Franklin Lamb is a visiting Professor of International Law at the Faculty of Law, Damascus University and volunteers with the Sabra-Shatila Scholarship Program (sssp-lb.com).
This month’s Trafalgar Square exhibition in London of a digitally modeled replica of Syria’s 2000 year old Roman Triumphal Arch at Palmyra (Tadmor), which was destroyed by ISIS in October, 2015, is sparking yet further discussion about the rights and wrongs of restoration at ancient sites. Approximately two thirds the size of the original, the replica arch was created through the efforts of Oxford University’s Institute of Digital Archeology (IDA). The continuing exhibition of the model has been urged and it is soon on route to Dubai as well as to New York and probably elsewhere, before ending up hopefully in Syria. It features a 3D digital model which employed computer-operated drills to carve Egyptian stone from an Italian quarry. The result is impressive for a number of reasons not least of which is an expression of solidarity with the people of Syria, the enduring custodians of our cultural heritage.
As if the hope created by the Trafalgar exhibition enraged the Islamic State, it answered just as the replica arch was being readied for transport to other public sites noted above. Islamic State militants destroyed the iconic Latin Church in Mosul built in the 1870’s and known for its soaring clock tower by blowing it up. According to historians, Empress Eugenie, the wife of Napoleon III – the last emperor of France – paid for the Mosul tower as a reward for the Dominican friars who were attempting to end a typhoid outbreak in Mosul at the time.
In tandem with the important discussion of how best to restore damaged antiquities, there is also an important debate also taking place over how best to stop the destruction of our cultural heritage once iconoclastic groups like ISIS unleash their hatred of their and our past. A solution still eludes us despite various international and domestic agreements and legislative initiatives.
For the past 15 years, since the destruction of the Buddhas of Bamiyan by the Taliban, many in the global community have been contemplating what can be done to avoid future catastrophes to our shared cultural heritage like those we continue to witness in Syria and Iraq. Diplomacy has failed for the most part.
From an international legal and political point of view, the 2001 creation of the doctrine of Responsibility to Protect (R2P) is being looked at as a possible tool to salvage our shared global cultural heritage. This observer submits that employing R2P warrants serious discussion as an option that should not be facially rejected.
As is well documented, since its rapid expansion in 2013, ISIS has been responsible for pillaging and destruction of scores of cultural sites in Syria and elsewhere, notwithstanding the protests of the international community. None of the solutions proposed and the few implemented to date have stopped the devastation, raising the question of the legitimacy of organizing a humanitarian intervention-using armed force as necessary- to preserve our cultural heritage from destructive iconoclasm. Admittedly, R2P, particularly after its widely viewed illegal use by NATO in Libya, is controversial among international legal scholars and plenty of others.
This observer concedes that some progress has been made at the international legislative level among UN Member States as well as some positive influence of international law in mitigating-even if to date only to a modest degree, the destructive capacity of iconoclastic groups.
These extremist jihadists, such as ISIS, attempt to attract media coverage, recruit new members and excavate and loot antiquities to be sold on the international black market and they exhibit no signs of abandoning their perversions of a few suras in the Koran. On the contrary, ISIS continues to escalate what they pledge will be decades of ever metastasizing wars of attrition against infidels everywhere. And it is probable that it will continue largely unabated unless the international community, under the aegis of the UN Security Council, takes immediate and resolute action.
One ISIS supporter advised this observer recently, “If it takes us 1000 years that is no problem for us. Despite what your Obama tells you Americans, we are here to stay and we are deepening and spreading our base of true believers. Watch for us in Washington.”
Frankly put, what is required of all of us is to rethink the doctrine of international humanitarian intervention and to identify the basic conditions for the global community to suppress calculated acts of cultural heritage destruction in Syria and elsewhere.
One possibility gaining adherents from many who favor humanitarian intervention to preserve our culture heritage is the relatively new doctrine of Responsibility to Protect. R2P is generally defined as an uninvited intervention of external actors into the domestic affairs of a State in order to end or prevent violations of human rights. Examples over the past quarter century would include, but not be limited to, Somalia, Iraq, East Timor, Rwanda, Haiti, Kosovo, Libya, and Sierra Leone. Some were modestly successful and others were complete failures given their stated goals which ranged from establishing a secure environment, aiding “the peace process”, upholding democracy, stopping a massive volition of human rights, ending attacks against civilians and promoting peace and security.
One legal/political source of the responsibility to intervene, perhaps via R2P, to stop the destruction of our heritage is the 1948 Universal Declaration of Human Rights(UDHR). It identifies a list of inalienable rights that belong to individuals as human beings. Given the UDHR’s universal adoption, its influence on binding international legal texts and because of its significant impact on numerous national laws and constitutions, the UDHR has gained such a widespread acceptance within the international community that these rights, in this observers view, constitute binding rules of customary international law. With respect to our cultural heritage under dire threat in Syria, Articles 1, 2, 18, 19, 22 and 27 of the UDHR are particularly relevant. In this observer’s opinion the reason is because intentional destruction of cultural heritage for discriminatory reasons or aimed to constrain the freedom of thought, conscience, religion, culture, opinion and expression of peoples identity are rightly interpreted as serious violations of human rights.
In addition, the Preambles to both the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) and the UNESCO Declaration concerning the Intentional Destruction of Cultural Heritage (2003) affirm that the entire international community has a duty to assure the preservation of cultural heritage because “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”.
This observer, having spent a fair bit of time in Syria the past few years and having examined many examples of wanton destruction of our shared antiquities believes that the intentional destruction of our cultural heritage in that ancient civilization is a violation of our human rights. And one which justifies humanitarian intervention, perhaps as contemplated by R2P.
What is R2P and is its application warranted to protect our culture heritage?
The incapacity of the international community to organize an effective response to stop the gross violations of human rights that took place during the genocide in Rwanda (1994) and the war in the former Yugoslavia (1991-1995) raised serious doubts about the concepts of international legal and moral justice. It was primarily in response to such traumatic events that the International Commission on Intervention and State Sovereignty (ICISS) introduced, in 2001, the notion of ‘Responsibility to Protect’. (R2P) provides that States have the responsibility to protect their citizens from avoidable catastrophes, and when they are unable or unwilling to fulfill this duty, then such responsibility shifts to the international community. In 2005 UN Secretary-General Kofi Annan affirmed that “It cannot be right, when the international community is faced by genocide or massive human rights abuses, for the United Nations to stand by and let them unfold to the end. If national authorities are unable or unwilling to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect the human rights and well-being of civilian populations. These principles were reaffirmed recently by current UN Secretary-General Ban Ki-moon and from a pro-humanitarian perspective international law via R2P still protect sovereignty, but it is the people’s sovereignty rather than the government’ sovereignty.
Granted that humanitarian interventions must normally be limited to those circumstances where severe atrocities have been committed. Hence a critical question is whether systemic acts of intentional destruction of cultural heritage justify the risks of an armed humanitarian intervention via R2P.
This observer proposes that R2P should at least be considered as one possibility to protect our cultural heritage. Among its legal underpinnings I would include sundry international legal interpretations and dicta, including but not limited to the judgment of the International Criminal Tribunal for the Former Yugoslavia (ICTY). In the 2004 trial verdict of Kordić and Cerkez, the Court explicitly affirmed that the intentional destruction of cultural heritage is “criminalized under customary international law” and it added that “this act, when perpetrated with the requisite discriminatory intent, amounts to an attack on the very religious and culture identity of a people. As such, it manifests a nearly pure expression of the notion of ‘crimes against humanity’, for all of humanity is indeed injured by the destruction of a unique religious culture and its concomitant cultural objects.”
The ICTY Trial Chamber pointed out that “where there is physical or biological destruction there is often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of intent to physically destroy the group”. The intentional destruction of cultural heritage by groups like ISIS is frequently accompanied by a more widespread violation of human rights which this observer submits further justify the need for an humanitarian intervention, perhaps via R2P.
Admittedly there are legal and political constraints. Since the 1928 Kellogg-Briand Pact the use of force in the international relations has been subject to restrictions that since 1945 have been codified in the United Nations Charter. Consistent with its Article 2(4), members of the UN must refrain from the threat and use of force against the territorial integrity or political independence of any State. The sole permitted exceptions are related to the use of force in order to maintain international peace and security (Chapter VII), and the right of individual or collective self-defense in the case of armed attack (Article 51).
As a result, some researchers have criticized the growing support for humanitarian interventions, because in their view this practice is contrary to fundamental principles of international law and, therefore, recognizing its legitimacy would seriously put at risk the preservation of the entire international legal system.
As this important discussion continues, the international community needs to decide whether it has, beyond a general feeling of discontent, the political will to take concrete steps for the preservation of cultural heritage in the world. If ii be the case that it does, R2P, far from an ideal measure, in one option that should be considered. This is because doing nothing will surely lead to worse consequences for our shared global cultural heritage in Syria and elsewhere.