The erasure of culture sites contributes to the erasure of peoples and histories. These sites are not only important for marking the past, but for their contribution, and reminder to us in the present. This theory marks the basis for why destruction of cultural property in the event of armed conflict is a violation of international humanitarian law.
Since Russia invaded Ukraine the cultural property protection regime has started ringing the alarm bells. With seven sites on the World Heritage list, memorials like the Babyn Yar Holocaust memorial site that gained attention last week after a radio tower was struck near the site, and countless other cultural treasures, there is much that is at risk of destruction in Ukraine. For example, on Feb. 27, 2022 — and the third day of the invasion — Russian forces set fire to the Ivankiv Historical and Local History Museum. Twenty-five works by world renowned Ukrainian artist Maria Prymachenko burned in the flames. In 1996, Prymachenko received the Taras Shevchenko National Price of Ukraine, the main Ukrainian cultural award, and in 2009, UNESCO declared it the year of Prymachenko.
The international community has already commenced multiple investigations to document potential Russian war crimes. The Organization for Security and Cooperation in Europe (OSCE), with US support, is establishing a fact-finding mission that will work on collecting evidence and testimonies from Ukraine. They plan to provide this evidence to both the International Court of Justice (ICJ) and the International Criminal Court (ICC). While neither Ukraine or Russia are party to the Rome Statute, the chief prosecutor of the ICC Karim Khan, was able to open an investigation of the conflict after States Parties referred the case to the court.
Amidst the humanitarian crises, deliberate civilian killings, and Putin’s veiled threats at nuclear conflict, it can be hard to pay attention to the potential loss of cultural heritage. Yet, the destruction of cultural property is a war crime too.
WHAT PROTECTION LOOKS LIKE
The 1907 Hague Convention was the first treaty to protect cultural heritage in the event of armed conflict. This protection extended to religious buildings, historic monuments, and buildings dedicated to the arts and sciences.
This protection regime was bolstered by the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. Under the Hague Convention, cultural property is defined, irrespective of origin or ownership, as “moveable or immovable property of great importance to the cultural heritage of every people.” The Convention additionally protects the buildings meant to store or exhibit these items, such as museums and cultural centers.
Protecting cultural heritage is essential for our collective history, understanding, and memory — and its destruction symbolizes the greater intent of a perpetrator to destroy, in whole or in part, a people.
The Soviet Union ratified the 1954 Hague Convention, making Russia and Ukraine States Parties to the treaty after the Soviet Union fell. This means that Russia can be held accountable for targeting cultural property and Ukraine can benefit from the protection mechanisms set out in the treaty. The significance of the 1954 Hague Convention is that it set out clear guidelines for the protection of cultural heritage that included a mechanism through which cultural property could be identified: the Blue Shield emblem. The Blue Shield emblem allows a court to establish intent of the perpetrator (mens rea) in the aftermath of an attack. Under Article 16 of the treaty, the emblem can be used to identify immovable cultural property and the personnel working to protect cultural property. Essentially, it is the Red Cross for cultural sites and institutions. While the Blue Shield emblem is not required to prove that a site is considered cultural heritage, it is a useful tool for marking items for protection. Remarkably, UNESCO is already working to help cultural professionals mark sites with the Blue Shield in Ukraine.
There are two key cases that succeeded in convicting perpetrators of cultural property destruction in an international court. The first occurred after the war in the former Yugoslavia. In 2005, the International Criminal Tribunal for the Former Yugoslavia found Pavle Strugar, a Lieutenant General of the Yugoslav Peoples’ Army, guilty of intentionally targeting the Old Town of Dubrovnik, a site on the World Heritage list. In 2016, Ahmad Al Faqi Al Mahdi was found guilty by the ICC for “intentionally directing attacks against religious and historic buildings in Timbuktu, Mali.”
Despite international laws that set the parameters for war (and international organizations that are technically supposed to implement these laws), in times of war, the protection of cultural heritage has almost always fallen on the shoulders of civilians. For example, in Lebanon, the National Museum of Beirut’s director worked to protect and hide art during the civil war. In Iraq and Syria, civilians have used sandbags to protect mosaics and documented destruction and looting by ISIS. And the list goes on and on. Whether or not Russia’s President Vladimir Putin and his close aides will be next is yet to be seen, but it is encouraging that preemptive efforts by both Ukrainian civil society and international partners are underway, especially if evidence being collected now can be used in a court as proof of destruction. Cultural heritage professionals, for example, are compiling a list of Ukraine’s digital archives of cultural heritage objects in a Google form that has been shared on Twitter.
PROTECTING CULTURAL PROPERTY IS A NECESSITY
When Raphael Lemkin, a Jewish Polish lawyer coined the term “genocide” in 1943 he wanted to include the destruction of cultural heritage as a key sign of a perpetrator’s intent. He saw cultural property destruction, along with physical and biological harm, as a demonstration that a belligerent party has taken actions “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” He declared that along with physical and biological destruction, “the destruction of cultural symbols is genocide.” While cultural property did not make it in this definition, the basis of Lemkin’s argument found its way to international humanitarian law.
Cultural heritage deserves the world’s attention and protection — not only for its worth to our collective history, understanding, and memory, but also because its destruction can symbolize the greater intent of a perpetrator to destroy, in whole or in part, a people. When the ICC and OSCE proceed with their investigations, they must provide cultural heritage with the attention it deserves. Furthermore, as the Red Cross assesses Russia’s invasion of Ukraine, it too must call out the methods in which cultural property can be protected.
Of course, holding Putin and aides accountable for their crimes, be that for cultural property destruction or targeting civilians, will be a huge feat. Like the US, Russia is not a State Party to the Rome Statute, the establishing treaty for the ICC. When the ICC attempted to open investigations on US crimes in Afghanistan, the US pushed back with extreme measures. And it is likely we will see a similar response from Russia as accusations of war crimes ramp up. So, when the US is helping its European partners investigate Russian war crimes, and supporting fact-finding missions that will share evidence with the ICC, it is vital that this is also a turning point in the US approach to international criminal justice. Perpetrators of such crimes should not be able to get away with impunity, there is a reason that these are crimes against humanity.
Alexandra B. Hall is the Policy Associate and Special Assistant to the President at Ploughshares Fund, a global security foundation.
