Cultures use properties as the media of expression1 and blossom them into proud cultural property of the community. The creative human genius, in the process, flowers into arts, architecture, sculpture, monument, painting, literature and other innumerable forms of aesthetic manifestations. Transcending the geopolitical boundaries, they constitute cultural heritage of the mankind irrespective of the point whether they are products of individual talent or of group effort.2 From the perspective of specific culture, the cultural property that it produces is an overt mark of its identity,3 a repository of cultural and traditional informations,4 and an essential thing for cultural group’s self understanding.5 Being visible symbols of culture and creativity,6 great pieces of art are irreplaceable things,7 as they attempt to grasp eternity by their beauty and grace.
It is the mankind’s sad experience that armed conflicts result in intentional or unintentional devastation of cultural property. While earlier wars witnessed deliberate destruction of enemy’s cultural property as a measure of annihilation of enemy’s power,8 modern armed conflicts with their more destructive mechanisms inflict extensive loss to cultural property. Such destructions and their cultural function, offend inter-generation equity, and impoverish the world’s intellectual and artistic attainment. The anger that suppression of culture breeds in the context of armed conflicts, in fact, feeds the subsequent generation’s motives for retaliation. As Etienne Clement observes. “[loss] of, or damage to, treasured structures cause despair and feelings of overwhelming suffering to the inhabitants of the affected area; it also makes the rehabilitation of their community much more difficult when the conflict is over”.9 Extensive damage to Iraq’s antiquities during gulf war (1991), massive ‘cultural genocide’ in the former Yugoslavia involving destruction of Sarajevo’s numerous churches, mosques and libraries - many of which were built in the 14th and 15th century - and destruction of sixty three percent of Croatia’s Dubrovnik, the most outstanding historic town of Europe with 460 monuments (1992-93) are some of the recent examples of cultural destruction.10 The latest addition to the unfortunate list of destructions is the destruction of the colossal images of Buddha at Bamiyan of Afghanistan during February and March 2001. This occurred in a non-international conflict as a measure of fanatic subjugation and as a means of drawing the attention of the international community for recognition and economic assistance.
International community has responded from time to time for enhancing the extent of protection of cultural property. From the Leiber Code to the Second Protocol (1999), to the provisions of the Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict, (hereinafter referred to as the Hague Convention) the norms and measures of protection to cultural property got crystallised, stabilised and developed. The objective of the present paper is to comprehend the broad direction of the development and to evaluate the efficacy of the cultural heritage law in times of crisis. It views that the approach of multiculturalism, the enchancement of protective measures and standards, down-playing the factor of military necessity, criminalisation of the wrongs against cultural property and more clear extension of legal norms to protect cultural property during internal conflicts are the major trends in cultural property law under International Humanitarian Law (hereinafter referred to as IHL) in recent times. It argues that while these are welcome trends, more serious and intensive application of these legal norms and adequate preparation towards these objectives during the time of peace are required; and that, this ought to be done by international cooperation and administrative actions, by effective incorporation of these values into the municipal legal system and by building a broad based public opinion in support of cultural property.
2. A HISTORICAL OVERVIEW
According to Agnipurana the concept of just war ordained the parties to leave the temples and other places of worship as well as the fruit and flower garden unmolested.11 Manu holds that the victorious king should worship in the temples, honour the priests and proclaim peoples’ safety in the conquered country.12 Koran prohibits fighting in sacred places like mosques.13 St. Augustine preached in ‘Truce of God’ (989 AD) against looting and desecration of places of worship.14 The edict of Frederick I (1158 AD) prohibited plundering during war.15
Inspite of abundant principles of humanism in religion and morality, wars were fought in the past with ruthless savagery. The fall of Carthage, Alexandria, Constantinople, Samarquand and Vijayanagar hugely imperilled culture. In ancient Greece and Rome wars were aimed at complete annihilation of the enemy and enrichment of the victorious.16 Historian Polybius contracts Alexander’s policy of respect for sacred places during war to Philip’s wicked acts of plundering, and views that although destruction of fort and resources of enemy may weaken the enemy and enhance one’s position, no advantage could be derived from wanton destruction of temples and statues.17 False belief about deities’ involvement in war motivated destructions during Roman wars.18 Looting was the standard procedure during those days.19 However, condemning the plundering of artistic treasure, Cicero pleaded that war should spare private and public buildings, sacred and secular, and all works created for adornment or dedicated to religion.20
In the early Middle Ages when the Goth ruler Totila laid siege on Rome and was about to set fire, Belisarius, one of the Generals of Justinian wrote to Totila, ‘[b]uilding works of art in a city can only be the undertaking of wise men who know how to live with civility; whereas destroying existing ones can only be the work of lunatics who are not ashamed of going down in history as such ... If you win this war, by destroying Rome, you will not have destroyed some one’s property, but your own, whereas if you preserve it, you will logically acquire the most precious of all artistic heritage”.21 The advice was respected and Rome was saved from destruction (546 A.D.) Contrasted with this are the destruction of old Greek libraries in Alexandria (642 A.D.) which treasured the literature of centuries22 and the outrageous sack and plundering of Constantinople during the Fourth Crusade. W.N. Weech describes the battle thus :
“the palaces were burnt. The accumulated treasures of antiquity were recklessly looted and destroyed. The richest monuments went into the melting pot for the value of their metal .. The libraries containing the assembled literature of the classical and early Christina ages, went up in flames”.23
Similarly, Chengiz Khan’s destruction of Samarquand made to disappear the arts and crafts that had flourished in Central Asia for hundreds of years.24 The splendid city of Vijayanagar was rendered to ruins after its defeat (1565 A.D.). In this context, Jawaharlal Nehru observed:
“All the beautiful buildings and temples and palaces were destroyed. The exquisite carvings and sculptures were smashed, and huge bonfires were lit to burn up everything that could be burnt”.25
Medieval India witnessed large scale destruction and plundering of places of worship during war.26
Deviating from the above savage practices, humanity began to evolve a finer principle that works of art and places of worship shall not be destroyed. Vattel (1714-1767), a pioneer international law jurist, stated that whatever the reasons for ravaging a country, buildings and works outstanding for their beauty must be spared, since they were a credit to making and in no way contributed to strengthening the enemy; that nothing could be gained by destroying them, and blithely to deprive oneself of these works of art was tantamount to declaring oneself an enemy of mankind.27 This ideal did not remain merely as a theoretical one.28 The Leiber Code of 1863 instructed that the property belonging to churches, establishments of education, and museums of the fine arts shall be considered as public property and hence immune from appropriation by the victorious army29 (Art. 34). Classical works of art, libraries, scientific collections and precious instruments shall be protected against avoidable injuries (Art. 35). Bluntschli, commenting on the code, views that it is the duty of the enemy chief to prevent the pointless destruction of noblest products of the human spirit.30 Henry Dunant, the initiator and one of the founders of the Red Cross, warned the future generations against outdoing each other in destroying the most beautiful masterpieces of which civilisation is proud: palaces, castles, ports, docks, bridges, buildings and monuments of all kind.31
Following the Leiber Code, the English, Italian, Spanish, German and Japanese codes stipulated that moveable and immovable properties dedicated to science or art, churches, museums, libraries, collections of art and archives shall be treated as private property and be spread from bombardment.32 The Brussels Declaration of 1874 not only reiterated these principles but also imposed a duty on the besieged to indicate the presence of such buildings by distinctive and visible signs to be communicated to the enemy before hand.33
The Oxford Manual of 1880 went a step ahead in penalising offender of cultural property. The Hague Convention of 1907 imposed liability upon the belligerent party which violated the Convention to pay compensation.34 In the background of extensive destruction of cultural property because of sophisticated methods of warfare during the two world wars, the Hague Rules of Air Warfare 1922, Roerich Pact 1935 and the Inter-Allied Declaration 1943 recognised the cultural property as neutral, and imposed international duty of respect and protection for them.35 The lacuna in the earlier law relating to precautionary measures were highlighted by the Archaeological Society of Netherlands. The Nuremberg Trial unfolded facts about atrocities and misappr-opriation of cultural property.36
In this background, the UNESCO, which shoulders the responsibility for the preservation of the cultural heritage of humanity, initiated the move for cultural property convention in 1949. The outcome is the landmark Hague Convention of 1954. The Convention is based on the idea that preservation of the cultural heritage is not only a matter for the state on whose territory it is located, but is of great importance for all peoples of the world, and deserved international protection. Realising the need for enhanced protection of cultural property and to tone down the rigours of military necessity, especially in the light of Gulf war and Yugoslavian conflicts, the Protocol of 1999 was adopted.
3. TRENDS TOWARDS MULTICULTURALISM IN
THE PROTECTION OF CULTURAL
PROPERTY UNDER IHL
Co-existence of multitude cultures with a sense of toleration and co-operation with undisturbed continuance of cultural markers and physical objects irrespective of race, religion and language is a factor undergirded by International Humanitarian Law on protection of cultural property.37 It can be seen below how the very meaning of cultural property got developed on lines of multiculturalism and how the basic objectives of cultural property law tend to promote multiculturalism. Gradual decline of the theory of territoriality in this sphere also supports the cause of cultural pluralism.
3.1 Meaning of Cultural Property and its Conduciveness for
Art. 1 of the Hague Convention, 1954 states that the “term ‘cultural property’ shall cover, irrespective of origin or ownership movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture art or history, whether religious or secular; archaelogical sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaelogical interests; as well as scientific collections and important books or archives or of reproductions of the property defined above”. It also covers buildings whose main and effective purpose is to preserve or exhibit the movable cultural property, such as museums, large libraries, archives and refuges and also centres containing a large amount of cultural property as defined above. The definition is broad enough to cover all the properties which every respective people consider it as of great importance to their cultural heritage. Hence, too narrow an interpretation that confines ‘great importance’ to only world renown items such as the Coliseum, the Sphinx, the Taj Mahal or Mona Lisa will not be appropriate.38 Judge Weeramantry in the Legality of Nuclear Weapons case favoured a view that all property listed or scheduled by high contracting parties form considerable segment of cultural heritage.39 Judge Nagendra Singh made an extra judicial observation that “the cultural objects and properties which make up (one state’s) national heritage (are), consequently, the world’s heritage”.40 The idea that cultural heritage of mankind is an aggregate of diverse particularisms is according to Niec, the “practical realisation of the principle that in international relations the cultures of individual nations are equal”.41
The concept of cultural equality percolates into the empirical reality of cultural diversity within the nation. UNESCO does not subscribe to the essential notions of cultural homogeneity. As R.O’Keefe observes, “Just as the cultural heritage of mankind is the sum of the heritages of the respective nations, so too each national heritage is the sum and usually subtle blend of the various cultures found within that nation, be they ethnic, religious, linguistic, class-based, caste-based, urban, rural, youth, sub or counter cultures”.42 Hence, national governments cannot ride roughshod over the views of non-governmental cultural groupings and associations while compiling register of national heritage. Popular participation in the listing process by all the communities including minorities and indigenous bodies is contemplated. In the context of internal conflicts as in Bosnia-Herzegovina, the minority’s participation in identification of cultural property becomes a measure of significant safeguard.43 On the whole the integration of the idea of cultural equality into the very meaning of cultural property is conducive for multiculturalism.44
3.2 The Objective of Cultural Property Law under International
Humanitarian tradition has two dimensions: first, protection of the physical welfare of the person by providing him/ her medical aid, food, shelter and freedom from torture; and second, protection of spiritual and emotional welfare by enabling mobility, family life and access to cultural life.45 Since cultural property constitutes one of the basic elements of civilisation and national culture, its protection avoids emotional embitterment, and contributes towards fortification of the defence of peace in the very minds of people.46
The preamble to the Hague Convention 1954 recites: “Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world; considering that the preservation of the cultural heritage is of great importance for all peoples of the world and that this heritage shall receive international protection”. A significant point of multiculturalism is made out in this proposition. The very recognition of the fact that each culture’s physical objects, art, sculpture, monuments and literature add to the heritage of mankind reflects competence of each cultural group to participate in world culture with an equality of opportunity along with preserving its own originality.47 Being nourished by the streams of several cultures, the world culture has an obligation towards safe continuation of each culture‘s physical context which is inextricably linked to its identity . “This critical preambular recital posits the cultural heritage of mankind as the material sum of the respective national cultures, rather than the manifestation of the sort of cultura franca suggested by the narrow reading of Article 1”,48 observes R.O’Keefe.
The Preamble takes cognisance of the fact that cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the techniques of warfare, there is increasing danger of destruction. It believes that protection of cultural property cannot be effective unless both national and international measures have been taken to organise it in time of peace. The thrust of the above objective is spread over the operative provisions of the Convention.
4. THE SHIFT FROM ‘NATIONAL PATRIMONY’
TO ‘COMMON CULTURAL PROPERTY’:
The concept of national cultural patrimony views cultural objects produced, or first discovered, within a state as belonging to that state based on special relationship between that state’s people and their cultural artefacts.49 It argues against decontextualisation of cultural property of a colonial state by the excessive possessive instinct of imperial rulers, soldiers and entrepreneurs. With the assertion of independence, former colonies began to enact laws asserting state ownership and control over all the vestiges of the past within their frontiers.50 Although it is an argument against colonial exploitation of cultural property, it was paradoxically employed by Hitler for territorial expansion of Germany on the pretext that cultural property of German origin was ‘traced’ in non-German territory of Europe, and that logically the territory became part of Germany. 51 In the post-war period the National Patrimony theory posed two dangers : first, negative isolationist effect arising from delinking of other countries from access to cultural property of the ‘patrimony’ state; and second, the destruction of, or disrespect to cultural property of the minority by the majority of the ‘patrimony’ state.52 The notion of territorial sovereignty underlying the doctrine of national patrimony would shut out protective intervention by other nations.
After the categorical declaration in the Hague Convention of 1954 that cultural property belonging to any people constituted cultural heritage of all mankind, 53 the territorial sovereignty theory in this sphere is diluted. But it is only down but not out, especially in view of the principle in the UN Charter protecting the territorial integrity of the nations (Art. 2.4.).54 The concept of common cultural property imposes obligation upon all the High Contracting Parties and their people to safeguard and respect cultural property, whether in their own territory or in the territory of others. It is a controversial issue whether and in which circumstances the Security Council of UN may take collective security measure under Art. 3955 to restore peace and thus protect cultural property. In the background of destruction of 400 mosques and 200 churches at Serbia, fall of cultural city like Dubrovnik at Croatia or destruction of Mostar bridge in 1990s it has been viewed by some scholars like Catherine Vernon that prompt protective intervention by the international community under the leadership of the UN would have prevented the destruction.56 It is submitted, although such serious measure may be well within the framework of international law, it is only the circumstance of grave apprehension of threat to peace that would justify such a measure. The contemplation in the preamble to the Hague Convention that cultural property should receive international protection can be understood to include international community’s duty to abstain from damaging, and its duty to avoid damage by positive interference in such circumstances of grave necessity.
The shift from ‘national patrimony’ to ‘common cultural property’ is also a shift from right perspective to duty perspective. The new concept calls for increased international co-operation in the field of preservation of cultural property. As J. Crabb views, the solidarity of the international community can be further intensified in both the political and humanitarian spheres by an increased concern for the protection of cultural property.57 Another factor to be noticed is that the new concept has not dismantled the customary international law principles and treaties that recognise the right and duty of the country of origin within whose boundary the cultural property is situated.
5. THE SCHEMES AND MEASURES FOR PROTECTION
OF CULTURAL PROPERTY
The schemes and measures for protection of cultural property are spread over several Conventions, Protocols and other accepted norms. The underlying policies include prohibition of destruction, obligation to safeguard and respect, transportation to safe places, special protection, enhanced protection and creation of public opinion through dissemination of the message underlying the law.
5.1 Prohibition of Destruction
Under the laws and customs regulating land warfare, aerial warfare and war at sea the belligerents are ordained to take all necessary steps to spare, as far as possible, buildings dedicated to public worship, art, science or charitable purposes, historic monuments and hospitals.58 Article 16 of the 1977 Protocol II to Geneva Convention 1949, states, “it is prohibited to commit any acts of hostility against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, and use them in support of the military effort”. The prohibition of destruction is implicit in the idea of safeguard and respect contemplated in the Hague Convention 1954 (Articles 2, 3
5.2 Safeguard of, and Respect for Cultural Property
Safeguarding of cultural property situated within the territory of each High Contracting Parties to the Hague Convention against the foreseeable effects of war is a duty cast upon them, which is to be discharged by making necessary preparation during peace (Art. 3, Hague Convention, 1954). Under the Hague Regulations, making inventory and registration of cultural property by following the prescribed procedure, display of Blue Shield flag and providing special shelters to them or evacuation and transportation of them are contemplated (Arts. 12-15, 18). Fairness demands that the listing process should involve popular participation, and community based nominations coordinated by religious and ethnic minorities.59
The obligation to respect cultural property by refraining from any act of hostility directed against such property and by refraining from using it or its surroundings in such a way as to expose it to destruction or damage in the event of armed conflict is imposed under Art. 4. Although this is subject to waiver on account of military necessity, the factor of military necessity is structurised by laying emphasis on objective considerations. The duty of nations to prohibit theft, misappropriation and vandalism also adds to the duty of protection of cultural property (Art. 4.3). The occupying powers have also similar duties. (Art. 5).