D. Methodological commitments and challenges
30. The Special Rapporteur is committed to cooperation and dialogue with States and other stakeholders, including inter alia national human rights institutions, non-governmental organizations, intellectuals, artists, scientists and professionals in relevant fields, such as cultural heritage professionals, teachers and educators and representatives of relevant professional associations and the private sector.
31. The Special Rapporteur recognizes the need to centre the issue of State responsibility to respect, protect and fulfil cultural rights, but also to find innovative ways to speak directly about the impact on cultural rights of a wide range of non-State actors, and not only through the lens of State due diligence.
32. As mandated by the Council, the Special Rapporteur plans to consult with other relevant human rights bodies and mechanisms, in particular UNESCO, the treaty bodies, other special procedures and the Permanent Forum on Indigenous Issues. She would also like to interact with relevant regional mechanisms, such as the Unit on Economic, Social and Cultural Rights of the Inter-American Commission on Human Rights and the Working Group on Economic, Social and Cultural Rights of the African Commission on Human and Peoples’ Rights.
E. Priorities for the mandate holder: 2015-2018
33. The present section identifies some urgent concerns of high priority based on the Special Rapporteur’s initial consideration. However, it is also critical to leave room for flexibility to respond to emerging challenges and opportunities.
34. One priority theme that the Special Rapporteur will address in her first report to the General Assembly is the intentional destruction of cultural heritage, as exemplified by the demolitions of the Baalshamin Temple and the Temple of Bel in Palmyra in 2015. That issue is introduced below. The Special Rapporteur hopes to also take up the question of the destruction of cultural heritage in the name of “development” in the future, taking into consideration the particular impact on indigenous peoples.
35. In line with the emphasis placed on the issue by the Secretary-General and the United Nations High Commissioner for Human Rights, the Special Rapporteur also intends to produce a body of work on diverse forms of fundamentalism and extremism, which have now reached devastating proportions in many regions of the world and have had grave repercussions on cultural rights, resulting e.g. in widespread attacks on art and artists, on schools, on curricula, on women, on cultural practices and heritage and on freedom of thought, conscience and religion.13 Conversely, science, education and culture, including the arts, are important tools for combating fundamentalist ideologies that are detrimental to human rights and result in discrimination, violence and terrorism.
36. The Special Rapporteur would also like to emphasize the situation of artists, scientists and intellectuals at risk, who face a wide range of violations of their human rights around the world. It is urgent to recognize and address these risks, as the ability of such persons to fulfil their artistic, scientific and intellectual roles, including in the field of education, is essential for their own human rights but also for the cultural rights of all.
37. The Special Rapporteur also intends to continue addressing the right to artistic expression and creativity more broadly. Too many countries still practise censorship of the arts (see A/HRC/23/34). Financial crises and austerity measures have led to severe cuts in public spending, resulting in unemployment among artists and the closure of cultural institutions. Moreover, the Special Rapporteur expresses deep concern about the ongoing inequalities faced by women in the arts.14
38. In light of the epic 2015 refugee and migrant crisis that is ongoing, the Special Rapporteur believes it important to underscore that protecting the cultural rights of refugees and migrants, including women, is a critical aspect of ensuring their well-being, integration and rehabilitation after trauma. The Special Rapporteur is keen to find ways to address those questions.
39. The issue of public space is a central theme of the mandate that needs further exploration. Some of the main questions are whether access to public space is open to all, who curates the public space, whose voice is dominant and how public space can be used as a tool for mutual exchange and interaction. These are central questions for enabling people to live together in dignity.
40. As the Special Rapporteur would like to take a forward-looking approach, she hopes to examine the cultural rights of children and youth, both girls and boys, and education about the importance of cultural rights and cultural heritage. This is in keeping with the Convention on the Rights of the Child (art. 31), which recognizes the right to participate freely in cultural life and the arts. In its general comment No. 17 (2013) on the right of the child to rest, leisure, play, recreational activities, cultural life and the arts, the Committee on the Rights of the Child underscored the “poor recognition” of the rights contained in article 31, in particular with regard to girls, poor children, children with disabilities and indigenous children. This is a lynchpin issue where change can have a significant impact. As the Committee on the Rights of the Child insists, “participation in cultural and artistic activities are necessary for building children’s understanding, not only of their own culture, but other cultures, as it provides opportunities to broaden their horizons and learn from other cultural and artistic traditions, thus contributing towards mutual understanding and appreciation of diversity” (para. 12 of general comment No. 17).
41. In keeping with this area of concern, the Special Rapporteur calls attention in particular to the need to safeguard education as a critical space for the fulfilment of children’s cultural rights. She is keen to address the alarming phenomenon of targeted attacks against schools, including girls schools, and universities; curricular restrictions resulting from various forms of extremism or censorship; and the negative impacts of austerity and budget cuts. She is especially keen to explore the importance of arts and sciences education.
42. The previous Special Rapporteur stressed that people can belong to multiple cultural groups and should be free to determine their own relationships with those groups. In accordance with this core principle, the Special Rapporteur would like to research the cultural rights of people with mixed or multiple identities, such as those bearing multiple nationalities or identifying as being from mixed ethnic or religious backgrounds. Many people in the world in themselves incarnate the principle of cultural diversity and are often forced into a framework of monolithic categories and conceptions of identity, in violation of their human rights.
43. The Special Rapporteur believes it essential to give particular consideration to the relationship between culture and new technology, which can be both a way of enhancing cultural rights and a serious challenge to them. Related areas include the globalization of exchanges and of information. Enormous imbalances have emerged in terms of access to and control of the means of information and communication.
44. Finally, the Special Rapporteur would like to emphasize her commitment to popularizing the message of cultural rights and her intention to use culture itself, including in the form of art and music as well as new media, as means for doing so. She recognizes in particular the need to reach out to young people, who are the future of cultural rights. We live in a world where youth are cultural trailblazers with new technology, virtual worlds and digital platforms, which are forging new cultural environments and forms. We live in a world where children may find death at school, at the hands of a classmate or an armed group, or while being at work in a factory rather than sitting on a school bench. We live in a world where a 20-year old can destroy a 2000-year-old temple. To paraphrase the words of poet Gabriela Mistral, “Many of the things we need can wait. But the child cannot. Right now is the time … her senses are being developed … To her we cannot answer, ‘Tomorrow’, Her name is ‘Today’”.15
III. Intentional destruction of cultural heritage
45. In light of recent events that have shocked the conscience of the world, the Special Rapporteur addresses the issue of the intentional destruction of cultural heritage as an urgent priority. Herein she presents preliminary findings, and she will submit her final study to the General Assembly at its seventy-first session.
46. In future, the Special Rapporteur also hopes to explore other critical issues related to cultural heritage, including gender discrimination in accessing and designating heritage sites,16 as well as destruction of cultural heritage in the name of development.
A. Importance of cultural heritage from a human rights perspective
47. Cultural heritage is significant in the present, both as a message from the past and as a pathway to the future. Viewed from a human rights perspective, it is important not only in itself, but also in relation to its human dimension, in particular its significance for individuals and groups and their identity and development processes (see A/HRC/17/38 and Corr.1, para. 77). Cultural heritage is to be understood as the resources enabling the cultural identification and development processes of individuals and groups, which they, implicitly or explicitly, wish to transmit to future generations (ibid., paras. 4-5).
48. While in the Special Rapporteur’s view, specific aspects of heritage may have particular resonance for and connections to particular human groups (see A/HRC/17/38 and Corr.1, para. 62), all of humanity has a link to such objects, which represent the “cultural heritage of all [hu]mankind,” in the words of the preamble to the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (1954 Hague Convention). For example, in 2012, Ms. Shaheed noted that “the destruction of tombs of ancient Muslim saints in Timbuktu, a common heritage of humanity, is a loss for us all, but for the local population it also means the denial of their identity, their beliefs, their history and their dignity”.17 As Judge Cançado Trindade explained in his opinion related to the 2011 order of the International Court of Justice regarding the case of the Temple of Preah Vihear, “the ultimate titulaires of the right to the safeguard and preservation of their cultural and spiritual heritage are the collectivities of human beings concerned, or else humankind as a whole”.18 To quote Gita Sahgal, “heritage is humanity”.
49. Cultural heritage includes not only tangible heritage composed of sites, structures and remains of archaeological, historical, religious, cultural or aesthetic value, but also intangible heritage made up of traditions, customs and practices, aesthetic and spiritual beliefs, vernacular or other languages, artistic expressions and folklore. Both of these categories should be understood in broad and holistic terms. For example, tangible heritage includes not only buildings and ruins, but also scientific collections, archives, manuscripts and libraries, which are critical in preserving all aspects of cultural life, such as education, as well as artistic and scientific knowledge and freedom.
50. In her work, the first mandate holder established how the right of access to and enjoyment of cultural heritage forms part of international human rights law, finding its legal basis, in particular, in the right to take part in cultural life, the right of members of minorities to enjoy their own culture and the right of indigenous peoples to self-determination and to maintain, control, protect and develop cultural heritage.
51. The right of access to and enjoyment of cultural heritage includes the right of individuals and collectivities to inter alia know, understand, enter, visit, make use of, maintain, exchange and develop cultural heritage, as well as to benefit from the cultural heritage and the creation of others. It also includes the right to participate in the identification, interpretation and development of cultural heritage, as well as in the design and implementation of preservation and safeguard policies and programmes (see A/HRC/17/38 and Corr.1, para. 79). Cultural heritage is a fundamental resource for other human rights also, in particular the rights to freedom of opinion and expression, freedom of thought, conscience and religion, as well as the economic rights of the many people who earn a living through tourism related to such heritage, the right to education and the right to development.
B. International legal standards on protection of cultural heritage
52. In paragraph 50 of its general comment No. 21, the Committee on Economic, Social and Cultural Rights recalled that States’ obligations to respect and protect freedoms, cultural heritage and diversity are interconnected and that the obligation to ensure the right to participate in cultural life under article 15 of the International Covenant on Economic, Social and Cultural Rights includes the obligation to respect and protect cultural heritage in all its forms and of all groups.
53. Numerous other international instruments protect cultural heritage. The member States of UNESCO have adopted, in addition to a number of declarations and recommendations, the Convention concerning the Protection of the World Cultural and Natural Heritage (1972); the Convention on the Protection of the Underwater Cultural Heritage (2001); and the Convention for the Safeguarding of the Intangible Cultural Heritage (2003). The widespread support for the 1972 and 2003 conventions demonstrates the general agreement on the need to preserve and safeguard cultural heritage. Although these instruments do not necessarily take a human rights approach to cultural heritage, in recent years a shift has taken place from the preservation and safeguard of cultural heritage as such to the protection of cultural heritage as being of crucial value for human beings in relation to their cultural identity.
54. Because destruction of cultural heritage often results from armed conflict, whether as so-called collateral damage or due to deliberate targeting, a special protection regime governs its protection in times of conflict. The core standards include the Hague conventions of 1899 and 1907 and, most importantly, the 1954 Hague Convention and the 1954 and 1999 protocols thereto.
55. The 1954 Hague Convention, requires States parties to respect cultural property and to refrain from any act of hostility directed against it or any use of it likely to expose it to such acts, subject only to imperative military necessity (art. 4). In the future, the Special Rapporteur would like to explore the impact of the military necessity caveat on this provision, as experts have raised concerns about the scope of its application and its effects.
56. In addition, the Hague Convention obligates States 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 (art. 4). They are to consider using refuges or safe havens for cultural property where relevant (art. 8). Another especially critical provision of this Convention is the requirement under article 3 that States prepare in peacetime for protection of heritage in conflict. In accordance with article 28, parties must prosecute and impose penal or disciplinary sanctions upon those persons, of whatever nationality, who commit or order to be committed a breach. The Second Protocol to this Convention strengthens this aspect, by requiring the codification of a criminal offence, including responsibility for higher command (art. 15 (2)).
57. In light of concerns about the ongoing attacks on cultural property following the entry into force of the Convention and the First Protocol, the Second Protocol was developed to enhance protection. It narrows the “military necessity” waiver such that it applies only when “no feasible alternative [is] available to obtain a similar military advantage” and imposes standards of proportionality to avoid or minimize collateral damage.
58. The Special Rapporteur notes with concern that many States have not adhered to these standards, in particular the Second Protocol, which only has 68 parties. Moreover, some experts suggest that even States that have done so may not have enacted adequate implementing legislation or fulfilled their obligations. For example, the Special Rapporteur was dismayed to learn from cultural heritage professionals that, despite the many examples of destruction of cultural heritage contrary to international treaties, there have reportedly not been any national prosecutions on the basis of the 1954 Convention. However, “the proper national implementation of the Hague Convention is a condicio sine qua non for the effective respect for cultural property in the event of armed conflict”.19
59. The Special Rapporteur recalls that many provisions of the Hague Convention are deemed to rise to the level of customary international law,20 binding both States not party to the Convention as well as non-State actors. She further concurs with experts that “the prohibition of acts of deliberate destruction of cultural heritage of major value for humanity” rises to the level of customary international law and is a norm which is supported by “a general opinio juris”.21
60. In the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage adopted in 2003, the international community reaffirms its commitment to fight against the intentional destruction of cultural heritage in any form so that it may be transmitted to the succeeding generations. States are unequivocally instructed to prevent, avoid, stop and suppress intentional destruction, wherever such heritage is located. The Special Rapporteur affirms the importance of the 2003 UNESCO Declaration and calls for its full implementation.
61. Importantly, the 2003 UNESCO Declaration asserts that States should adhere to the 1954 Hague Convention and the two protocols thereto if they have not done so, and strive toward “coordinated application” of these international instruments. The Special Rapporteur underscores that the 2003 UNESCO Declaration requires States to cooperate to protect cultural heritage.
62. An additional concern for the Special Rapporteur is the fact that many standards focus on States’ obligations, which are crucial but not the only relevant issues. There are important provisions that can help address the role of non-State actors, such as article 19 of the Hague Convention, which applies to non-international conflicts, as well as article 8 of the Rome Statute and article 16 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts. The latter prohibits any acts of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and applies to both State and non-State actors in the context of non-international armed conflicts. The Special Rapporteur believes that, in addition to tackling the role of States, attention must also be paid to the robust use of these standards – and developing other strategies – for holding non-State actors to account and preventing their engaging in destruction. This is especially important in contexts where the exercise of State due diligence may be impossible. One added value of a human rights approach is the reminder that, in the words of the Universal Declaration of Human Rights, every individual and every organ of society has a duty to promote respect for human rights.
63. Individual criminal responsibility arises from serious offences against cultural heritage.22 According to the Rome Statue of the International Criminal Court, intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments and hospitals provided they are not military objectives in either international or non-international armed conflict may be tried as a war crime.23
64. In addition, the destruction of cultural property with discriminatory intent can be charged as a crime against humanity and the intentional destruction of cultural and religious property and symbols can also be considered as evidence of intent to destroy a group within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide (see A/HRC/17/38 and Corr.1, para. 15). In 2014, the Office on Genocide Prevention and Responsibility to Protect developed a new Framework of Analysis for Atrocity Crimes: a Tool for Prevention to assess the risk of genocide, war crimes and crimes against humanity, in which destruction of property of cultural and religious significance is considered a significant indicator in the prevention of atrocity crimes.24
65. Following the adoption by the Security Council of its resolution 2199 (2015) and as a response to the increase in deliberate attacks on cultural heritage as a weapon of war, UNESCO has developed a strategy to strengthen its capacity to respond urgently to cultural emergencies. The strategy explicitly refers to human rights and cultural rights and develops actions to be taken to reduce the vulnerability of cultural heritage before, during and after conflict. It also includes rehabilitation of cultural heritage as an important cultural dimension, which can strengthen intercultural dialogue, humanitarian action, security strategies and peacebuilding.25 UNESCO recently convened a group of experts to explore whether the notion of the “responsibility to protect”, as found in paragraphs 138-140 of resolution 60/1 in which the General Assembly adopted the 2005 World Summit Outcome, could be applied in the context of cultural heritage. The expert group recognized that the intentional destruction and misappropriation of cultural heritage can constitute war crimes and crimes against humanity and can indicate genocidal intent, and thus may fall within the scope of the “responsibility to protect”.26
C. Intentional destruction of cultural heritage: cultural warfare and “cultural cleansing”
66. The Special Rapporteur has been appalled by recent events in which cultural heritage has been intentionally targeted and destroyed in both conflict and non-conflict situations. In the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage, “intentional destruction” is defined as “an act intended to destroy in whole or in part cultural heritage, thus compromising its integrity, in a manner which constitutes a violation of international law or an unjustifiable offence to the principles of humanity and dictates of public conscience”. Examples include cases publicly raised by the Special Rapporteur’s predecessor, such as the destruction of Sufi religious and historic sites in Libya in 2011 and 2012 and the torching by armed groups of the Ahmed Baba Institute, one of the most important libraries in Timbuktu, Mali, as their occupation of the city was ending in January 2013, as well as the destruction of mausoleums, which are important in cultural practice in that city. These attacks, which deeply affected the local populations, are just a few examples and reports are forthcoming from a number of regions of the world of a similar pattern of attacks by States and non-State actors.
67. Unfortunately, there is a long human history of such acts as iconoclasm and biblioclasm in all regions of the world, whether in wars, revolutions or waves of repression. However, in the early twenty-first century, a new wave of deliberate destruction is being recorded and displayed for the world to see, the impact magnified by widespread distribution of the images. Such acts are often openly proclaimed and justified by their perpetrators. This represents a form of cultural warfare being used against populations, and humanity as a whole, and one which the Special Rapporteur condemns in the strongest possible terms. The Special Rapporteur shares the view of UNESCO that these acts of intentional destruction sometimes constitute “cultural cleansing”. They take the terrorization of a population to a new level by attacking even its history and represent an urgent challenge to cultural rights, one which requires rapid and thoughtful international response.
68. The preamble of the 2003 UNESCO Declaration stresses that “cultural heritage is an important component of cultural identity and of social cohesion, so that its intentional destruction may have adverse consequences on human dignity and human rights”. In recent cases, as in their historical antecedents, the objects in question have clearly been targeted not in spite of the prohibitions on attacking cultural heritage and notwithstanding the value of the objects in question, but precisely because of that value and those norms.