligation extends to cultural property in the opposing states’ territory, such that the U.S. ought not, for example, to have established a military base on the archaeological site of the ancient city of Babylon during the Iraq War.
The great difficulty in this formulation arises when one state does indeed use cultural property for a military purpose. The convention requires that in such a case, the opposing force ought not to attack that property despite its military use. However, an absolute obligation to refrain from any act of hostility against cultural property that is being used for military purposes would allow such cultural property to be used as a shield to protect military equipment, personnel and installations. In order to ameliorate this effect, the convention allows these obligations to be waived in cases where military necessity imperatively requires it. And therein lies the rub: The protection of cultural heritage, while sought, is subject to military considerations. Without such a concession, states such as the U.S. and Russia were unlikely to have become parties.
As a response to the Nazi looting of Europe, the convention requires states to prohibit and if necessary put a stop to pillage, theft, misappropriation and vandalism of cultural heritage. Furthermore, states in occupation of the whole or part of the territory of another state are required to support, as much as possible, the competent national authorities of the occupied country in safeguarding and preserving its cultural property. It is in this respect that the U.S. has been criticized for its failure to assist Iraqi authorities in protecting Iraq’s cultural heritage after the 2003 invasion. Occupation and the obligations of an occupying state were, however, particularly controversial during negotiations for the convention, especially in relation to the export and import of cultural heritage from occupied territory—so controversial, in fact, that it was excluded from the convention itself and contained only in a protocol, which 103 of the 126 states party to the convention have ratified.
As a reaction to the two world wars, the convention applies to international armed conflicts and resulting occupation. It includes, for example, the recent involvement of foreign armed forces—such as those of the U.S., U.K. and Australia—in both Afghanistan and Iraq. While its provisions are designed in light of these conflicts, its scope extends to include conflict “not of an international character.” As the term is not defined, its scope is uncertain, though it might generally apply to civil wars and to internal conflicts involving liberation movements. The very real difficulty with this is the attempt to impose international obligations on the internal affairs of one state, and more particularly to groups of belligerents that do not have any international character and are thus incapable of having international rights and duties. It is, nevertheless, an attempt to impose on at least one of the parties the obligation to protect, while encouraging the other parties to do likewise, however unlikely that may be. Importantly, it does not apply where there are no actual hostilities, and as such could not have applied to the destruction of the Bamiyan Buddhas in Afghanistan given that the Taliban was then in control of the area.
Following the destruction of cultural property during the conflicts in Iran, Iraq, Kuwait and the former Yugoslavia, it became evident that the convention, together with the 1949 Geneva Conventions and its Additional Protocols, did not provide a sufficiently rigorous and broadly acceptable protection regime for cultural heritage. A key concern was the failure to define “military necessity” in the convention given its importance as an overriding concept. A protocol to the convention was adopted in 1999, addressing a range of matters covered in the convention in a way that seeks to add clarity and specificity without fundamentally changing the conventional regime. This has been met with limited success, given that only 67 of the 126 states party to the convention have ratified the protocol.
Ratification is, of course, a necessary prerequisite for the application of the convention. It is noteworthy then that the U.S. only became a party to the convention in 2009, and the U.K. is yet to join. Arguably some aspects of the international law are applicable as customary international law, but far too many states have not yet bound themselves to these international conventional obligations.
Perhaps the most notable recent development in the law protecting cultural heritage has evolved in the jurisprudence of the International Tribunal for the Former Yugoslavia. The conflict resulted in extensive damage and destruction to a great many old churches and mosques and to medieval sites in Vukovar, including the 18th-century Eltz Castle, as well as to the Oriental Institute and National and University Library in Sarajevo. The obliteration of the 16th-century Old Mostar Bridge and the shelling of the UNESCO-listed Old Town of Dubrovnik were particularly egregious. The tribunal has responded by picking up where Nuremburg left off by holding a number of individuals, including Timohir Blaskic, Biljana Plavsic and Miodrag Jokic, criminally responsible for the destruction of this heritage.
States do protect cultural heritage. The indiscriminate bombing and shelling so prevalent during the world wars has been eliminated, pillage and plunder radically reduced and criminal responsibility enhanced. And yet cultural heritage continues to suffer. This is only in small part as a result of military necessity. In large part it results from motivations that law cannot address: the very motivations for conflict itself.
Craig Forrest is a reader in law and fellow of the Centre for Public, International and Comparative Law, TC Beirne School of Law, University of Queensland, Australia. He is a member of the International Law Association's Cultural Heritage Law Committee and the author of “International Law and the Protection of Cultural Heritage” (Routledge, 2010).