By Luigi Prosperi*
After days of heavy fighting, Islamic State (hereinafter: IS) militants seized the town of Palmyra in central Syria on 20 May, also gaining control of its renowned archaelogical site (as apparently confirmed by this photo).
The day after, UNESCO Director General Irina Bokova warned that the deliberate destruction of the Palmyra heritage would be “not just a war crime but … an enormous loss to humanity”. But just how effective is international law when it comes to protecting the world’s cultural heritage?
1972 UNESCO Convention
The UNESCO World Heritage Committee decided to place the archaeological area of Palmyra, together with other 5 Syrian sites, on the List of World Heritage in Danger on 20 June 2013 because of the risk they faced as a result of the ongoing civil conflict. The Committee was acting in line with the procedure described in Article 11, Para. 4 of the Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted by UNESCO on 16 November 1972 and ratified by 191 States, including Iraq and Syria, as of 15 August 2014).
Under the 1972 Convention, this move aims to inform the international community about the specific threats posed to the sites included in the World Heritage List. It also allows the Committee to develop and adopt, in consultation with the State Party concerned, a programme for corrective measures. What it does not trigger, on the other hand, is immediate “protective” intervention by the international community.
In an analogous situation, in June 2012, the Committee placed Timbuktu and another property situated in northern Mali on the World Heritage in Danger List. But after they were destroyed by Ansar Dine militants, the Committee could only register their destruction and issue a decision, strongly condemning the attacks. It was only in December that a military mission, consisting of Malian and ECOWAS forces (AFISMA), and backed by a French contingent, was finally deployed.
On 16 January 2013, ICC Prosecutor Fatou Bensouda decided to open a formal investigation “into alleged crimes committed on the territory of Mali since January 2012”, also consisting in “intentionally directing attacks against protected objects” (para. 133 of Article 53(1) Report). On 7 June, a team of experts from UNESCO and Mali found that damage to Timbuktu’s cultural heritage was “more extensive than first estimated”.
Also read –> Whither ICC justice in Mali?
International criminal tribunals
The inclusion of cultural property on the World Heritage List was invoked by the ICTY in two cases related to the destruction and damage of the Old Town of Dubrovnik:
1) In Strugar, the judges stated that since it was placed on that list in 1979, “all the property within the Old Town” was “within the scope of Article 3(d) of the Statute”. It therefore concluded that the attack constituted a war crime (see Strugar Judgment, Trial Chamber II, 31 January 2005, para. 327);
2) In Jokić, the judges, having affirmed that “it is a crime of even greater seriousness to direct an attack on an especially protected site”, considered that enlistment was an aggravating factor (see Miograd Jokić Sentencing Judgement, Trial Chamber I, 18 March 2004, para. 53).
Under the Rome Statute, attacks on cultural properties are qualified as “other serious violations of the laws and customs of war”, either in international (Article 8 (2) (b) (ix)) or non-international armed conflicts (Article 8 (2) (e) (iv)).
Three “minimalist” conclusions can be drawn regarding the effectiveness of the cited international mechanisms:
1) if not coordinated with a “proactive” attitude by the international community, it is very unlikely that the 1972 UNESCO Convention tools can prevent or halt the attacks by IS militants on cultural properties;
2) since international criminal law only has a deterrent effect when enforced, prosecutions of individuals responsible for ordering, planning and directing attacks on cultural properties should be encouraged, eventually resulting in harsher sentences when the targets had already been placed on the World Heritage List(s) at the time they were launched. In this spirit, the Malian situation could represent a test case;
3) in the meantime, as paradoxically suggested by Professor Eleanor Robson, since IS leaders seem obsessed by propaganda, increasing awareness about Palmyra’s antiquities could end up being counterproductive.
*Luigi Prosperi is a post-doctoral fellow at Political Science Department of Sapienza University of Rome. He is a member of the LUISS Guido Carli Research Centre on International and European Organisation. He’s also an editor of “Rivista OIDU“, which is the online journal of the Sapienza PhD Programme on “International legal order and human rights”.