Cultural Rights: The Possible Impact of Private Military and Security Companies

• Author: Ana F. Vrdoljak
• Position: University of Technology Sydney
• Pages: 843-877

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

rst published online 15 July 2014

843

e earlier version of this paper was published as Ana Filipa Vrdoljak, “Cultural Rights:

e Possible Impact of Private Military and Security Companies,” EUI Working Paper

AEL 2009, Academy of European Law PRIV-WAR Project 21 (2009): 1-20.

CULTURAL RIGHTS

THE POSSIBLE IMPACT OF PRIVATE MILITARY AND SECURITY COMPANIES

ANA FILIPA VRDOLJAK

University of Technology Sydney

E-mail: Ana.Vrdoljak@uts.edu.au

Culture and its protection has been present in the earliest codications of the laws

of war and international humanitarian law, both in its physical manifestations as

cultural heritage and its practice and enjoyment as cultural rights. However, the

engagement of private military and security companies (PMSCs) in recent conicts

has again raised the vexed issue of the role of “culture” and heritage professionals

in armed conicts and belligerent occupation. is debate has in turn exposed

the limitations of existing international humanitarian law and human rights

instruments.

To complement the PRIV-WAR project’s current and projected work, this paper is

divided into four parts. First, there is an examination of the current debate amongst

heritage professionals, particularly archaeologists and anthropologists, about their

professional engagement with PMSCs in recent conicts and belligerent occupation.

Second, there is an overview of existing international humanitarian law and human

rights provisions covering cultural rights and cultural heritage during armed conict

and occupation. ird, the response of professional bodies and associations of heritage

professionals through their codes of ethics and public pronouncements to these

emerging challenges is detailed. Finally, in the light of this, the existing lacunae in

international law are exposed and challenges for the protection of cultural rights and

cultural heritage specically are outlined.

Keywords: Cultural Rights, Cultural Heritage, International Humanitarian Law,

Anthropology, Archaeology, Museum Studies, Private Military and Security Companies.

The Indonesian Journal of International & Comparative Law Volume I Issue 3 (2014) at 843–877

Ana F. Vrdoljak

844

I. INTRODUCTION

Culture and its protection has been present in the earliest codications of

the laws of war and international humanitarian law, both in its physical

manifestations as cultural heritage and its practice and enjoyment as

cultural rights. However, the engagement of Private Military and Security

Companies (PMSCs) in recent conicts has again raised the vexed issue

of the role of “culture” and heritage professionals in armed conicts and

belligerent occupation. is debate has in turn exposed the limitations of

existing international humanitarian law and human rights instruments.

To complement the Privatization War (PRIV-WAR) project’s current

and projected work, this paper is divided into four parts. First, there is

an examination of the current debate amongst heritage professionals,

particularly archaeologists and anthropologists, about their professional

engagement with PMSCs in recent conicts and belligerent occupation.

Second, there is an overview of existing international humanitarian law

(international humanitarian law) and human rights (HR) provisions

covering cultural rights and cultural heritage during armed conict and

occupation. ird, the response of professional bodies and associations

of heritage professionals through their codes of ethics and public

pronouncements to these emerging challenges is detailed. Finally, in

the light of this, the existing lacunae in international law are exposed

and challenges for the protection of cultural rights and cultural heritage

specically are outlined.

is paper provides but an overview of the main issues and legal

concerns raised by the impact of the privatisation of war on cultural rights

and cultural heritage during military engagements. It has been prepared

on the basis that it must be read and understood in the context of the other

contributions of the PRIV-WAR project,1 in particular, the more detailed,

general treatments of human rights and international humanitarian law,

individual criminal responsibility and liability, state responsibility (and

attribution), multinational corporations (MNCs), and remedies.

1. PRIV-WAR (Privatization of War) collaborative research project coordinated

by the European University Institute in cooperation with LUISS “Guido Carli”

(Rome), Justus Liebig Universität Giessen; Riga Graduate School of Law;

Université Panthéon-Assas (Paris II), Centre ucydide; University of Sheeld

and Utrecht University, funded by the European Union’s Marie Curie FP7

Research Programme, at .

Ana F. Vrdoljak

CULTURAL RIGHTS: THE POSSIBLE IMPACT OF PRIVATE MILITARY AND SECURITY COMPANIES

845

II. HERITAGE PROFESSIONALS, PMSCS

AND THE “CULTURAL TURN”

e recent armed conicts, occupation and ongoing foreign military

presence in Iraq and Afghanistan, and anticipated military engagement

in Iran in 2008, has fuelled an at times heated debate within disciplines

like archaeology, anthropology, sociology, and museum studies, from

which heritage professionals are often drawn. ese deliberations

concerning legal obligations and professional ethics during armed conict

and occupation are heightened at time when Departments of Defence

(DoDs), militaries and private military and security contractors (PMSCs)

have actively recruited from their ranks.2 In this section, I will focus on

the invasion and occupation of Iraq as this case study underscores much

of the disquiet arising from the engagement of heritage professionals by

the military and PMSCs today.

is “awakening” to the importance of the cultural, be it cultural

heritage or cultural (and religious) practices of the combatants and

civilian populations in belligerent and occupied territories is a recent

phenomenon in these current conicts. Indeed, the destruction and loss

of cultural heritage in Iraq evidenced by the looting of the Baghdad’s

National Museum and other museums and libraries, damage to religious

monuments and sites, and theft from archaeological sites during the

initial invasion of Iraq and height of the insurgency during the occupation

pointed to the diminished priority aorded it by the belligerents and

occupying powers.3 Likewise, lack of knowledge of the local languages,

cultural and religious customs and practices necessarily exacerbated the

tensions which come with armed conict and belligerent occupation and

amplied the likelihood and seriousness of violations of international

2. See, e.g., the sample list of recruitment advertisements summarised in R. J.

González, Towards Mercenary Anthropology?: e New US Army Counterinsurgency

Manual FM 3-24 and the Military-Anthropology Complex, 23 A

T 18 (2007).

3. See generally A  S: C H P 

 I W (Lawrence Rotheld ed., 2008); T D  C

H  I (Peter G. Stone & Joanne Farchakh Bajjaly eds, 2008); G

P F, W  O  I 13-22 (June 2007), http://www.

globalpolicy.org/security/issues/iraq/occupation/report/full.pdf (last visited Apr.

06, 2009); and A. Al-Hussainy & Roger Matthews, e Archaeological Heritage of

Iraq in Historical Perspective, 7 P A 91 (2008).