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La reazione della Comunità internazionale alle distruzioni massicce intenzionali del patrimonio culturale
No full textThe recent massive intentional destruction of cultural objects by ISIS and its affiliates in
Iraq and Syria, as well as by homologous fundamentalists in other parts of the world (Mali,
Yemen), is immediately perceived as an overall attack to culture. At first glance, it
could not be wholly equated with what happened during the wars in ex-Yugoslavia in the
1990s. There, each faction targeted “the enemy’s” cultural properties, while the recent attaks
by fundamentalists are not directed to a specific cultural heritage, and so “cultural
cleansing” assumes an all-encompassing meaning. The destructions perpertated in Afghanistan
by the Talibans in 2001 were directed to all not-islamic cultural objects and now
ISIS does not spare even islamic cultural sites. It has severely damaged the citadel of
Tikrit, birthplace of Saladin, and it has been reported that it threatens to destroy the Kaaba
in the Grand Mosque in Mecca.
On the other hand, today’s destructions, just as most of those that occurred during the conflict
in ex-Yugoslavia, are part of an overall policy, which dramatically comprises various
other serious violations of the core international law rules protecting peace and human
rights. In more than one occasion, ISIS has concretely linked the destruction of stone architectures
to the brutal killing of human beings (suffice it here to remember the beheading
of Khaled al-Asaad, worldwide famous Syrian archaeologist, octogenarian head of antiquities
and now “martyr” for the ancient city of Palmyra).
Is this “cultural cleansing” by ISIS, then, really different in both scale and nature from the
destruction of cultural properties we witnessed during the conflict in the ex-Yugoslavia?
Perhaps it is: because the attaks are systematic and used as a tactic of war, to intimidate
populations, to disseminate hatred, to weaken the grounds for peace; because of the explicit
link with the aggression to fundamental human rights; because these attaks are unequivocally
very serious, being directed to several sites whose outstanding universal value
has been formally recognised by UNESCO; and, particularly because the recent attaks by
fundamentalists are not directed to a specific cultural heritage.
Under humanitarian law, however, the origin of targeted cultural heritage is irrelevant. As
already clearly stated in the Convention for the Protection of Cultural Property in the
Event of Armed Conflict, concluded at The Hague in 1954, coherently with the principles
underlying the entire international protection of cultural heritage, «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».
From this point of view, then, attacking cultural heritage is a violation that entails responsibility
of the State and of the individual, independently of the cultural origin of the damaged
property. The non-recognition of the statehood of ISIS, just as it was for the nonrecognition
of the Taliban regime in Afghanistan, must not be seen as a legal obstacle precluding
the international Community from adopting countermeasures.
Can, hence, cultural sites be effectively protected from direct, wilful aggression?
International law could not prevent or stop the destruction in the Balkans or in Afghanistan.
In the first case it intervened at the stage of the assessment of responsibility, through
the jurisprudence of the International Criminal Tribunal for ex-Yugoslavia – ICTY – referring
to the massive destruction of mosques, Christian churches, the old city of Dubrovnik
and the old bridge of Mostar, and a Second Additional Protocol was concluded in
1999, to increase the effectiveness of the The Hague 1954 Convention. In the second case
the international Community took the opportunity to reaffirm prohibitions under general
international law, thus strengthening them for the future, prohibitions that had maybe not
been so clearly stated until that moment, through the adoption, in 2003, of the UNESCO
Declaration of Principles Concerning the Intentional Destruction of Cultural Heritage, after
the destruction of the giant Buddhas of Bamiyan by the Talibans in 2001.
Now, facing massive intentional destruction by ISIS and its affiliates, UNESCO strongly
condemned these acts from the beginning and outcries coming from the UN agency devoted
to culture are developing into concrete proposals to the UN, for the creation of specialized
task forces, generally referred to under the emphatic name of “blue helmets of
culture”, to be employed for the preservation of cultural sites. This measure, proposed to
the Executive Coucil of UNESCO by Italy in March 2015 and realised through the conclusion
of a first Memorandum of Understanding between Italy and UNESCO on 16 February
2016, is so conceived as to be possibly effective also at the preventive level (though
applicable only in those situations where UN forces are employed on the territory).
It is important that no misunderstanding arise as to the operative meaning of the institution
of UNESCO “task forces”. In no way it entails an intervention by the United Nations system
in a conflict situation “just because of” large scale direct attaks to cultural heritage, as
the common reference to such mechanisms under the name of “blue helmets of culture”
might suggest. The idea has been concisely expressed by the UNESCO World Heritage
Committee in its Bonn Declaration on World Heritage (2015). The members of the Committee
«recommend that the Security Council analyzes the possibility of introducing a
specific dimension of heritage protection in the mandates of peacekeeping missions where
appropriate».
It is precisely with a view to timely providing for the necessary professional expertise,
which must be well integrated in the UN forces when their mandate includes action for the
protection of cultural heritage, that these «mechanisms for the rapid mobilization of national
experts» should be established. To be absolutely clear on this point, the General
Conference of UNESCO has introduced an amendment to the draft resolution, to state that
it adopted the Strategy for Reinforcing UNESCO’s Action for the Protection of Culture
and the Promotion of Cultural Pluralism in the Event of Armed Conflict «with the understanding
that its implementation will be carried out in full coordination and collaboration
with concerned Member States and within the framework of United Nations bodies and
their mandate».
Apparently, the level of the damage lately produced has reached a peak, and more adequate
measures, such as the employment of the UNESCO task forces, are required. This
step forward of the international practice is wholly in line with the words of the 2003
UNESCO Declaration, a solemn affirmation of the opinio juris of the international Community
in this area. Explicitly triggered by the destruction of the giant statues of Buddha
in Afghanistan, the Declaration is projected into the future, as a milestone on the path towards
legal certainty about the accountability of both States and individuals for acts of
intentional destruction of cultural heritage («expressing serious concern about the growing
number of acts of intentional destruction of cultural heritage»).
The idea that there should be no “gaps” in the international legal system on this issue is
clear; being the Declaration per se a non-binding act, its legal significance is to be appreciated
for the possible indirect effects it produces on the interpretation and application of
other international law sources and – if associated with practice – on the development of
general international law. As a matter of fact, the Declaration specifically refers to general
international law: the General Conference is «mindful of the development of the rules of
customary international law as also affirmed by the relevant case-law, related to the protection
of cultural heritage in peacetime as well as in the event of armed conflict».
The establishment of UNESCO “task forces” is not the only relevant development in international
practice, following the 2003 UNESCO Declaration. The Declaration’s structure
(presenting two successive chapters respectively dedicated to peacetime activities and
to the event of armed conflict, including the case of occupation) reveals the urgency of
ensuring protection from intentional destruction both in time of peace and of war, and independently
of the exact legal qualification of the conflict. With reference to individual
criminal responsibility, it provides that «States should take all appropriate measures, in
accordance with international law, to establish jurisdiction over, and provide effective
criminal sanctions against, those persons who commit, or order to be committed, acts of
intentional destruction».
In contemporary practice, we are witnessing the first international criminal case completely
dedicated to acts of intentional destruction of cultural heritage. On 26 September 2015,
Ahmad Al Faqi Al Mahdi was surrendered to the ICC by the authorities of Niger. The trial
began on 22 August and concluded on 24 August 2016; the judgment was delivered on 27
September. He was accused of having committed, individually and jointly with others,
war crimes regarding intentionally directing attacks against several buildings in the cultural
site of Timbuctu (Mali), inscribed in the UNESCO World Heritage List, and admitted
guilt.
This is a very interesting test-bed for existing relevant international law instruments. The
international Community was ouraged by the destruction of Timbuktu’s cultural heritage,
just as it was by the destruction of the Buddhas of Bamiyan. In the case of Timbuctu, the
destructions could more easily be deemed to be «associated with the conflict» (in the
words of the Elements of Crimes of the ICC) than in the case of the Buddhas, thus it
wasn’t necessary to resort to the cathegory of crimes against humanity to avoid impunity
for this act. Nevertheless, the appeal that ICC “learn from the lesson” of the evolutionary
jurisprudence of the ICTY and consider the destruction of the ancient cultural heritage of
Timbuctu as a crime against humanity, in addition to being a war crime, has been voiced
among scholars. The European Parliament, in a resolution of 30 April 2015, explicitly requested
to add not properly “cultural genocide” but “cultural cleansing” to the list of
crimes against humanity of the ICC Statute («calls on the European Union to take the
necessary steps, in collaboration with UNESCO and the International Criminal Court, to
extend the international law category of crimes against humanity so that it encompasses
acts which wilfully damage or destroy the cultural heritage of mankind on a large scale»).
In addition to UNESCO task forces and recent international practice and opinio juris
about individual criminal responsibility, a third relevant element must not be forgotten in
assessing the contemporary status of general international law on the issue of the protection
of cultural heritage: action directed to the protection of cultural heritage has been included
in Security Council resolutions adopted on the basis of Chapter VII of the Charter.
On one hand, the mandate of the UN Multidimensional Integrated Stabilization Mission in
Mali (MINUSMA) included since its inception, in April 2013, the support for cultural
preservation, explicitly mentioning the mission «to assist the transitional authorities of
Mali, as necessary and feasible, in protecting from attack the cultural and historical sites
in Mali, in collaboration with UNESCO». It realised for the first time a cooperation with
UNESCO, to be developed and structured in the future through UNESCO task forces.
On the other hand, resolutions about Iraq (2003), and Iraq and Syria in connection with
international terrorism (2015), tackle with the specific issue of international traffic of cultural
objects. Looting on a large scale and international trafficking of movable cultural
properties is practiced by ISIS fundamentalists and other individuals, groups and entities
associated with AL-Qaida as a source of funding to support recruitment efforts and to
strengthen operational capability to organize and carry out terrorist attacks. The adoption
by the UN Security Council of Resolution 2199, on 12 February 2015, which extends to
Syria the prohibition of trade in cultural objects already in place for Iraq since 2003, is defined
by the Director-General of UNESCO as «a milestone in order to increase the protection
of cultural heritage in Iraq and Syria».
These recent developments of international practice are of the utmost interest and should
always be considered in the overall framework of the international protection of peace and
human rights. Underlining the extreme seriousness of the wilful destruction of cultural
heritage could almost seem disrespectful, considering the other cruelties to which human
beings were and are being subjected. In fact, it makes no sense at all to consider the
preservation of cultural heritage separately from the protection of human rights. By definition,
cultural heritage is identified because of its value, its significance for the life of the
present and future generations, and direct aggression to cultural heritage usually occurs in
situations of general and serious violation of human rights. Combating the destruction of
cultural heritage is an important contribution to the protection of human rights and must
not be perceived as distracting attention from them. On the contrary, the effective protection
of human rights is enhanced if this relevant feature of their aggression is properly addressed
‘No One May Invoke': The Protection of Cultural Heritage and Cultural Diversity for Human Rights and Sustainable Development, Between Synergies to Build and Conflicts to Prevent
No full textThe protection of cultural heritage is conceived in the international legal system as a condition for the full realization of human rights, both specifically of cultural rights and of many other human rights, which have an important connection with cultural identity. It is implied in the Charter of the United Nations and the Constitution of UNESCO, and reference to the Universal Declaration of 1948 and to the other instruments for the protection of human rights is also explicit in the preambles of the UNESCO Conventions on intangible cultural heritage and on the diversity of cultural expressions, for which sustainable development is also central.
Paradoxically, however, in the articles of the two conventions, the relationship with human rights (and, in the 2003 Convention, also with sustainable development) is regulated through clauses whose formulation is clearly aimed at preventing inconsistencies. In the Convention on intangible cultural heritage there is a provision that constitutes a limitation of the object of protection; the clause inserted in the 2005 Convention seems more problematic, as it is worded as a solemn subordination clause ("no one may invoke", almost literally taken from the previous Declaration of 2001).
Negotiators of the 2005 Convention were mainly concerned of possible antinomies with respect to obligations on the liberalization of trade because the cultural goods, services and activities covered by that convention are of a dual nature. Since the need for coherence in the international legal system is protected first and foremost through general principles (subordination clauses are of help, but they could never resolve conflicts linked to the foundations and objectives of the treaties), after a tug-of-war negotiation that has long seen the persistence of two opposing alternative clauses, respectively of prevalence and subordination of the 2005 Convention with respect to WTO obligations, it has been opted - on the contrary - for the “didactic” underlining of mutual supportiveness between treaties, to be pursued through a constructive and synergic operational approach of States, both in negotiating new agreements and in interpreting and executing existing ones.
A fortiori, this must be the operational approach to be followed with reference to the relationship with human rights, generally indicated as the "material constitutional framework" of the international legal system, and thus the ultimate key to its coherence. Art. 4.2 of the 2005 Convention could be seen as another call for good faith in respecting treaties, taking into account the broader framework of all existing obligations. This brings us back to the international legal system as a universe of rules whose coherence cannot be pursued through a non-existent centralized jurisdictional power, but rather by correct behavior on the part of all subjects in negotiating, interpreting and applying the rules.
Fear for the possible consequences of the "fragmentation" of international law is thus replaced by an appreciation of its abundance and variety, and above all of its effectiveness - the greater the more the relationship between the sources produces synergies and not antinomies. And sustainable development, which can only be achieved through the construction of synergies, calls for the projection into the future of the Community and its needs, hence for an intergenerational dimension which has always been a distinctive feature of the international protection of cultural heritage
Intentional destruction of cultural heritage by ISIS: the reaction of the International Community against this specific aspect of the aggression to peace and human rights
Full text linkMassive intentional destruction of cultural heritage is a very serious attack against the core values of peace and human rights, be it associated with an armed conflict or not. Several acts of intentional destruction have recently occurred in a number of situations of general and serious violation of human rights.
ISIS has used such criminal acts for its propaganda of terror, thus raising in the International Community the level of awareness of the actual aggression to fundamental values that these kind of acts constitute. Hence, devising and adopting more effective international law measures to punish and, if possible, to prevent the intentional destruction of cultural heritage is a challenge of paramount importance. At the same time, it is an extremely delicate task, strictly linked to sovereignty issues. Two interesting trends can be observed in the latest international practice: on one hand the development of mechanisms for the rapid mobilization of UNESCO “task forces”, composed of cultural heritage experts, for the protection of culture and the promotion of cultural pluralism in the event of armed conflict (the so-called “blue helmets of culture”); on the other hand, the revival of the old debate on “cultural genocide”, and, possibly, the first international criminal case completely dedicated to acts of intentional destruction of cultural heritage
Federal clauses in International treaties: an analysis in light of some recent developments
No full textFederal States, when negotiating a treaty, sometimes insist on the inclusion of a federal clause. Usually, non-federal States do not easily agree on its inclusion and wording. Both positions can be eloquently advocated. It
is to be appreciated that the request for the clause is ultimately a straightforward bona fide behaviour in negotiating the treaty, since it points out prospective difficulties in the implementation of treaty obligations. On the
other hand, it is also true that, under the federal clause, the extent of the legal effects produced by the treaty could in part depend on the domestic laws of federal States and, due to the great variety of federal systems, the multilateral treaty concerned would have as much variation in scope as the number of federal States which ratified it. Provisions requiring from federal States the necessary information concerning the law and practice of the federation and its constituent units with regard to the provisions of the treaty may be a solution of the problem of legal certainty, but do not address the issue of the necessary safeguard of the object and purpose of the treaty. Recently, the negotiations of the UNESCO Convention on the protection
and promotion of the diversity of cultural expressions have seen
renewed attention on this issue, reaching an interesting conclusion that is
precisely directed at excluding any vagueness in the content of the obligations really assumed by federal States, refusing to simply reiterate a wording of the clause that had already been accepted in three other conventions concluded at UNESCO. This result shows that the ‘internationalization’ of a domestic issue through inclusion of a federal clause in a treaty is still problematic — in spite of the almost total indifference that accompanied the inclusion of an extremely disputable federal clause in other UNESCO conventions — and that such a concession’, though not pre-emptively excluded, must be carefully considered. The central issue at stake is the real effect and scope of application of the clause, which is commented in this work from the international law point of view, taking into consideration several different features included in different federal clauses
La diversità del patrimonio e delle espressioni culturali nell'ordinamento internazionale - da ratio implicita a oggetto diretto di protezione
No full textLa monografia propone una ricostruzione unitaria del sistema convenzionale sviluppatosi, sotto l'egida dell'UNESCO, per la protezione del patrimonio culturale, in relazione con le rilevanti norme di diritto internazionale generale.
Il lavoro è strutturato in due parti.
La prima parte è dedicata alla presentazione del quadro giuridico universale di protezione del patrimonio culturale; dopo avere messo in luce la specificità del livello internazionale di tutela, vengono analizzati i problemi nascenti dal carattere complementare del livello internazionale di protezione, individuando il fondamento della tutela offerta dal diritto internazionale generale, tutela collegata ad una concezione dinamica del patrimonio, anche alla luce dell’affermarsi del principio dello sviluppo sostenibile. La dimensione culturale dello sviluppo sostenibile consente, infatti, l’ampliamento della stessa prospettiva di protezione internazionale del patrimonio. Completa questa prima parte una disamina dei vari sistemi convenzionali di protezione mirata a sottolineare come, pur presentandosi come self contained regimes, essi perseguano tutti lo stesso obiettivo, cioè a dire la tutela del patrimonio culturale nella sua diversità in quanto “patrimonio comune dell’umanità”. Vengono, infatti, analizzati gli aspetti di ciascuno specifico regime ritenuti maggiormente rivelatori della più profonda finalità che tutte le accomuna, riportandosi in tal modo ad unità e, quindi, a sistema l’insieme degli strumenti convenzionali a vocazione universale rilevanti in materia.
La seconda parte è dedicata alla protezione internazionale della diversità delle espressioni culturali, oggetto della Convenzioni Unesco del 2005. Dopo avere analizzato in dettaglio la genesi della Convenzione e le difficoltà incontrate durante il negoziato, vengono messe in luce le specificità del regime convenzionale e sottolineate le conseguenze dell’ampio ambito oggettivo di applicazione della Convenzione, che hanno determinato, tra l’altro, un richiamo esplicito all’impegno degli Stati per la coerenza sistemica dell’ordinamento internazionale.
Quest’ultima convenzione adottata dall’Unesco nel settore della “cultura”, estremamente complessa, viene presentata – in linea con i dati normativi e con l’intendimento che traspare dall’atteggiamento dell’Organizzazione e degli Stati – quale elemento di ideale “chiusura” del sistema convenzionale già sviluppato a tutela del patrimonio culturale. Essa, infatti, esplicita il valore della diversità, sottinteso nelle precedenti convenzioni, ed ha ad oggetto gli ambienti creativi che originano e diffondono tutte le espressioni culturali, ponendo così l’accento sulla “vitalità” della cultura quale risorsa per lo sviluppo sostenibile
Short and Quickly Delivered, Yet Quite Full of Meaning: The International Criminal Court Judgment about the Intentional Destruction of Cultural Heritage in Timbuktu
Full text linkThe judgment rendered by the International Criminal Court
(ICC) on 27 September 2016 in the case Al Faqi Al Mahdi was
much awaited for and – for better or for worse – will be
remembered as the first decision of an international criminal
tribunal in a case completely dedicated to acts directed at cultural
heritage.The choice of the ICC Prosecutor to charge a
brigade commander ‘only’ with committing the attacks at the monuments, while there
could be reason to believe that Al Mhadi also committed other crimes, could be criticised. On the other hand, this choice has led
to a quick judgment, adopted at the same time as the sentence,
that has immedietely been executed. Considering that crimes of
attacking cultural properties undoubtedly constitute a
contemporary emergency, this result is extremely significant and
«the decision of the International Criminal Court is a landmark in
gaining recognition of the importance of heritage for humanity as
a whole and for the communities that have preserved it over the
centuries. (…) [It] is a crucial step to end impunity for the
destruction of cultural heritage
La natura giuridica delle “clausole federali” e il loro riflesso sul problema della titolarità del “potere estero
No full textL’approccio precauzionale a tutela dell’ambiente marino nel diritto internazionale e comunitario: tra disciplina sostanziale e soluzioni procedurali
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