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Intercultural Human Rights Law Review

Abstract

Over the past two decades the international community has witnessed the unlawful destruction of cultural heritage. In response, the United Nations General Assembly has stated that it was appalled by the destruction of sites such as the Buddhas of Bamiyan, concerned by the attack and the looting of the Iraqi Museum, and it even unequivocally condemned' the increasing frequency of horrifying terrorist attacks undertaken by the Islamic State. Despite the United Nations General Assembly continually expressing its outrage after each incident, it was not until recently that the International Criminal Court ("ICC") took steps to hold those responsible for cultural heritage destruction accountable. In September of 2016 the ICC, in The Prosecutor v. Ahmad Al Faqi Al Mahdi, prosecuted Mr. Al Mahdi for war crimes,' finding that he had directed an attack on "buildings dedicated to religion, education, art, science or charitable purposes or historic monuments." The ICC analyzed the scale, nature, manner and impact of these attacks finding that they "appear to [have] shocked the conscience of humanity" and that "the attacked sites [are] 'part of the indivisible heritage of humanity." This marked the first case in which the ICC sought to penalize the destruction of cultural heritage sites. In the process, the ICC demonstrated that the international community is willing to act in response to the targeted destruction of cultural heritage. However, there remains a lingering question, despite preventing impunity, at least in some cases: what could, or perhaps should, be done by the international community as a way to preserve cultural heritage before it is destroyed? More specifically, could some sort of intervention be a justifiable preventative measure?

In late November 2015, the United Nations Educational, Scientific and Cultural Organization ("UNESCO") met to discuss possible responses to cultural heritage destruction and strategies for preserving these sites recommending, in part, that the "Responsibility to Protect" ("R2P") doctrine could provide guidance and serve as a useful tool for States to apply to prevent further destruction of the world's cultural heritage. Drawing on this passing suggestion by UNESCO, this paper will seek to understand the practicability of this approach by analyzing the development of R2P, the legal validity of applying R2P to the destruction of cultural heritage, and provide some preliminary analysis on the potential benefits, and consequences, of using R2P to prevent cultural heritage destruction.

Part One will analyze the history of R2P both generally, by looking at its development and application within the U.N. System regarding humanitarian crises broadly, as well as with respect to how R2P has begun to enter UNESCO conversations.

Part Two will then turn to the feasibility of using R2P in the field of cultural heritage. This will proceed on two fronts: first, it will look at the text of R2P as incorporated into the U.N. System through General Assembly Resolution 60/1; and second, it will look to see if, even if it is reasonable to find cultural heritage destruction as one of the enumerated justifications for intervention, this incorporation really can be read as in line with the object and purpose of R2P. Part Three will demonstrate why it is that current mechanisms for cultural heritage protection are insufficient preventative measures. It will then turn to the possible benefits and consequences of using R2P as a method of cultural heritage protection. To evaluate the potential implications of using R2P, this paper will look at three specific cases: the looting of the Iraqi Museum, the current attacks on cultural heritage in Syria by the Islamic State and the Taliban's destruction of the Bamiyan Buddhas in 2001. These three cases will help to show how R2P could be applied, as well as demonstrate some of the possible negative consequences should R2P be used as the justification for intervention to protect cultural heritage sites. Through these examples, this paper will seek to answer the question of what, if anything, could be gained by using R2P for cultural heritage protection. Furthermore, it will demonstrate some of the reasons why this expansion of R2P may be a useful tool not only for the revival of this doctrine within the United Nations, but also as a way to promote international cooperation to protect global or universal heritage sites in spaces that are frequently ignored until after the damage has already occurred.

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