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D. Towards a human rights approach to the intentional destruction of cultural heritage

69. In responding to intentional destruction of cultural heritage, it is critical to employ a human rights approach: there are many human rights implications. As rightly noted by one cultural rights expert, “despite the rich international normative framework created under the aegis of UNESCO over the decades, the question is largely not being addressed by the international community as a question of human rights generally, or of cultural rights in particular”.27 This must change. As her first priority area of thematic work, the Special Rapporteur aims to develop such an approach.

70. The Special Rapporteur’s predecessor noted the added value of a human rights approach: beyond preserving and safeguarding an object or a manifestation in itself, the human rights approach to cultural heritage obliges one to take into account the rights of individuals and communities in relation to such object or manifestation and, in particular, to connect cultural heritage with its source of production (see A/HRC/17/38 and Corr.1, para. 2).

71. The importance of having access to one’s own cultural heritage and to that of others has been emphasized by the Committee on Economic, Social and Cultural Rights in its general comment No. 21. As stressed by the Committee therein, the obligations to respect and to protect freedoms, cultural heritage and cultural diversity are interconnected. It is impossible to separate a people’s cultural heritage from the people itself and their rights.

72. Just as the intentional destruction of cultural heritage has a devastating impact on cultural rights, so too protecting cultural heritage can have a positive impact on morale and rights in situations of conflict or repression. “A nation stays alive when its culture stays alive” is the motto of the National Museum of Afghanistan, where some 2,750 pieces were destroyed by the Taliban in 2001.

73. A critical, related question concerns the protection of the defenders of cultural heritage who are at risk, such as those who have curated, preserved and protected the National Museum of Afghanistan through decades of war and worked tirelessly to reconstruct the damaged pieces that could be saved. They include cultural heritage professionals, such as contemporary figures like Khaled al-Asaad, the Syrian archaeologist who died defending Palmyra in August 2015 and many others who today labour in obscurity and danger, and also historical figures, such as the heroic staff of the Hermitage Museum in what is now Saint Petersburg, Russian Federation, who risked their lives between 1941 and 1944 so that invaluable collection would be, as one expert phrased it, saved for humanity.28 Such figures may include ordinary people like those in Northern Mali who reportedly hid manuscripts beneath the floorboards of their homes to protect them during the 2012 occupation or those who sought to peacefully protest the destruction of Sufi sites in Libya despite intimidation.

74. A human rights perspective on the protection of cultural heritage must emphasize the human rights of cultural first responders – those on the frontlines in the struggle to protect it. They are the guardians of the cultural heritage of local groups, and indeed of all humankind, and thus critical players in the defence of cultural rights. They often put their safety and that of their families on the line to carry out this work. States must respect their rights and ensure their safety and security, but also provide them, including through international cooperation, with the conditions necessary to complete their work, including all needed material and technical assistance, and offer them asylum when that work becomes too dangerous.

75. The Special Rapporteur believes that, in many circumstances, defenders of cultural heritage should be recognized as cultural rights defenders and therefore as human rights defenders and that they should be afforded the rights and protections that status entails. As the Office of the United Nations High Commissioner for Human Rights has noted, to be a human rights defender, a person can act to address any human right (or rights) on behalf of individuals or groups.29

76. In the destruction of heritage and in its protection, new media is a game changer, capable of magnifying the impact of the initial destructive acts, but also of enhancing the means to mitigate the damage caused, such as through digitization. These tools should be widely made available to cultural heritage professionals.

77. Experts have emphasized that there is a significant overlap between tangible and intangible heritage. As mentioned above, attacks on tangible and intangible cultural heritage are interconnected. A human rights approach assists in making these connections. For example, when mausoleums and ancient Islamic manuscripts were being destroyed by armed groups in northern Mali, various forms of cultural practice were also under attack, including religious practices, singing and music. Local populations were greatly affected, in an integrated way, by assaults on both forms of cultural heritage. Meanwhile, ancient languages and religious practices, tied to sacred spaces and structures and cultural landscapes of northern Iraq and the Syrian Arab Republic, are being lost as the populations are displaced and objects, texts and historic structures are destroyed.

78. Another contribution of the human rights approach is its emphasis on accountability and combating impunity. The Special Rapporteur has been closely watching developments in the groundbreaking case of Prosecutor v. Ahmad Al Faqi Al Mahdi in the International Criminal Court regarding cultural heritage destruction in Mali.30 She hopes to see other similar prosecutions in future and believes the emphasis on remedies and bringing to justice in human rights law are important tools.

79. A human rights approach also embraces prevention. Preventive action and education on the importance of cultural heritage and cultural rights are vital aspects of the endeavour to protect and safeguard cultural heritage. One critical aspect of the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage is the requirement that all States engage in awareness-raising with regard to these standards.

80. For effective prevention, it is crucial to understand why deliberate destruction of cultural heritage takes place. It is sometimes difficult to distinguish between ideological destruction and looting for economic reasons and both overlapping sets of practices must be tackled, including in countries where the markets for looted artefacts are located. Deliberate destruction may happen for a variety of reasons, including as a strategy to destroy the morale of the enemy and terrorize local populations or as a means to eradicate other cultures, in particular of the vanquished so as to facilitate conquest.31

81. In many recent examples, destruction is part of the “cultural engineering” sought by diverse extremists who, rather than preserving tradition as some claim, seek to radically transform it, erasing what does not concur with their vision. They seek to end traditions and erase memory, in order to create new historical narratives affording no alternative vision to their own. Ending these forms of destruction requires tackling the fundamentalist ideology motivating them itself, in accordance with international standards, in particular through education about cultural rights, cultural diversity and heritage. Journalist Mustapha Hammouche, in assessing recent extremist attacks on cultural spaces noted, “In this global war, it is not our differences which motivate … hatred, but what we share: humanity and humanism itself”.32

82. Acts of deliberate destruction are often accompanied by other large-scale or grave assaults on human dignity and human rights. As such, they will have to be addressed in the context of holistic strategies for the promotion of human rights, and peacebuilding. The right of access to and enjoyment of cultural heritage of others in a non-stereotypical way is of utmost importance in post-conflict situations. This was particularly visible during the first mandate holder’s mission to Bosnia and Herzegovina (see A/HRC/25/49/Add.1). Peacemaking and peacebuilding processes should include the protection, repair and memorialization of cultural heritage with the participation of those concerned and the promotion of intercultural dialogue regarding cultural heritage (see A/HRC/17/38 and Corr.1, para. 12).

83. In the face of large-scale killings or assaults on the security of persons, attacks on cultural heritage may seem less important, and, understandably, there may be conflicting priorities. But, as a Haitian sculptor asserted: “the dead are dead. We know that. But if you don’t have the memory of the past, the rest of us can’t continue living”.33

84. This introduction is the Special Rapporteur’s first step in addressing the issue and she looks forward to continuing her research in this vital area. In conclusion, she emphasizes that the destruction of cultural heritage is a human rights issue. The approach to stopping intentional destruction of tangible and intangible cultural heritage needs to be holistic, encompassing all regions, contemplating both prevention and punishment, targeting acts by State and non-State actors, in conflict and non-conflict situations. We must respond urgently, but also take the long view.

85. In a poem entitled “The smothered murmurs of history”, poet Saleh Baddiari, himself a refugee from extremist violence, expressed the anguish many have felt after recent acts of cultural demolition produced what he called “ruins upon ruins.” He gave voice to the fear that, if unchecked, there will be more destruction to come:

The people of the new millennium are determined to reduce their ruins to the dust of ruins…

Palmyra collapses on its own rubble.

Petra will follow, along with Nineveh and Nippur.

Alexandria and Heliopolis, blindfolded, await their turn to return to dust.34

It is up to us all to make sure that does not come to pass – anywhere.

IV. Conclusions and recommendations

A. Conclusions

86. Over the past six years, cultural rights have gained significantly in legitimacy and standing. Their realization is now recognized as key to the overall implementation of universal human rights. The previous Special Rapporteur undertook an important and rich first round of exploration of cultural rights. However, much remains to be done. The new Special Rapporteur aims to carry out this work in cooperation with States, relevant human rights and intergovernmental bodies and a diverse range of non-governmental stakeholders.

87. The Special Rapporteur will pay particular attention to the relationship between individuals and collectivities and the terminology used to refer to different typologies of human groups. She will carry forward her predecessor’s commitment to the principle of universality of human rights and to recognizing and reinforcing the organic relationship between universality and cultural diversity. Cultural rights and cultural diversity are not tantamount to cultural relativism. Moreover, cultural diversity exists within each group and society and individuals may simultaneously participate in multiple cultural groupings. The rights of all individuals to take part in cultural life must be understood in light of these complex realities.

88. The Special Rapporteur has identified several issues of urgent concern she intends to pursue. She has been particularly shocked by recent events in which tangible cultural heritage has been intentionally targeted and destroyed in conflict and non-conflict situations. She condemns these acts, which constitute an attack on cultural life itself. In the present report, the Special Rapporteur began developing the components of a human rights approach to the issue of intentional destruction of cultural heritage; she will explore this issue further in her first report to the General Assembly. Her approach is holistic, contemplating both prevention and punishment, targeting acts by State and non-State actors, in conflict and non-conflict situations and of tangible and intangible heritage.

89. The Special Rapporteur concurs with her predecessor that the right of access to and enjoyment of cultural heritage forms part of international human rights law. Cultural heritage is linked to human dignity and identity. Moreover, while specific aspects of tangible heritage may have particular resonance for and connections to particular groups, all of humanity has a link to such objects, which represent the cultural heritage of all humankind. Accordingly, all States have an obligation to respect and protect cultural heritage in accordance with international standards, to ensure accountability for acts of intentional destruction of such heritage; and to cooperate to protect cultural heritage.

B. Preliminary recommendations

90. The Special Rapporteur calls upon States to:

(a) Respect, protect and fulfil cultural rights in the context of implementing the full range of human rights and ensure the exercise of these rights is firmly embedded in the universal human rights framework;

(b) Ensure the right of all individuals to practise their culture, including with others. This includes ensuring non-discrimination in the enjoyment of cultural rights across all categories protected by international human rights law and upholding the rights of dissenting or disempowered individuals within any groups;

(c) Ensure the right of all persons, including women, to access, participate in and contribute to all aspects of cultural life, including in identifying and interpreting cultural heritage, and deciding which cultural traditions, values or practices are to be kept intact, modified or discarded altogether and to do so without fear of punitive actions. States should similarly ensure this right with respect to other groups, including persons with disabilities, migrants, indigenous peoples, lesbian, gay, bisexual, transgender and intersex persons and persons living in extreme poverty.

91. With regard to the issue of the intentional destruction of cultural heritage, the Special Rapporteur recommends that States:

(a) Respect and protect cultural heritage; the right of everyone to use and enjoy cultural heritage should be limited only as a last resort and in compliance with international law;

(b) Ratify the core cultural heritage conventions, including the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the 1954 and 1999 protocols thereto, and urgently enact implementing legislation so as to enable full implementation of these conventions;

(c) Take appropriate legislative, administrative, educational and technical measures to prevent, avoid, stop and suppress intentional destruction of cultural heritage, in line with the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage. In this regard, States should:

(i) Prepare in peacetime for any possible threat to cultural heritage in time of war, including by documenting the cultural heritage within their jurisdiction, as well as employing digital technologies and new media in this regard wherever feasible;

(ii) Allocate sufficient budgetary resources, both at the international and national levels, to the protection of cultural heritage;

(iii) Provide international technical assistance to facilitate prevention of the intentional destruction of cultural heritage;

(d) Train fully military forces in all relevant rules concerning the protection of cultural heritage in armed conflict;

(e) Take all steps necessary to facilitate prosecutions of those responsible for intentional destruction of cultural heritage, at the national or international level, in accordance with relevant international standards;

(f) Respect the rights of cultural heritage professionals on the frontlines of the struggle against intentional destruction and ensure their safety and security; work at the international and national level to provide them with the conditions necessary to complete their work, including material and technical assistance; and grant them asylum when necessary. Everyone has a duty to respect the rights of cultural heritage professionals and anyone alleged to have harmed them must be brought to justice in accordance with international standards.

92. The Special Rapporteur further recommends that States, experts and international and non-governmental organizations:

(a) Consider how to enhance the application of existing international legal standards regarding the prohibition of intentional destruction of cultural heritage and the obligation to respect cultural rights to non-State actors;

(b) Recognize the protection of cultural heritage and of cultural rights as a critical component of humanitarian assistance, including in conflicts;

(c) Investigate the use of funds from looting and the illicit traffic of cultural objects for the financing of terrorism and consider requiring increased due diligence with regard to cultural objects being sold from at-risk regions;

(d) Systematically include cultural awareness, the safeguarding, restoration and memorialization of cultural heritage and the respect and protection of cultural rights in the mandate of peacekeeping missions, in peacebuilding policies and initiatives and in post-conflict reconciliation;



(e) Promote, coordinate and provide resources for the international exchange of best practices in the field of protection of cultural heritage and of the right to access and enjoy cultural heritage.



1  General comment No. 21, para. 13.





2  A/HRC/14/36, para. 9, and A/67/287, para. 7.





3  Hazem Sagieh and Saleh Bechir, “The ‘Muslim community’: a European invention”, Open Democracy, 16 October 2005. Available at www.opendemocracy.net/conflict-terrorism/community_2928.jsp.





4  She notes the concerns raised e.g. in Pragna Patel and Uditi Sen, Cohesion, Faith and Gender: A Report on the Impact of the Cohesion and Faith-based Approach on Black and Minority Women in Ealing (Southall Black Sisters, 2010).





5  Lotte Hughes, “Nature, issues at stake and challenges”, paper prepared for the “Negotiating Cultural Rights” conference, Copenhagen, November 2015.





6  Emma Waterton and Laurajane Smith, “The recognition and misrecognition of community heritage”, International Journal of Heritage Studies, vol. 16, Nos. 1-2 (Jan-March 2010), p. 8.





7  Ibid., p. 5.





8  Amartya Sen, “The uses and abuses of multiculturalism”, The New Republic, 27 February 27 2006.





9  Souleymane Bachir Diagne, “Keys to the 20th Century” (2001), cited in UNESCO, 70 Quotes for Peace (2015), p. 36.





10  Elsa Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration of Human Rights and Beyond (Leiden/Boston, Martinus Nijhoff, 2007), p. 258.





11  See e.g. Gregory Fulkerson and Alexander Thomas, eds., Studies in Urbanormativity: Rural Community and Urban Society (Lexington Books, 2013).





12  UNESCO, World Report: Investing in Cultural Diversity and Intercultural Dialogue (2009), p. 225.





13  See e.g. Secretary-General remarks at General Assembly presentation of the United Nations plan of action to prevent violent extremism, 15 January 2016 (noting inter alia the destruction of cultural institutions).





14  She endorses the call for the collection of sex disaggregated data on women’s participation in the arts, in Ammu Joseph, “Women as creators: gender equality” in UNESCO, Reshaping Cultural Policies: A Decade Promoting the Diversity of Cultural Expressions for Development (2015), p. 173.





15  Gabriela Mistral, “Llamado por el niño”, in UNESCO, 70 Quotes for Peace, p. 14.





16  UNESCO, Gender Equality: Heritage and Creativity (2014), pp. 61-69.





17  Office of the United Nations High Commissioner for Human Rights, “‘A very dark future for the local populations in Northern Mali’, warn UN experts”, 10 July 2012.





18  Request for Interpretation of the Judgement of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Separate Opinion of Judge Cançado Trindade, ICJ Reports 2013, p. 606, para. 114.





19  Jan Hladik, “The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict: some observations on the implementation at the national level”, MUSEUM International, No. 228, Protection and Restitution (2005), p. 7.





20  Francesco Francioni and Federico Lanzerini, “The destruction of the Buddhas of Bamiyan and international law”, European Journal of International Law, vol. 14, No. 4 (2003), p. 619.





21  Ibid., p. 635.





22  See, e.g., Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 3 (d).





23  Rome Statute of the International Criminal Court, art. 8 (2) (b) (ix) and (e) (iv).





24  United Nations, Framework of Analysis for Atrocity Crimes: a Tool for Prevention (2014).





25  Reinforcement of UNESCO’s Action for the Protection of Culture and the Promotion of Cultural Pluralisms in the Event of Armed Conflict, UNESCO documents 38 C/49 and 197/EX/10.





26  International Expert Meeting on the Responsibility to Protect as applied to the Protection of Cultural Heritage, recommendations, 26-27 November 2015, Paris.





27  Elsa Stamatopoulou, Memorandum submitted to the Special Rapporteur in the field of cultural rights, 12 December 2015.





28  Sergey Varshavsky and Boris Rest, Saved For Humanity: The Hermitage during the Siege of Leningrad 1941-1944 (Aurora Art Publishers, 1985) (originally in Russian).





29  See www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Defender.aspx.





30  The Prosecutor v. Ahmad Al Faqi Al Mahdim, Situation in the Republic of Mali, Public Court Records: Pre-Trial Chamber I. See www.icc-cpi.int/en_menus/icc/situations%20and%
20cases/situations/icc0112/related-cases/ICC-01_12-01_15/court-records/chambers/
ptcI/Pages/1.aspx.

31

 Patty Gerstenblith, “Protecting Cultural Heritage in Armed Conflict: Looking Back, Looking Forward” in Symposium: War and Peace: Art and Cultural Heritage Law in the 21st Century, 4 March 2008, Cardozo Public Law, Policy and Ethics Journal, vol. 7, No. 3 (2009), p. 677.

32

 Mustapha Hammouche, “Guerre contre l’humanité”, Liberté, 15 November 2015 (translated from French).

33

 Cited in Marc Lacey, “Cultural riches turn to rubble in Haiti quake”, New York Times, 23 January 2010.

34

 Salah El Khalfa Beddiari, forthcoming in Les murmures étouffés de l’Histoire (Éditions Beroaf, 2016) (translated by the Special Rapporteur with permission of the poet).

GE.16-01416(E)

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