1. Introduction
On 29 June 2012, following a tense stand-off, an extremist armed group called Ansar Dine took control of the ancient city of Timbuktu, Mali and systematically set about destroying the city’s cultural heritage.Footnote 1 Among the most egregious acts were the destruction of fourteenth century Sufi shrines and mausoleumsFootnote 2 and a complete ban on music.Footnote 3 Mali is a party to the Convention concerning the Protection of the World Cultural and Natural Heritage, 1972 (World Heritage Convention) and the shrines had been on the World Heritage List since 1988.Footnote 4 Their destruction provoked international outcry, including from the World Heritage Committee, the body overseeing implementation of this Convention.Footnote 5 It was also seen as a violation of international humanitarian law (IHL), including the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954 (1954 Hague Convention), to which Mali is a party.Footnote 6 In a ground-breaking 2016 case, it went on to form the basis of the first conviction for destruction of cultural heritage at the International Criminal Court (ICC).Footnote 7 In the same year, the reconstruction of the shrines, partially funded by the United Nations Educational, Scientific and Cultural Organization (UNESCO), was completed.Footnote 8
Meanwhile the ban on music was mentioned briefly in reports to the United Nations Human Rights Council and General Assembly (UNGA),Footnote 9 but received far less legal attention. This was despite the fact that Mali is a party to the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (Intangible Heritage Convention or 2003 Convention).Footnote 10 This treaty, in its Part I, defines its purpose as being ‘to safeguard’, ‘ensure respect’, and ‘raise awareness’ of ‘intangible cultural heritage’, which includes:
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(a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;
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(b) performing arts;
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(c) social practices, rituals and festive events;
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(d) knowledge and practices concerning nature and the universe;
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(e) traditional craftsmanship.Footnote 11
In Part II, it establishes a ‘General Assembly of States Parties’ and an ‘Intergovernmental Committee … composed of representatives of 18 States Parties, elected by the … General Assembly’. It creates two categories of obligations: obligations upon states parties, in Part III, to safeguard intangible cultural heritage at the national level;Footnote 12 and mechanisms at the international level in Parts IV–VI, that states both participate in and benefit from,Footnote 13 including international lists and the possibility of requesting international assistance for safeguarding heritage.Footnote 14
Mali made such a request to the Intergovernmental Committee and was granted funds of US$307,307 to inventory intangible cultural heritage damaged by ‘conflict … and the occupation’.Footnote 15 Yet, no statement was made by either the Committee or the state linking the ban on music with provisions of the Convention. A year later, in 2013, one of the traditions threatened by this ban, the ‘Imzad’ music of Tuareg women in Algeria, Niger, and northern Mali, was included in the Representative List of the Intangible Cultural Heritage of Humanity (Representative List) under the 2003 Convention. This was interpreted as a nod to the ban on music and restrictions on women’s life imposed by the extremists in northern Mali.Footnote 16 However, neither the nomination file, decision on inclusion nor its description on the List drew a link with the conflict.Footnote 17 Meanwhile, Mali’s vibrant music culture remains subduedFootnote 18 and sociologists consider this loss of cultural identity to have loosened social cohesion.Footnote 19 Compared with early acknowledgement of breaches of the World Heritage Convention and the 1954 Hague Convention, the question of whether there had been a violation of obligations under the Intangible Heritage Convention was left unanswered, leading to evident differences in the recognition and restoration of damage to Mali’s tangible and intangible cultural heritage.
This is the case even outside of the Malian context. Out of 677 elements of intangible cultural heritage corresponding to 140 states that are included in the Intangible Heritage Convention’s various lists, only seven elements corresponding to six states mention armed conflict as a challenge to their continuity.Footnote 20 This is despite the number of states implicated in ongoing conflicts far exceeding this.Footnote 21 Of these, only five elements, including the recently fast-tracked inscription of Ukrainian borscht, make use of the Convention’s mechanisms for urgent safeguarding of threatened heritage. This silence goes both ways and the legal discourse surrounding armed conflict rarely acknowledges obligations under the 2003 Convention in discussions on cultural heritage. The UN Security Council increasingly sees the protection of cultural heritage as part of its peace and security mandate.Footnote 22 However, Resolution 2347 of 2017, the first exclusively on cultural heritage, ‘[r]ecall[s] … the 2003 Convention’ in its preamble but is silent on intangible heritage in its operative sections, only condemning and encouraging acts relating to tangible heritage.Footnote 23 UN and regional peacekeeping missions tasked with cultural heritage mandates,Footnote 24 as well as most national military manuals, fail to address intangible heritage or the near-universally ratified 2003 Convention.Footnote 25
A possible explanation for the reluctance to concretely link armed conflict with obligations under the 2003 Convention is the ambiguity surrounding the modalities of this relatively recent Convention’s application in armed conflict. Unlike tangible heritage, which has long been protected under IHL, international law contained no direct protections for intangible heritage until this Convention came into force in 2006. There are indirect protections within IHL, including an array of civilian protections which apply equally to heritage-bearers, as well as provisions in both the Hague and Geneva systems stating that ‘protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs’.Footnote 26 Relying on indirect IHL protections, international criminal law (ICL) has at times indirectly prosecuted acts targeting intangible cultural heritage. The post-war UN War Crimes Commission facilitated the prosecution of a regional Nazi leader, Arthur Geiser, under Article 46 of the Hague Regulations for, inter alia, the destruction of Polish intangible cultural heritage during occupation.Footnote 27 More recently, the ICC in Al Mahdi brought consequential damage to intangible cultural heritage within the scope of reparations for destruction of cultural property.Footnote 28 Such indirect prosecution is however contingent upon there being associated breaches of primary IHL rules. It is not apparent that these IHL rules cover all manifestations of intangible cultural heritage. Even the textually-porous ‘customs’ is described in the commentary to GC IV with reference to its ‘acceptance by the whole body of citizens’ and the ‘country’, excluding forms of heritage associated with subnational or minority groups.Footnote 29 Authors have noted how civilian protections pertaining to educational and cultural propertyFootnote 30 and civilian religious personnelFootnote 31 may not extend to all intangible cultural elements of civilian life.Footnote 32
Equally, international human rights law (IHRL) contains protections for cultural life and education, including under the International Covenant on Economic, Social and Cultural Rights (ICESCR),Footnote 33 as well as minority protections and freedoms of religion and expression under the International Covenant on Civil and Political Rights (ICCPR),Footnote 34 which have been interpreted as encompassing intangible cultural heritage to some degreeFootnote 35 and applying in conflict.Footnote 36 However, there remain concerns about the capacity of such protections, based within a framework that centres individual entitlements,Footnote 37 to fully capture the intergenerational, communitarian and processual character of intangible heritage or guarantee protection of its diverse manifestations.Footnote 38 Further, these heritage-integrated interpretations of human rights have, in most cases, followed in the wake of the 2003 Convention, through an integrated reading of IHRL with the Convention’s direct and specific protections.Footnote 39
Where tangible heritage is concerned, in addition to equivalent indirect protections for civilian property more generally, direct and specific protections for cultural property have existed in IHL since at least the late nineteenth century.Footnote 40 In the post-war era, there was a proliferation of UNESCO treaties focused on tangible cultural ‘heritage’,Footnote 41 with the shift in terminology intended to better capture multidimensional and intergenerational aspects.Footnote 42 Even then, the existence of intangible aspects to cultural heritage was overlooked. When considered, it was thought to be anchored to tangible heritage and protected through its protection.Footnote 43 This only changed when the understanding of heritage itself broadened in fields such as archaeology and anthropology,Footnote 44 coinciding with a push by newly-decolonized states for inclusion of their own visions of heritage, which did not always fit within existing tangible-centric protections.Footnote 45 This built momentum for an additional UNESCO treaty to directly protect such aspects of heritage, culminating in the Intangible Heritage Convention. Nevertheless, as a recent treaty and one not drafted specifically for armed conflict, there remain questions regarding how its obligations interact with the legal and factual matrix of conflict.
Armed conflict is a special category of crisis within international law. During disasters, for instance, it is presumed that international legal obligations continue, unless otherwise established. War, by contrast, was historically a rupture of relations with the suspension of all legal obligations between parties except the laws of war.Footnote 46 While this view has evolved in the last century, conflict is still the backdrop against which peacetime obligations are assessed, to examine if, and how they continue to bind. As the principal basis for international legal protection of intangible cultural heritage, the shape that obligations under the 2003 Convention take, has significant repercussions on the survival of such heritage, since the deterioration or destruction of intangible heritage during and after armed conflict is frequent and widespread.Footnote 47
This article offers answers to some of these questions. By considering the law on the effect of armed conflict on treaties in relation to the 2003 Convention, its continued albeit modified applicability in armed conflict is confirmed [Sections 2–3]. The article proceeds to consider the different ways in which these obligations are modified by the exigencies of conflict, with certain categories of obligations gaining greater specificity in anticipation of conflict but limited application during conflict (Articles 12–14), some retaining full applicability during conflict (Articles 17(3) and 22), and still others applying through integration with relevant rules in armed conflict, including cardinal IHL principles of distinction, proportionality and distinction, as well as cultural rights and minority protections under IHRL, to the extent of their applicability in conflict (Articles 1 and 11 on safeguarding, and Articles 16 and 17 on listing) [Sections 4.1 and 4.2.1]. The article considers how such an integrated approach could play out in different factual situations, using examples of listed intangible cultural heritage [Section 4.2.2], before drawing conclusions on the need for greater legal clarity in this regard.
2. Peacetime treaties in armed conflict
While scholarship has moved away from the position that peacetime treaties are inapplicable in conflict, there has been no authoritative statement on the law in this regard.Footnote 48 The 1969 Vienna Convention on the Law of Treaties (VCLT) skirts the issue, stating that it ‘shall not prejudge any question that may arise … from the outbreak of hostilities’.Footnote 49 The International Law Commission (ILC), in its commentaries to the draft articles of the VCLT, considered an ‘outbreak of hostilities between parties to a treaty to be wholly outside the scope of the general law of treaties’.Footnote 50
In 1985, the Institut de Droit International adopted an influential resolution stating that, ‘[t]he outbreak of an armed conflict does not ipso facto terminate or suspend the operation of treaties’ and that it ‘renders operative, in accordance with their own provisions, between the parties treaties … which by reason of their nature or purpose are to be regarded as operative during an armed conflict.’Footnote 51 This resolution was expanded upon by the ILC in its Articles on the Effect of Armed Conflicts on Treaties,Footnote 52 which have been ‘[t]ake[n] note of’, ‘commend[ed]’ and ‘emphasize[d]’ by the UNGA.Footnote 53 These Articles reiterate that treaties are not ipso facto terminated or suspended by armed conflict and Article 5 emphasizes that ‘rules of international law on treaty interpretation’ determine the impact of armed conflict on a treaty, while Article 6 identifies, ‘criteria external to the treaty’, that might also have a bearing on such a determination.Footnote 54 These include the nature of the treaty – its subject matter, object and purpose, content, number of parties – and the factual characteristics of the ongoing armed conflict – extent, scale, intensity, duration and, if non-international, outside involvement.Footnote 55 The Annex lists treaties whose subject matter implies continued operation during armed conflict as including ‘[m]ultilateral law-making treaties’.Footnote 56
At least some part of these Articles is reflective of custom. There is support for the proposition that armed conflict does not altogether suspend the application of ‘peacetime multilateral treaties whose execution is compatible with the maintenance of war even without an explicit treaty provision’.Footnote 57 However, custom also indicates that the extent to which their provisions bind states is not necessarily the same as in peacetimeFootnote 58 and obligations may be modified by inherent limitations or the situation of the state during conflict.Footnote 59 The same process identified by the ILC for determining applicability of a treaty in conflict – interpretation, with regard to the nature of the treaty and the factual circumstances of the conflict – also determines how obligations of performance are impacted.Footnote 60
Accordingly, an assessment of the manner in which the Intangible Heritage Convention applies during armed conflict must commence by applying ‘[t]he rules of international law on treaty interpretation’, per ILC Article 5, before clarifying or confirming the results of such an examination by reference to external factors such as the nature of the treaty or the character of a particular conflict, per ILC Article 6.Footnote 61
3. Interpreting the Intangible Heritage Convention in relation to armed conflict
‘The rules of international law on treaty interpretation’, codified in Articles 31-32 of the VCLT,Footnote 62 require that the terms of a treaty be interpreted in accordance with their ordinary meaning, in context and in light of the object and purpose. Subsequent practice and other relevant rules of international law must be considered and reference may be made to preparatory work and the circumstances of conclusion of the treaty.
3.1 Ordinary meaning of terms
While no provision of the 2003 Convention addresses its application in armed conflict, neither does any provision permit limitations or derogations during armed conflict, unlike in certain human rights treaties.Footnote 63 Reference is made generally to crises which could threaten intangible cultural heritage in Parts IV and V of the treaty, on safeguarding at the international level. In Part IV, concerning international lists of intangible cultural heritage, Article 17 provides for a List of Intangible Cultural Heritage in Urgent Need of Safeguarding (Urgent Safeguarding List) and, in paragraph 3, notes:
In cases of extreme urgency – the objective criteria of which shall be approved by the General Assembly upon the proposal of the Committee – the Committee may inscribe an item of the heritage concerned on the List mentioned in paragraph 1, in consultation with the State Party concerned.
In Part V, on international assistance to states parties, Article 22, paragraph 2, states that ‘[i]n emergencies, requests for assistance shall be examined by the Committee as a matter of priority’. The context clarifies the meaning of these provisions.
3.2 Context
Among the functions of the Intergovernmental Committee is that of ‘prepar[ing] and submit[ting] to the General Assembly for approval operational directives for the implementation of this Convention’.Footnote 64 These ‘Operational Directives’ are adopted by the General Assembly of states parties and form part of the context of the 2003 Convention, as defined under Article 31, paragraph 2(b) of the VCLT.Footnote 65 These Directives ‘indicate the procedures to be followed for inscribing intangible heritage on the lists of the Convention, the provision of international financial assistance’ and other specifics for implementation of the Convention.Footnote 66 The reference in Article 22, paragraph 2, to ‘emergencies’ justifying priority international assistance, is elaborated upon by the Directives:
[A]n emergency shall be considered to exist when a State Party finds itself unable to overcome on its own any circumstance due to calamity, natural disaster, armed conflict, serious epidemic or any other natural or human event that has severe consequences for the intangible cultural heritage.Footnote 67
In the case of Article 17, paragraph 3, although the Directives do not define an ‘extreme urgency’ allowing for expedited inscription on the Urgent Safeguarding List, commentators consider that ‘one may assume, by analogy, that the situations indicated by the [Operational Directives] as justifying an emergency request for international assistance … may justify application of Article 17(3)’.Footnote 68 The recently expedited inscription of Ukrainian borscht cooking specifically notes that ‘armed conflict has threatened the viability of the element’, confirming such an interpretation.Footnote 69
3.3 Object and purpose
Although the Preamble does not refer to armed conflict, it notes that ‘existing international agreements, recommendations and resolutions concerning the cultural and natural heritage need to be effectively enriched and supplemented by means of new provisions relating to the intangible cultural heritage’, implying a gap-filling intention. IHL’s silence on intangible cultural heritage, despite armed conflict being one of the primary threats to its viability,Footnote 70 is a particularly apparent gap and the preambular objective of a more integrated approach to international cultural heritage law must be inferred as extending to this domain.
3.4 Subsequent practice
Article 31, paragraph 3(b) of the VCLT requires consideration of ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. The Intergovernmental Committee – created by election from the General Assembly of States partiesFootnote 71 – is tasked with ‘establish[ing], keep[ing] up to date and publish[ing]’ the Urgent Safeguarding List under Article 17 of the Convention. The criteria for such ‘establishment, updating and publication’ is pre-approved by the General Assembly,Footnote 72 directly reflecting ‘the agreement of the parties’ regarding interpretation of Article 17. The selection process, delegated by the General Assembly to the subset of parties forming the Committee, indirectly reflects the same.
This List includes several examples of heritage in urgent need of safeguarding from armed conflict, including Ukrainian borscht. ‘[T]he armed conflict in Colombia’, for instance, is described as the most notable threat to traditional Vallenato music.Footnote 73 The decision to include Syrian shadow play on the List, considers ‘the mass displacement of Syrian people both inside and outside the country as a result of armed conflicts in Syria’ to be the major reason for its decline.Footnote 74 Similarly, the ‘migration of its bearers following the civil war conflict’, is why traditional singing in the former Yugoslavia remains under threat.Footnote 75
The Intergovernmental Committee is also tasked with ‘examining requests for international assistance’ under Article 22. In exercise of this delegated authority to interpret Article 22, ‘the first emergency international assistance provided through the Intangible Cultural Heritage Fund’Footnote 76 was in response to Mali’s request for funds to inventory intangible cultural heritage damaged by ‘conflict … and the occupation … by armed groups and extremists’.Footnote 77 The requested assistance and funds of US$307,307 were granted and were described by the Committee as having contributed to ‘reconstruction and social cohesion’, despite the ongoing conflict.Footnote 78
3.5 Other relevant rules of international law
Under Article 31, paragraph (3)(c), of the VCLT, states must interpret a treaty in light of ‘any relevant rules of international law applicable in the relations between the parties’. This interpretive rule has gained prominence with ‘the proliferation of particular treaty regimes’ in international law.Footnote 79 As recognized by the ILC and indeed by the 2003 Convention’s Preamble, there is a growing need to ensure treaties are interpreted in the context of other agreements, custom and general principles of international law, to prevent the progressive fragmentation of international law.Footnote 80 Such ‘systemic integration’ is especially necessary with multilateral law-making treaties,Footnote 81 whose ‘object is not to strike a balance between the rights and advantages which the States parties mutually grant to one another, but to establish common international rules, reflecting shared values, that all parties undertake to observe’.Footnote 82 The 2003 Convention falls within this category. As a relatively recent treaty, it is necessary to consider the highly-specialized legal context in which it came into force, including the laws governing armed conflict.
3.5.1 Self-contained regimes
IHL forms one among a number of ‘self-contained regimes’ within international law, a concept explored by the ILC in its Fragmentation Report. Footnote 83 These regimes lie on a spectrum and there is ambiguity regarding whether they ‘designate[] a special branch of international law within which apply other interpretative principles than apply generally, or merely an aggregate of treaty and customary rules dealing with [a subject]’.Footnote 84 The ILC’s Articles on the Effect of Armed Conflicts on Treaties demonstrate that IHL fits better in the latter category, since it does not automatically exclude application of other laws. It appears that the only general interpretive rule implied in the designation of a regime as self-contained is that it acts as a ‘strong [form] of lex specialis’, Footnote 85 taking priority of application in situations concerning its subject matter. Footnote 86
Within this broad understanding of self-contained regimes, international cultural heritage law too may be labelled as such. It certainly falls within the ILC’s understanding of a functionally-oriented ‘aggregate of treaty and customary rules’ on a specified subject, ‘serv[ing] to identify and articulate interests that serve to direct the administration of the relevant rules’.Footnote 87 It is structured around the UNESCO cultural treaties and broadly administered by UNESCO with a common ethos and policy objective.Footnote 88 Its principles – safeguarding cultural heritage for all humanity and promoting cultural diversity – articulate common interests and direct the administration of its rules.Footnote 89 Straddling these self-contained regimes is the 1954 Hague Convention, which protects cultural property in armed conflict.
The 2003 Convention is one of UNESCO’s cultural heritage treaties. Its structural logic and institutional arrangements are closer to the World Heritage Convention than the 1954 Hague Convention, the only UNESCO treaty incontrovertibly integrated with rules governing conduct of hostilities. This analogy may not, at first glance, support the argument for integrating the 2003 Convention’s obligations with IHL. However, the case has been made for integrating the World Heritage Convention itself with rules on distinction, proportionality, and precaution under IHL.Footnote 90 In any event, the World Heritage Convention was drafted after the 1954 Hague Convention and was intended to expand cultural protections, which until then had only existed in IHL, into peacetime for significant tangible heritage.Footnote 91 Irrespective of the World Heritage Convention’s integration with IHL, all properties under it are also protected as ‘cultural property’ under IHL, including under the 1954 Hague Convention.Footnote 92 Meanwhile the 2003 Convention was drafted as the only direct legal protection for intangible cultural heritage, in peacetime or conflict. Its position in this system of specialized treaties is unique and not strictly analogous to either the World Heritage Convention, which falls squarely within the regime of international cultural heritage law, or the 1954 Hague Convention, which occupies an intersection between regimes.
3.5.2 Systemic integration
In determining the manner in which the 2003 Convention applies in armed conflict, it is necessary to consider how the regime it forms part of, international cultural heritage law, interacts generally with IHL. Since designating a regime as self-contained indicates a strong form of lex specialis, instead of the specificity of individual rules, the specificity of the regime as a whole is examined to determine whether its rules take priority over another regime or general international law. Where intangible cultural heritage is threatened by conflict, the regime with greater specificity is not self-evident.Footnote 93 If subject matter is the fulcrum,Footnote 94 either conflict or cultural heritage could be viewed as the primary subject, with the other forming its backdrop. The interplay of such issue-based, protective regimes with armed conflict was considered by the International Court of Justice in its Advisory Opinion on Legality of Nuclear Weapons. While prioritizing IHL in assessing arbitrary deprivation of life in armed conflict, the Court noted that the application of the self-contained regimes of international human rights law and international environmental law did not ‘cease in times of war’.Footnote 95 It rejected the argument that these were peacetime regimes, stating that, ‘the issue is not whether [such treaties] are or are not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict’.Footnote 96 This reasoning extends to the 2003 Convention. Since the presumption under the customary international law on treaty interpretation is that relevant rules will be harmonized and integrated,Footnote 97 it is only where co-application is impossible that the question of determining a hierarchy arises.
In any event, even if IHL is considered the special law, general international law retains its gap-filling function where a special regime is silent or fails in its protective function. Footnote 98 The silence of IHL on intangible cultural heritage is indicative of a gap as, at the time of drafting the 1954 Hague Convention and its expanded 1999 Second Protocol, Footnote 99 explicit protections for intangible cultural heritage were not yet cemented in international law. While general international law has progressed, culminating in the 2003 Convention, IHL has not kept pace. This silence has the potential to result in significant cultural losses for civilians and could be seen as IHL failing in its protective function, justifying integration of its rules with the 2003 Convention.
3.6 Travaux préparatoires
Reliance upon the 2003 Convention’s preparatory work clarifies one aspect of its application in armed conflict. The initial draft of Article 17 on the Urgent Safeguarding List, contained a non-exhaustive list of situations justifying inscription, including ‘outbreak or the threat of an armed conflict’.Footnote 100 This list was removed from the final draft, but only so as not to exclude other threats, since ‘the grounds threatening the integrity of ICH are potentially innumerable’.Footnote 101 The preparatory work does not provide similar clarity on other provisions.
3.7 Circumstances of conclusion
The 2003 Convention was adopted in the same session of the UNESCO General Conference as the Declaration concerning the Intentional Destruction of Cultural Heritage (Intentional Destruction Declaration), which was a reaction to the Taliban’s destruction of the Bamiyan Buddhas and followed the extensive cultural destruction of the Balkan wars.Footnote 102 The 2003 Convention’s preambular reference to ‘the phenomenon of intolerance [leading] to grave threats of deterioration, disappearance and destruction of the intangible cultural heritage’ takes on particular meaning in this light.
Another relevant document preceding the 2003 Convention was the 2002 Istanbul Declaration adopted at a UNESCO Round Table of Ministers of Culture. The Declaration notes that the ‘[t]he extreme vulnerability of the intangible cultural heritage, which is threatened by disappearance or marginalisation, as a result inter alia of conflicts … requires that governments take resolute action’ and that ‘an appropriate international Convention … should be developed’.Footnote 103 Safeguarding cultural heritage from deliberate and non-deliberate destruction in conflict was evidently high on UNESCO’s agenda at the time of adopting the 2003 Convention.
Interpreting the 2003 Convention according to the rules of treaty interpretation reveals that it is positioned to be closely interlinked with armed conflict, with at least some of its provisions specifically catered to conflict. It does not, however, reveal the manner in which general obligations of safeguarding are to be carried out in or modified for conflict. A consideration of ‘external’ factors, including the nature of the treaty and circumstances of the conflict, is necessary to shed light on this.Footnote 104
4. An integrated view of obligations under the Intangible Heritage Convention in Armed Conflict
In assessing how armed conflict conditions treaty obligations, ILC Article 6 refers to ‘the nature of the treaty’, meaning ‘in particular its subject-matter, its object and purpose, its content and the number of parties to the treaty’. As a multilateral treaty with 180 parties, the 2003 Convention declares itself one of UNESCO’s ‘normative instruments for the protection of the cultural heritage’, founded on ‘the universal will and the common concern to safeguard the intangible cultural heritage of humanity’.Footnote 105 The subject-matter, object, and purpose as indicated by the Preamble, as well as the number of parties point towards its obligations being intended to have widespread and universal applicability. The text indicates it was drafted with a variety of threats in mind, including crises such as armed conflict.Footnote 106 It would be impracticable, in such varied contexts, for the Convention’s obligations to envisage absolute elimination of threat or harm to intangible cultural heritage during crisis. They appear, instead, to be directed towards minimization of risk.
The obligation of safeguarding intangible cultural heritage, in Article 11, requires a state to ‘ensure the safeguarding of the intangible cultural heritage present in its territory’. Article 2, paragraph 3, defines ‘safeguarding’ as ‘measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non-formal education, as well as the revitalization of the various aspects of such heritage’. The emphasis is on the process, rather than any definite outcome. However, the Convention contains two distinct types of obligation – the broad and unqualified obligation of safeguarding under Article 11 that binds parties at all times and in all situations; and the specific steps for safeguarding, laid out in Part III. Insofar as armed conflict is concerned, a clear distinction can be drawn between this second category which is of greater relevance in anticipation of conflict, and the first, which retains relevance during conflict itself.
4.1 Obligations in anticipation of conflict
While considerable discretion is vested in states in fulfilling their Article 11 obligation to safeguard, Part III lists specific measures to be implemented at the national level. Article 12 requires the drawing up of inventories. Article 13 requires adoption of policies for ‘integrating the safeguarding of such heritage into planning programmes’, designating bodies for overseeing safeguarding, fostering studies of ‘intangible cultural heritage in danger’, and other institutional measures. Article 14 lays out obligations of education and capacity-building, including to ‘keep the public informed of the dangers threatening such heritage’.
In the context of armed conflict, these measures take on a similar character to obligations under Article 3 of the 1954 Hague Convention which requires parties ‘to prepare in time of peace for the safeguarding of cultural property situated within their own territory against the foreseeable effects of an armed conflict’. The measures under Part III too may be of greater utility if undertaken in times of peace to forestall harm during armed conflict. Being contingent upon positive state action, these obligations of performance may be confronted by constraints on institutional capacity during conflicts of greater intensity.Footnote 107 In its 2014 periodic implementation report, for instance, Colombia noted that ‘forced displacement derived from the armed conflict has been a strong cause for social fabric rupture’, impacting performance of its obligation of education and awareness raising under Article 14.Footnote 108 No issue was raised by the Intergovernmental Committee, in reviewing this report.Footnote 109 In any event, the long-term, pre-emptive outlook of these obligations makes it unlikely they could avert immediate threats, even if performance continued during conflict. The bulk of labour will lie during peacetime or in the period leading up to armed conflict and outbreak of armed conflict may justify limited performance.
4.2 Obligations during conflict
During armed conflict, certain provisions have direct and unmodified applicability. These include Article 17, paragraph 3 allowing emergency listing on the Urgent Safeguarding List and Article 22, allowing emergency requests for international assistance. These provisions are, after all, intended for crises and invoked at the option of the affected state.
The obligations of safeguarding intangible cultural heritage, listed as the first purpose of the Convention in Article 1 and the obligation in relation to heritage on a state’s own territory in Article 11 also have continued relevance. However, unlike the 1954 Hague Convention, which integrates its obligations of protection of cultural property with IHL, the 2003 Convention provides no guidance on how its safeguarding obligations will apply during conflict. The Operational Directives only observe that states must adopt ‘measures to … reduce their vulnerability during … conflicts’.Footnote 110 Even the ‘operational principles and modalities for safeguarding intangible cultural heritage in emergencies’, developed by the Intergovernmental Committee in consultation with experts, provide more guidance on preparedness than on obligations during conduct of hostilities, with the exception of the stipulation that parties ‘[s]hare information within and between affected States Parties … and/or armed forces, to determine the nature and extent of the disruption to intangible cultural heritage and the scope for engaging it in mitigation’.Footnote 111
The lack of guidance regarding ongoing armed conflict is natural in a treaty with a wide ambit and does not exclude its extension to the battlefield. Article 31, paragraph 3(c) of the VCLT necessitates the systemic integration of obligations under this near-universally ratified Convention with core IHL obligations, especially those forming custom. A similar interpretation has been urged in relation to other cultural treaties of general scope. Although the World Heritage Convention makes no mention of armed conflict, its provisions have been considered as applying, mutatis mutandis, in conflict.Footnote 112 The argument in support is that the treaty concerns protection of world heritage against threats and armed conflict is among the most serious threats;Footnote 113 there already exist IHL obligations towards cultural heritage and since world heritage is specially protected, this must imply heightened IHL protections.Footnote 114
At first glance, this argument cannot be directly imported to the 2003 Convention since intangible heritage is not in a hierarchy in relation to other forms of heritage, unlike world heritage. Further, IHL obligations pertain directly only to tangible heritage and it may be argued that they cannot, as easily, be extended to intangible forms. However, equating intangible heritage with world heritage is inapposite. Whereas world heritage is a special category of protection within the law on tangible heritage, intangible heritage is best understood as a parallel set of laws, since it does not share protections under treaties or custom with tangible heritage. Within the sphere of legal protections for intangible heritage, there does exist an internal hierarchy of sorts. The 2003 Convention contains two lists, the Representative List and Urgent Safeguarding List, and elements on these lists should be viewed as roughly equivalent to world heritage.
Admittedly, the 2003 Convention does not delineate special obligations in relation to these lists. The World Heritage Convention only obligates states to protect heritage of ‘outstanding universal value’ and permits requests for international assistance in relation to heritage included or suitable for inclusion on the World Heritage List. The 2003 Convention in Article 11 requires states to safeguard all intangible heritage in their territory and allows requests for international assistance in respect of any intangible heritage, not merely listed heritage. Nevertheless, it is necessary to draw a distinction between listed and unlisted intangible heritage in envisaging the application of the 2003 Convention in conflict. If expansive national inventories are relied on, parties may find themselves unable to account for the safeguarding needs of hundreds of elements of intangible heritage in the territory of the conflict.Footnote 115 These international lists provide a streamlined categorization that is helpful in contemplating obligations in armed conflict.Footnote 116
4.2.1 Positing the special status of listed intangible heritage
In the run up to the 2003 Convention, UNESCO created several iterations of a list of ‘Masterpieces of the Oral and Intangible Heritage of Humanity’ (Masterpieces) that was a close analogy to the World Heritage List.Footnote 117 At the time of drafting the 2003 Convention, discussion centred around incorporating these Masterpieces into the treaty and continuing their selection under its provisions, much like the World Heritage List.Footnote 118 However, concerns regarding the elitism and exclusion inherent in ranking – criticisms that have dogged the World Heritage List Footnote 119 – led to a more egalitarian list, the Representative List, whose criteria is not that the heritage be a ‘masterpiece of human creative genius’ or ‘outstanding’, as under the World Heritage List,Footnote 120 but merely that the element ‘[constitute] intangible cultural heritage’ and that,
[i]nscription of the element will contribute to ensuring visibility and awareness of the significance of the intangible cultural heritage and to encouraging dialogue, thus reflecting cultural diversity worldwide and testifying to human creativity.Footnote 121
Nevertheless, the listing procedure ‘was manifestly and deliberately inspired by the structure of the [World Heritage] Convention’, from nominations by states parties which are evaluated by experts and voted upon by the intergovernmental committeeFootnote 122 to consequences of increased visibility, economic support and public awareness.Footnote 123 The difference is only in the symbolic rejection of ranking. While the Representative List does not consider listed forms of heritage as having greater cultural merit, it does consider them emblematic of the value placed by associated communities and all humankind in intangible cultural heritage. The curated List, which factors in geographical equity,Footnote 124 ongoing safeguarding and community participation, as well as the likelihood that the heritage can raise the general profile of intangible cultural heritage,Footnote 125 serves to champion diversity of cultural expression. A similar argument as that for heightened IHL protections for world heritage can be made for protection of items on the Representative List, since their loss is of concern not only to associated communities but all humankind.
The Urgent Safeguarding List meanwhile functions differently from the List of World Heritage in Danger under the World Heritage Convention. While the latter is composed of properties on the World Heritage List which are ‘threatened by serious and specific dangers’,Footnote 126 including conflict, the Urgent Safeguarding List does not comprise heritage on the Representative List.Footnote 127 It is an independent list of any form of intangible heritage whose ‘viability is at risk’ or ‘is facing grave threats as a result of which it cannot be expected to survive without immediate safeguarding’,Footnote 128 as determined by the territorial state and confirmed by the Intergovernmental Committee.Footnote 129 It carries even less connotation of ranking than the Representative List since it is the circumstances, rather than anything inherent to the heritage, that justifies its listing. While the rationale for special protection of items on the Representative List is that they are emotive and inclusive symbols of cultural diversity, the rationale for special protection of heritage on the Urgent Safeguarding List is the mere fact that it is already in grave danger. Given state support for the stance that all intangible heritage is of equal value and contributes to global cultural diversity,Footnote 130 irreversible loss of any form of heritage is a loss of diversity to the detriment of all humankind. A form of heritage precarious enough to be listed merits special protection to keep it from disappearing.
Additionally and despite the intention of its drafters, elements on these lists have been noted as having greater visibility in the eyes of governments and the public, often being better protected and perceived as more important.Footnote 131 While acknowledging the danger that listing would lead to this hierarchy, the drafters considered it in the ultimate interests of the Convention’s workability for some elements to be accorded special attention at the international level.Footnote 132 It was thought that this would raise the profile of the Convention and ally it with the established World Heritage List, besides making protections concrete in relation to listed elements. It was even considered that such international lists would have a trickle-down effect and encourage comprehensive national listings.Footnote 133 The feasibility of protecting intangible cultural heritage in armed conflict too hinges on finite and identifiable categorizations rather than being egalitarian to the point of impracticability. The same logic justifying inclusion of lists in the 2003 Convention’s framework also justifies their special status during armed conflict.
This is not to say that heritage not on either list is entirely unprotected in armed conflict. Since the bulk of labour under the 2003 Convention is carried out in anticipation of crisis, proper fulfilment of obligations of inventorying, policy-making, planning, and institutional measures, alongside education and awareness-raising, will preserve knowledge and foster community vigilance to protect most forms of heritage from irreversible damage during conflict. The resilience of intangible heritage, under the right circumstances, can be remarkable and greater than tangible heritage. The Register of Good Safeguarding Practices under Article 18 of the 2003 Convention includes the Epirus polyphonic song, a centuries-old Greek group singing technique.Footnote 134 Although gravely impacted by the Second World War and the Greek Civil War with only a handful of performers remaining, it was revived over half a century later in the 1990s by young performers and now serves as an example of best practice to revitalize threatened heritage. Proper implementation of anticipatory measures under the 2003 Convention will ensure that survival is not left to chance or the initiative of a tenacious local community, but is part of a country’s institutional framework. The same optimism cannot be extended to heritage on the Urgent Safeguarding List, since heritage already in danger of disappearance is less likely to survive without special measures during armed conflict. In the case of the Representative List, its place as first among equals makes it worthwhile to pre-empt potential threats by according protection to heritage emblematic of human cultural diversity, which raises the profile of the field as a whole. The obligation of safeguarding heritage during armed conflict should thus be interpreted as primarily directed at listed heritage. The form this obligation will take is linked with a state party’s other obligations in conflict.
4.2.2 IHL protections for listed intangible heritage
IHL’s status as lex specialis in armed conflict does not preclude its systemic integration with other relevant obligations, with the emphasis being on harmonization and gap-filling.Footnote 135 Article 1 and 11 of the 2003 Convention are broadly worded and capable of sustaining harmonious co-application. As discussed, IHL contains general civilian protections and protections for ‘religious convictions and practices … manners and customs’ that may have some relevance to intangible cultural heritage.Footnote 136 On their own, these provisions cannot shoulder the protection of all forms of intangible heritage. Civilian protections, unlike special protections for cultural property, are subject to the exigencies of military necessity to a greater degree. Civilian property may be converted to military use and there is no absolute prohibition on harm to civilian persons and property, subject to meeting proportionality assessments.Footnote 137 These indirect protections can, however, be integrated with 2003 Convention obligations to ensure better safeguarding of intangible heritage.Footnote 138
Soft law is already moving in the direction of holistic protection. The Preamble to the Intentional Destruction Declaration refers to ‘principles concerning the protection of cultural heritage in the event of armed conflict’ under IHL and the 1954 Hague Convention, but also ‘[r]ecall[s] the principles of all UNESCO’s conventions … for the protection of cultural heritage’ and ‘[r]eaffirm[s] that issues not fully covered by the present Declaration and other international instruments concerning cultural heritage will continue to be governed by the principles of international law’. In its Article III on ‘[m]easures to combat intentional destruction of cultural heritage’, it recommends ‘a higher standard of protection of cultural heritage’ and ‘coordinated application of existing and future instruments’. In Article V on the ‘[p]rotection of cultural heritage in the event of armed conflict’, it urges that:
States should take all appropriate measures to conduct their activities in such a manner as to protect cultural heritage, in conformity with customary international law and the principles and objectives of international agreements and UNESCO recommendations concerning the protection of such heritage during hostilities.
The reference to treaties is open-ended and allows the possibility of including the 2003 Convention, adopted in the same session of the UNESCO General Conference, within its terms.
The Preamble to the 2003 Convention itself notes ‘the deep-seated interdependence between the intangible cultural heritage and the tangible cultural and natural heritage’ and calls for ‘existing international agreements, recommendations and resolutions concerning the cultural and natural heritage [to be] supplemented by means of new provisions relating to the intangible cultural heritage’.Footnote 139 This sentiment is repeated in UNESCO’s 2004 Yamato Declaration, which stresses the importance of ‘integrated approaches’ by states in implementing UNESCO Conventions since ‘safeguarding intangible cultural heritage is as important as protecting tangible cultural and natural heritage’. It notes that while ‘tangible and intangible heritage … are often interdependent’, the strengthening of intangible protections is important since, ‘there are countless examples of intangible cultural heritage that do not depend for their existence or expression on specific places or objects’.Footnote 140 Indeed, the implementation of the 2003 Convention by the Intergovernmental Committee and individual states indicates an erosion of a strict tangible/intangible divide, a ‘fluidity’ increasingly echoed in practice under other, tangible-centric UNESCO treaties as well.Footnote 141 The impetus to consider the 2003 Convention’s obligations in a manner integrated with IHL comes from the nature of the Convention and the trend towards greater integration in international cultural heritage law. ICL provides a template for such integration. While the Rome Statute mirrors IHL in only criminalizing offences against cultural property,Footnote 142 the ICC Office of the Prosecutor relies on the 2003 Convention and IHRL to expand the Statute’s applicability to intangible cultural heritage.Footnote 143 Its 2021 Policy on Cultural Heritage understands cultural heritage to include both ‘tangible and intangible forms’ and integrates an assessment of direct and indirect impact on intangible cultural heritage into its understanding of various international crimes.Footnote 144 An integrated understanding of the rules pertaining to culture and conflict is equally feasible under IHL.
Since concrete safeguarding measures depend on the characteristics of a specific form of heritage, it is for the state party to decide what integration with IHL will mean for each listed element. This is in keeping with the broad discretion provided to states under Article 11 of the 2003 Convention. At a level of abstraction, however, fulfilment of these obligations should require integration of intangible heritage within the meaning of ‘respect for … religious convictions and practices … manners and customs’, under Article 27 of GC IV; and integration with the cardinal principles of civilian protection in IHL – distinction, proportionality, and precautionsFootnote 145 – in the same manner as protections for cultural property.Footnote 146
Taking the elements on the Urgent Safeguarding List as a reference point, it appears that intangible cultural heritage’s viability in armed conflict is threatened either through loss of tangible anchors, such as a space in which heritage manifests or objects and persons essential to its manifestation, or through irretrievable breakdown of intergenerational transmission.Footnote 147 Each of these threats can be addressed by integrating intangible cultural heritage into existing IHL rules. While the majority of states today are bound by the 2003 Convention and the principal IHL treaties, such an integrated interpretation is not (yet) common practice. It is, however, the only interpretation capable of balancing the objectives of both regimes.
4.2.2.1 Safeguarding immovable anchors
In the case of intangible cultural heritage anchored to tangible sites, these spaces often do not have independent cultural value and fall out of the scope of IHL protections for cultural property. For example, the cultural space of Palenque de San Basilio in Colombia, proclaimed as a Masterpiece in 2005 and now on the Representative List, was founded as a walled community of escaped slaves.Footnote 148 Today physically ‘resembling any other … Colombian village’,Footnote 149 it does not meet the criteria for inscription on the World Heritage List, nor is it composed of ‘movable or immovable property of great importance to the cultural heritage of every people’ as required under the 1954 Hague ConventionFootnote 150 and customary IHL.Footnote 151 Nevertheless, the village is a site of congregation and a backdrop to ‘social, medical and religious practices as well as musical and oral traditions, many of which have African roots’, as well as a ‘palenquero language, the only creole language in Latin America with a lexical Spanish basis and grammatical characteristics of Bantu languages’. Without the physical site, the only place where this language is taught and where the community’s practices are the social norm, it is unlikely that associated cultural heritage will survive. The ‘armed conflict between Colombian paramilitary and local guerrilla groups’ remains one of the biggest threats to this cultural space.Footnote 152
Under current practice, there is nothing to suggest that Palenque de San Basilio is protected under IHL as anything but civilian property. An integrated interpretation of Colombia’s obligations under the 2003 Convention with its obligations as a party to the 1954 Convention, would bring the village within the meaning of immovable ‘cultural property’. Armed forces would have to apply the principle of distinction not only between a military objective and the village as civilian property, but between any other civilian property and this space which houses listed cultural heritage. This is identical to the distinction that would apply if the village were home to a monument on the lists under the World Heritage Convention or the 1954 Hague Convention, or even an unlisted monument.
The implications of this second-order distinction are significant. The general prohibition on targeting civilians and civilian property renders Palenque de San Basilio immune from direct attack, as long as it is not used for military purposes.Footnote 153 However, a distinction that recognizes its cultural value would restrict use for military purposes, while no such restriction exists for civilian property.Footnote 154 Even if used for military purposes, it would not be treated as a military objective, as in the case of civilian property used for military purposes. Instead, a heightened standard of ‘imperative military necessity’ would need to be met before it could be directly attacked.Footnote 155 Considerations of proportionality would disallow collateral damage in the course of attacks on nearby military objectives, unless the military advantage was proportionate to cultural loss and not merely to the more easily quantifiable loss of civilian property.Footnote 156 With cultural heritage, since ‘elements of this heritage are often irreplaceable, only the anticipation of very considerable concrete and direct military advantage, in many cases overwhelming, will in practice suffice to justify an attack likely to cause incidental damage’.Footnote 157 It would also require attacking forces to take ‘all feasible precautions’ to minimize incidental damage. While this obligation exists even if the village is treated as civilian property,Footnote 158 in terms of degree, the obligation would be heightened and ‘special care’ called for if classified more appropriately as cultural property.Footnote 159
4.2.2.2 Safeguarding movable anchors
In the case of intangible cultural heritage centred around movable objects, some of these objects could, theoretically, be protected under the 1954 Convention as ‘movable … property of great importance to the cultural heritage of every people’, a rule now part of customary IHL.Footnote 160 There is debate regarding whether ‘every people’ indicates that the property must be important to all humanity or only to a specific group. The former inference would exclude most movable property associated with intangible cultural heritage. Since intangible manifestations are themselves defined by reference to a specific group, so are their accoutrements. Under the 2003 Convention, the importance to humanity derives indirectly from the contribution to global cultural diversity. However, even if the interpretation of ‘every people’ is taken to mean ‘of each respective people’ as urged by some commentators,Footnote 161 state practice under the 1954 Convention does not indicate that property associated with living cultures and practices is, in fact, protected. In periodic implementation reports under the 1954 Convention, while ‘tens of thousands’ of immovable properties are listed as protected, only two of the 133 parties, Bulgaria and the UK, cite any figures relating to protected movable properties and these refer ‘to the contents of between 100 and 250 museums, art galleries, libraries, and archives’.Footnote 162
The impact of armed conflict on the Rabinal Achí dance drama of Guatemala illustrates this point. This dynastic Mayan drama, dating to the fifteenth century, was almost driven to extinction through destruction of masks, costumes, and musical instruments essential to its performance by military forces in the Guatemalan Civil War, as ‘[t]hese objects were not considered by the military forces … as meeting the definitions of cultural property or the cultural and spiritual heritage of peoples under Article 1 of the 1954 Convention and Article 16 of [AP II]’, which were the applicable IHL protections in that conflict.Footnote 163 The Rabinal Achí was proclaimed a Masterpiece in 2005 and is now inscribed on the Representative List.Footnote 164 Integration of states’ obligations under the 2003 Convention with IHL would require movable property associated with such listed intangible heritage to be included within the interpretation of ‘property of great importance to the cultural heritage of every people’,Footnote 165 and to be protected under the 1954 Convention and other applicable IHL rules.
4.2.2.3 Protecting heritage-bearers and intergenerational transmission
In the case of intangible cultural heritage anchored to heritage-bearers and intergenerational transmission, it is the loss of individual lives and opportunities for transmission between persons that is critical. While heritage-bearers, like all civilians in conflict, are protected from direct attack, such protection does not account for the importance of their cultural knowledge to the cohesion of their communities and to global cultural diversity. Incidental loss of civilian life is not absolutely prohibited and can be justified if sufficient precautions were taken and the loss was proportionate to the military advantage gained.Footnote 166 If the irreparable loss of intangible cultural heritage is included in such a calculus, however, it raises the threshold of expected military advantage that can justify such loss.
Such a narrowing of the scope of permissive action under IHL is already called for by IHRL, a regime whose co-applicability with IHL has been more closely scrutinized and whose norms overlap with or add nuance to a heritage-integrated reading of IHL. Aspects of the right to take part in cultural life and the right to education, for instance, have continued applicability during conflict and are closely linked with safeguarding conflict-affected communities’ heritage.Footnote 167 Rights relating to religion and minority protection have been relevant where groups have found elements of their heritage under attack, due to its nexus with their distinct identity.Footnote 168 Even the freedoms of expression and assembly,Footnote 169 the right to private and family lifeFootnote 170 and the right to property have been invoked to modify the scope of permissive military action during armed conflict in relation to intangible cultural heritage.Footnote 171 To some extent, integrating the 2003 Convention’s Article 11 safeguarding obligations with IHL in relation to heritage communities may call for no more than is already required under IHRL. However, certain aspects of the 2003 Convention’s system have no equivalent in IHRL, being specifically envisaged for the context of intangible cultural heritage with particular attention paid to heritage-bearers and processes of transmission.
The Preamble to the 2003 Convention notes that ‘in some cases, individuals, play an important role in the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity’. While the Convention does not delve into this further, UNESCO has previously done so. The ‘Living Human Treasures’ programme, discontinued when the 2003 Convention entered into force, ‘encourag[ed] Member States to grant official recognition to talented tradition bearers and practitioners, thus contributing to the transmission of their knowledge and skills to the younger generations’.Footnote 172 A number of countries including France, Japan, Korea, and the Czech Republic introduced designations and identified individuals fitting this description.Footnote 173 Even today, a number of listed elements identify a small and usually diminishing number of individuals who are critical to transmission. North Macedonia’s nomination form for inscribing the male two-part singing tradition, Glasoechko, on the Urgent Safeguarding List identifies the name of a family, whose three male members are ‘the only remaining group that is aware of the importance of the specifics and the uniqueness of the Glasoechko singing’.Footnote 174 The tradition has been in decline since the 2001 civil war, with ‘no recordings’ and ‘seems to verge on extinction’. Were conflict to re-emerge, Glasoechko would be irretrievably lost without special protection for the lives of these heritage-bearers. Similarly, in Kyrgyztan’s nomination form for inscribing its epic trilogy, Manas, Semetey and Seytek, on the Representative List, it identifies 15 persons who are ‘the most prominent epic tellers’.Footnote 175 The loss of their lives would have a deep impact on the viability of this epic, which is seen as ‘express[ing] the historical memory of the Kyrgyz people’.Footnote 176
Given the availability of processes for identifying individual heritage-bearers in many instances, it is reasonable to require states to factor this information into military operations. A second-order distinction between combatants, civilians, and ‘civilians plus’ – specially-protected civilians – has been theorized in the context of humanitarian actors.Footnote 177 Such distinction is called for by an integrated reading of the 2003 Convention and IHL, requiring additional precautions and a higher threshold of proportionality to minimize incidental loss of life of heritage-bearers.
Unlike immovable sites, individuals may be difficult to locate or identify in conflict and opportunities for intergenerational transmission harder to recreate. The Convention’s structural solutions to this in peacetime are relevant in armed conflict as well. The Operational Directives require state parties to set up ‘[c]ommunity centres and associations that are created and managed by communities [which] themselves can play a vital role in supporting the transmission of intangible cultural heritage’.Footnote 178 Where such centres are associated with listed intangible cultural heritage, an integrated reading of 2003 Convention obligations compels their protection as ‘cultural property’ under the 1954 Hague Convention or customary IHL, for as long as they are in regular use by heritage-bearing communities, despite these sites lacking standalone cultural value.
Security Council Resolution 2347 urges greater use of safe havens, including cross-border safe havens, for tangible cultural heritage.Footnote 179 This legal status should be extended to include centres for safeguarding intangible heritage of displaced populations, which already exist in both physical and digital formats in the refugee and humanitarian assistance context and have been utilized to great effect in the Ukrainian conflict.Footnote 180 In addition, it is possible to imagine physical centres, if protected as cultural property, serving as de facto refuges for heritage-bearers and communities who habitually interact there in the same way as ‘improvised refuges’ for movable cultural property, which are themselves protected under the 1954 Hague Convention.Footnote 181 Such protection is in addition to protections for heritage-bearers, independent of their association with these centres. As with other cultural property, this integrated reading prohibits states from targeting or using such centres for military purposes, for as long as they act as refuges or are in regular use for transmission of heritage, unless there is imperative military necessity.
Just as the 1954 Convention permits states ‘to display on such refuge the distinctive emblem’ of the Convention, the emblem of the 2003 Convention too should be authorized for use to safeguard specially-protected community centres and individuals within it during an armed conflict. The Operational Directives support such use, stating that:
[c]ommunities … are encouraged to use the emblem of the Convention with regard to their activities and special events to safeguard and promote their cultural heritage inscribed on the [lists].Footnote 182
Intangible cultural heritage is also frequently associated with specific periods of time when communities come together. Precautions under IHL already require military operations to be planned in a manner that avoids civilian congregations coming under attack. Given the importance and fragility of listed heritage, military operations should also be planned, as far as possible, to allow such heritage to continue unobstructed in the customary time to foster intergenerational transmission. Precedents exist for this, although not in pursuance of legal obligations. For instance, at the height of the siege of Dubrovnik in February 1992, the festival of St Blaise, which today is on the Representative List, was carried out amidst the fighting, although in a subdued fashion,Footnote 183 proving important to the morale of the population and ensuring continuity of an 800-year-old tradition.Footnote 184
This integration of the 2003 Convention with IHL rules on civilian protection and cultural property may reach its natural endpoint where considerations of military necessity intervene, in the same way that this acts as the limiting factor in legal protections for tangible cultural heritage.Footnote 185 While the application of this principle to cultural heritage has been criticized,Footnote 186 it highlights the inbuilt checks ensuring that an integrated reading of the 2003 Convention equalizes protections for the two forms of heritage only within the bounds of the existing balance between the legal regimes of culture and conflict.
5. Conclusion
The impact of armed conflict on cultural heritage, both tangible and intangible, is frequently devastating and irreversible. The physical damage to lives and property, the disruption of lifestyles and the dispersal of communities can have seismic consequences for heritage in surprisingly short periods of time, with reverberations long after. The loss of heritage, if unaddressed, can lead to a loss of individual and group identity, leaving survivors adrift without familiar patterns of life and community to fall back on. It was in recognition of the gravity of cultural loss that protections for cultural heritage in armed conflict were first formulated under international law. Since then, these protections have expanded beyond armed conflict into peacetime, with the World Heritage Convention and the Intangible Heritage Convention reconceptualizing protections through the introduction of international lists and emergency funds.
However, protections remain disproportionately centred around tangible cultural heritage. Multiple treaties and customary rules govern the protection of tangible heritage in war and peace, while the Intangible Heritage Convention remains the sole repository of direct legal protections for its subject matter, despite both forms of heritage being recognized as equally valuable and fragile. While civilian protections under IHL and human rights that pertain to culture, education, non-discrimination, religion and minority protection may provide some discrete protection to intangible cultural heritage, they are far from comprehensive in capturing all aspects or forms of such heritage and do not provide a secure legal basis for its protection. The Intangible Heritage Convention, as a treaty intended to encompass the collective, intergenerational and process-based aspects of such heritage, shoulders the primary responsibility for its protection in all manner of situations, including the specific challenges of armed conflict. Its broad wording and flexible performance obligations, when integrated with existing IHL protections, may be sufficient for the task. This article presents one vision of what integrated obligations of cultural protection in armed conflict could be. Nevertheless, an authoritative statement on what compliance with the Intangible Heritage Convention means during armed conflict is lacking. While this lack of specificity may be natural in a treaty with a wide ambit, its Operational Directives provide guidance on various other aspects of implementation but remain unjustifiably ambiguous on this point. Clarity regarding states parties’ obligations in armed conflict is long overdue.
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